[Cite as Rialto on Hurstbourne, L.L.C. v. US LBM Operating Co. 3009, L.L.C., 2026-Ohio-1179.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RIALTO ON HURSTBOURNE, LLC, : APPEAL NO. C-250077 TRIAL NO. A-2301364 Plaintiff-Appellant, :
vs. : JUDGMENT ENTRY US LBM OPERATING CO. 3009, LLC, : d.b.a. K-I LUMBER & BUILDING MATERIALS, d.b.a. KI LUMBER, : and : KENTUCKY INDIANA LUMBER – US LBM, LLC, :
Defendants-Appellees. :
This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed 50% to Appellant and 50% to Appellees. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 4/1/2026 per order of the court.
By:_______________________ Administrative Judge [Cite as Rialto on Hurstbourne, L.L.C. v. US LBM Operating Co. 3009, L.L.C., 2026-Ohio-1179.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RIALTO ON HURSTBOURNE, LLC, : APPEAL NO. C-250077 TRIAL NO. A-2301364 Plaintiff-Appellant, :
vs. : OPINION US LBM OPERATING CO. 3009, LLC, : d.b.a. K-I LUMBER & BUILDING MATERIALS, d.b.a. KI LUMBER, : and : KENTUCKY INDIANA LUMBER – US LBM, LLC, :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: April 1, 2026
Bricker Graydon LLP, John B. Pinney and Kellie A. Kulka, for Plaintiff-Appellant,
Vorys, Sater, Seymour and Pease, LLP, Kent A. Britt, David F. Hine, and Emily E. St. Cyr, for Defendants-Appellees. [Cite as Rialto on Hurstbourne, L.L.C. v. US LBM Operating Co. 3009, L.L.C., 2026-Ohio-1179.]
CROUSE, Judge.
{¶1} Plaintiff-appellant Rialto on Hurstbourne, LLC, (“Rialto”) purchased
ExtremeGreen, a flooring component, from defendant-appellee US LBM.1 As part of
their agreement, US LBM expressly warranted that the products it delivered would be
of merchantable quality, suitable for their intended purposes, and free from design
defects. But when Rialto installed the ExtremeGreen in its new luxury apartments, it
began to receive complaints of excessive noise. Rialto investigated, concluded that the
ExtremeGreen was to blame, and sued US LBM for breach of its warranties. The trial
court denied Rialto’s motion for summary judgment and granted US LBM’s.
{¶2} We now reverse part of that summary judgment. After a review of the
summary-judgment materials, we hold that factual disputes as to ExtremeGreen’s
fitness for its ordinary and intended uses precluded summary judgment on Rialto’s
claims for breach of the express warranties of merchantability and suitability for
intended purpose. However, because there were no material disputes on Rialto’s other
claims, the remainder of the trial court’s summary judgment is affirmed.
I. BACKGROUND
{¶3} Rialto is the developer and owner of the Rialto Hurstbourne (“the
Project”), a 268-unit apartment complex in Louisville, Kentucky. In 2018, Rialto
representatives attended a tradeshow where they learned of ExtremeGreen
magnesium oxide cement board, a novel component for use in floor/ceiling
assemblies. After reviewing promotional material describing ExtremeGreen’s sound-
transmission properties and fire ratings, Rialto incorporated ExtremeGreen into the
1 Rialto’s operative complaint lists the two defendants in this case as “US LBM Operating Co. 3009,
LLC, (d/b/a K-I Lumber & Building Materials) (d/b/a KI Lumber)” and “Kentucky Indiana Lumber—US LBM, LLC.” The parties treat these entities collectively, so we do likewise. And for clarity, we refer to defendants-appellees collectively as “US LBM.” OHIO FIRST DISTRICT COURT OF APPEALS
specifications and materials list for the Project, which it sent out to potential suppliers.
