Oneida/SLIC, An Arizona Partnership V. Ronald G.
Brigham Young University Law SchoolBYU Law Digital CommonsUtah Court of Appeals Briefs1992Oneida/SLIC, an Arizona partnership v. Ronald G.Roth Company, an Arizona corporation andOneida Cold Storage and Warehouse, Inc., aColorado corporation : Brief of AppellantUtah Court of AppealsFollow this and additional works at: https://digitalcommons.law.byu.edu/byu ca1Part of the Law CommonsOriginal Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Jeffrey E. Nelson; Van Cott, Bagley, Cornwall & McCarthy; Attorneys for Appellee.Brashear & Ginn; Kermit A. Brashear; Craig A. Knickrehm; Donald J. Straka; Robert G. Gilchrist;Richards, Brandt, Miller & Nelson; Attorneys for Appellant.Recommended CitationBrief of Appellant, Oneida/SLIC v. Ronald G. Roth Company, No. 920434 (Utah Court of Appeals, 1992).https://digitalcommons.law.byu.edu/byu ca1/4388This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court ofAppeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah court briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.
IN THE UTAH COURT OF APPEALSONEIDA/SLIC, an Arizonapartnership,Case No. 920434-CAPlaintiff and Appellant,vs.RONALD G. ROTH COMPANY, anArizona corporation andONEIDA COLD STORAGE ANDWAREHOUSE, INC., a Coloradocorporation,BRIEF OF THE APPKT.T.AMTAppeal from the Third DistrictCourt, Salt Lake County,Judge J. Dennis FrederickDefendants,andPRIORITY NO. 16ONEIDA COLD STORAGE & WAREHOUSE,INC., a Colorado corporation,Defendant, Third-PartyPlaintiff, and Appellant,»icr.yp c?A?r2ALs1 \Jf Hcccu:vs.METALCLAD INSULATION CORPORATIONOF CALIFORNIA, a Californiacorporation,K FU53.A:OT UO.*t 20H3HThird-Party Defendant,Fourth-Party Plaintiff,and Appellee,vs.ENPRO, INC., an Idahocorporation, ADVANCED FOAMPLASTICS, INC., a Coloradocorporation; and RONALD G. ROTHCOMPANY, An Arizona corporation,Fourth-Party Defendants,andDE& 4t3*12/03/92-19:00c:\c\0421ciki u.»8- h t He* % v****
IN THE UTAH COUMF OF APPEALSONEIDA/SLIC, an Arizonapartnership,Case No. 920434-CAPlaintiff and Appellant,vs.RONALD G. ROTH COMPANY, anArizona corporation andONEIDA COLD STORAGE ANDWAREHOUSE, INC., a Coloradocorporation,BRIEF OF THE APPELLANTAppeal from the Third DistrictCourt, Salt Lake County,Judge J. Dennis FrederickDefendants,PRIORITY NO. 16andONEIDA COLD STORAGE & WAREHOUSE,INC., a Colorado corporation,Defendant, Third-PartyPlaintiff, and Appellant,vs.METALCLAD INSULATION CORPORATIONOF CALIFORNIA, a Californiacorporation,Third-Party Defendant,Fourth-Party Plaintiff,and Appellee,vs.ENPRO, INC., an Idahocorporation, ADVANCED FOAMPLASTICS, INC., a Coloradocorporation; and RONALD G. ROTHCOMPANY, An Arizona corporation,Fourth-Party Defendants,and12/03/92-19:00c:\c\0421c
RONALD G. ROTH COMPANY, anArizona PartyPlaintiff,vs.ARCHITECTURAL PRODUCTIONS &DESIGN CONSULTANTS, INC., anArizona corporation; andWALTER E. RILEY,Fifth-Party Defendants.BRASHEAR & GINN,KERMIT A. BRASHEAR,CRAIG A. KNICKREHM andDONALD J. STRAKA800 American Charter Center1623 Farnam StreetOmaha, Nebraska 68102-2130Tel. No. (402) 348-1000and50 S. Main Street, Suite 1600P.O. Box 45340Salt Lake City, Utah 84145Tel. No. (801) 532-333ROBERT G. GILCHRIST (#A3715)RICHARDS, BRANDT, MILLER &NELSON, P.C.Suite 750, 50 South Main StreetPost Office Box 2465Salt Lake City, Utah 84110Tel. No. (801) 531-1777Attorneys for AppelleeAttorneys for AppellantJ E F F R E Y E . NELSON (#2386)VAN COTT, BAGLEY, CORNWALL &MCCARTHY12/03/92-19:00c:\c\0421c
