The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-02-85
ZEMCO INDUSTRIES, INC,
Plaintiff
Vv. DECISION AND ORDER
FCW TECHNOLOGIES, INC., ue nee se
et al, Pa we me
wit wf
Defendant
FEB $ (%yué
This matter is before the court on motion for summary judgment by defendant
Michael D. McLucas on crossclaim of defendant, FCW Technologies, Inc. The
underlying complaint alleges that FCW Technologies, Inc. contracted with plaintiff
Zemco Industries, Inc., d/b/a Jordan’s Meats, Jos. Kirschner Co., for the installation of
an “FCW Rosin Laminate Floor System” in designated areas of the meat processing
facility of the plaintiff in Augusta, Maine. The contract required that the area to receive
the new flooring was to be clear of food and equipment, maintained at a specified
temperature, maintained in a dry condition and that the specifications be completed 48
hours before the floor installation. Defendant FCW Technologies, Inc. subcontracted
the floor installation to numerous defendants including MORMIC, Inc., a Pennsylvania
corporation. It is alleged that a large amount of meat products, plaintiff’s finished
product for sale, was ruined and subsequently necessarily destroyed because of the
floor installation process. MORMIC, Inc.’s shareholder and employee is defendant
Michael D. McLucas. Defendant McLucas has received summary judgment on the
complaint by this court on July 8, 2003, but remained as a crossclaim defendant.
Defendant FCW Technologies, Inc. has brought a crossclaim against defendant
MORMIC, Inc. and Michael McLucas seeking contribution and indemnification from
MORMIC, Inc. and contribution and indemnification from McLucas. In its crossclaim,
FCW avers the subcontract it entered with MORMIC, Inc. “whereby MORMIC agreed
to provide labor for the performance of the Phase II work.” It also alleges that FCW
entered into a contract agreement with MORMIC “whereby MORMIC agreed to
provide labor for the performance of the Phase IT work.” Crossclaim, [J 6,9. FCW
further alleges that defendant McLucas performed certain portions of the Phase II and
Ill work. The crossclaim goes on to assert that by written contract, MORMIC expressly
agreed to indemnify FCW for all loss arising out of any breach of warranty or
negligence by MORMIC, Inc. of the performance of Phase II and Phase III work. With
regards to the allegations arising out of the complaint of contamination of meat
products during the performance of Phase III, FCW alleges in its crossclaim that
MORMIC and McLucas had a duty to perform the work on the project in a good
workmanlike manner.
In support of his motion for summary judgment, defendant Michael D: McLucas
provides an affidavit noting the subcontract agreements entered into between FCW and
MORMIC on December 6, 2000, and in September of 2000 to perform labor for the
installation of the floor. It was apparently further agreed that neither MORMIC, Inc.
nor McLucas ever had any contract directly with the plaintiff Zemco or Kirschner.
Finally in his affidavit, McLucas makes it clear that all of his work in this project was as
an employee of MORMIC, Inc., during Phase I, September 23-25, 2000, and Phase IIL,
March 16-18, 2001.
Crossclaim defendant argues that before the court may pierce the corporate veil,
a plaintiff must establish that (1) the defendant abused the privilege of a separate
Go
corporate entity, and (2) an unjust or inequitable result would occur if the court
recognized the separate corporate existence. Johnson v. Exclusive Props. Unlimited, 720
A.2d 568, 1998 ME 244: Snell v. Bob Fisher Enterprises, Inc., 106 F.Supp. 2d 87 (D.C. Me.
2000). The court may pierce the corporate veil when equity so demands and may
disregard the corporate entity when used to cover fraud, illegality, or to justify a wrong.
Id. See also GMAC Commercial Mortgage Corp. v. Gleichman, 84 F.Supp. 2d 127 (D.C. Me.
1999). Unless fraud or misrepresentation is involved, there can be little justification for
disregarding corporate entities which parties obviously expected to remain in tact.
United Paperworkers Intern v. Union Pennttech Papers, Inc., 439 F.Supp. 610 (D.C. Me.
1977).
