KMC Acquisition Corp. v. Escoe Indus. Mech., Inc.

KMC ACQUISITION CORPORATIONd/b/a KIRKHILL MANUFACTURING COMPANY, Plaintiff, v. ESCOE INDUSTRIAL MECHANICAL, INC., Defendant.

No. 3:15-CV-119 (CAR)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION

March 28, 2018

ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Before the Court is Plaintiff KMC Acquisition Corporation d/b/a Kirkhill Manufacturing Company's Motion for Partial Summary Judgment. Plaintiff seeks summary judgment as to Defendant Escoe Industrial Mechanical, Inc.'s liability for negligence and breach of contract regarding an incident at Plaintiff's rubber manufacturing facility in Athens, Georgia. The Court has thoroughly considered the relevant facts and applicable law, and, for the reasons explained below, GRANTS Plaintiff's Motion [Doc. 42].

LEGAL STANDARD

Summary judgment is proper if 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."¹ The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitles it to a judgment as a matter of law.² If the moving party discharges this burden, the burden then shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact.³

The Court must view the facts, and any reasonable inferences drawn from those facts, in the light most favorable to the party opposing the motion.⁴ "The inferences, however, must be supported by the record, and a genuine dispute of material fact requires more than 'some metaphysical doubt as to the material facts.'"⁵ In cases where opposing parties tell different versions of the same events, and one is "blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts."⁶ A disputed fact will preclude summary judgmentonly "if the dispute might affect the outcome of the suit under the governing law."⁷ "The court may not resolve any material factual dispute, but must deny the motion and proceed to trial if it finds that such an issue exists."⁸

BACKGROUND

Plaintiff filed this negligence and breach of contract action after an industrial rubber mixer Defendant was installing fell to the floor of Plaintiff's facility causing significant damage. Plaintiff contends Defendant is responsible for the damage because Defendant plainly should have known the mixer was too heavy for the equipment it used to lift it. Defendant counters it reasonably thought the equipment could sustain the weight of the mixer. The facts taken in the light most favorable to Defendant, as the non-moving party, are as follows.

In 2012, Plaintiff solicited bids from contractors to remove and replace an industrial rubber mixer that had fallen below standards at its Athens, Georgia rubber manufacturing facility. Defendant won the bid based on its representation it could perform the full turnkey operation, meaning, in addition to physically moving the mixers, it could disconnect and reconnect all the utilities. Defendant's project manager was Brandon Escoe. Plaintiff's project was the first project Escoe quoted or worked onas a project manager, and he had not previously worked on a job involving the removal and installation of a commercial mixer.⁹

Prior to bidding, Escoe visited Plaintiff's facility at least twice to do a walk-through and discuss the project with James Welch, Plaintiff's plant manager.¹⁰ Welch told Escoe the beam installed in the facility had previously been used to change out mixers, but he was unsure if the chain fall¹¹ attached to the beam had previously been used; however, Welch said Escoe could use the chain fall to move the mixer if he wanted.¹² Welch told Escoe "he wanted to do the job as cheap as possible," and Plaintiff's current beam and chain fall system were built "specifically" for moving mixers.¹³ However, Escoe testified Defendant was not required to use Plaintiff's equipment.¹⁴

On September 14, 2012, Defendant prepared a proposal for Plaintiff. The Proposal states:

[Defendant] will supply labor, material and equipment to complete the following:

Remove flooring and piping

Remove old mixer and install new mixer

Install flooring and re-install piping[.]¹⁵

The Proposal also states: "BUYERS ACCEPTANCE OF THIS PROPOSAL SHALL CONSITUTE A VALID AND BINDING CONTRACT BETWEEN THE PARTIES AND ALL PRIOR PROPOSALS, DISCUSSIONS AND AGREEMENTS RESPECTING THE SUBJECT MATTER HEREOF ARE CANCELED."¹⁶ Plaintiff's President Ed Reker executed the Proposal.¹⁷ The Proposal contains no terms regarding Defendant using Plaintiff's equipment.