PARTIES TO THE PROCEEDINGSThe parties to the proceedings in the District Court are: C,Plaintiff, and assignee of the claims of Oneida Cold Storage andWarehouse, Inc., Defendant, Third-Party Plaintiff; (2) Ronald G.Roth Co., Defendant;(3) MetalcladInsulation Corporation ofCalifornia, Third-Party Defendant, Fourth-Party Plaintiff; (4)Enpro,Inc., Fourth-PartyDefendant;and(5) AdvancedFoamPlastics, Inc., Fourth-Party Defendant. Architectural Productionand Designs Consultants, Inc., and Walter E. Riley, Fifth-PartyDefendants, did not appear or otherwise participate in the trial.12/03/92-19:00c:\c\0421c
TABLE OF CONTENTSPageTABLE OF AUTHORITIESiiiJURISDICTION1ISSUES1DETERMINATIVE STATUTES3STATEMENT OF THE CASE4A.Nature of the Case4B.Course of Proceeding4C.Disposition at Trial Court6FACTS7A.Parties.B.The Insulated Floor SystemC.Metalclad's Role7815SUMMARY OF THE lclad Breached Its Contract WithAverch By Supplying EPS Insulation WhichDid Not Meet Agreed Specifications AndBy Failing To Recommend An AppropriateDesign For The Insulated Floor SlabSystem,26
TABLE OF CONTENTS - CONTINUEDPageII.Metalclad Breached Its Express WarrantyAnd Implied Warranty Of Fitness For AParticular Purpose31A.Express Warranty32B.Implied Warranty of Fitness34C.Damages38III. The Court Erred By Failing To FindMetalclad Jointly And Severally LiableFor The Negligent Design Of The FloorSlab System40A.Negligence40B.Joint and Several Liability45CONCLUSION48ADDENDUMA.Determinative StatutesB.Findings of Fact and Conclusions of LawC.Exhibit 23D.Exhibit lf Sheets 1 and 512/03/92-19:00c:\c\0421c-11-
TABLE OF AUTHORITIESA.CASESAluminum Co. of America v. Electro FloCorp., 451 F.2d 1115 (10th Cir. 1971) . . . .Beik v. American Plaza Co., 280 Or. 547,572 P.2d 305 (1977)Cambelt International Corp. v. Dalton,745 P.2d 1239 (Utah 1987)Cochrell v. Hiatt, 97 N.M. 256,638 P.2d 1101 (N.M. App. 1981)Cruz v. Montova, 660 P.2d 723 (Utah 1983) . .DCR Inc. v. Peak Alarm Co.,663 P.2d 433 (Utah 1983)Duff v. Bonner Bldg. Supply, Inc.,103 Idaho 432, 649 P.2d 391 (Idaho App. 1982),aff'd, 105 Idaho 123, 666 P.2d 650 (1983) . .Eastlake Construction Co. v. Hess,33 Wash. App. 378, 655 P.2d 1160,(Wash. Ct. App. 1983), aff'd in part,and rev'd in part on other grounds,102 Wash. 2d 30, 686 P.2d 465 (1984).Fairway Builders, Inc. v. Malouf TowersRental Co., Inc., 124 Ariz. 242,603 P.2d 513 (Ariz. App. 1979)Rex T. Fuhriman, Inc. v. Jarrell,21 Utah 2d 298, 445 P.2d 136 (1968)Gilbert v. City of Caldwell, 112 Idaho 386,732 P.2d 355 (Idaho App. 1987)Ernest W. Hahn, Inc. v. Armco Steel Co.,601 P.2d 152 (Utah 1979)Jacques v. Farrimond, 14 Utah 2d 166,380 P.2d 133 (Utah 1963) .12/03/92-19:00cs\c\0421ciii -