There is no disagreement of fact that the subcontract entered into by FCW which
is the basis for the crossclaim was with MORMIC, Inc. alone and defendant McLucas is
not a party to the contract. There is no evidence under the law as recited to justify
piercing the corporate veil in order to impose personal liability upon defendant
McLucas as an incorporator or shareholder. There does not appear to be express or
implied contractual relationships between FCW Technologies and McLucas personally.
Crossclaimant’s opposition to the motion for summary judgment does not
dispute the facts and it agrees that the work performed by McLucas was done in the
capacity of a MORMIC, Inc. employee. However, crossclaimant points out that
plaintiff's complaint alleges negligent performance of that work by the defendant and
argues that its crossclaims arise out of that negligent performance complaint. Going
further, “FCW agrees that Mr. McLucas is not liable to FCW on a contract theory of
liability, but that Mr. McLucas is liable to FCW on a tort theory of liability, based on his
own negligent acts in carrying his work on the project. To the extent that Mr. McLucas
performed his work on this project negligently, and his negligence was a proximate
cause of the damages sustained by plaintiff, FCW may properly assert contribution and
indemnity actions against Mr. McLucas.” Defendant FCW Technologies, Inc.
Opposition to Motion for Summary Judgment by Defendant Michael McLucas, p. 2.
FCW recites RESTATEMENT, SECOND. OF AGENCY, § 343, for the proposition that: “An
agent who does an act otherwise a tort is not relieved from liability by the fact that he
acted at the command of the principal or on account of the principal...“ FCW then
goes on to argue a hypothetical situation comparing the negligence of defendant
McLucas were he to be engaged in a traffic accident while arriving at a job site working
for his corporation.
Summary judgment is proper if the citations to the record found in the parties’
Rule 56(h) statements demonstrate that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. See Dickinson v.
Clark, 2001 ME 49, J 4, 767 A.2d 303, 305. “A fact is material if it has the potential to
affect the outcome of the case under governing law.” Levine v. R.B.K. Caly Corp., 2001
ME 77, 7 4, n.3, 770 A.2d 653, 655, n.3 (citing Burdzel v. Sobus, 2000 ME 84, J 6, 750 A.2d
573, 575). “The invocation of the summary judgment procedure does not permit the
court to decide an issue of fact, but only to determine whether a genuine issue of fact
exists. The Court cannot decide an issue of fact no matter how improbable seem the
opposing party’s chances of prevailing at trial.” Searles v. Trustees of St. Joseph’s College,
1997 ME 128, 7 6, 695 A.2d 1206, 1209 (quoting Tallwood Land & Dev. Co. v. Botka, 352
A.2d 753, 755 (Me. 1976)). To avoid a judgment as a matter of law for a defendant, a
plaintiff must establish a prima facie case for each element of her cause of action. See
Fleming v. Gardner, 658 A.2d 1074, 1076 (Me. 1995).
The obvious question is whether defendant McLucas can be held jointly liable for
contribution or indemnification purposes with FCW if it is found liable in the
underlying action even though this court has found no contractual relationship between
FCW and McLucas. Logic dictates that if Michael D. McLucas cannot be held liable as
an incorporator, shareholder or officer without piercing the corporate veil, calling him
an employee (which indeed all officers of corporations are) should not make him liable
without his meeting the two-prong test outlined in Johnson v. Exclusive Props. Unlimited,
720 A.2d 568. More importantly, without a contractual obligation, which FCW has
dismissed, where does there arise a duty of McLucas to FCW under the law of
negligence? The law creates a duty for a person to conduct himself free of negligence
when it operates a motor vehicle on a highway, when it maintain premises, when it
places a product in commerce, etc. FCW’s contract is with MORMIC and the only
relationship between those parties arises out of that contract. In the absence of a
contract between FCW and McLucas, what was the relationship between those parties
that created a duty, a duty to be free from negligence? Certainly MORMIC has a duty
to FCW to perform under the contract in a workmanlike manner and to refrain from
causing injury to FCW from its performance on the premises of Zemco arising out of
negligence. However, since there is no relationship existing under any circumstances
under the agreed facts in this case between defendant and crossclaimant FCW
Technologies and defendant McLucas, there can be no claim for indemnification for
contribution founded upon negligence.
