United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
Court has three ripe summary judgment motions before it:
Crossclaim Defendant Liberty Mutual Insurance Company's
Motion for Summary Judgment, Dkt. 63; Concrete Accessories of
Georgia, Inc.'s (hereinafter, “CONAC”) Motion
for Partial Summary Judgment, Dkt. 71; and, Oldcastle
Precast, Inc.'s Motion for Partial Summary Judgment, Dkt.
addition, the Court has two ripe motions in limine:
CONAC's Motion in Limine to exclude all or part of the
testimony of Areva Federal Services LLC's expert, Henry
Spieker, Dkt. 64; and CONAC's Motion in Limine to exclude
all or part of the testimony of Oldcastle's expert,
Ronald Mayville, Dkt. 67.
case arises out of an accident that occurred during the
construction of the Remote Handled Low-Level Waste Disposal
Facility at the Idaho National Laboratory. The legal
relationships between the various parties to this litigation
are as follows:
1. Areva, working on behalf of the project owner, Battelle
Energy Alliance, performed the role of general contractor for
the construction of the Remote Handled Low-Level Waste
2. Areva entered into a Subcontract Agreement with Oldcastle
(hereinafter, the “Oldcastle Subcontract”), by
which Oldcastle agreed to fabricate and deliver precast
concrete vaults for the project. See Dkt. 72-3, Dkt.
72-4, Dkt. 72-5, Dkt. 72-6, Dkt. 72-7.
3. As part of its agreement with Oldcastle, Areva required
Oldcastle to furnish a Subcontract Performance Bond.
See Dkt. 72-9. To fulfill this obligation, Oldcastle
obtained the Performance Bond from Liberty Mutual and
furnished it to Areva. Id.
4. In addition to securing the Performance Bond, Oldcastle
entered into an agreement with CONAC for the purchase of
metal anchors (hereinafter, the “CONAC
Areva Enters into the Oldcastle Subcontract
September 14, 2015, Oldcastle and Areva entered into the
Oldcastle Subcontract. Dkt. 31 at ¶ 6. In exchange for
payment, Oldcastle agreed to, among other things, fabricate
and deliver precast concrete vaults to a site at the Idaho
National Laboratory. Id. The vaults were intended
for use at the Remote-Handled Low-Level Waste Disposal
Facility located near Scoville, Idaho. Id.
Oldcastle Obtains a Performance Bond from Liberty
after Oldcastle entered into the Oldcastle Subcontract with
Areva, Oldcastle secured a Performance Bond from Liberty
Mutual on September 29, 2015. See Dkt. 72-9. The
following portions of the Performance Bond are relevant to
THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if
the Principal shall promptly and faithfully perform said
Subcontract, then this obligation shall be null and void;
otherwise it shall remain in full force and effect.
AND SUBJECT TO THE CONDITIONS PRECEDENT:
1.0 Whenever the Principal shall be, and be declared by the
Obligee to be in default under the Subcontract, the Obligee
having performed the Obligee's obligations thereunder,
the Surety may promptly remedy the default, or shall
1.1. Arrange for the Principal, with consent of the Obligee,
to perform and complete the Subcontract; or
1.2. Undertake to perform and complete the Subcontract
itself, through its agents or through independent
1.3. Obtain a bid or bids from alternative contractors to
complete the Subcontract in accordance with its terms and
conditions, and upon determination by Surety of the lowest
bidder, or if the Obligee elects, upon determination by the
Obligee and Surety jointly of the lowest responsible bidder,
arrange for a subcontract between such bidder and the Obligee
1.4. Waive its right to perform and complete, arrange for
completion, or obtain a new subcontractor and with reasonable
promptness under the circumstances:
a. After investigation, determine the amount for which it may
be liable to the Obligee and, as soon as practicable after
the amount is determined, tender payment therefore to the
b. Deny liability in whole or in part and notify the Obligee
citing reasons therefore…
5.0 Any claims must be presented in writing to Liberty Mutual
Insurance Company, to the attention of The Surety Law
Department at the above address.
Id. at 2-3.
Oldcastle Enters into the CONAC Agreement
a. Basic Parameters of the CONAC
addition to securing the Performance Bond from Liberty
Mutual, Oldcastle entered into the CONAC Agreement. In
exchange for payment, CONAC agreed to supply certain metal
anchors to be used as part of the assembly of the precast
concrete vaults that Oldcastle was assembling for Areva.
See Dkt. 21. For demonstrative purposes only, photos
of the metal anchor supplied by CONAC and the final precast
concrete vault follow as Figure 1 and Figure 2, respectively.
The Contested Terms of the CONAC Agreement
exact contents of the CONAC Agreement are disputed. According
to CONAC, the Agreement between CONAC and Oldcastle
incorporated CONAC's “Terms and Conditions of
Sale” which, again according to CONAC, are
conspicuously posted on CONAC's website (Dkt. 74-1 at 2)
and in CONAC's purchase catalog (Dkt. 74-1 at 1). The
relevant portion of CONAC's “Terms and Conditions
of Sale” reads as follows:
It is the responsibility of the user to check supplied
products prior to use. Any product believed to be defective
should be returned to CONAC for inspection. CONAC will refund
the purchase price or replace, at its election, any product
which it finds to be defective, provided the product has been
used properly. Such refund or replacement shall be the
exclusive remedy available, and CONAC hereby disclaims any
and all express or implied warranties, and excludes any
liability for consequential damages, in accordance with
Article 2-719 of the Uniform Commercial Code.
Parties do not dispute that Michael Blackham, an engineer
employed by Oldcastle who placed the order for the CONAC
anchors, (1) had a copy of CONAC's catalog when he made
the order and (2) accessed CONAC's website before
ordering them. Dkt. 86 at 2. Oldcastle, however, argues that
the “Terms and Conditions of Sale” “were
[n]ever provided to Oldcastle” and were not
conspicuously located on CONAC's website or in
CONAC's magazine. Id. at 3. Mr. Blackham gave
the following testimony during his deposition on this issue:
Q. (BY MR. STUBBS [Counsel for CONAC]) Mr. Blackham, I've
handed you what has been marked Deposition Exhibit 5 [Dkt.
74-1]. I'll represent to you that these are terms and
conditions of sale that are published by CONAC. They are OCP
00001 and 2. One is from the website for CONAC. Another is a
document they published in their catalog. Have you seen these
Q. You have accessed the CONAC website before; correct?
Q. And were you aware that the CONAC terms and conditions of
sale were present on the website?
A. No, I've never seen these.
Q. And in terms of the CONAC catalog, do you have a CONAC
Q. Have you ever looked at the terms and conditions of sale
that are in there?
Areva Seeks Increase in Compensation from Battelle
construction on the Remote Handled Low-Level Waste Disposal
Facility was underway, Areva sought an increase in contract
compensation from Battelle. To this end, on August 9, 2016,
Areva filed Baseline Change Request (“BCR”) 193
(Dkt. 89-3 at 8) seeking an increase of roughly $3.25 million
in contract compensation as a result of “[c]hanges
requested by … [Battelle].” Id. BCR-193
did not include a request to alter the construction schedule.
Id. (“There has been a schedule impact [from
the project changes for which Areva was seeking additional
compensation], but it has been mitigated largely be
[sic] adding resources. We are not seeking
[sic] change in schedule or costs for schedule
delays at this time.”).