TABLE OF AUTHORITIES - CONTINUEDA.CASES - CONTINUEDJensen v. Intermountain Health Care. Inc.679 P.2d 903 (Utah 1984)Jones v. Allen. 7 Utah 2d 79f 318 P.2d 637 (1957) . .Lamb v. Bankaart, 525 P.2d 602 (Utah 1974)Marsh v. Irvine. 22 Utah 2d 154,449 P.2d 996 (Utah 1969)Monroe, Inc. v. Sidwell,770 P.2d 1022 (Utah App. 1989)Pacific Marine Schwabacher, Inc. v.HvdroSwift Corp. 525 P.2d 615 (Utah 1974)Sidney Stevens Implement Co. v. Hintze,92 Utah 264, 67 P.2d 632 (1937)Stephens v. Henderson. 741 P.2d 952 (Utah 1987) . . .Western Kane Special Service District No. 1 v.Jackson Cattle Co. 744 P.2d 1376 (Utah 1987) . . . .Tarter v. Monark Boat Co.,430 F. Supp. 1290 (E.D. Mo. 1977),aff'd, 574 F.2d 984 (8th Cir 1978)Utah Cooperative Ass'n v. Egbert-HaderlieHog Farms. Inc., 550 P.2d 196 (Utah 1976)W.R.H. Inc. v. Economy Builders Supply,633 P.2d 42 (Utah 1981)Wessel v. Erickson Landscaping Co.,711 P.2d 250 (Utah 1985)S.M. Wilson & Co. v. Reeves Red-E-MixConcrete, Inc., 39 111. App. 3d 353,350 N.E.2d 321 (111. App. Ct. 1976)Winsness and Assoc, v. M.J. ConocoDistributors. Inc. 593 P.2d 1303 (Utah 1979) . . . .12/03/92-19:00c:\c\0421e- iv -
TABLE OF AUTHORITIES - CONTINUEDPageA.CASES - CONTINUEDZion's Cooperative Merchantile Institutionv. Jacobsen Construction Co., 27 Utah 2d 6,492 P.2d 135 (1971)B.48STATUTESUtah Code Ann. § 70A-2-104(l) (1990)3Utah Code Ann. § 70A-2-105(l) (1990) ,3, 32Utah Code Ann. § 70A-2-313 (1990)3, 33Utah Code Ann. § 70A-2-315 (1990)3, 34Utah Code Ann. § 70A-2-714 (1990).3Utah Code Ann. § 70A-2-714(2) (1990)24, 38, 39Utah Code Ann. § 70A-2-714(3) (1990)31, 38Utah Code Ann. § 70A-2-715 (1990)3, 31, 38Utah Code Ann. § 78-2-2(3) (j) (1990)1Utah Code Ann. § 78-2-2(4) (1990)1Utah Code Ann. § 78-27-40(3) (1973)C.46OTHER AUTHORITIESAnnot., "Propriety and Effect of Jury'sApportionment of Damages as BetweenTortfeasorsJointlyandSeverallyLiable," 46 A.L.R. 3d 801 (1972)Restatement (Second) of Contracts § 34612/03/92-19:00c:\c\0421c- v-46.29
JURISDICTIONUtah Code Ann. § 78-2-2(3)(j), confers jurisdiction on theSupreme Court to decide this appeal.Utah Code Ann. § 78-2-2(4)confers the authority on the Supreme Court to transfer this appealto the Court of Appeals.On July 9, 1992, the Supreme Courtdeferred this matter to the Utah Court of Appeals for disposition.ISSUESThis appeal presents the following issues for the court'sdetermination:1.Whether the trial court erred in failing to find that theunderfloor insulation supplied by Third-Party Defendant MetalcladInsulation Corporation of California ("Metalclad"), failed to meetagreed specifications and/or express and implied warranties made byMetalclad.This issue involves a finding of fact.reviewis"clearlyerroneous."UndertheThe standard ofclearlyerroneousstandard of review, this court will set aside fact findings "onlyif they are'against the clear weight of evidence, or if theAppellate Court otherwise reaches a definite and firm convictionthat a mistake has been made.'"Monroe, Inc. v. Sidwell, 770 P.2d1022 (Utah App. pellant, Stanley Averch (as assignee of Oneida/SLIC and Oneida)12/03/92-19:00c:\c\0421c- 1 -
