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Raddison Design Management, Inc., Assignee of Technomarine v. Bob Cummins

March 2, 2011

RADDISON DESIGN MANAGEMENT, INC., ASSIGNEE OF TECHNOMARINE INTERNATIONAL MANAGEMENT, INC.,
PLAINTIFF,
v.
BOB CUMMINS, INDIVIDUALLY AND D/B/A BOB CUMMINS CONSTRUCTION CO.,
DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.

Erie Judge McLaughlin

MEMORANDUM OPINION

This matter is before the Court upon Defendant's Motion for Summary Judgment. For the reasons which follow, this motion is denied.

I. BACKGROUND

In September, 2005, the United States Department of Agriculture, Forest Service ("Government") awarded a contract for construction of the Wolf Run Marina Dock System in the Allegheny National Forest in Bradford, Pennsylvania ("Wolf Run Project") to Defendant, Bob Cummins Construction Company and, individually, Bob Cummins (collectively, "Cummins"). (See Def. Appx., Exh. F, Contract). The original contract called for total payment to Cummins of $1,318,084.00 and contemplated a completion date of May 15, 2006. (Id.).

Cummins, as general contractor, subcontracted with Gestion Technomarine International Inc. ("Technomarine") on December 9, 2005, for the design and construction of a floating dock system for the Wolf Run Project. (Def. Appx., Exh. G, Subcontract). Technomarine, a Canadian company, agreed to perform the subcontract for $678,325.00. (Id.). Pursuant to the terms of the Subcontract, the Scope of Work was as follows:

The Supplier agrees to design, manufacture and delivery of a floating dock-system for the project known as Wolf Run Marina, PA. The scope also includes the docks assembly supervision at Bob Cummins plant and site supervision for the installation of the dock system as described in Exhibit 1 to5 [sic] at the total lump sum amount of $678,325.00. (Id.) The Subcontract provided that invoice and payment for the project use the "percentage complete method on a monthly basis" and included a detailed schedule of the timing and amount of such percentage payments. (Id. at § III). Among these provisions, the Subcontract stated that "Payment for construction phase will not be processed until O&M manuals have been submitted and accepted." (Id.).

Relative to insurance coverage, Section IV of the Subcontract required Technomarine to comply with the following requirements:

Insurance for supplies, supervision on site. The Supplier shall provide proof by certificate that it has in Force and will maintain the following insurance with the indicated coverage's and minimum limits until completion of the project and termination of this contract. Failure of the Supplier to provide such proof of insurance and to maintain at least these coverage's during the Work shall be grounds for immediate termination of this Agreement or withholding of payment until such proof is provided.

A. Minimum Limits

1. Worker's Compensation - Statutory

2. Employer's Liability - $500,000

3. General Liability - $1,000,000 each occurrence for Bodily Injury, Property Damage, and Personal Injury

4. Automobile Liability - $1,000,000 each occurrence, combined single limit for Bodily Injury and Property Damage.

(Id. at § IV). The Subcontract also contained the following warranty and guarantee provision relative to Technomarine's performance:

Warranties & Guarantees. Supplier guarantees and warrants the Work performed hereunder, together with all materials and supplies furnished by Supplier, to be free from all defect, and such warranty shall continue for 1 year from date of final acceptance thereof by Contractor, or as required by the Owners documents. Final acceptance of work shall be made within 15 days from after floating docks are installed and anchored in accordance with the owner's approved plans and specifications (Id. at §§ V, VII).

Technomarine's supervisor arrived on the project site in January, 2006. (Plaintiff Appx. Exh. 2, Cummins Depo. p. 37). Around that time, Technomarine began delivering parts to Cummins' facility for assembly. (Id.). Robert Cummins testified that, up until March 6, 2006, parts were arriving from Technomarine "on or close to the schedule" and that the relationship between Technomarine and Cummins "was fine." (Id. at 74-75). Cummins indicated that Technomarine was "performing okay" and that he was "very comfortable" with Technomarine up until that point. (Id.). In March, 2006, the USDA approved a payment application submitted by Cummins that included work performed by Technomarine pursuant to the subcontract. (Id. at 98-101; Plaintiff Appx. Exh. 3).

On March 6, 2006, Technomarine commenced insolvency proceedings in the provincial Court of Quebec, District of Joliette. (See Affidavit of Michel Lavoie, ¶ 4). On that same date, Cummins sent a letter to Technomarine inquiring as to the status of various parts for the project that had not been delivered on time and indicating Cummins' concern as to the completion schedule if the parts did not arrive shortly. (Def. Appx. Exh. H, Letter). On March 7, 2006, Cummins faxed a letter to Technomarine indicating his concern that his emails and letters concerning the project were no longer being returned. (Def. Appx. Exh. I, Letters). On March 9, 2006, Cummins again wrote to Technomarine concerning the previously unanswered letters and correspondence. (Id.). Cummins' March 9 letter indicated that "[e]verything was going so well" and that Technomarine's supervisor "ha[d] been excellent" but expressed serious concern as to his sudden inability to contact anyone from Technomarine. (Id.).

On March 15, 2006, Technomarine filed for bankruptcy and Raymond Chabot, Inc., was appointed trustee in bankruptcy. Michel Lavoie was named the responsible person. (Plaintiff Appx. Exh. 6, Lavoie Depo. p. 32). It is undisputed that, following Technomarine's bankruptcy filing, the company was no longer able to perform its obligations under the Subcontract. Lavoie contacted Cummins several times between March 17 and March 20, 2006, to discuss the possibility of Technomarine's employees continuing to perform under the Subcontract and the intended sale of Technomarine's assets in the bankruptcy proceeding. (Plaintiff Appx. Exh. 6, Lavoie Depo. pp. 32-35; Plaintiff Appx. Exh. 10, 11, 13). On March 31, 2006, the Canadian bankruptcy court approved the sale of "all assets, accounts receivable, outstanding contracts, know-how, trademarks, equipment, licenses, etc. of Technomarine International Management Inc" to Plaintiff Radisson Design Management, Inc. ("Raddison"). (Cummins Aff., Exh. 1). The sale was consummated on April 6, 2006. (Plaintiff Appx. Exh. 13). Technomarine's right to recovery under the Subcontract was included among the assets purchased by Radisson in that sale. (Id).

On March 28, 2006, and on March 30, 2006, Radisson's president, Robert Fortin, contacted Cummins and expressed his interest in completing performance of Technomarine's scope of work under the Subcontract. (Plaintiff Appx. Exh. 13). Cummins instead contracted with a company known as Structurmarine to complete the project. (Plaintiff Appx. Exh. 3). The project was completed on June 5, 2006, and Cummins received full payment from the USDA. (Plaintiff Appx. Exh. 2, Cummins Depo. pp. 105-108).

On May 1, 2007, Radisson filed the instant Complaint alleging that Cummins had breached the Subcontract with Technomarine by refusing to pay for the work performed by Technomarine prior to the bankruptcy proceeding. (See Complaint, ¶ 12). Following discovery, Cummins filed the instant motion for summary judgment. This matter is ripe for review.

II. STANDARD FOR REVIEW

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party."

A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3rd Cir. 1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3rd Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3rd Cir. 1990) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3rd Cir. 1989) (the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the court must resolve any doubts as to the existence of genuine issues of fact against the party moving for summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegations or suspicions." Firemen's Ins. Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3rd Cir. 1982). Summary judgment is only precluded if the dispute about a material ...


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