The opinion of the court was delivered by: David R Herndon Chief Judge United States District Court
Before the Court is a Motion for Partial Summary Judgment Against Defendants J.P. Murray Company, Inc. and Fidelity and Deposit Company of Maryland, on Counts I and II of the First Amended Complaint (Doc. 73). Defendant J.P. Murray filed an opposing Response (Doc. 90). Plaintiff has filed a Reply (Doc. 95). For the following reasons, the Court DENIES Plaintiff's Motion for Partial Summary Judgment (Doc. 73).
The undisputed facts presented state that Plaintiff entered into a contract to perform frame and board, spray-on fireproofing, acoustical and E.I.F.S. work which Defendant Murray (hereinafter "Defendant") was obligated to perform as a general contractor for Richmond Memorial Hospital. On June 21, 2007, Defendant issued a notice of termination, terminating Plaintiff's subcontract with Defendant.
From the period between the date Plaintiff entered into the contract and when Defendant terminated the contract on June 21, 2007, the parties present two different version of events.*fn1
Plaintiff contends that it performed the subcontract with Defendant to the extent that performance of the overall project by Defendant permitted Plaintiff to perform its subcontract. (Doc. 2 ¶ 10). The subcontract work involved work to both the existing hospital building and a new section of the hospital added as part of the hospital project. (Doc. 69, Ex. 1 ¶35). The vast majority of Plaintiff's subcontract work involved work on the new building, while a small part involved work on the existing building. (Id.).
Part of Plaintiff's job was to install spray-on fireproofing material on the roof deck. Prior to applying the material, Plaintiff warned Defendant that the material shouldn't be applied on the underside of the roof deck until all work on the roof was completed because substantial roof traffic could affect the finished product as specifically warned in the installation specifications. (Doc 73 ¶14; Doc. 69, Ex. 1 ¶¶29-31). Roof traffic could cause the fireproofing to delaminate and fall from the underside of the roof deck. (Id.). After Plaintiff added the spray-on material, Plaintiff contends that Defendant's roofing subcontractor worked extensively on the roof leading to extensive roof traffic. (Doc. 73 ¶15; Doc. 69, Ex. ¶¶30-35, 38-44).
On May 2, 2007, Defendant suspended work on the new building part of the project while it investigated the cause of spray-on fireproofing that had fallen from the roof deck. (Doc. 73 ¶6; Doc. 69, Ex. 1 ¶ 35). Defendant did not inform Plaintiff either in writing or orally that Defendant believed that Plaintiff had improperly installed the spray-on fireproofing and Defendant further refused to give Plaintiff copies of two reports of Thermal Consulting, the company retained by Defendant to examine the spray-on fireproofing on the roof deck, issued on May 19, 2007 and July 27, 2007. (Doc. 73 ¶7; Doc. 69, Ex. 1 ¶¶33-34, 38-44, 46-50). Neither was Plaintiff told of the alleged defects or given an opportunity to inspect the fireproofing after the June 21, 2007 termination date. (Doc. 73 ¶9; Doc. 69, Ex.1 ¶51). Prior to the June 21, 2007 termination notice, Plaintiff repeatedly offered to perform the small amount of remaining work in a piece meal fashion but required additional compensation for working in that fashion. (Doc. 95 p. 9: Doc. 69, Ex. 1 ¶62).
Plaintiff last performed work on May 18, 2008. (Doc. 2 ¶18). At that time, Plaintiff had performed 97.95 percent of its subcontract work on the project. (Doc. 73 ¶5; Doc. 69, Ex. 1 ¶¶ 28 & 36). On June 21, 2007, Defendant issued a notice of termination, terminating Plaintiff's subcontract with Defendant. (Doc. 2 ¶19). The letter, as well as a facsimile memorandum of June 6, 2007 contended that Piasa was being terminated because it had failed to timely perform work on the 3-week schedules. (Doc. 73 ¶12). Piasa contends that the majority of the 3-week schedule could not be performed between May 2, 2007 and June 21, 2007 because of the suspension on the new building part of the project and because hospital personnel still occupied substantial parts of the existing building which was to be rehabilitated. (Doc. 73 ¶12; Doc. 69, Ex. 1 ¶¶ 61-75, 77-79).
Plaintiff contends that the subcontract between Plaintiff and Defendant required Defendant to provide Plaintiff with seven (7) days written notice and that Defendant terminated without certification by the architect that sufficient cause existed for such an action. (Doc. 73 ¶10-11; Doc. 69, Ex. 1 ¶¶ 10-14, 61-75, 77-79). Specifically, Plaintiff alleges that the subcontract required Defendant to file written notices of any complaints to both Plaintiff and the architect, as well as submit all disputes to the architect for resolution. (Doc. 73 ¶10; Doc. 69, Ex. 1 ¶¶10-14). Plaintiff also alleges that the subcontract incorporates the project manual as part of the subcontract and the project manual adopts A.I.A. 201 (1997 edition). (Doc. 73 ¶ 2; Doc. 69, Ex. 1 ¶¶ 4-5, 9-10). Plaintiff also contends that Defendant had failed to pay Plaintiff amounts due under payment applications No. 8 and 9 in breach of the subcontract prior to the June 21, 2007 notice of termination. (Doc. 73 ¶3,10-14, 17-27).
Defendant, however, presents a different version of the events. Defendant argues that it terminated Plaintiff's subcontract because Plaintiff failed to perform work for over a month and a half and because Defendant learned that the fireproofing work performed by Plaintiff had substantial defects. (Doc. 90 p.1).
Defendant contends that Plaintiff was terminated because it had failed to perform its work. Specifically, Defendant states that on April 13, 2007, Plaintiff sent Defendant a fax stating that it wasn't going to finish the portion of its subcontract related to the remodeling work in the original hospital building. (Doc. 90, Ex. 1 ¶6 & Ex. 1-A). Plaintiff continued to do work in the new addition, but never performed any remodeling work in the original hospital building. (Id. at Ex. 2 ¶5). Plaintiff completely stopped work on the project on May 2, 2007. Defendant contends that it gave Plaintiff opportunities to continue work, but that Plaintiff insisted it would not perform the remodel work unless it ...