{¶4} US LBM was one of those suppliers. US LBM informed Rialto that it had
never used or sold ExtremeGreen before. Nevertheless, US LBM located an
ExtremeGreen distributor to earn the contract. Rialto then provided US LBM with a
copy of the “Material Purchase Agreement” (“the Agreement”), which specified the
terms of their relationship, including agreed-upon materials, quantities, and prices.
The Agreement contained several express warranties:
In addition to any other express warranties, [US LBM] warrants that the
material or goods furnished pursuant to this Agreement will be: (a) free
from defects in title, workmanship and material; (b) free from defects
in design except to the extent that such items comply with any detailed
designs provided by [Rialto]; (c) of merchantable quality and suitable
for the purposes for which the material or goods are intended.
The Agreement also included an indemnification provision that required US LBM to
“indemnify and hold [Rialto] harmless from actual claims, costs, proceedings,
judgments, liabilities, and expenses, including without limitation, reasonable attorney
fees that result from, or are related to, the claimed breach of any of [US LBM’s]
warranties,” unless caused by Rialto’s gross negligence or illegal conduct.
{¶5} The parties signed the Agreement on August 22, 2019, and the Project
was completed in 2022. The vice president of the company that managed the Project
averred that, after residents began to move in, the company was “quickly notified that
there were significant acoustical issues within the buildings.” He “began receiving
inordinate numbers of noise complaints.” These sound issues, he said, led to “early
lease terminations, upset tenants, and large turnover rates.”
{¶6} Rialto investigated and concluded that ExtremeGreen’s inadequate
4 OHIO FIRST DISTRICT COURT OF APPEALS
sound-insulation properties were to blame for the excessive noise.
{¶7} Rialto contacted US LBM, then filed a complaint in Hamilton County.2
Its original complaint asserted claims for (1) breach of contract, (2) misrepresentation
or nondisclosure resulting in property damage, and (3) breach of warranty. However,
Rialto has since dismissed its misrepresentation/nondisclosure claim.
{¶8} Following discovery, US LBM moved for summary judgment on Rialto’s
remaining claims, arguing primarily that they were governed by the Ohio Products
Liability Act (“OPLA”), that the alleged issues with ExtremeGreen were excepted from
the warranty provisions in the Agreement, and that Rialto lacked evidence to prove
the elements of its claims. At roughly the same time, Rialto sought partial summary
judgment on the issue of US LBM’s liability. After a hearing, the trial court accepted
additional briefing on the scope of the Agreement’s indemnification provision.
{¶9} Ultimately, the trial court granted US LBM’s motion and denied
Rialto’s, ruling (1) that the OPLA did not govern the claims at issue here, (2) that
ExtremeGreen was included in Rialto’s “detailed design” and so was exempted from
the contract’s warranty provisions, (3) that Rialto had failed to introduce evidence that
would create a dispute of material fact as to whether ExtremeGreen caused the
acoustical issues, and (4) that the indemnification provision did not apply because it
covered only third-party claims and losses. Rialto on Hurstbourne, LLC v. US LBM
Operating Co., Hamilton C.P. No. A-2301364, 2025 Ohio Misc. LEXIS 804 (Jan. 15,
2025) (“Rialto I”).
II. ANALYSIS
{¶10} Rialto now appeals and, in two assignments of error, challenges both
2 Hamilton County was the venue required by the Agreement’s choice-of-forum clause.
5 OHIO FIRST DISTRICT COURT OF APPEALS
the trial court’s denial of Rialto’s motion for summary judgment and the court’s entry
of summary judgment for US LBM. We address these assignments together. We begin
with threshold issues regarding (A) the summary-judgment standard and (B) whether
the OPLA governs Rialto’s claims, before turning to the merits of Rialto’s summary-
judgment arguments with respect to (C) its breach-of-warranty claims and (D) its
claim for litigation expenses under the Agreement’s indemnification provision.
A. Summary-Judgment Standards
{¶11} A court may award summary judgment under Civ.R. 56 if the moving
party shows (1) “that there is no genuine issue as to any material fact,” (2) “that the
moving party is entitled to judgment as a matter of law,” and (3) that “it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to” the
nonmoving party. Civ.R. 56(C); accord Grafton v. Ohio Edison Co., 1996-Ohio-336,
¶ 10.
