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U.S. HOME CORP. v. GEORGE W. KENNEDY CONST. CO.

May 28, 1985

U.S. HOME CORPORATION, PLAINTIFF,
v.
GEORGE W. KENNEDY CONSTRUCTION COMPANY, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

                             MEMORANDUM OPINION
                                 AND ORDER

U.S. Home Corporation ("U.S. Home") has moved under Fed.R.Civ.P. ("Rule") 12(f) to strike the three affirmative defenses added by the Amendment to Answer (the "Amendment") filed by George W. Kennedy Construction Company, Inc. ("Kennedy"). For the reasons stated in this memorandum opinion and order, U.S. Home's motion is granted as to two of those defenses and denied as to the third.*fn1

Facts

Given the narrow scope of the current motion, only a skeletal outline of the relevant facts and a summary of the three defenses are called for. This outline and summary are drawn from the pleadings (U.S. Home's Complaint and the Amendment), of course with no implication of any findings either way.

Real estate developer U.S. Home suffered more than $450,000 in damages when the sanitary sewer installation for its major single family residence development in Lindenhurst, Illinois proved defective and actually collapsed in part Kennedy had installed the system under contract from U.S. Home.

U.S. Home sues Kennedy on four theories:

    1. for breach of contract (including Kennedy's
  nonconformity to the plans and specifications prepared
  by codefendant Mackie Consultants, Inc. ["Mackie"])
  (Complaint Count I);
    2. for breach of warranty of workmanship (Complaint
  Count II);
    3. for negligence (including Kennedy's (a)
  nonconformity to Mackie's plans and specifications and
  (b) faulty workmanship) (Complaint Count III); and
    4. for another, much smaller and separate breach of
  contract claim (Complaint Count IV).

Kennedy's Amendment responds with three affirmative defenses:

    1. Estoppel. Because U.S. Home inspected and
  accepted Kennedy's work at all stages of construction
  and Kennedy reasonably relied on those acceptances,
  U.S. Home is now estopped from claiming a breach of
  contract or warranty by Kennedy.
    2. Impossibility. Kennedy was bound to and did
  construct the sewers in conformity with Mackie's
  plans, which U.S. Home had accepted. But those plans
  were so defective as to make it impossible for a sewer
  system conforming to them to function properly. Any
  breach of contract or warranty is therefore excused
  for impossibility.
    3. Comparative fault. U.S. Home contributed to any
  defects in the sewer system by (a) providing faulty
  plans and specifications and (b) failing properly to
  supervise ...

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