To remove the old mixer, Defendant used Plaintiff's already installed beam and chain hoist. It is undisputed both the beam and the chain hoist were clearly labeled they could support maximum weight of ten tons, or 20,000 pounds.¹⁸ Defendant used new straps rated for at least 40,000 pounds to secure the old mixer to Plaintiff's chain hoist.¹⁹ After securing the old mixer to Plaintiff's chain hoist,²⁰ Defendant lifted it eightto ten feet out of its hole and manually pushed it along the beam attached to the ceiling, until it could be lifted by a crane out of the building. The old mixer was removed without incident. However, Ray Myers—Defendant's lead man²¹ who had 20 years of industry experience²²—testified that when Defendant removed the top of the old mixer "those hoists had a hard time just lifting the top section, and that was the lighter part of the machine."²³ Myers testified he expressed his concerns to Escoe.²⁴

Having successfully removed the old mixer, Defendant's crew proceeded to install the new mixer. There is a dispute regarding Escoe's knowledge of the new mixer's weight. The new mixer actually weighed approximately 34,400 pounds.²⁵ However, the scale on the crane Defendant used to put the mixer into the building showed the new mixer weighed 27,500 pounds.²⁶ Escoe testified Plaintiff's plant manager Welch told him the new mixer weighed right at 30,000 pounds.²⁷ Because the Court must view the facts in the light most favorable to Defendant for the purpose of summary judgment, the Court will assume Defendant reasonably believed the mixer weighed 27,500 pounds.

Although the chain hoist was clearly labeled it was rated to lift ten tons (20,000 pounds), Escoe testified he thought Plaintiff's chain fall was rated 15 tons (30,000 pounds).²⁸ However, Escoe does not explain why he thought the chain hoist was rated higher than its label, and no other evidence offers any explanation.

After setting the new mixer into the building, Defendant's crew secured it to Plaintiff's chain hoist using the same straps used to remove the old mixer and moved the mixer through the facility using Plaintiff's chain hoist and beam.²⁹ When Defendant began lowering the new mixer into place, the chain hoist slipped several inches causing the straps to "explode," and the mixer fell five or six feet into the hole damaging the mixer and the facility.³⁰ The incident report Defendant created shortly after the incident stated the fall was due to the hoist slipping which caused the straps to break.³¹ It is clear the mixer weighing 27,500 pounds (as believed by Defendant) was more than Plaintiff's chain fall, labeled for 20,000 pounds, indicated it could support.

Defendant removed the fallen mixer using two rented 20-ton chain hoists attached to Plaintiff's beam.³² Once it was removed, Defendant shipped the mixer to its shop to be repaired.³³ Defendant hired an engineering consultant to inspect Plaintiff's beam to determine if it was safe to use to reinstall the mixer after the mixer wasrepaired.³⁴ The consultant determined the beam should not be used to lift the mixer without "substantial structural retrofits."³⁵ Plaintiff ultimately hired another company to install the mixer.³⁶

For the purpose of this litigation, Plaintiff hired an engineering expert to investigate the incident. Plaintiff's expert opines "[t]he mixer fell as a direct result of Mr. Escoe's lack of understanding or care for the regulations or industry standards," such as an inaccurate understanding of the weight of the mixer, the rating of the equipment, and the effect of the straps' angles on their effectiveness.³⁷ Plaintiff filed suit in this Court pursuant to the Court's diversity jurisdiction seeking to recover damages to the mixer, the facility, and lost profits. Defendant filed a counterclaim seeking payment Defendant alleges Plaintiff owes it under the contract.

DISCUSSION

Plaintiff brings six claims under Georgia law against Defendant: negligence, breach of contract, negligent performance of contract, gross negligence, attorney's fees, and punitive damages.³⁸ Plaintiff seeks summary judgment as to Defendant's liability on its negligence and breach of contract claims.³⁹

I. Negligence

Plaintiff's Complaint states both an ordinary negligence claim and a professional negligence claim. Although Plaintiff does not specify it is seeking a claim for professional negligence, whether a professional negligence claim is stated "is a question of law for the court, regardless of how the plaintiff categorizes it."⁴⁰ If "the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional's area of expertise, the action states professional negligence."⁴¹ In other words, "[i]f a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice."⁴² "However, administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple...