Austin v. North American Forest Products

656 F.2d 1076, 1981 U.S. App. LEXIS 17535
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 21, 1981
DocketNo. 80-3602
StatusPublished
Cited by26 cases

This text of 656 F.2d 1076 (Austin v. North American Forest Products) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. North American Forest Products, 656 F.2d 1076, 1981 U.S. App. LEXIS 17535 (5th Cir. 1981).

Opinion

SAM D. JOHNSON, Circuit Judge:

This is a Louisiana diversity case involving the sale by North American Forest Products and Glassow Sales Company (hereinafter referred to collectively as Glassow) of door units manufactured and supplied by Lifetime Doors, Inc. to the contractor, Jack Austin (doing business as Jack Austin & Associates). In this suit, Jack Austin seeks to recover damages, penalties, and attorney’s fees from the seller (Glassow), the seller’s surety (United States Fire Insurance Company), and/or the manufacturer [1079]*1079(Lifetime). Glassow seeks to recover from Austin the balance of the purchase price of the doors and, if held liable to Austin or if denied recovery on its counterclaim against Austin, seeks indemnity from Lifetime. The district court held that the doors were defective; that Austin’s action against Glassow, United States Fire Insurance Company, and Lifetime had prescribed; that Austin was not liable for the balance of the purchase price of the doors; and that Lifetime was liable to Glassow for indemnification for the unpaid balance on the purchase price of the doors and for attorney’s fees. We affirm.

Austin contracted with the Corps of Engineers in early 1972 for the construction of a 260-unit family housing project at Fort Polk, Louisiana. Subsequently, Austin reached an agreement with North American Forest Products, Inc., for the supply of all of the millwork necessary to construct the 260 units, including the exterior doors at issue in this suit. On June 2, 1972, Austin issued a contract for the millwork to Glassow (a joint venture consisting of North American Forest Products, Inc., and Glassow Sales Company1). Item No. 3 of that contract required Glassow to furnish “[a]ll exterior doors as required to be supplied in pre-hung units with butts furnished and machined for lockset.” The reverse side of the contract contained the following provisions:

The Seller is familiar with the Contractor’s Quality Control System required by United States Government Contracts, and certifies that all materials supplied or furnished under this purchase order, to be used on Government Contracts, conform to the applicable specifications and/or drawings, and that any penalties levied against the Contractor, because of improper submittals of material, or materials not conforming to the applicable specifications and/or drawings, will be for the account of the Seller.
The seller warrants that the equipment, materials and/or supplies purchased hereunder are designed, manufactured and/or constructed so as to comply with all federal, state and local safety rules and regulations including, but not limited to, the Occupational Safety and Health Act of 1970.
The seller agrees to indemnify and hold buyer harmless for, of and from any loss, including but not limited to any fines, penalties and corrective measures, buyer may sustain by reason of seller’s failure to comply with said laws, rules and regulations in connection with the design, manufacture and/or construction of such equipment, materials and/or supplies purchased hereunder.

The defendant United States Fire Insurance Company 2 became surety for Glassow for performance of its contract.

On August 17,1972, Austin received from Lifetime Doors, Inc.,3 the manufacturer of the doors, a certification — dated August 14 —that the doors it proposed to furnish for use on the Fort Polk project would “be manufactured in accordance with CS [Commercial Standard] 171 Type I.” Austin submitted the certification to the Corps and, in September 1972, the Corps approved the submittal upon the condition that Lifetime “furnish guarantees in compliance with Paragraph 8B-3.5 of the contract specs”4 and “assure factory sealing is done in com[1080]*1080pliance with Paragraph 8B-3.3 of the contract specs.” Paragraph 8B-3.3 provides that “[b]efore shipment of doors, top and bottom edges shall be sealed with spar varnish conforming to Federal Specification TT-V-121, or other approved water-resistant sealer.” Austin advised Glassow of the Corps’ conditional approval.