For the reasons so cited, the entry will be:
Defendant Michael D. McLucas’s motion for summary judgment on
the crossclaim of FCW Technologies, Inc. is GRANTED; judgment for
defendant McLucas on FCW Technologies, Inc.’s crossclaim is GRANTED.
a
Dated: January_2% _, 2004 CE.
“Donald H. Marden
Justice, Superior Court
ZEMCO INDUSTRIES, INC. - PLAINTIFF
Attorney for: ZEMCO INDUSTRIES, INC.
STEPHEN E F LANGSDORF
PRETI FLAHERTY ET AL
PO BOX 1058
45 MEMORIAL CIRCLE
AUGUSTA ME 04332-1058
vs
FCW TECHNOLOGIES, INC. - DEFENDANT
660 FURNACE HILLS PIKE
LITITZ PA
Attorney for: FCW TECHNOLOGIES, INC.
WENDELL LARGE
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
MORMIC, INC. - DEFENDANT
31 KNOLLWOOD DRIVE
AKRON PA
Attorney for: MORMIC, INC.
JEFFREY TOWNE
179 MAIN STREET STE 202
WATERVILLE ME 04901
FRO BOND EPOXY FLOORING, INC.-VOID - DEFENDANT
31 KNOLLWOOD DRIVE
AKRON PA
MICHAEL MCLUCAS - DEFENDANT
31 KNOLLWOOD DRIVE
AKRON PA 17501
Attorney for: MICHAEL MCLUCAS
JEFFREY TOWNE
179 MAIN STREET STE 202
WATERVILLE ME 04901
JEFFREY KNIPPINBERG-VOID SR - DEFENDANT
31 KNOLLWOOD DRIVE
31 KNOLLWOOD DRIVE PA 17501
GULF COAST POLYMER SERVICES - THIRD PARTY DEFENDANT
Attorney for: GULF COAST POLYMER SERVICES
PAUL R JOHNSON
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 300
PO BOX 9545
PORTLAND ME 04112-9545
Filing Document: COMPLAINT Minor Case Type:
Filing Date: 04/24/2002
Page 1 cf 12
SUPERIOR COURT
KENNEBEC, ss.
Docket No AUGSC-CV-2002-00085
DOCKET RECORD
PRODUCT LIABILITY
Printed on:
01/21/2004
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEG ss. DOCKET NO. CV-02-85
ZEMCO INDUSTRIES, INC.,
Plaintiff
v. DECISION AND ORDER
FCW TECHNOLOGIES, INC.,, et al,
Defendants
This matter is before the court on defendants’ motion for partial summary
judgment pursuant to MLR. Civ. P. 56.
The present complaint arises out of a construction project in which Defendant
FCW Technologies, Inc. (“Defendant” or “FCW”) and its subcontractors, Defendant
Mormic, Inc. (“Mormic”) and Third Party Defendant Gulf Coast Polymer Services, Inc.
(“Gulf Coast”), installed a floor at a meatpacking plant owned by Plaintiff Zemco
Industries, Inc., d/b/a/ Jordan’s Meats, Jos. Kirschner Co. (“Plaintiff” or “Kirschner”).
The floor that was installed by FCW and its subcontractors at Kirschner’s plant is a
“layered resin floor”. This type of floor is created by mixing two liquids together to
form a resin, which is then applied to the existing concrete floor. A chemical reaction
occurs, causing the two liquids to bond together and form a solid coating. Floors
similar to these are commonly used throughout the food preparation industry.
Kirschner did not want the installation process to interfere with the operation of
its meat production line, so the parties agreed to have the work take place on weekends.
Based on the volume of work to be accomplished, the parties split the job up into three
“phases”, each approximating the amount of floor that could be installed in one
weekend. Phase I of the contract was performed in January of 2000 and Phase II of the
contract was performed in September of 2000. As it turned out, Phase III involved more
work than could be accomplished in one weekend, so it was split into two sub-phases,
I-A and III-B. The work on Phase III-A was performed in February of 2001 and the
work on Phase III-B was performed in March of 2001. FCW subcontracted the labor for
Phase I to Gulf Coast and subcontracted the labor for all other phases to Mormic.
