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Three Rivers Aluminum Co. v. J&D Erectors

September 10, 2008

THREE RIVERS ALUMINUM CO., PLAINTIFF,
v.
J&D ERECTORS, INC., EMPLOYERS MUTUAL CASUALTY COMPANY, SHERMAN PLAZA VENTURE LLC, SHERMAN PLAZA PARTNERS LLC, FOCUS CONSTRUCTION, INC., DEFENDANTS.
J&D ERECTORS, INC., COUNTER-PLAINTIFF,
v.
THREE RIVERS ALUMINUM CO., COUNTER-DEFENDANT,
J&D ERECTORS, INC., THIRD PARTY PLAINTIFF,
v.
LIBERTY MUTUAL INSURANCE CO. AND THREE RIVERS ALUMINUM CO., D/B/A/TRACO, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Three Rivers Aluminum Company ("TRACO") has sued J&D Erectors, Inc. and its insurer, Employers Mutual Casualty Company ("EMC"), for breach of contract and Sherman Plaza Venture LLC, Sherman Plaza Partners LLC, and Focus Construction, Inc. ("Focus") to recover on a mechanic's lien. J&D, in turn, has asserted breach of contract claims against TRACO and its insurer, Liberty Mutual Insurance Company. The case is before the Court on TRACO and Liberty's motion pursuant to Federal Rule of Civil Procedure ("Rule") 56 for summary judgment on the breach of contract claims, counterclaims and defenses J&D asserts against them. For the reasons set forth below, the Court denies the motion.

Facts*fn1

TRACO is a Pennsylvania company that manufactures windows and doors. (Defs./Counter-Pl./Third Party Pl.'s (hereafter, "Defs.") LR 56.1(b)(3)(B) ¶¶ 1, 7.) J&D is an Illinois subcontractor that installs windows and accessories. (Id. ¶ 2.) Focus is an Illinois general contractor. (Id. ¶ 3.) Sherman Plaza Partners is an Illinois development company that is owned, ultimately, by Sherman Plaza Venture. (Id. ¶ 4; Third Am. Compl. ¶ 6.) EMC and Liberty are surety companies. (Defs.' LR 56.1(b)(3)(B) Stmt. ¶¶ 5-6.)

On November 8, 2004, Sherman Plaza Partners hired Focus to act as the general contractor for the construction of a twenty-six-story building in Evanston called "the Residences of Sherman Plaza." (Id. ¶ 9.)

On January 14, 2005, Dewey Koehler, acting on behalf of Midstate Spring Tite, another window subcontractor that is not a party to this suit, sent TRACO a request for quotation ("RFQ") to supply certain windows and doors for the Sherman Plaza project. (Id. ¶ 12.) The request referenced opening marks -- the marks on architectural drawings that indicate where windows and doors will be installed -- for the portions of the project on floors 3-22. (Id. ¶¶ 13-14.) It did not, however, reference marks for the penthouse portion on floors 23-26. (Id.; TRACO & Liberty's Resp. Defs.' LR 56.1(b)(3)(C) Stmt. ¶ 6.)

On January 21, 2005, Focus sent a memo to all window bidders entitled "Bid Addendum #1

-- Penthouse Wide Mullion Detail," which says: "Attached is a series of sketches describing a wide mull detail required to accommodate GFI outlets and silcocks at the penthouse terraces as indicated. Please verify that your bid includes this detail." (Defs.' App. Opp'n TRACO & Liberty's Mot. Partial Summ. J., Ex. 2, Koehler Decl., Ex. B, Memo from Lake to All Window Bidders of 1/21/05.) TRACO's Jim Price admits that he received the bid addendum and sent a copy of it to J&D. (R. Supp. TRACO & Liberty's Mot. Partial Summ. J., Ex. 9, Price Dep. at 85-87.)

On January 25, 2005, TRACO mailed quotation number 55629 to Koehler, which says, in relevant part:

We propose to furnish material as listed on the attached breakdown for a total cost of $1,540,261. This Quotation is based on your quote request dated 1/14/05.

We have provided, per your quote request, a summary of items with dimensions and associated options included. Please check the information on each page to ensure that we have met your requirements. . . . .

Please have the company officer read, sign and return the TRACO Commercial Contract to begin order processing. Notification of acceptance and preliminary scheduling information will follow once the contract is approved. (Id., Ex. 11, Quotation 55629.) Attached to the quote were more than one hundred pages of descriptions of the materials TRACO proposed to supply. (Id., Ex. 12, Quotation Detail.) Though J&D says it did not realize it at the time, TRACO's quote did not include materials for the penthouse floors. (Defs.' LR 56.1(b)(3)(B) Stmt. ¶¶ 18, 68.) The quotation says it is "[v]alid until . . . 3/22/05."

(R. Supp. TRACO & Liberty's Mot. Partial Summ. J, Ex. 11, Quotation 55629.)

At some point in January 2005, Koehler started working for J&D as well as Midstate and decided that J&D should bid on the Sherman Plaza project. (TRACO & Liberty's Resp. Defs.' LR 56.1(b)(3)(C) Stmt ¶¶ 8, 11.)

On February 21, 2005, Koehler sent a bid to Focus on behalf of J&D to supply the windows, doors and accessories for the project for a total of $4,100,000.00. (Id. ¶ 12; R. Supp. TRACO & Liberty's Mot. Partial Summ. J., Ex. 17, J&D Proposal of 2/21/05.) The bid specifically excludes only skylights and skylight glass, exterior and interior trim, fire-rated steel, hollow metal frames, architectural metals, terrace doors and materials needed for the retail portion of the project. (R. Supp. TRACO & Liberty's Mot. Partial Summ. J., Ex. 17, J&D Proposal of 2/21/05.)

On either February 23, or 25, 2005, the date is disputed, Wade Giorno of Focus, Phil Saineghi of J&D and Price of TRACO met to discuss the project. (Defs.' LR 56.1(b)(3)(C) Stmt. ¶ 14; TRACO & Liberty's Resp. Defs.' LR 56.1(b)(3)(C) Stmt. ¶ 14.) The penthouse windows were among the items discussed at that meeting. (TRACO & Liberty's Resp. Defs.' LR 56.1(b)(3)(C) Stmt. ¶ 16.) During the meeting, Price did not confirm or deny that TRACO would supply the penthouse windows. (Id. ¶ 19; Supplemental App. Supp. TRACO & Liberty's Mot. Partial Summ. J., Ex. 10, Giorno Dep. at 105-06.)

On March 1, 2005, Koehler submitted to Focus a revised proposal from J&D to provide: "Approximately 90,000 square feet of TRACO fixed, Project In and Sliding Glass Doors, Receptors and Subsills with Screens, Tower Clear Anodized, Loft Kynar 'Jasper' Glazing. U.S. Aluminum Storefront and Entrances, Column Covers and Canopy Glazing," for the total sum of $4,410,000.00.

(R. Supp. TRACO & Liberty's Mot. Partial Summ. J., Ex. 18, J&D Revised Bid of 3/1/05.) The revised bid specifically excludes only materials for the retail portion of the project, skylights and skylight glass, exterior and interior trim, fire-rated steel, ...


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