{¶12} This plays out in a shifting of burdens. First, a moving party must
“inform[] the trial court of the basis for the party’s motion and identify[] those
portions of the record that demonstrate the absence of a genuine issue of material fact
on the essential elements of the nonmoving party’s claim.” Midland Credit Mgt., Inc.
v. Naber, 2024-Ohio-1028, ¶ 6 (1st Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). Then, if the moving party clears this hurdle, the burden shifts to the
nonmoving party to identify “specific facts showing that there is a genuine issue for
trial.” Civ.R. 56(E). These “specific facts” must include more than “unsupported
allegations or the pleadings.” Smathers v. Glass, 2022-Ohio-4595, ¶ 31, citing A.J.R.
v. Lute, 2020-Ohio-5168, ¶ 26. Only if the moving party clears the first hurdle, and if
the nonmoving party fails to clear the second, is summary judgment appropriate.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} We review a trial court’s decision granting or denying summary
judgment de novo. See Smathers at ¶ 30.
B. Applicable Law & the OPLA
{¶14} As a threshold matter, US LBM contends that Rialto’s claims are
governed by the OPLA, R.C. 2307.71 through 2307.80. Although the trial court
disagreed with this argument, Rialto I, 2025 Ohio Misc. LEXIS 804, at *2-3, US LBM
offers it as an alternative basis on which we could affirm the trial court’s judgment. We
disagree.
{¶15} The OPLA was “intended to abrogate all common law product liability
claims or causes of action” and to supplant them with a new, statutory action. R.C.
2307.71(B). By its terms, the act governs the recovery of compensatory,
punitive/exemplary damages based on or in connection with “a product liability
claim.” R.C. 2307.72(A) and (B). A claim or cause of action qualifies as a “product
liability claim,” if it (1) seeks recovery from “a manufacturer or supplier,” (2) seeks
“compensatory damages” for harm, defined to include “death, physical injury to
person, emotional distress, or physical damage to property other than the product in
question,” and (3) alleges that such harm “arose from” one of three causes:
(a) The design, formulation, production, construction, creation,
assembly, rebuilding, testing, or marketing of that product;
(b) Any warning or instruction, or lack of warning or instruction,
associated with that product; [or]
(c) Any failure of that product to conform to any relevant representation
or warranty.
R.C. 2307.71(A)(13); see also R.C. 2307.71(A)(7) (defining “harm”).
{¶16} But “[a]ny recovery of compensatory damages for economic loss based
7 OHIO FIRST DISTRICT COURT OF APPEALS
on a claim that is asserted in a civil action, other than a product liability claim, is not
subject to [R.C. 2307.71 through 2307.79], but may occur under the common law of
this state or other applicable sections of the Revised Code.” (Emphasis added.) R.C.
2307.72(C). “Economic loss” and “harm” are mutually exclusive, with the former
encompassing “direct, incidental, or consequential pecuniary loss, including, but not
limited to, damage to the product in question, and nonphysical damage to property
other than that product.” R.C. 2307.71(A)(2).
{¶17} Contract claims are not categorically outside the OPLA’s reach. The
OPLA plainly covers some breach-of-warranty claims. See R.C. 2307.71(A)(13)(c).
Other warranty claims, like those claiming only “economic loss,” will fall outside the
OPLA. See R.C. 2307.72(C).
{¶18} Because Rialto sought recovery only for economic loss, its breach-of-
warranty claims were not governed by the OPLA. The gravamen of Rialto’s complaint
was that ExtremeGreen failed to conform to relevant warranties, and, as a result,
tenants complained, apartments became less valuable, and Rialto was left with the bill
to bring the floor/ceiling assemblies up to appropriate standards. Such lost-business,
lost-value, and cost-of-replacement injuries are quintessentially “economic loss.”