Prior to the start of work for each phase of the project, FCW supplied Kirschner
with a form entitled “Customer Preparation for Installation.” Among the instructions
contained in this form is a statement in bold lettering that “[f]ood products must be
removed from all coolers and the immediate area where the floor is to be installed. No
food products will be allowed to remain in the immediate area where floor is being
installed”. When FCW and Mormic arrived at the plant to begin work on Phase II,
however, certain food products had not been removed from the cooler adjacent to the
work area. Kirschner understood that FCW recommended removal of food products
from areas adjacent to the work, but could not do so because it had nowhere else to put
the food. Thus, Gary Melbon, Kirschner’s maintenance manager, signed a handwritten
statement reiterating the company’s awareness of FCW’s recommendation, and also
stating that Kirschner “understands that FCW is not liable for odor entering coolers and
damaging food product”. The parties did not execute a similar document prior to or
during work on any other phase of the project. The work for Phase II was apparently
completed without damage to any of Kirschner’s food products.
Immediately following the completion of work on Phase III-B, however, it was
discovered that 38,000 pounds of Kirschner’s prepared meat products had been
contaminated. Also, by the fall of 2002, failure of the floor had occurred in all phases of
the project.
In December of 2002, the Court accepted the filing of Plaintiff's amended
complaint’, which seeks recovery related to the meat contamination, including disposal
costs, lost profits, and clean up, as well as the costs associated with the removal, repair,
and replacement of the floor.
The Law Court has explained that:
Summary judgment is no longer an extreme remedy. It is simply a
procedural device for obtaining judicial resolution of those matters that
may be decided without fact-finding. Summary judgment is properly
granted if the facts are not in dispute or, if the defendant has moved for
summary judgment, the evidence favoring the plaintiff is insufficient to
support a verdict for the plaintiff as a matter of law.
Curtis v. Porter, 2001 ME 158, J 7, 784 A.2d 18, 21-22. Summary judgment is proper if
the citations to the record found in the parties’ Rule 56(h) statements demonstrate that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Dickinson v. Clark, 2001 ME 49, { 4, 767 A.2d 303, 305.
“A fact is material if it has the potential to affect the outcome of the case under
governing law.” Levine v. R.B.K. Caly Corp., 2001 ME 77, J 4, n.3, 770 A.2d 653, 655, n.3
(citing Burdzel v. Sobus, 2000 ME 84, { 6, 750 A.2d 573, 575). “The invocation of the
summary judgment procedure does not permit the court to decide an issue of fact, but
only to determine whether a genuine issue of fact exists. The Court cannot decide an
issue of fact no matter how improbable seem the opposing party’s chances of prevailing
at trial.” Searles v. Trustees of St. Joseph’s College, 1997 ME 128, 7 6, 695 A.2d 1206, 1209
(quoting Tallwood Land & Dev. Co. v. Botka, 352 A.2d 753, 755 (Me. 1976)). To avoid a
judgment as a matter of law for a defendant, a plaintiff must establish a prima facie case
for each element of her cause of action. See Fleming v. Gardner, 658 A.2d 1074, 1076 (Me.
1995).
" The amended complaint is in sixteen counts and asserts claims sounding in negligence, breach of
contract, breach of express and implied warranties, and strict products liability.
