United States District Court, D. Colorado
ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.
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.
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
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”). (Id.)
BREACH OF CONTRACT CLAIM
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. (Id.)
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
SUMMARY JUDGMENT STANDARD
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).
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).
ELEMENTS OF BREACH ...