{¶19} The references in Rialto’s complaint to “property damage” do not alter
this analysis, as the OPLA does not apply to all claims for property damage. Rather,
the OPLA differentiates between “physical damage to property other than the
product,” which can support a product-liability claim, and “nonphysical damage to
property other than that product,” which constitutes mere “economic loss.” (Emphasis
added.) Compare R.C. 2307.71(A)(13), with R.C. 2307.71(A)(2). Rialto’s allegations
clearly suggest that ExtremeGreen diminished the value and quality of its apartments
as a whole—not that ExtremeGreen caused portions of its building to deteriorate or be
8 OHIO FIRST DISTRICT COURT OF APPEALS
destroyed. Rialto’s lost-value and cost-of-replacement claims thus involve only
“nonphysical damage to property,” which does not fall within the OPLA.
{¶20} The cases US LBM cites for its contrary position are inapposite, because
all applied the OPLA to breach-of-warranty claims by plaintiffs who had suffered
physical injury or physical damage to property. For example, in Henderson v.
Speedway, L.L.C., 2018-Ohio-4605, ¶ 4-5, 30 (8th Dist.), the defendant’s tainted fuel
had caused damage to the internal components of the plaintiff’s car. And in Parker v.
Ace Hardware Corp., 2018-Ohio-320, ¶ 4, 35-36 (2d Dist.), the purchased product
had allegedly caused an explosion that “engulfed [the plaintiff] in flames” and left him
“severely burned over 90% of his body”—a clear case of “physical injury to person” if
ever there was one. Likewise, in Mitchell v. Proctor & Gamble, 2010 U.S. Dist. LEXIS
17956, *1-2, 10-11 (S.D. Ohio Mar. 1, 2010), plaintiff asserted that his over-the-counter
medication had caused physical ailments, including “diarrhea, night sweats and fever.”
{¶21} Unlike the plaintiffs in all of these cases, Rialto seeks recovery for
economic loss and nonphysical property damage. Thus, the trial court properly
concluded its claims should proceed not under the OPLA, but “under the common law
of this state or other applicable sections of the Revised Code.” See R.C. 2307.72(C).
C. Warranty Claims
{¶22} The gravamen of Rialto’s operative complaint was that ExtremeGreen
had failed to conform to one or more express warranties in the Agreement.
Specifically, Rialto alleged that US LBM breached its warranties that the
ExtremeGreen it delivered would be merchantable, suitable for its intended purpose,
and free from defects in design. US LBM argues that Rialto has failed to substantiate
these claims with evidence, that the ExtremeGreen was exempt because it was
provided pursuant to Rialto’s “detailed design,” and that, in any event, Rialto failed to
9 OHIO FIRST DISTRICT COURT OF APPEALS
prove damages.
{¶23} The warranties at issue here were created by express terms of the
Agreement, not implied by law. Compare, e.g., R.C. 1302.27 and 1302.28 [UCC 2-314
and 2-315]. The meaning of these terms is thus a matter of contract interpretation.
“When confronted with an issue of contractual interpretation, the role of a court is to
give effect to the intent of the parties to the agreement.” Westfield Ins. Co. v. Galatis,
2003-Ohio-5849, ¶ 11. If a court determines that the parties intended to reduce their
agreement to a writing and that the terms of that writing are unambiguous as a matter
of law, then the court will “look no further than the writing itself to determine the
parties’ intent.” Neuro-Communication Servs., Inc. v. Cincinnati Ins. Co.,
2022-Ohio-4379, ¶ 13, citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241,
246 (1978).
{¶24} We generally construe the plain terms of a contract consistent with
“their ordinary meaning unless manifest absurdity results, or unless some other
meaning is clearly evidenced from the face or overall contents of the instrument.”