1. {Implied Warranty Claims
The first argument presented by the Defendant centers on counts III, V, VI, and
VIL of the amended complaint, which allege breaches of implied warranties arising
under the Uniform Commercial Code (“UCC”) as adopted in Maine’. FCW believes
that these claims must fail because the floor installation was not predominantly the sale
of movable goods, and is therefore not subject to the UCC’s provisions. In support of its
position, the Defendant cites to the case of Smith v. Urethane Installations, Inc., 492 A.2d
1266 (Me. 1985), in which a homeowner sued a contractor who installed faulty
insulation in his home. In that case, the transaction in question involved both the sale of
goods (the insulation itself) and services (the insulation of the home). In determining
that the predominant feature of the contract was the provision of a service, the Law
Court explained as follows:
Our conclusion is supported by a number of factors. The contract contains
no itemization for the materials to be furnished. The nature of the
“soods”, foam insulation, is difficult to conceptualize in the absence of
installation. A major part of the contract price would appear to be
attributable to labor. The terms of the contract — “insulating all vertical
walls and slant ceilings” — suggests that labor and service, rather than the
insulation material, are the predominant features of this agreement.
Id. at 1268-1269. FCW asserts that the present case is similar to Smith in that the resin
and aggregate used to construct the floor cannot be considered a “floor” absent
significant labor to install them. Also, the Defendant suggests that because the floor
was constructed out of raw materials mixed and applied at the site, and is not a product
that was manufactured at some outside location, this indicates that the floor installation
is typical construction work outside the scope of the UCC.
In response, the Plaintiff acknowledges that the dispositive legal inquiry
addresses whether the predominant feature of the transaction relates to goods or
> See 11 M.R.S.A. §§ 2-314 & 2-315 (2004).
services. Kirschner suggests, however, that there is no basis in the record for the Court
to conclude that the predominant purpose of the contract involved services and not
goods. The Plaintiff also states that the floor is a good or product under any reasonable
definition of those words.
As indicated by the parties, the UCC only applies to contracts in which the
predominant feature of the transaction relates to goods. See Id. Contrarily, where the
performance of services is paramount to the partis, the implied warranty and other
provisions of the UCC are not applicable. The Court presently has before it several
undisputed facts that are probative of this issue. First, none of the contracts executed by
the parties provides a separate itemization of the materials to be furnished. Instead, the
Defendant appears to be obligated merely to “prepare” the existing concrete and
“install” the new resin floor. Based on the Law Court's discussion in Smith, these facts
suggest that labor and service is the predominant feature of the agreement. See Id. In
addition, the undisputed facts indicate that the cost of labor was a significant part of the
contract price, and that the installation was indeed a labor-intensive process’. These
facts also tend to the conclusion that this was primarily a service-oriented contract.
Lastly, like the situation in Smith, the nature of the “goods” supplied by FCW, mainly
sand and liquid resins, have very little apparent value or purpose in the absence of
installation.
As for the Plaintiff’s counterarguments, they are unavailing. In light of the Law
Court's discussion in Smith, there is ample evidence of record to support a conclusion as
to the nature of the floor installation contract. Moreover, Kirschner’s suggestion that
° Kirschner’s attempt to dispute these statements of fact is ineffective. M.R. Civ. P. 56(h)(2) requires that a
party support ali denials and qualifications of fact with citations to admissible evidence of record. The
rule does not permit a party to sidestep this obligation by claiming a lack of knowledge or information.
Accordingly, because Kirschner has failed to adequately controvert these statements of fact, FCW’s
properly supported assertions are deemed admitted. See M.R. Civ. P. 56(h}(4).
the definition of the word “product” has some bearing on the legal analysis is incorrect.
In the present context, we are concerned not with the nature of the floor, but rather, the
nature of the contract.
In light of the foregoing undisputed facts and legal analysis, this Court finds that
the primary purpose of the floor installation contract was for the provision of services.
Therefore, the UCC as adopted in Maine is inapplicable.
2. Strict Products Liability Claim
In count I of the amended complaint, the Plaintiff asserts a claim against FCW
sounding in strict products liability pursuant to 14 M.RS.A. § 221. The Defendant
asserts that the provision of construction labor and materials is not the sale of a product
under section 221, and therefore it is entitled to summary judgment on this count.
In support of its position, FCW first states that Maine courts appear not to have
addressed the issue of whether the provision of labor and materials in the construction
of improvements to real property is covered under the strict liability statute. However,
the Defendant notes that some out of state courts have addressed this issue and held
that strict products liability does not apply under these circumstances. By way of
example, the Defendant first cites to Wolfe v. Dal-Tile Corp., 876 F. Supp. 116 (S.D. Miss.
1995), which also involved the installation of a floor. In that case, the United States
District Court recognized that under Mississippi law, “strict products liability claims
cannot lie against persons supplying ‘improvements to real property’ as opposed to
products”. Id. at 121 (citing Moore v. fesco, Inc., 531 So. 2d 815, 817 (Miss. 1988)). Also,
the Defendant cites to a case wherein the Court of Appeal of California noted the “well
settled rule in California [] that where the primary objective of a transaction is to obtain
services, the doctrines of implied warranty and strict liability do not apply”. Huang v.
Garner, 157 Cal. App. 3d 404, 412, ns (1984). Similarly, FCW cites to a Florida case
explaining that “strict liability applies to consumer products and does not apply to
improvements to real property”. Jackson v. L.A.W. Contracting Corp., 481 So. 2d 1290,
1291 (Fla. 5" DCA 1986), Additionally, the Jackson court noted that where the supplying
of goods is only a minor element of the transaction, strict liability does not apply. See Id.
at 1292. Lastly, the Defendant cites to a case from Georgia that was characterized by the
court as dealing with negligent construction of improvements to real property and not
manufacture of defective personal property. See Seely v. Loyd H. Johnson Construction
Co., 470 $.E.2d 283, 288 (Ga. Ct. App. 1986). The court seized upon this distinction in
upholding the grant of summary judgment in favor of the builder. See Id. The
Defendant believes that this Court should follow suit and find section 221 inapplicable
under the facts of the present case.
In response, the Plaintiff attempts to distinguish each of the cases relied upon by
FCW. First, Kirschner states that the Wolfe court failed to provide a basis for legally
distinguishing improvements to real property from other products. Similarly, the
Plaintiff contends that the Huang decision does not assist in determining whether a floor
is a product. Also, Kirschner suggests that the Georgia statute is more limited than its
counterpart in Maine, and therefore the Seely decision is inapposite.
In addition, the Plaintiff draws the Court’s attention to the language of section
221, particularly that it applies to sellers of “goods or products”. Kirschner notes that
neither “goods” nor “products” are defined in the statute or in the case law. The
Plaintiff further points out that “products” must necessarily mean something different
that “goods” or both terms would not have been included by the legislature. See
Handyman Equipment Rental Co., Inc., et al. v. City of Portland, 1999 ME 20, 724 A.2d 605
(Words are to be given meaning and not treated as superfluous). Moreover, Kirschner
believes that although the floor may not be “goods”, it certainly falls within a
reasonable definition of the term “products”, and is therefore within the ambit of
section 221.
Although the cases cited by the Defendant are helpful in understanding how
other jurisdictions might resolve the present issue under their various laws, the job of
this Court is to interpret the statute enacted by the Maine Legislature according to rules
of construction set forth by the Law Court. Among the applicable rules is, “tw]hen
interpreting a statute, we seek to give effect to the intent of the Legislature by
examining the plain meaning of the statutory language and considering the language in
the context of the whole statutory scheme”. Jackson Brook Institute, Inc., et al. v. Maine
Insurance Guarantee Association, 2004 ME 140, { 9, 861 A.2d 652, 656. The Law Court has
looked to dictionary definitions when determining the plain meaning of words. See Id.
q 13, 861 A.2d at 657. Accordingly, Black’s Law Dictionary defines “product” as
“(slomething that is distributed commercially for use or consumption and that is
usually (1) tangible personal property, (2) the result of fabrication or processing, and (3)
an item that has passed through a chain of commercial distribution before ultimate use
or consumption”. BLACK’S LAW DICTIONARY 1225 (7" ed. 1999). A floor indeed appears
to fall within the scope of this definition. In addition, the Court finds it imprudent to
narrow the operation of section 221 by departing from the plain meaning of its terms,
carving out an exception for products that also constitute improvements to real
property. Thus, the Court concludes that count I should not be dismissed at this stage,
as urged by the Defendant.