("Averch") damages arising out of Metalclad's breach of contract,and/or breach of express and implied warranties.This issue involves a conclusion of law.The DistrictCourt's conclusions of law are simply reviewed for correctnesswithout any special deference.Western Kane Special ServiceDistrict No. 1 v. Jackson Cattle Co., 744 P.2d 1376, 1377-1378(Utah 1987)3.Whether the trial court erred in failing to find thatMetalclad participated in the creation of defective plans andspecifications for the insulated floor slab system installed in thewarehouse which is the subject of this action.This issue involves a finding of fact by the DistrictCourt and therefore the clearly erroneous standard is applicable.Monroe, supra.4.Whether the trial court therefore erred in failing tofind that Metalclad was negligent.This issue involves a finding of fact by the DistrictCourt and therefore the clearly erroneous standard is applicable.Id.5.defectiveWhether the trial court erred in failing to find that lclad contributed, as a concurrent cause, to the failure of theinsulated floor slab system.12/03/92-19:00c:\c\0421c- 2 -
This issue involves a finding of fact by the DistrictCourt and therefore the clearly erroneous standard is applicable.Id.6.Whetheras a resultofits concurrent negligence,Metalclad is jointly and severally liable with Defendant Ronald G.Roth Company, for all damages arising from the failure of theinsulated floor slab system.This issue involves a conclusion of law.Court'sconclusionsoflaw arereviewedbyThe DistrictthisCourtforcorrectness without any special deference. Special Serv. Districtlrsupra.DETERMINATIVE STATUTESUtah Code Ann. § 70A-2-104(l) (1990);Utah Code Ann. § 70A-2-105(l) (1990);Utah Code Ann. § 70A-2-313 (1990);Utah Code Ann. § 70A-2-315 (1990);Utah Code Ann. § 70A-2-714 (1990);Utah Code Ann. § 70A-2-715 (1990).The statutes cited above are set forth verbatim in Addendum A.12/03/92-19:00c:\c\0421c
STATEMENT OF THE CASEA.Nature of the Case*This is an action for breach ofcontract, breach of warranties, both express and implied, andnegligence in the design and construction of a cold storagewarehouse facilityStanleyAverch(the "warehouse") in Salt Lake City, LIC partnership, brought this action against the generalcontractor, Ronald G. Roth Co. ("Roth Co.") and the untingto 1,672,011.66, together with interest thereon, resulting fromdefects in the insulated concrete floor slab system installed inthe warehouse.The floor slab system failed in that it uction.Deterioration of the floor slab system continues to the present dayand leads to substantial operational ,Oneida/SLIC, an Arizona Partnership comprised of Averch and RonaldG. Roth, filed its Complaint against defendant Roth Co. anddefendant Oneida Cold Storage and Warehouse, Inc. ("Oneida"). RothCo., as general contractor, had entered into a contract withOneida/SLIC whereby Roth Co. agreed to develop, design and buildthe warehouse for Oneida/SLIC.developmentoftheOneida, in connection with thewarehouse,hadleasedtoOneida/SLICapproximately 65,000 square feet of warehouse space. In the lease,Oneida agreed to supply, as tenant improvements, all insulation and12/03/92-19:00c:\g\Q421c.
vapor barrier materials necessary for the construction of thoseareas of the warehouse which were to be ulated portions of the warehouse.Oneida enteredrelatingtotheAlleging breach of thesecontracts, Oneida filed a Third-Party Complaint in the trial courtagainst Metalclad. Oneida also alleged that Metalclad had breachedexpressandimpliedwarrantiesinsulation supplied by Metalclad.relatingtotheunderfloorThe claims of Oneida againstMetalclad relate to the expanded polystyrene insulation products("EPSinsulation") incorporated as a structural component of thewarehouse insulated floor slab system.Metalclad joined the manufacturers of the insulation productssold by Metalclad to Oneida in connection with this project.Thesuppliers are Fourth-Party Defendants Enpro, Inc., and Advance FoamPlastic, Inc.Prior to trial, Averch purchased Ronald G. Roth's ida/SLICassigned to Averch as the owner of the building.corporation wholly owned by Averch.wereOneida is aThe claims of Oneida againstMetalclad were similarly assigned to Averch prior to trial.At trial, Averch pursued his claims against Roth Co. forbreach of contract, negligence and breach of warranties.Averchalso pursued claims against Metalclad on theories of breach ofcontract, breach of warranties, both express and implied, andnegligencein the design of the insulated12/03/92-19:00c:\c\0421c- 5 -floorslabsystem.
Averch also claimed that Metalclad, by virtue of its negligentcontributions to the defective design and construction of thewarehouse, is jointly and severally liable with Roth Co.C.Disposition at Trial Court. The trial of this matter washeld February 18-25, 1992.The trial court at the conclusion ofthe evidence entered judgment in favor of the plaintiff and againstdefendant Roth Co. in the sum of 1,909,401.571, plus interest atthe legal rate both before and after judgment. Costs of suit werealso allowed plaintiff and assessed against defendant Roth Co. Noparty appeals the trial court's judgment against Roth Co.However, the trial court found that plaintiff, Averch (and/orOneida) failed to prove that Metalclad had breached its contractwith Oneida and/or had breached express and implied sprovidedandinstalled by Metalclad. The trial court also found that plaintifffailed to prove that Metalclad was involved in designing the floorslab system or that any acts of omission or commission on the partof Metalclad caused or contributed to the damages sustained byAverch. Accordingly, the trial court dismissed all claims againstMetalclad. Averch appeals from the dismissal of his claims againstMetalclad.Of this amount, 237,389.91 represents damages awarded toAverch for defective construction of the roof. There was no claimagainst Metalclad for the defective roof. Damages claimed againstMetalclad amount to 1,672,011.66.12/03/92-19x00c:\c\0421c- 6 -
FACTSA.Parties.Plaintiff, Averch, is the owner of the warehouse which is thesubject of this lawsuit (11:208).The warehouse, located in theSalt Lake International Center, is a dock-high cold storage andwarehouse structure consisting of approximately 101,500 square feetof storage space (111:6-10) (Exs. 6, 7, 8 and 9).It is 34 feettall (11:235), has two freezer sections, at least three coolersections and dry storage space.With the exception of the dockarea, the entire concrete floor sits upon two three-inch layers ofEPS insulation specified and supplied by Metalclad.(111:4-5)The building was constructed in late 1981 and 1982.began operating the warehouse in January 1983.Oneida(111:10)Roth Co. served as developer and general contractor. Roth Co.contracted with Oneida/SLIC, predecessor in interest to Averch, todevelop, design and build the building.(Exs. 6, 7, 8 and 9) Thatis, Roth Co. was to design and build the shell of the building.(11:237) (111:7-10)The design and construction of insulated andrefrigerated improvements such as the freezer and cooler sectionsof the building were excluded from Roth Co.'s contract.11:244-246)Metalclad was the insulation contractor.(Id.,(1:69-72;86-87; 115-120) (11:238-239) (Exs. 26 and 347) Evidence adduced attrial amply demonstrated that Metalclad, at all times relevant tothis action, engaged in the business of supplying insulationproducts, supervising the installation of insulation products,12/03/92-19:00c:\c\0421c- 7-
designing the refrigerated and insulated portions of cold storagefacilities and participating as general contractor or subcontractorin connection with building and renovating cold storage facilities.(1:46-62) (11:227-234)The design and construction of insulated and refrigeratedimprovements were the subject of the contract between Oneida 4-247)(111:4-10; 17-24) (Exs. 26 and 347)All claims previously vested in Oneida/SLIC, as owner of theprojectf and those vested in Oneida, as the party who contractedwith Metalclad, are now vested in Averch as discussed above. As aresult of the previously addressed purchases and assignments,Averch owns the claims of:(1) Oneida/SLIC against Roth Co.(general contractor) (2) Oneida/SLIC against Oneida nst(responsible for the entire insulation system).Metalclad(11:208)Anyliability of Oneida to Averch is "passive," as Metalclad was infact the party that conferred and consulted with Roth Co. todevelopthe designof the insulatedfloorslabsystem, andMetalclad was also the party that specified and supplied allinsulation products incorporated into the warehouse, including theunderfloor insulation.B.(1:86-88)The Insulated Floor System.The floor installed in the warehouse differs from typicalconcrete floors in ordinary dry warehouses.12/03/92-19:00c:\c\0421c- 8 -It is an insulated
floor slab system designed to retard heat from entering thebuilding from below the floor in the freezer and cooler sections ofthe warehouse.(1:50)The following are the components of theinsulated floor slab system installed at the c)tenpolyvinylchloride vapor barrier, (d) two three-inch layers of EPSinsulation and (e) a six-inch concrete wearing slab.(1:48-49)(Ex. 1, pg. 6; Ex. insulated floor slab system, massive problems developed with thefloorincluding, butnotlimitedto, substantialstructuralcracking of the concrete wearing slab when the precast tilt-upconcrete walls for the structure were being lifted into place by acrane positioned on the floor slab.(Exs. 73-79 and 86) Roth Co.repaired those sections of the insulated floor slab system damagedduring construction by replacing the insulation and concretecomponents of the floor slab system. (11:56; 111:76-79) Followingcompletion of the building, substantial problems with the insulatedfloor slab system continued to arise in that multiple substantialcracks in the floor developed during normal operation of thewarehouse.160)(11:24-41; 65) (111:13-16; 34-37) (Exs. 154 throughThese cracks have continued to occur.Spalling, thedeterioration and disintegration of concrete which occurs at thesite of these cracks, also developed and continues under normaloperations.(111:180-182) (IV:184-187)12/03/92-19:00c:\c\0421c- 9 -
ction loads and while repair operations were in progress,Ronald G. Roth, owner of Roth Co., J. Patrick Kidd, Vice Presidentof Metalclad ("Kidd"), and Averch met at the site to discuss theobvious problems with the floor slab system.Donald E. Bressler,P.E. ("Bressler"), of Chen and Associates ("Chen"), a Salt LakeCity consulting engineering firm, also attended this meeting. Theparties agreed that Chen should be retained to test the expandedpolystyrene insulation which had been installed under the six-inchconcrete slab.(I::124-127) (11:140-141)Test results, reflectedin written reports, revealed that the EPS insulation supplied byMetalclad had densities and compressive yield strengths below theproject specifications.suppliedby Metalclad(Exs. 108 and 112)Thus, the insulationfailed to comply with Metalclad'sownspecifications in the design of the warehouse insulated floorsystem.(1:86-87) (11:149-150; 155-158) (Exs. 102, 103, 105, 107,108, 112, 115, 116 and 118)The Chen tests revealedthat the EPSinsulationhad acompressive strength of between 9.8 psi and 19.1 psi, far below thecompressive strength specified by Metalclad, 25 psi.(Ex. 108)Additional tests were conducted by Southwest Research Institute atthe request of Kidd. The Southwest Research Institute test resultsrevealed that the insulation had a compressive strength of between11.19 psi and 19.49 psi, again well below the 25 psi specified byMetalclad.12/03/92-19:00c:\c\0421c(Ex. 112) (1:83-84) After the EPS insulation had been- 10 -