Alexander at paragraph two of the syllabus. However, “when the law is the subject,”
or when a phrase “‘is obviously transplanted from another legal source,’” then
“ordinary legal meaning is to be expected, which often differs from common
meaning.” (Emphasis added.) Scalia & Garner, Reading Law: The Interpretation of
Legal Texts, § 6, at 73 (2012), quoting Frankfurter, Some Reflections on the Reading
of Statutes, 47 Colum.L.Rev. 527, 537 (1947); accord Mfg. Mgt. Sys. v. Data Solutions,
Inc., 1987 Ohio App. LEXIS 6173, *5 (11th Dist. Mar. 20, 1987) (a term used in “a
technical legal sense will be so construed, unless a different intention is clearly
10 OHIO FIRST DISTRICT COURT OF APPEALS
expressed” (Cleaned up.)).3
{¶25} We address first (1) the Agreement’s warranties of merchantability and
suitability for intended purpose, and (2) the warranty against defects in design, before
turning to (3) the detailed-design exception and (4) Rialto’s proof of damages.
1. Warranties of Merchantability & Suitability
a. Meaning
{¶26} Clause (c) of the warranty provision states that US LBM “warrants that
the material or goods furnished pursuant to this Agreement will be . . . of merchantable
quality and suitable for the purposes for which the material or goods are intended.”
Both “merchantable quality” and “suitable for the purposes . . . intended” are terms
with well-worn legal significance. We therefore begin with their legal meanings.
{¶27} The law deems goods to be of “merchantable quality” if they “are fit for
sale in the usual course of trade at the usual selling prices.” Black’s Law Dictionary
(11th Ed. 2019). Thus, for over a century, an “implied warranty of merchantability” has
meant a “merchant seller’s warranty—implied by law—that the thing sold is fit for its
ordinary purposes.” Id. The UCC codifies this “implied warranty of merchantability.”
See R.C. 1302.27 [UCC 2-314]. While the UCC’s implied warranty does not control the
meaning of the express warranty in the party’s Agreement, it supplies a widely
accepted baseline to help define “merchantable quality.” For a good to be
“merchantable” under the UCC, it must, inter alia, “pass without objection in the trade
under the contract description,” be “fit for the ordinary purposes for which such goods
are used,” and “conform to the promises or affirmations of fact made on the container
3 See also, e.g., Thomas v. Matthews, 94 Ohio St. 32, 56 (1916) (contractual provision regarding
“net earnings” must “necessarily be given the same construction as uniformly given it by the courts in defining these terms”); Complete Gen. Constr. Co. v. Koker Drilling Co., 2002-Ohio-4778, ¶ 27 (10th Dist.) (interpreting contract’s use of “negligent” and “willful” in light of their use as “legal terms of art that refer to tortious conduct”).
11 OHIO FIRST DISTRICT COURT OF APPEALS
or label if any.” R.C. 1302.27(B)(1), (3), (6) [UCC 2-314(2)(a), (c), (f)].
{¶28} Although it uses less-unusual language, the Agreement’s warranty that
goods will be “suitable for the purposes for which [they] are intended,” likewise brings
with it an established legal meaning. Goods are deemed “suitable” if they are “fit and
appropriate for their intended purpose.” Black’s Law Dictionary (11th Ed. 2019). The
use of “intended purpose” in both the Agreement and the legal-dictionary definition
further evokes the “warranty of fitness for a particular purpose,” which Black’s defines
as a “warranty—imposed by law if the seller has reason to know of the buyer’s special
purposes for the item—that the item is suitable for those purposes.” Id. This is
essentially the definition the UCC provides for the same warranty. See R.C. 1302.28
[UCC 2-315].
{¶29} Although the UCC’s implied warranty of fitness provides a helpful
baseline, it differs from the warranty here in a crucial respect. The UCC’s implied
warranty arises only when “the buyer is relying on the seller’s skill or judgment to
select or furnish suitable goods.” Id. However, because the warranty at issue here was
given expressly with respect to all goods to be furnished under the Agreement, no such
triggering reliance was necessary.
