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ASP Denver, LLC v. Lend Lease U.S. Construction Inc.

United States District Court, D. Colorado

May 3, 2018

ASP DENVER, LLC, ASP,
v.
LEND LEASE U.S. CONSTRUCTION INC., f/k/a Bovis Lend Lease, Inc., APOGEE WAUSAU GROUP, INC., d/b/a Wausau Window and Wall Systems, and VIRACON, INC., Defendants, LEND LEASE U.S. CONSTRUCTION INC., f/k/a Bovis Lend Lease, Inc., Third-Party Plaintiff,
v.
METROPOLITAN GLASS, INC., Third-Party Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff ASP Denver, LLC's, (“ASP”) Motion for Partial Summary Judgment (Doc. # 82), wherein ASP moves for summary judgment on its breach of contract claim against Defendant Lendlease, (US) Construction Inc. (“Lendlease”). For the following reasons, the Court grants ASP's motion.

         I. BACKGROUND

         A. THE PROJECT

         ASP is the owner and lessor of a building located at 8000 East 36th Avenue in Denver. (Doc. # 82 at 2.) This lawsuit stems from the construction of a Window System comprised of certain windows and curtain walls encasing that building (“the Project”). (Id.) Lendlease served as ASP's general contractor for construction of the Project pursuant to a contract that the parties executed in August 2008. The executed contract consists, in relevant part, of the Modified AIA Document A111 - 1997, Standard Form of Agreement Between Owner and Contractor (the “Agreement”); the Modified AIA Document A201 - 1997, General Conditions of the Contract for Construction, (the “General Conditions”); the Drawings; and the Specifications. (Doc. # 82-1 at 2, Article 1) (Collectively, the “Contract Documents”).[1]

         Under the terms of the Contract Documents, Lendlease has the ability to engage subcontractors for the completion of the work. (Doc. # 82-2, at § 3.3.1) (“Nothing herein is intended to preclude the Contractor from delegating control over construction means, methods, techniques, sequences and procedures to Subcontractors . . .; provided however, that Contractor shall remain solely responsible to Owner with respect thereto notwithstanding any such delegation.”). Lendlease therefore engaged a subcontractor, Defendant Metropolitan Glass, Inc. (“Metropolitan Glass”), to perform the work relating to the Window System. (Id. at 3.) Metropolitan Glass in turn contracted material suppliers, Defendants Viracon, Inc. (“Viracon”) and Apogee Wausau Group, Inc. (“Wausau”).[2] (Id.)

         B. BREACH OF CONTRACT CLAIM

         ASP's breach of contract claim arises from alleged defects and deficiencies in the manufacture and/or installation of the Window System in the Project. (Doc. # 82 at 2.) There are 1, 943 insulated glass units (“IGUs”) in the Window System. (Doc. # 88 at 12.) Over time, numerous IGUs have displayed evidence of “spotting and fogging.” (Doc. ## 82-3 at 23-24, 92-1 at 47.) ASP alleges that this “spotting and fogging” on the IGUs renders the Window System non-conforming to contractual requirements. (Doc. # 82 at 13.) ASP also claims that, based on a plain reading of the Contract Documents, Lendlease is solely responsible for the defects in the IGUs, even if the defects are attributable to work completed by the Subcontractors. (Doc. # 82 at 3.) (emphasis added.) Therefore, ASP is seeking partial summary judgment as to Lendlease's liability for breach of contract. (Id.) ASP is also seeking to recover damages arising out of or relating to the repair and replacement of the Window System but concedes that damages are better suited for resolution at trial.[3] (Id.)

         Lendlease contends that summary judgment is not warranted on this claim because (1) there exist ambiguities in the Contract Documents regarding Lendlease's performance and liability, and (2) there are genuine disputes governing the cause of the “spotting and fogging.” (Doc. # 88 at 10.) The Court disagrees.

         II. LEGAL PRINCIPLES

         A. SUMMARY JUDGMENT STANDARD

         Summary judgment is warranted when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Turnkey Sols. Corp. v. Hewlett Packard Enter. Co., No. 15-cv-01541-CMA-CBS, 2017 WL 3425140, at *2 (D. Colo. Aug. 9, 2017). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Id. A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Id. In reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. To grant summary judgment, the evidence presented must be so powerful that no reasonable jury would find otherwise. Andersen v. Lindebaum, 160 P.3d 237, 239-40 (Colo. 2007).

         B. CONTRACT LAW

         Well-established principles of contract law guide this Court's review. “When the written contract is complete and free from ambiguity, [the court] will find it to express the intentions of the parties and enforce it according to its plain language.” Gagne v. Gagne, 338 P.3d 1152, 1163 (Colo.App. 2014). In addition, courts must interpret and enforce contracts as written and cannot rewrite or restructure them. Janicek v. Obsideo, LLC, 271 P.3d 1133, 1138 (Colo.App. 2011). A court must also interpret a contract “in its entirety with the end in view of seeking to harmonize and to give effect to all provisions so that none will be rendered meaningless.” Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1313 (Colo.1984).

         C. ELEMENTS OF BREACH ...


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