On August 4, 1972, Glassow issued Purchase Orders 1076 and 1077 to Lifetime for 916 1% inch solid core Lauan doors conforming to CS 171, Type I (fully waterproof). Glassow did not require that the doors be sealed at the factory by Lifetime. During the week of October 21, 1972, Lifetime shipped the doors that it had manufactured in Hearne, Texas, to Seminole Wood Products5 in Mobile, Alabama. Austin received the first shipment of doors at Fort Polk on December 13, 1972.6

Austin completed work at Fort Polk and left there in April 1974. On September 11, 1974, Austin was informed by the Corps that the exterior doors on the Fort Polk housing units were delaminating. This triggered a flurry of correspondence between Austin, Glassow, Lifetime, and the Corps. Austin notified Glassow — by telephone and by letter — of the delamination of the doors the same day that the Corps informed Austin of the problem. Alfred J. Glassow, Jr., President of Glassow Sales Company, notified Ed Cervi of North American Forest Products, Inc. and Wayne Lees, General Sales Manager for Lifetime, of the problem that had arisen with respect to the doors. Lees, in turn, informed Donald Huber, Vice President of Lifetime, of the dela-mination of the doors and, beginning with a September 26, 1974 letter, Huber wrote Glassow a number of letters in which he contended that the delamination was caused by an “architectural deficiency” in the housing units and that Lifetime was not responsible for the problem. Between September 1974 and May 1975, the Corps made repeated demands upon Austin to take some action with respect to the doors; Austin, in turn, continually demanded that Glassow take action on the problem; Glas-sow regularly attempted to involve Lifetime in the situation; and Lifetime steadfastly denied all responsibility.

Several letters are particularly pertinent to the claims made by the parties in this case. On September 30, 1974, Alfred Glas-sow wrote Austin a letter stating:

[Donald Huber’s] unwillingness to send an inspector or take any other action is to me very unrealistic. It would seem under the circumstances that they aren’t about to admit that they could have made a mistake. Accordingly, we shall and will take whatever action is necessary and request the aid of both of you and the Corps of Engineers.

Thereafter, in November 1974, Glassow contacted the Pittsburgh Testing Laboratory to request the testing of several doors from the Fort Polk project. The doors were received by the Laboratory in February 1975, and the Laboratory’s March 24, 1975 report concluded that “all the tested samples failed to meet the specification requirement [for Type I doors] due to excessive delamination.”

A March 31,1975 letter from Alfred Glas-sow to Donald Huber of Lifetime stated:

We presume that you now have your copy of the report from the Pittsburgh Testing Laboratory which should explain [1081]*1081your companies [sic] involvement. Our present train of thought runs along the line that we are not planning to be particularly vindictive in this matter as long as we can be compensated for our costs involved in trying to get this mess resolved as quickly as possible. We are hopeful that we shall have your cooperation in this endeavor.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Power Guardian, LLC v. Directional Energy Corp.
904 F. Supp. 2d 1313 (M.D. Georgia, 2012)
Crompton Corp. v. Clariant Corp.
221 F. Supp. 2d 683 (M.D. Louisiana, 2002)
Farmers National Bank v. Wickham Pipeline Construction
759 P.2d 71 (Idaho Supreme Court, 1988)
Hughes v. Lister Diesels, Inc.
642 F. Supp. 233 (E.D. Louisiana, 1986)
Bowling v. Founders Title Co.
773 F.2d 1175 (Eleventh Circuit, 1985)
Datamatic, Inc. v. International Business MacHines Corp.
613 F. Supp. 715 (W.D. Louisiana, 1985)
Thompson v. Chrysler Motors Corp.
755 F.2d 1162 (Fifth Circuit, 1985)
Bean Dredging Corp. v. Dredge Technology Corp.
744 F.2d 1081 (Fifth Circuit, 1984)
Stallworth v. First National Bank
592 F. Supp. 1250 (M.D. Louisiana, 1984)
Joel H. Growden v. Ed Bowlin and Associates, Inc.
733 F.2d 1149 (Fifth Circuit, 1984)
Harmony Corp. v. M & M Pipe & Pressure Vessel Fabricators, Inc.
441 So. 2d 561 (Mississippi Supreme Court, 1983)
CANDY H. v. Redemption Ranch, Inc.
563 F. Supp. 505 (M.D. Alabama, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
656 F.2d 1076, 1981 U.S. App. LEXIS 17535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-north-american-forest-products-ca5-1981.