{¶30} Taken together, these two warranties impose complementary
requirements. Goods are generally of merchantable quality if they are fit for the
purpose for which such goods are ordinarily used or sold and if they conform to the
representations on their labelling. Goods are suitable for their intended purpose if
they are “fit and appropriate” to be used in the manner the seller knows the buyer
intends to use them. Thus, whether a good is merchantable will be the same from
buyer to buyer, but whether a good is suitable for its intended purpose will turn on the
intent and knowledge of the particular buyer and seller. The Official Comment to the
12 OHIO FIRST DISTRICT COURT OF APPEALS
UCC offers a helpful illustration: “For example, shoes are generally used for the
purpose of walking upon ordinary ground, but a seller may know that a particular pair
was selected to be used for climbing mountains.” UCC 2-315, Official Comment 2.
{¶31} We therefore hold that, under the plain and unambiguous text of clause
(c) of the Agreement’s warranty provision, US LBM promised that the goods it sold
would be fit and appropriate, both for the ordinary purposes for which such goods
would be used, and for any particular purpose that US LBM knew Rialto would use
them.
b. Applicability
{¶32} US LBM argues that these warranties could not apply to ExtremeGreen,
because Rialto had “unquestionably selected the product . . . and mandated that US
LBM provide the Product to the Project in accordance with the Agreement.” US LBM
does not contest that the Agreement clearly “warrant[ed] that the material or goods
furnished pursuant to this Agreement” would be merchantable and suitable for their
intended purpose. However, US LBM contends that reading the warranties to cover
deficiencies in ExtremeGreen itself would force US LBM into “a Catch-22,” in which
US LBM must “either breach the agreement by not supplying the Product or breach
the agreement by supplying the Product.”
{¶33} But US LBM omits its third option: refuse to sign an agreement that, by
its plain terms, committed US LBM to warranting the capabilities of an unknown
product. Such a refusal may have cost US LBM the contract, of course, but that is not
a “Catch-22”; it is proof that Rialto valued buying from a seller who was willing to
shoulder the risk that ExtremeGreen would be substandard. Special-order merchants
across Ohio confront such decisions every day. As the UCC’s official comment makes
clear, even without an express warranty, a “specific designation of goods by the buyer
13 OHIO FIRST DISTRICT COURT OF APPEALS
does not exclude the seller’s obligation that they be fit for the general purposes
appropriate to such goods.” (Emphasis added.) UCC 2-314, Official Comment 3. Thus,
special-order merchants must choose between (1) selling an unfamiliar product and
assuming the risk that it will not be “merchantable,” or (2) disclaiming the warranty
and perhaps losing the sale. A merchant who chooses the former path may hope that
the product performs as intended, but it consents to bear the costs if it does not
(perhaps comforted by the hope of legal remedies against the manufacturer).
{¶34} US LBM signed an Agreement warranting all materials or goods it
furnished thereunder. We are obligated to enforce that Agreement as written. We
therefore hold that US LBM fully and unambiguously warranted that the
ExtremeGreen it furnished would be “of merchantable quality and suitable for the
purposes for which [it was] intended.”
c. Disputes of Material Fact
{¶35} Having established the meaning and applicability of the Agreement’s
warranties of merchantability or suitability for intended purpose, we consider now
whether any disputes of material fact precluded the trial court from determining, at
the summary-judgment stage, whether US LBM breached either warranty.
i.
{¶36} To prove breach of these warranties, Rialto had to show that the
ExtremeGreen it received was not fit and suitable—either for the ordinary purpose for
which such products are used, or for the particular purpose for which Rialto expressly
planned to use it. To make this showing, Rialto introduced depositions, affidavits, and
reports from two experts: acoustical engineer Ryan Skoug of ESI Engineering, Inc.,
and engineer Edward L. Fronapfel of Charles Taylor Engineering Technical Services
(“CTETS”).
14 OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} Skoug and Fronapfel explained that ExtremeGreen was meant to be
used as part of a “floor/ceiling assembly.” The reports used two measurements to
describe an assembly’s ability to prevent noise transmission. An assembly’s “sound
transmission class” (“STC”) rates how well it impedes the transmission of airborne
noises, like speech or music. “Impact insulation class” (“IIC”) rates how well an
assembly insulates against impact noises, like footfalls or dropped items. A higher STC
and IIC means greater insulation and less noise for neighbors.