tested, it was determined that the floor, as constructed, lackedsufficient strength to withstand the loads which would be impartedby products stored on the racks to be installed on the floor in thewarehouse.(11:42, 46) (111:28-29)In order to attempt to placethe warehouse in an operational state, Roth Co. installed severalseven and one-half inch thick reinforced concrete pads on top ofthe original floor slab and in the locations where racks were to beinstalled.(Id.; 111:183-184; 220)installed on these pads.Storage racks were thenId. The pads resulted in a reduction inthe amount of space available for storing products in the warehousewith consequent loss of income to Averch.(111:225) The pads alsoresulted in total elimination of any flexibility to change themanner in which products could be stored in order to accommodateparticular needs of customers.(111:11-12)Bressler, a licensed professional engineer, testified at trialas an expert witness.In 1982, Bressler was the manager of theSalt Lake City office of Chen & Associates, consulting engineers.Since retiring from Chen in 1991, Bressler has been self-employedas a consultant.His areas of expertise include soils, compactedfills and floor slabs. (11:117-118) Bressler spends approximately20% of his time analyzing pavements and slabs on grade.(11:166)Concrete over insulation is considered to be a slab on grade. Id.At trial, Bressler opined that the weak EPS insulationsupplied by Metalclad caused cracking of the concrete slab at thewarehouse.(11:167)Bressler explained that insulation having a12/03/92-19:00c:\c\0421c- 11 -
compressive strength less than the specified value results in asmaller load causing the concrete slab to deflect (compress) more,leading to the cracking which occurred at the warehouse duringoperations.Id.Peter J. Nussbaum ("Nussbaum"), a senior principal engineerand group manager employed by Construction Technology Laboratory ofSkokie,Illinois, alsotestifiedas Averch'sexpertwitness.Nussbaum's expertise includes concrete materials, concrete pavementdesign and slabs on grades.havinginvestigated(111:177-179) (Ex. 151)the condition of the insulatedfloorsystem, testified that Metalclad's provision of um,slabinsulationthe25psispecified by Metalclad, exacerbated the stresses and cracks whichoccurredtestifiedin the floor slab avinganalsoactualcompressive strength of between 9 psi and 19 psi, instead of the 25psi as warranted by Metalclad, increased the deflection in theconcrete slab "by about fifty percent" which is "detrimental" toproper slab perf ormiance.(111:193-194) Nussbaum further testifiedthat "the fact that a lesser strength EPS board was used than wasspecified, exacerbcites" the deflections which occur at the edges ofthe various sections of the concrete slab leading to worse crackingand fatigue in the floor.(111:208-210) (IV:36-39)Slab shattering and spalling also accelerates at locations ofcracks or joints in the floor slab by virtue of the lack of support12/03/92-19:00c:\c\0421c- 12 -
attributable to the weaker EPS insulation supplied by Metalclad.The slab shattering and spalling "speeds up the damage" to thefloor, and "causes the impediments to the warehouse operations,"observed by Nussbaum and described by Averch.(111:214-219)(IV-.42-44)Earl Kemp ("Kemp"), Metalclad1s expert witness, conceded thatthe EPS insulation supplied by Metalclad, assuming it was below the25 psi specification and warranty, would exacerbate the crackingwhich was occurring in the floor slab.(IV: 163-164)Kemp alsoacknowledged that the insulation supplied by Metalclad influencesthe occurrence of structural cracks described by Kemp as "beamstress cracks."(IV:165-166)According to Kemp, "beam stresscracks" are structural in nature and are the most severe crackswhich developed at the warehouse.(IV:177-178)The beam stresscracks described by Kemp, are made worse by the fact that theinsulation was not as represented, warranted and specified byMetalclad, thereby exacerbating operational problems.(IV:178)Kemp acknowledged that the weaker insulation would result in10 to 20% more deflection in the floor slab, meaning 10 to 20% morevertical movement of the concrete slab itself when placed underloads by loaded forklift trucks moving across the floor surface.(IV:167)Kemp conceded that the insulation acts as an importantcontributing factor to the distress associated with the beam stresscracks, when such cracks occur over the insulation.12/03/92-19:00c:\c\0421c- 13 -(IV:184-188)
