Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dual-Temp of Illinois, Inc. v. Hench Control Corp.

September 28, 2009

DUAL-TEMP OF ILLINOIS, INC., PLAINTIFF,
v.
HENCH CONTROL CORPORATION, HENCH CONTROL, INC., CAESAR-VERONA, INC., JOHN HENCH, AND ALEX DANEMAN, DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

In this case, Plaintiff, Dual-Temp of Illinois, Inc. filed a six-count complaint against Defendants Hench Control Corporation ("Hench Control I"), Hench Control, Inc. ("Hench Control II"), Caesar-Verona, Inc. ("Caesar"), John Hench ("Hench"), and Alex Daneman ("Daneman") alleging violations of state contract and tort law. The Court has jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332.

Before the Court is Defendant Hench's motion to dismiss Count V of the complaint [18] pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the motion is denied.

I. Background*fn1

Plaintiff operates a business that constructs, services, supplies, modifies, and repairs low temperature industrial refrigeration systems. Compl. ¶ 9. In 2006, the Milord Company ("Milord") contacted Plaintiff in connection with a bid for a job at Home Run Inn' s pizza manufacturing plant. Id. ¶ 10. The job involved modifying and installing a refrigeration system at the manufacturing plant. Id. Plaintiff subcontracted the design of refrigeration control systems to companies who specialize in that work. Id. ¶ 11. Plaintiff contacted Hench of Hench Control I to provide a bid for the refrigeration control system because the company claimed to specialize in that work. Id.

Hench and Ron Ariano, Hench Control I' s manufacturing representative, travelled to Chicago to meet with the maintenance manager at Home Run Inn' s processing plant. Compl. ¶ 12. They examined the existing control system to establish the criteria needed to design a control system to meet Home Run Inn' s requirements. Id. On or about October 11, 2006, Hench submitted a proposal, on behalf of Hench Control I, to Plaintiff with a control system design for Home Run Inn' s refrigeration system. Id. ¶ 13. Plaintiff submitted its bid to Milord on the Home Run Inn project. Id. ¶ 14. The bid included Hench Control I' s proposal. Id.

On or about October 20, 2006, Plaintiff was advised that it had been awarded the Home Run Inn job. Compl. ¶ 15. Plaintiff and Milord entered into a formal subcontract on November 6, 2006. Id. Pursuant to this contract, Plaintiff was to provide a refrigeration control system that operated to Home Run Inn's specifications. Id. To that end, Plaintiff issued a purchase order to Hench Control I for the work set forth in their refrigeration control system proposal. Id. ¶ 16. The amount of the purchase order was $45,078. Id. One of the conditions of the purchase order called for Hench Control I to provide a current certificate of insurance with Plaintiff listed as an additional insured. Id. ¶ 17. In addition, the purchase order required Hench Control I to comply with the requirements and be bound to the terms of the contract between Plaintiff and Milord. Id.

On or about November 1, 2006, Hench Control I accepted Plaintiff's purchase order and issued an invoice requesting 40% down payment of the purchase price, an amount that totaled $18,031. Compl. ¶ 18. On the same date, Hench Control I also sent Plaintiff a certificate of insurance naming it as an additional insured as requested. Id. ¶ 19. Plaintiff issued Hench Control I a check in the amount of $18,031 on or about December 15, 2006. Id. ¶ 20.

On or about January 12, 2007, Hench Control I issued a second invoice requesting 50% of the purchase price, an amount that totaled $22,539. Compl. ¶ 21. During March 2007, without notice to Plaintiff, Hench Control I was acquired by Caesar in an assets sale. Id. ¶¶ 22, 27. Hench remained as Chief Technical Officer and Daneman became Chief Executive Officer. Id. ¶ 22. Additionally, and also without notice to Plaintiff, the subcontract with Plaintiff was transferred to and was being performed by Hench Control II. Id. ¶ 23.

On or before March 30, 2007, a control panel board was delivered to Plaintiff for the Home Run Inn project. Compl. ¶ 24. Plaintiff contacted Spur Electric, Inc., a subcontractor, to attach the control panel board to the refrigeration system at Home Run Inn' s plant. Id. On that same day, Plaintiff issued Hench Control I a check in the amount of $22,539 -- the amount of the second invoice. Id. ¶ 25. Also, around the same date, without notice to Plaintiff, Hench Control I allowed its insurance policy (that named Plaintiff as an additional insured) to lapse. Id. ¶ 26. Neither Caesar nor Hench Control II provided Plaintiff with a replacement or continuation certificate of insurance. Id.

On or about May 16, 2007, without notice to Plaintiff, Hench changed the name of Hench Control I to Hench Consulting, Inc. Compl. ¶¶ 27, 28. In June 2007, Milord notified Plaintiff that the control system did not operate according to Home Run Inn's requirements and that Home Run Inn would not accept the control system, nor would it approve final payment to be made to Milord and Plaintiff. Id. ¶ 29. Plaintiff notified Hench Control I about the control system and requested that it take the necessary action under the purchase order to make the control system operate as Home Run Inn required. Id. ¶ 30. On or about July 5, 2007, Plaintiff received an invoice from Hench Control II requesting the final payment for the control system. Id. ¶ 31.

In July 2007, Hench visited Home Run Inn in Chicago and made an inspection of the control system, but was unable to cure the defects. Compl. ¶ 33. Shortly after this visit, Hench was no longer available to Plaintiff for consultation and Plaintiff believed that Hench was no longer employed by Hench Control II. Id. On or about July 9, 2007, without notice to Plaintiff, Hench dissolved Hench Control I. Id. ¶ 32.

Between June and December in 2007, the control system failed to operate, which caused daily shut downs of the refrigeration system at Home Run Inn's plant. Compl. ΒΆ 34. During that time, Plaintiff and Spur, its electrical subcontractor, provided its own personnel to monitor the control system to prevent a shut down and to attempt to determine the cause of the failure. Id. Hench Control II also provided telephonic support, onsite inspection, and numerous replacement ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.