{¶38} When tested in the field, these scores are reported as apparent sound
transmission class (“ASTC”) and apparent impact insulation class (“AIIC”) ratings.
Generally, the experts said, an assembly’s field-tested ASTC and AIIC scores are
expected to be approximately five points beneath its lab-tested STC and IIC scores.
{¶39} Fronapfel’s report and Skoug’s affidavit attested that the then-current
version of the International Building Code required floor/ceiling assemblies between
separate dwelling units to have an STC and IIC of at least 50—or an ASTC and AIIC of
at least 45 if tested in the field. And both Fronapfel’s report and Skoug’s deposition
testimony stated that the Kentucky Building Code adopted the International Building
Code standards in this respect.
{¶40} Skoug further opined that, based on his “experience and on public
references,” floor/ceiling assemblies between “luxury” units would be expected to have
an STC and IIC of 60 (or an ASTC and AIIC of 55 if field-tested).
{¶41} To determine how ExtremeGreen stacked up, Skoug performed a series
of acoustical tests in three units of each of the Project’s five buildings. These 15 tests
yielded (1) ASTC scores from 39 to 50, with an average of 46, and (2) AIIC scores from
37 to 41, with an average of 39. These results were below the lab results offered by
ExtremeGreen’s manufacturer, who claimed that ExtremeGreen assemblies scored
15 OHIO FIRST DISTRICT COURT OF APPEALS
STC 60 and IIC 55 (correlating to an expected ASTC 55 and AIIC 50 in the field).
{¶42} Skoug also averred that the “typical assembly that Rialto has used for
other apartment buildings,” which did not employ ExtremeGreen, would have lab
ratings of STC 60 and IIC 53 (translating to an expected ASTC 55 and AIIC 48).
{¶43} Thus, the relevant ASTC and AIIC scores cited in Rialto’s expert reports,
testimony, and affidavits, were as follows:
ASTC AIIC “Luxury” Standard 55 55 (per Skoug) ExtremeGreen Assemblies 55 50 (Manufacturer Tests) (est. based on STC 60) (est. based on IIC 55) Traditional Assembly 55 48 (from Skoug Report) (est. based on STC 60) (est. based on IIC 53) ExtremeGreen Assemblies 46 (average) 39 (average) (Skoug Tests) [range: 39-50] [range: 37-41] International/Kentucky 45 45 Building Code Minimum
{¶44} The AIIC of all 15 tested ExtremeGreen assemblies was below the
minimum building-code standards. And while the average ASTC of the tested units
was above the building code’s minimum, some ExtremeGreen assemblies tested below
that threshold. No tested assemblies met the “luxury” standards or the manufacturer-
provided ratings cited by Skoug.
{¶45} Ultimately, Skoug opined that “the ExtremeGreen MGO used at the
Project significantly failed at providing the specified sound isolation, may not have the
ability to provide the specified sound isolation in a field installed application, and is
not suitable for its intended use.” Fronapfel similarly averred that “CTETS agrees with
the [Skoug] Report that the STC and IIC ratings as measured at [the Project] show that
the product fails to perform as specified in the manufacturer’s specifications nor does
16 OHIO FIRST DISTRICT COURT OF APPEALS
it meet minimum code requirements. CTETS is of the opinion that the ExtremeGreen
MGO assembly used at [the Project] is defective and not suitable for its intended
purpose.”
{¶46} If a reasonable factfinder credited this evidence, it could permissibly
find that the ExtremeGreen furnished by US LBM had failed to conform to one or both
warranties in several ways.
{¶47} First, a factfinder could reasonably conclude that, to be fit for its
intended purpose, a flooring component should (when installed in a proper assembly)
satisfy minimum, widely-accepted building-code standards for between-unit sound
transmission. If it so concluded, and if it accepted the opinion of Rialto’s experts, then
the factfinder could conclude that ExtremeGreen had failed to conform to the
Agreement’s warranty of merchantability.
