Westfield Ins. Co. v. HULS Am., Inc.
| Decision Date | 09 June 1998 |
| Docket Number | No. 97APE09-1173 and 97APE09-1208.,97APE09-1173 and 97APE09-1208. |
| Citation | 128 Ohio App.3d 270,714 NE 2d 934 |
| Parties | WESTFIELD INSURANCE COMPANY et al., Appellants, v. HULS AMERICA, INC. et al., Appellees. WESTFIELD INSURANCE COMPANY et al., Appellants, v. HULS AMERICA, INC. et al., Appellees, UAP Columbus J.V.326132 et al., Third—Party Appellants. |
| Court | Ohio Court of Appeals |
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Ulmer & Berne, Thomas L. Rosenberg and Randall W. Knutti, for plaintiffs-appellants.
Porter, Wright, Morris & Arthur, James S. Oliphant, R. Leland Evans and Stephanie L. Mott; Pepper, Hamilton & Scheetz, Kenneth H. Zucker and Michael Hino, for defendant-appellee HULS America, Inc.
Clark, Ward & Cave and Douglas J. May, for third-party defendants-appellants.
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Appellants appeal from a February 24, 1997 judgment entry of the trial court granting summary judgment in favor of appellee. Plaintiffs-appellants insurance companies Westfield Insurance, Cincinnati Insurance, General Accidents Insurance, Indiana Insurance, State Automobile Insurance and Shelby Insurance (hereinafter collectively "Westfield") were insurers of business tenants of appellant/third-party defendant UAP Columbus J.V. 326132 ("UAP Columbus"), owners of the Lane Avenue Shopping Mall located in Columbus, Ohio. The mall was managed by appellant/third-party defendant Standard Management Company ("Standard"). Appellant-intervening plaintiff Hartford Fire Insurance Company ("Hartford") is an insurer of UAP Columbus (hereinafter appellants UAP Columbus, Standard and Hartford will be collectively referred to as "UAP").
On January 17, 1994, a TROCAL S-60 system roof covering the mall shattered and leaked. The mall tenants were forced to cease doing business for a period of months while repairs were made. The resulting loss of business caused the tenants economic business loss, which Westfield compensated under the tenants' in-force insurance policies. On January 13, 1995, appellants Westfield filed suit in subrogation against the manufacturer/supplier of the TROCAL roof, appelleedefendant HULS America, Inc. ("HULS"), which is a successor in interest to the original manufacturer/supplier Dynamit Nobel of America/Kay-Fries Holding Company. The Westfield complaint alleges (1) a product liability claim under R.C. 2307.71 et seq. and (2) a negligent failure of HULS to warn the tenants that the TROCAL system was prone to shattering. Westfield claims the right to file suit as beneficiaries of UAP's right to be warned of the roof defect as original purchasers of the roof system. Westfield alleges that a defective TROCAL S-60 roof was the proximate cause of the roof leak at the UAP mall, resulting in economic damage to the mall tenants insured by Westfield. See R.C. 2307.79.
On February 21, 1995, appellee HULS filed its answer to Westfield's complaint and filed a third-party complaint against UAP Columbus and Standard, alleging that UAP Columbus and Standard's failure to replace the roof, after they were warned of its weakened condition, was the cause of the water leakage. UAP Columbus and Standard answered HULS's complaint, asserting counterclaims alleging that HULS was liable to them for violations of the Ohio Product Liability Act (R.C. 2307.71 et seq.) negligence, breach of express and implied warranties, and misrepresentation of the nature of the TROCAL roof system. On September 15, 1995, Westfield amended its complaint to include as defendants UAP Columbus and Standard. On December 14, 1995, Hartford, as insurer and subrogee of UAP Columbus and Standard, intervened in the action, filing its complaint against HULS, asserting claims against appellee for breach of express and implied warranties, violations of Ohio product liability law, negligence, and misrepresentation. In their respective complaints, Westfield alleged economic damage proximately caused by the defective roof and HULS's failure to warn, and UAP alleged economic and property damage, including damage to the alleged defective TROCAL roof.
On September 18, 1996, HULS filed its motion for summary judgment against appellants Westfield and UAP, claiming that (1) the roof was a fixture and therefore not subject to the provisions of R.C. 2307.71 et seq., (2) the warranty claims of appellants were barred because (a) HULS's liability was limited by the terms of the warranty, (b) the warranty terms limited the warranty to maintaining the roof in a watertight condition for the term of the warranty, (c) the limited warranty expressly excluded all other warranties, express or implied, including the warranty of merchantability and fitness for a particular purpose, (d) the warranty term of ten years had expired on May 4, 1991, prior to the filing of appellants' complaints, (3) the tort claims of appellants were barred by the economic-loss doctrine, and (4) HULS's failure to warn appellants of the shattering tendency of the TROCAL system was not the proximate cause of the damage claimed.
On February 24, 1997, the trial court entered judgment on its December 30, 1996 decision, granting summary judgment in favor of appellee and against all appellants on grounds that (1) pursuant to the Ohio Supreme Court's holding in Wireman v. Keneco Distributors, Inc. (1996), 75 Ohio St.3d 103, 661 N.E.2d 744, the roof was a fixture and not subject to product liability law, (2) appellants' failure-to-warn claims were unwarranted and inapplicable to a fixture, (3) appellants had not shown that HULS's actions were the proximate cause of appellants' injury, (4) all warranty claims were barred by the terms of the warranty or by the expiration of the warranty period, and (5) the statute of limitations had run on appellants' claims. Appellants sought and were granted certification to appeal pursuant to Civ.R. 54(B). Appellants appealed separately from the trial court's decision, and the appeals were consolidated in this court.
Appellant Westfield and the other appellant insurance companies assert the following assignment of error:
Westfield presents the following issues for review:
UAP asserts the following assignment of error:
UAP presents the following issues for review:
On appeal, this court is asked to review the trial court's judgment regarding HULS's motion for summary judgment that was submitted to the court below. Summary judgment, Civ.R. 56, is a procedural device designed to terminate litigation and to avoid a formal trial where there is no genuine issue of material fact to be tried and the moving party is entitled to judgment as a matter of law. In reviewing a summary judgment, the trial and appellate courts use the same standard, that the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, and if, when they are so viewed, reasonable minds can come to differing conclusions, the motion should be overruled. Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 433, 21 O.O.3d 267, 271, 424 N.E.2d 311, 314-315. The court must follow the standard set forth in Civ.R. 56, which specifically provides that before summary judgment may be granted, "it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 273. See, also, Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615. The moving party has the burden of showing that there is no genuine issue of material fact as to the critical issue. The opposing party has a duty to submit affidavits or other materials permitted by Civ.R. 56 to show that a genuine issue for trial exists. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. The "duty of a party resisting a motion for summary judgment is more than resisting the allegations in the motion." Baughn v. Reynoldsburg (1992), 78 Ohio App.3d 561, 563, 605 N.E.2d 478, 480. A "motion for summary judgment forces the...
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