Asa resultof the severe cracking,slabshatteringandspalling occurring on the warehouse floor, significant operationalproblems have occurred.(111:11-16) There are cracks and holes inthe aisles traveled by forklift trucks loaded with 2,000 - 3,000lbs. of product. There have been at least two major accidents; oneresulting in an injury to a worker.There have been productsdamaged as a result of the forklifts hitting holes in the slab.Theefficiencyofnegatively e are 18,000 square feet of cold storage warehouse spacewhich have never been fully utilized because the floor cannotsustain the forklift loads associated with a freezer or cooleroperation without creating additional and more severe cracking.(111:4-5; 31-32) (IV:186-187)According to Kemp, the insulatedfloor slab system in this area must be replaced before Averch usesthis area to store frozen products.Id.Major problems continue to the present day and increase inseverity as time goes on.(111:34, 81) Efforts by Averch to patchthe cracks and holes in th floor in order to keep the s.(111:34-35)Averch has resorted to placing metal plates over the large cracksand holes.oftenThe plates, however, result in safety hazards and aredisplacedbynormalforklift122-124) (Exs. 154-160) (Exs. 381-387)tosell12/03/92-19:00c:\c\0421cthe warehousehavebeen- 14 -operations.(111:34-36;Moreover, Averch's effortsunsuccessfulbecauseofthe
condition of the floor.(IV:9-10) With regard to the value of theinsulation as supplied, Averch testified that the floor, 3) (V:10)currentproblems,hasnovalueThis evidence was uncontradicted.Metalclad's Role.Prior to the warehouse, Metalclad had participated in severalprojects for Averch involving cold storage construction. Averch'sprincipal contact at Metalclad was Kidd (1:55-56), Vice Presidentof cold storage operations at Metalclad during all times relevantto this case.engineer.(1:39-40)Kidd refers to himself as a sales(1:41) By 1981, he had gained 27 years of experience indesigning and constructing floor slab systems.(1:55; 77)Between the mid-1970s and 1981, Metalclad had contracted withAverch (or a company owned by him) to renovate and convert threeexisting dry warehouse facilities to freezer and cooler facilities.One of those projects involved a facility owned by Averch in Cityof Commerce, California.Metalclad was retainedas generalcontractor for that project to design and construct renovations tothe warehouse, including removing the existing floor and installingan insulated floor slab system.Averch and Kidd both testifiedthat Metalclad had designed the renovations, removed the existingfloor, designed and installed a new insulated floor slab system,specified the materials to be used therein, supplied the materialsand constructed the renovations. (1:55-62) (11:227-234) As in thepresent case, Averch relied upon Metalclad's skill, expertise and12/03/92-19:00c:\c\0421c- 15 -
judgmentfor the City of Commerce project.specificallyacknowledgedhisknowledgeAt trial, Kiddofsaidreliance.(1:86-88)Subsequently, Me
Oneida/SLIC, an Arizona partnership v. Ronald G. Roth Company, an Arizona corporation and Oneida Cold Storage and Warehouse, Inc., a Colorado corporation : Brief of Appellant Utah Court of Appeals Follow this and additional works at:https://digitalcommons.law.byu.edu/byu_ca1 Part of theLaw Commons
Michael L. Dwyer Oneida County Courthouse 200 Elizabeth St., Utica, NY 13501- 10 1/1/2016 12/31/2025 (315) 266-4321 Robert L. Bauer Oneida County Courthouse 200 Elizabeth St., Utica, NY 13501- 10 1/1/2017 12/31/2026 Family Court Judge (315) 266-4455 Randal B. Caldwell Oneida County Courthouse 200 Elizabeth
working hours without regard to Sundays, public holidays or Oneida Council designated holidays. Authorized work performed in a continuous operation on a general holiday will be governed by the Canada Labour Code. 2.8.9 "Oneida Council" means the duly elected Chief and Council of Oneida Nation of the Thames.
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appeal and summarily affirm the trial court. Oneida/SLIC v. Oneida Cold Storage & Warehouse. Inc., 872 P.2d 1051, 1053 (Utah App. 1994). 2. Has plaintiff/appellant waived any claim of improper jury contact? Defendant/appellee agrees with plaintiff that the proper standard of review for this issue is whether the trial -1-
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School Transport Contract Awards 2015 This notice includes information on mainstream school transport contracts awarded for operation from 16 August 2015. The prices specified in the notice are based on the annualised price at the time of award. There were three “rounds” of tender. In a number of cases contracts were awarded on the basis of package bids. These contracts are denoted by a (P .
