The case we are about to study is about summary judgement on disclaimer filed by the plaintiff CCB OHIO LLC against a defendant CHEMQUE. I this case was heard on 16 July 2009 in the United Districts Court Ohio. It was based on the Defendants Motion of Judgement. The court denied balance of motions although it granted in part the Defendants motion.
CCB Ohio LLC the plaintiff, entered contract with the defendant, Chemque in 2003, through their subcontractor Joslyn manufacturers Inc. in which the defendant was required to supply the plaintiff with a gel to be used in encapsulate coupler units connecting electric wires. The plaintiffs engineer, Joe Rosch stated clearly the conditions in which the gel was going to be installed thus in the sun, outdoors and hanging on and the poles were in a salty, humid and marine environment. The plaintiff also purchased the Q-Tel directly from the defendant for testing.
According to the defendant however, the plaintiff purchased the Gel directly from the defendant and did not offer all such information except that the product was to be used for encapsulating buried cable splices. The defendant also argued that the plaintiff s engineer, Joe did not do proper testing of the Gel before as the testing did not go beyond mixing.
The plaintiff used their sub-contractors Celestia, Josyln and Chesapeake Manufacturing to install the poles using the defendants Q-Tel gel. During this period CCB argues that the defendant never informed them of the unsuitability of the product. By mid-august 2005, the plaintiff received complaints that 40 percent of the couplers were leaking, they held a meeting with the defendant and the defendant came to a conclusion that there was improper mixing of the gel that ended up causing the gel to melt and leak in liquid form and came up with a suggestion that the plaintiff should wipe away the product and replace it with new Q-TEL gel. The defendant tried to wrap the couplers using shrink wrap following suggestions from different parties but this was unsuccessful. In the end the plaintiff made allegations that 90 percent of the couplers ended leaking causing damage to property owners.
The discussion or argument in court by the defendant and the plaintiff on July 19, 2009 was based on privity, the Ohio law issue of Abrogation, the economic loss doctrine , statute of limitations, disclaimer, breach of express and implied warranty thus third party beneficiary , supplier liability and negligent misinterpretation, defective manufacture and punitive damages.
In terms of privity, the defendant argued that they did not enter into contract with the plaintiff but with the subcontractors hence the plaintiff should have sued the subcontractors for lack of privity. The plaintiff argued that they were directly linked with the subcontractors and they did purchase some of the gel directly from the defendant and therefore had privity with the defendant. The court after analysis concluded that the defendant and the plaintiff had direct relationship and therefore privity existed.
The defendants argued that in terms of economic damages the plaintiff had not suffered irrecoverable damages because the couplers and the gel were a similar thing and the insurance company had covered for all these damages. The defendant further argued that the lifespan of the gel was 5 years and it was now six years down the line. The plaintiff however replied that there were car damages and Duke Energy company one of the decision makers had come to a conclusion that the gel should be fully get off the lines and that they had suffered damages worth millions of money. They had direct relationship with the insurance company hence a subrogation with them. The court however rejected all the claims of the defendant in this matter including that of subrogation.
The defendant further argued that the couplers started leaking in 2004 but the plaintiff filed the suit in 2007 and in terms of the statute of limitations the two years should be taken into account hence the complaint should have been filed in late 2005 but they failed to do so until after 2005. However, the plaintiff argued that the discovery rule should have applied in this case and they did not discover the leakage until 2005 and that the defendant agreed that the were causes accrued action during this period. They also argued that during this period the defendant engaged in fraudulent concealment. The court came to a conclusion of rejecting the defendant’s theory of statutes of limitation and also argued that in this case the discovery could apply because the plaintiff has a right to fully ascertain that they had a claim.
The court rejected the defendants’ motion on warranty claims under the disclaimer discussion and all the other motions however it did not rule on the damages but left room for the jury to analyze and award damages if any.
In the motion for summary judgement, the defendant argued that the products had clear information that stayed that before purchasing its products one should test the products and conclude whether they satisfy their specifications before purchasing them. And the specification sheet also stated, “all information is given without guarantee or warranty”. The defendant further argued that the Q-Tel clearly stated in the cover page that it was used for buried cables and had been used historically for the same purpose and critiqued the plaintiff’s expert methodologies of the gels incompatibility. The plaintiff argued that the defendants did not give enough information that the product could take long to cure, and that Sam Ghaly Affidavit should be taken into consideration in this case as the defendant never tested its final product before selling it to the consumers.
The court in conclusion congratulated the counsels for professionalism in the argument of the case. It accordingly in part granted the defendants motion of summary as to count 10 and denied the balance of defendants’ motion for summary to all the remaining claims. The court further denied the plaintiffs motion to strike and for partial summary judgement.
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Yokoi, T. (2016). U.S. Patent No. 9,415,854. Washington, DC: U.S. Patent and Trademark Office.