a watertight roof, and by failing to service the roof at all in 1996 -- constituted a breach of the Settlement Agreement.
In addition to this alleged breach, FMI claims that Schuller breached the Settlement Agreement when Blum's efforts to fix all roof defects failed. Attached to the Settlement Agreement was a proposal dated May 23, 1992, in which Blum stated that it would make certain repairs on both the lower and upper roof areas. FMI also contends that Mr. Blum testified at deposition that it was his intent, under the proposal, to fix all roof defects that he found, and that the purpose of the proposal was to stop all leaks. FMI contends that "the failure of Blum's repair work to render the building watertight violated Schuller's obligation to repair the Damaged Roof of the Facility," and thus constituted a breach of the Settlement Agreement.
After carefully reviewing the Settlement Agreement, and considering the parties' respective positions, the Court finds that FMI cannot state a valid claim for breach of the Settlement Agreement. FMI cannot point to one provision of the Settlement Agreement which was breached. Under the Settlement Agreement, Schuller agreed to bear the costs of labor to repair the Damaged Roof of the Facility and to supply material necessary to do the work as outlined in the May 23, 1992 proposal. Indisputably, Schuller complied with these obligations.
Despite FMI's intimations to the contrary, nowhere in the Settlement Agreement did Schuller, in consideration of FMI's release of any claims that it may have had against Schuller, agree that the repairs of Blum would make the roof watertight. The Settlement Agreement only contemplated that Schuller would pay Blum to conduct the repairs. Of course, the parties probably hoped that the repairs would stop the leaking. However, there is simply no provision in the Settlement Agreement that would indicate that FMI released its claims against Schuller only in consideration for Schuller's promise that it would stop the leaking.
The question which arises at this point is: what did FMI get in consideration for releasing it claims against Schuller? Beyond Schuller's promise to pay for Blum's repairs, FMI received the exact protection it was looking for in the future; Schuller transferred the Guarantees to FMI and also extended the expiration dates on the Guarantees for certain portions of the roof. Thus, if the repairs of Blum, as contemplated in the Settlement Agreement, did not work, FMI could request that Schuller repair the building to its watertight condition as required by the Guarantees. If Schuller did not conduct the repairs, then FMI could bring suit against Schuller for breach of the Guarantees, which it has done. Although the Court finds that in the Settlement Agreement, Schuller promised to transfer and extend the Guarantees, the Court does not find that Schuller promised to make the roof watertight as consideration for FMI's release. The Settlement Agreement clearly indicates that Schuller merely promised to transfer and extend these Guarantees, which it did. Although the Guarantees state that Schuller will make the roof watertight, nowhere is this promise to make the roof watertight set forth as a covenant, promise, or obligation in the Settlement Agreement. Simply put, Schuller's promise to make the roof watertight arises out of the Guarantees, not the Settlement Agreement. Thus, there can be no breach of the Settlement Agreement based on Schuller's failure to make the roof watertight. This failure only implicates Schuller's obligation to conduct repairs under the Guarantees. If Schuller fails to conduct these repairs, as FMI alleges here, then FMI will have a claim based on the Guarantees.
Holding the evidence in a light most favorable to FMI, this Court finds that FMI simply cannot prove a breach of the Settlement Agreement. Thus, the Court enters judgment in favor of defendant and against plaintiff on Count I of plaintiffs' complaint.
D. Plaintiff's Alternative Causes of Action
In its complaint, plaintiff seeks to reinstate, as Alternative Causes of Action, its claims against Schuller which were originally asserted in Factory Market Inc. v. Manville Sales Corporation. FMI claims that it is entitled to reinstate these claims because Schuller breached the Settlement Agreement. However, because the Court has concluded that FMI cannot prove that Schuller breached the Settlement Agreement, FMI cannot reinstate its claims against Schuller which were originally asserted in the state court action. Thus, the Court dismisses all of plaintiff's Alternative Causes of Action.
E. The Recovery of Consequential Damages
Schuller contends that the Court must strike plaintiff's claim for consequential damages because the Guarantees at issue preclude such recovery. All of the Guarantees at issue contain the following language:
MANVILLE AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE BUILDING STRUCTURE (UPON WHICH THE ROOFING SYSTEM IS AFFIXED) OR ITS CONTENTS, LOSS OF TIME OR PROFITS OR ANY INCONVENIENCE. MANVILLE AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES WHICH ARE BASED UPON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY OTHER THAN THE EXCLUSIVE LIABILITY SET FORTH IN THIS GUARANTEE. INCIDENTAL AND CONSEQUENTIAL DAMAGES SHALL NOT BE RECOVERABLE EVEN IF THE REMEDIES OR THE ACTIONS PROVIDED FOR HEREIN FAIL OF THEIR PURPOSE.