United States District Court, D. Colorado
NAMASTE SOLAR ELECTRIC, INC., a Colorado Cooperative, Plaintiff,
HB SOLAR OF SOUTHERN CALIFORNIA, INC., a California Corporation; PLUMP ENGINEERING, INC., a California Corporation; RICHARD A. PLUMP, P.E., an individual, Defendants.
R. BROOKE JACKSON, District Judge.
This matter comes before the Court on the Plump Defendants' (Plump Engineering, Inc. and Richard Plump, P.E.) Motion for Summary Judgment [ECF No. 31]. The Court exercises diversity jurisdiction pursuant to 28 U.S.C. § 1332. For the following reasons, the motion is denied.
This case arises from the design, sale, and installation of a roof-based solar energy collection system for the City of Boulder's Betasso Waste Water Treatment Facility. The general contractor on the project, McKinstry Essention, Inc., subcontracted with Namaste Solar Electric, Inc. ("Namaste Solar") for the installation of a solar energy collection system for the project. Namaste Solar, a solar installer based in Boulder, Colorado, contracted with defendant HB Solar of Southern California, Inc. ("HBS") for the design and fabrication of the solar collection system. Among other things, the system had to operate successfully notwithstanding Boulder's occasional extreme weather conditions, including up to a 135 mph wind load. HBS represented that it could provide such a system, that it would take three days to complete the engineering and design work, that the system could withstand wind speeds up to 150 miles per hour, and that the design calculations would be stamped and sealed by a Colorado-licensed engineer.
HBS recommended Plump Engineering, Inc. ("PEI") for the purpose of providing review and approval of the design calculations. PEI is an architectural, structural and civil engineering, and land surveying firm located in Anaheim, California. Richard Plump is a professional engineer licensed in the state of Colorado. I will frequently refer to the Plump defendants collectively as Plump unless otherwise indicated.
On August 23, 2011 Plump issued the stamped set of calculations and specifications for the project. Upon review, however, Namaste Solar found that the stamped drawings contained incorrect design loads, in particular noting that the designs could only withstand 85 mph winds, not the 150 mph winds the stamp and seal indicated. Plump issued a revised set of the drawings the next day. HBS assured Namaste Solar that the design had been revised and corrected. Then, on August 30, 2011 Plump issued yet another set of structural calculations, with Mr. Plump representing that "I have reviewed the solar system and the attached 27 sheets of calculations and it is my professional opinion that the solar system will meet the snow load and wind load requirements as designed." PEI Structural Calculations for Client HB Solar [ECF No. 32-3]. On September 2, 2011, following the submission of the final design and stamped calculations, Namaste Solar submitted a purchase order with HBS for the solar system.
The installation of the system was completed in December 2011. The City of Boulder inspected and approved the installation on December 15, 2011. Namaste Solar claims that on December 31, 2011 the system failed due to high winds, resulting in detached panels and other damage. A second wind event allegedly occurred on January 23, 2012, causing further damage. On or about February 2, 2012, Namaste Solar was advised that the City of Boulder refused to accept the solar system.
On December 3, 2013 Namaste Solar filed this action in the Boulder District Court. Plump (with HBS's consent) removed the case to federal district court on January 9, 2014 pursuant to 28 U.S.C. § 1441, asserting diversity jurisdiction under 28 U.S.C. § 1332.
The Amended Complaint lists six causes of action, four of which are asserted solely against HBS. However, although HBS was served, it did not respond. A clerk's default was entered against HBS on April 16, 2014.
The two claims asserted against the Plump defendants are (1) negligent misrepresentation and (2) negligence. Namaste Solar seeks damages resulting from damage to the solar collection system, as to which it claims title had not yet passed to the City of Boulder, and related economic losses. On April 30, 2014 the Plump defendants filed a motion for summary judgment on the grounds that the economic loss rule bars the two claims against it. [ECF No. 31]. That motion became ripe for review on June 23, 2014 upon the filing of Plump's reply brief. [ECF No. 34].
STANDARD OF REVIEW
The Court may grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324. A fact is material "if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court will examine the ...