3. Did Kirschner Assume a Duty to Protect its Food Products?
FCW contends that it and its subcontractors have no liability for the
contamination of the Plaintiff's meat products. The Defendant bases this contention on
the fact that it warned Kirschner on several occasions that there was a risk of
contamination and that Kirschner should remove all meat products from the area where
the work was being done. FCW asserts that these warnings give rise to a knowing
assumption of a duty on the part of the Plaintiff to prevent contamination of the food
product. In addition, FCW notes that even though Kirschner assumed this duty, it still
made the decision not to remove the meat from coolers adjacent to the work area. The
Defendant also states that it relied on the written waiver of liability in proceeding with
the installation. In sum, FCW maintains that Kirschner expressly assumed the duty to
prevent contamination of the meat, and expressly waived any claim against FCW
arising out of the contamination.
In support of its position, the Defendant cites to Doyle v. Bowdoin College, 403
A.2d 1206 (Me. 1979). In Doyle, the Law Court held that contractual releases from
liability are enforceable, so long as the release spells out the intention of the parties with
the greatest of particularity. Id. at 1207-1208. FCW asserts that the Customer
Preparation for Installation form clearly specifies the responsibilities of the respective
parties with regard to protecting food product from contamination, and that duty is
placed squarely on the Plaintiff, FCW also contends that the handwritten waiver
executed by Gary Malbon, after FCW became aware that food product was left in
coolers near the work area, clearly shows the that the parties intended the Defendant to
be released of any liability for resulting contamination.
In response, the Plaintiff first points out that “[clourts have traditionally
disfavored contractual exclusions of negligence liability and have exercised a
heightened degree of judicial scrutiny when interpreting contractual language which
allegedly exempts a party from liability for his own negligence”. Id. at 1207. Kirschner
also notes that the Doyle Court found that the document at issue was not a valid release
because it contained no express reference to the defendant's liability, nor did it contain
10
terms such as indemnify, reimburse or hold harmless. See Id. at 1208-1209. To the
contrary, Kirschner notes that where a document specifically references the negligence
of the party seeking immunity, such reference is sufficient to extinguish negligence
liability. See Lloyd v. Sugarloaf Mountain Corp., 2003 ME 117, {| 8, 833 A.2d 1, 4.
In the present case, the document relied upon by FCW reads as follows:
9/23 — Food Product in Coolers
Kirschner understands that FCW recommends that all food product be
removed from the work area per FCW’s customer preparation for
installation form. This includes adjacent work areas [sic] coolers.
Customer understands that FCW is not liable for odor entering coolers
and damaging food product.
/s/ Gary A. Malbon 9/23/2000
At the threshold, the Plaintiff asserts that this document is inapplicable to the Phase Il]
contract because it was executed six months earlier in the context of an entirely separate
contract governing Phase II of the project. Even if the handwritten release applies to the
Phase III contract, however, Kirschner asserts that under Doyle and Lloyd, it does not
meet the specificity standard for absolving FCW of liability for negligence which it had
yet to commit.
Considering the language of the handwritten release in light of Doyle and Lloyd,
it is apparent that the release is inadequate to relieve FCW of liability for its own
negligence that leads to the contamination of or other damage to Kirschner’s food
product. Indeed, the above-quoted language falls far short of stating with the “greatest
of particularity” any intent to absolve the Defendant of negligence liability. Given the
lack of any express reference to negligence, and that the Court must construe the release
strictly against FCW, FCW’s argument must fail. See Lloyd, 2003 ME 117, { 8, 833 A.2d
at 4.
The entry will be:
Defendants’ motion for summary judgment on counts IIL V, VL
and VII of the amended complaint is GRANTED; judgment for defendants
on counts III, V, VI and VII of the amended complaint; defendants’ motion
for summary judgment on count I of plaintiffs’ complaint is DENIED;
defendants’ motion for summary judgment on counts I, IV, VII, [Xx and
XIII is DENIED.
Dated: April 4 _, 2005 tbe
11
Donald H. Marden
Justice, Superior Court
ZEMCO INDUSTRIES, INC. - PLAINTIFE
Attorney for: ZEMCO INDUSTRIES, INC.
