ICC PROT. COAT., INC. v. AE Staley Mfg. Co.

695 N.E.2d 1030
CourtIndiana Court of Appeals
DecidedJune 23, 1998
Docket79A05-9612-CV-531
StatusPublished

This text of 695 N.E.2d 1030 (ICC PROT. COAT., INC. v. AE Staley Mfg. Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ICC PROT. COAT., INC. v. AE Staley Mfg. Co., 695 N.E.2d 1030 (Ind. Ct. App. 1998).

Opinion

695 N.E.2d 1030 (1998)

I.C.C. PROTECTIVE COATINGS, INC., Appellant-Plaintiff,
v.
A.E. STALEY MANUFACTURING COMPANY, Appellee-Defendant.

No. 79A05-9612-CV-531.

Court of Appeals of Indiana.

June 23, 1998.

*1032 Roger A. Weitgenant, North Judson, for Appellant-Plaintiff.

John M. Stuckey, Stuart & Branigin, Lafayette, for Appellee-Defendant.

*1031 OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

On January 30, 1995, I.C.C. Protective Coatings, Inc. ("I.C.C.") filed a Complaint against A.E. Staley Manufacturing Co. ("Staley") for breach of contract and to foreclose on a mechanic's lien. Staley filed a counterclaim which stated eight actions against I.C.C.: breach of contract, breach of express warranty, breach of implied warranty, contractual indemnity, assignment, subrogation, negligence and slander of title. I.C.C. then moved for partial summary judgment, and Staley responded with a motion for summary judgment on all counts. After a hearing, the court granted partial summary judgment in favor of Staley. A bench trial was held on the remaining counts on August 20-21, 1996. Following the submission of proposed findings of fact and conclusions thereon, the trial court entered judgment for Staley in the amount of $171,759.07. I.C.C. now appeals.

We affirm.

ISSUES

I.C.C. presents three issues on appeal which we consolidate and restate as:

1. Whether the trial court erred when it determined that I.C.C. did not have the right to cure under the parties' contract.

2. Whether the trial court erred when it allowed testimony as to Staley's lost production and profits therefrom.

FACTS

Staley is a Delaware corporation with its principal place of business in Decatur, Illinois. The company owns and operates two manufacturing plants in Tippecanoe County, and engages in the manufacture of various types of corn starches. I.C.C. is an Indiana corporation, principally located in Porter County, which engages in the application of paints, linings and other types of protective coatings.

In the summer of 1994, Staley decided to increase its starch production capacity by adding an additional starch dryer and seven stainless steel reactors to its manufacturing plants. The reactors were approximately sixteen feet in diameter and twenty-four feet in height. Staley's starch manufacturing process employs a number of caustic substances. In order to avoid reactions between the steel in the reactors and those substances, the interior surfaces of the reactors must be lined with a protective coating.

*1033 Flakeline 103 is a coating manufactured by Ceilcote, Inc. The coating is a "heavy-duty, chemically resistant lining for protection against severe chemical exposure and immersion service." Flakeline 103 must be applied in a five-part procedure: (1) surface preparation, i.e., sandblasting to white metal; (2) priming the prepared surface; (3) application of the Flakeline 103; (4) final curing; and (5) cleanup. Ceilcote specifies that two coats of Flakeline 103 must be applied by trowel. After a ten square foot by twenty square foot area is covered with the product, styrene smoothing liquid is then applied so that the surface is smooth to the touch. Green dye is added to the first coat of Flakeline 103, but not to the second, so that the absence of green in the finished product indicates that both coats have been applied properly.

Staley engineer Roger Swift sought bids to line three of the new reactors from several protective coating contractors who represented themselves as competent in applying Flakeline 103. On June 9, 1994, I.C.C. submitted a bid stating that it would perform the contract for $93,475.00. The bid also listed the specifications for the project in accordance with the Flakeline 103 application procedure outlined by Ceilcote and provided that I.C.C. retained the right to cure any defective work. On June 17, I.C.C. sent a letter further detailing the bid.[1]

Thereafter, Staley awarded the contract to I.C.C. in a purchase order which provided in part:

Provide labor & materials to line a total of three reactor tanks w/ceilcote Flakeline 103 matl. per specification outlined in your quotation of June 9, 1994 94-F6-1499PDP. All work to be performed using time and material rates outlined in your letter of June 17, 1994. Total not to exceed $93475.00.
Staley to supply tank watch for confined space entry requirements. I.C.C. to supply monitoring and safety equipment for personnel in tank....

The purchase order further stated that goods and services were to be purchased "in accordance with the terms of this purchase order, including those terms and conditions printed on the reverse hereof." The terms on the order's reverse side provided that "any additional or different terms proposed by [I.C.C.] in any quotation, offer or otherwise are rejected unless expressly asserted in writing by Staley."

I.C.C. signed and returned Staley's purchase order without objection. I.C.C. commenced work on the contract on July 28, 1994. To perform the contract, I.C.C. had purchased 480 gallons of Flakeline 103 to cover the three tanks.[2] By August 20, 1994, I.C.C. had fully lined one reactor, had applied one coat on the second reactor and had yet to commence lining the third reactor. However, I.C.C. had already used 435 gallons of Flakeline 103 by that date. I.C.C. ceased work on the contract on August 23, 1994.

The following day, Staley objected to I.C.C.'s performance and arranged for an inspection of the reactors by Swift, I.C.C. representative Phil Dickey and Dale Hall, a former Ceilcote employee. The inspection revealed visible areas of green dye, sandblast grit and bristle hairs embedded in the lining and reactor surfaces that were rough and jagged.[3] In Hall's opinion, I.C.C.'s work was the worst that he had ever seen and was far below industry standards.

Swift then asked Hall to prepare a letter to I.C.C. describing what needed to be done to correct the defective work. Hall did so and sent the letter, via facsimile, to I.C.C. on the afternoon of August 25, 1994. Later that *1034 same afternoon, I.C.C.'s Dave Risetter wrote Swift and stated that I.C.C. would:

[M]ake all necessary arrangements and coordinate through A.E. Staley to comply and repair the Ceilcote Flakeline 103 system. All workmanship and material specifications will be in accordance to Ceilcote/Masterbuilders Specifications. Any cost which exceeds the $93,475.00 per Staley [Purchase Order] ... will be born [by] I.C.C. Protective Coatings, Inc.

Despite I.C.C.'s letter, Staley canceled its purchase order the following day.

Thereafter, Swift contacted R. Houston & Sons, Inc. ("Houston") to correct the defective work. Houston had performed work for Staley in the past and had submitted a bid for the contract awarded to I.C.C. Houston repaired the first two reactors from August 25, 1994, until September 22, 1994, at a cost of $54,285.06. Houston lined the third reactor from January 22, 1995, until February 10, 1995, at a cost of $51,345.39.

In granting partial summary judgment for Staley, the trial court found that the general terms and conditions, including the right to cure, had not been incorporated into the purchase order. Subsequent to the trial on the remaining issues, the trial court entered judgment against I.C.C.

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I.C.C. Protective Coatings, Inc. v. A.E. Staley Manufacturing Co.
695 N.E.2d 1030 (Indiana Court of Appeals, 1998)

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