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Vigilant Insurance Co. v. SPX Corp.

March 14, 2008

VIGILANT INSURANCE COMPANY, AS SUBROGEE OF WQED MULTIMEDIA, PLAINTIFF,
v.
SPX CORPORATION D/B/A/ DIELECTRIC AND/OR DIELECTRIC COMMUNICATIONS, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Lisa P. Lenihan

MEMORANDUM OPINION AND ORDER

I. Conclusion

The Motion for Summary Judgment filed by Defendant Dielectric will be granted for the reasons set forth below.

II. Factual History

This case involves an action by WQED's insurer, Vigilant, as subrogee, for economic loss owing to the removal, repair and reinstallation of a broadband antenna purchased by WQED from an entity which was then acquired by Defendant Dielectric (the entity from which WQED purchased the antenna, and its acquiring company, are collectively referred to herein as "Defendant").

More particularly, in 2001, WQED wished to expand its broadcasting capabilities to transition from analog to digital broadcasts. This required the installation of an additional antenna - specifically, one capable of broadcasting multiple channels simultaneously (i.e., a "broadband antenna"). WQED consulted with Defendant and was provided with a list of acceptable antennas for its needs, which list included the one ultimately purchased (the "Antenna"). WQED also testifies that it was advised of the two different thicknesses of protective, ice and snow resistant coatings ("radomes") available on the antennas, and that it selected an antenna with the lesser coating both because it was less expensive and because there were concerns that WQED's existing antenna tower would not reliably support the additional weight and/or wind load of an antenna with a heavier weather coating.*fn1 WQED, through its Director of Engineering, Paul Byers, entered into a written contract in March, 2001, and testifies that it was aware of and agreed to the contract's one year express warranty for repair/replacement and other terms and conditions, including the waiver of other warranties. See Defendant's Memorandum of Law in Support at 3 (citing Statement of Material Facts at ¶¶ 19- 25).

The Antenna was installed and tuned in April, 2002 but, owing to problems which WQED was experiencing with the installation and operation of a transmission line, and the acquisition of transmitters (matters unrelated to the Defendant), the Antenna was only employed to transmit a single channel (rather than to transmit three channels, as originally intended) from April, 2002 through early January, 2004. Thus, the antenna was operating at reduced power during this period (including through the winter of 2002-2003).

In January, 2004, the transmission line problems were resolved and the Antenna began to be utilized for transmission of all three channels, i.e., at full power. A severe snowstorm and "whiteout" occurred on January 6, 2004, and the Antenna failed, owing to the power reflected back by the weather conditions (which the coating/shield did not withstand).*fn2 Defendant removed the Antenna, provided a temporary replacement, performed repairs, and reinstalled the Antenna in late 2004. WQED understood the Antenna's failure to have occurred outside the contract's one-year warranty period (as did Defendant) and so referred its related expenses to its property and casualty insurer, Plaintiff Vigilant.*fn3 WQED attests that the only damage/expense incurred with the Antenna's failures was directly related to the repair and reinstallation of the Antenna itself. See id. at 6 (citing to Statement of Material Facts and deposition testimony); 13 (providing extensive citations to Statement of Material Facts and deposition testimony).

Plaintiff filed its Complaint in 2006, asserting counts for (1) negligence, (2) strict liability under the Restatement (Second) of Torts § 402(A), and (3) breach of warranty. Defendant's Motion for Summary Judgment asserts that the first two claims should be dismissed in accordance with Pennsylvania law, which bars recovery under the economic loss doctrine, and that the third claim should be dismissed because the contractual warranty had expired by its terms.

III. Summary Judgment Standard

Summary judgment is to be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

All doubts as to the existence of a genuine issue of material fact are resolved against the moving party, and the entire record is examined in the light most favorable to the nonmoving party. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). However, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257.

Cf. Wausau Underwriters Insur. Co. v. Shisler, 2000 WL 233234, *5 (E.D. Pa. Feb. 28, 2000) (granting summary judgment against subrogee where deposition admissions of subrogor's ...


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