STEPHEN E F LANGSDORF - RETAINED 04/24/2002
PRETI FLAHERTY ET AL
45 MEMORTAL CIRCLE
PO BOX 1058
AUGUSTA ME 04332-1058
vs
FCW TECHNOLOGIES, INC. - DEFENDANT
660 FURNACE HILLS PIKE
LITITZ PA
Attorney for: FCW TECHNOLOGIES, INC.
PAUL R JOHNSON - RETAINED
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 300
PO BOX 9545
PORTLAND ME 04112-9545
Attorney for: FCW TECHNOLOGIES, INC.
WENDELL LARGE - WITHDRAWN 03/12/2004
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
MORMIC, INC. - DEFENDANT
31 KNOLLWOOCD DRIVE
AKRON PA
Attorney for: MORMIC, INC.
JEFFREY TOWNE - WITHDRAWN
179 MAIN STREET STE 202
WATERVILLE ME 04901
PRO BOND EPOXY FLOORING, INC.-VOID - DEFENDANT
31 KNOLLWOCD DRIVE
AKRON PA
MICHAEL MCLUCAS - DEFENDANT
31 KNOLLWOOD DRIVE
AKRON PA 17501
Attorney for: MICHARL MCLUCAS
JEFFREY TOWNE - RETAINED
179 MAIN STREET STE 202
WATERVILLE ME 904901
JEFFREY KNIPPINBERG-VOID SR - DEFENDANT
31 KNOLLWOOD DRIVE
31 KNOLLWOOD DRIVE PA 17501
Page 1 of 16
SUPERIOR COURT
KENNEBEC, ss.
Docket No AUGSC-CV-2002-00085
DOCKET RECORD
Printed on:
04/04/2005
Attorney for: JEFFREY KNIPPINBERG-VOID SR
GREGG D BERNSTEIN - REMOVAL 03/18/2004
LIPMAN & KATZ & MCKEE, PA
227 WATER STREET
PO BOX 1051
AUGUSTA ME 04332-1051
GULF COAST POLYMER SERVICES - THIRD PARTY DEFENDANT
Attorney for: GULF COAST POLYMER SERVICES
PAUL R JOHNSON - REMOVAL 03/12/2004
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
Attorney for: GULF COAST POLYMER SERVICES
JONATHAN B HUNTINGTON - RETAINED 06/05/2003
EATON PEABODY ET AL PA
77 SEWALL STREET
SUITE 3000
AUGUSTA ME 04330
Filing Document: COMPLAINT Minor Case Type: PRODUCT LIABILITY
Filing Date: 04/24/2002
Docket Events:
04/24/2002 FILING DOCUMENT - COMPLAINT FILED ON 04/24/2002
Defendant's Attorney: STEPHEN E F LANGSDORF
WITH ATTCHMENTS, FILED.
04/24/2002 Party(s): ZEMCO INDUSTRIES, INC.
ATTORNEY - RETAINED ENTERED ON 04/24/2002
Plaintiff's Attorney: STEPHEN E F LANGSDORF
04/25/2002 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 04/25/2002
ISSUED TO S. LANGSDORF, ESQ.
05/14/2002 Party(s): FCW TECHNOLOGIES, INC.
SUMMONS /SERVICE - CIVIL SUMMONS FILED ON 05/13/2002
05/14/2002 Party{s): FCW TECHNOLOGIES, INC.
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/01/2002
SERVED TO SECRETARY THAT WAS PRESENT. (LANCASTER COUNTY, PA)
05/14/2002 Party(s): MORMIC, INC.
SUMMONS /SERVICE - CIVIL SUMMONS FILED ON 05/13/2002
05/14/2002 Party(s): MORMIC, INC.
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/01/2002
SERVED MICHAEL MMCCLUCAS, OWNER. (LANCASTER COUNTY, PA)
05/14/2002 Party(s): PRO BOND EPOXY FLOORING, INC. -VOID
Page 2 of 16
AUGSC-CV-2002-00085
DOCKET RECORD
Printed on: 04/04/2005