{¶48} Second, a reasonable factfinder could conclude that US LBM knew
Rialto intended to use ExtremeGreen for between-unit floor/ceiling assemblies, and
that US LBM knew that such assemblies would need to meet code minimums. If the
factfinder reached this conclusion and accepted Rialto’s experts’ testimony, it could
find that the ExtremeGreen provided by US LBM was not suitable for its intended
purpose.
{¶49} Third, a reasonable factfinder could conclude that the manufacturer’s
representations as to ExtremeGreen’s sound-insulation properties created a standard
of merchantability, which the delivered ExtremeGreen failed to live up to. This logic
would provide an alternative basis on which a factfinder could find that ExtremeGreen
failed to conform to the warranty of merchantability.
{¶50} However, no reasonable factfinder could conclude, based on this
evidence, that ExtremeGreen was not suitable for its intended purpose because it
17 OHIO FIRST DISTRICT COURT OF APPEALS
failed to meet the “luxury” standards described by Skoug (STC/IIC 60; ASTC/AIIC 55).
Skoug’s report stated that the laboratory data Rialto had received from
ExtremeGreen’s manufacturer stated that, when installed in a standard assembly,
ExtremeGreen would yield an IIC 55 rating. The evidence suggests that Rialto had no
reason to expect ExtremeGreen to exceed this score to achieve the “luxury” scores of
IIC 60 or AIIC 55. Absent some clearer indication, Rialto could not have reasonably
understood US LBM to promise, under a general warranty of fitness for purpose or
merchantability, that ExtremeGreen would produce “luxury” noise-isolation ratings
better than those expressly specified by the manufacturer. Compare R.C. 1302.30(A)
[UCC 2-317(1)] (in determining which of two conflicting warranties controls, “[e]xact
or technical specifications displace an inconsistent sample or model or general
language of description”). Summary judgment on that issue was therefore proper.
ii.
{¶51} Despite Skoug’s comparative testing, US LBM contends that Rialto has
failed to establish that ExtremeGreen itself was the cause of the substandard scores—
only that it had been part of an assembly that scored poorly. Without a test of the
ExtremeGreen in isolation, US LBM contends, we have no proof that the
ExtremeGreen was the culprit, and not some other substandard component or faulty
installation.
{¶52} But Rialto provided ample circumstantial evidence from which a
factfinder could infer the ExtremeGreen was to blame for the noisy units. The
testimony and reports suggested that the other components in the ExtremeGreen
assemblies were not the problem: the construction of the bottom portion of the
ExtremeGreen assemblies mirrored the construction of a standard floor/ceiling
assembly, using gypsum board, a “resilient channel,” wooden trusses, and batt for
18 OHIO FIRST DISTRICT COURT OF APPEALS
insulation. Skoug testified that the tested ExtremeGreen assemblies used ordinary,
“tried and true” components for these portions of the assemblies, and that the
performance of such components could be easily anticipated. Further, Skoug testified
that he had examined several of these components and saw no obvious installation
issues.
{¶53} The Fronapfel Report suggested that the deficient performance was not
caused by a failure to follow installation instructions. Fronapfel stated that the
“observed construction substantially conforms to the tested assemblies” that the
manufacturer had claimed scored ratings of STC 60 and IIC 55. This, Fronapfel
opined, “points to an issue with the assembly and product rather than construction
defects.”
{¶54} The Skoug Report even offered a mechanical explanation for why
ExtremeGreen may have caused the noise problem. During his testing, Skoug observed
greater than normal amounts of “structureborne noise and vibration flaking,” which
he opined “were due to the ExtremeGreen assembly eliminating the gypsum concrete
and entangled mesh underlayment from the floor/ceiling assembly.” This change,
which was allegedly part of the assemblies the manufacturer had tested, allowed
“acoustic energy in the floor [to be] more easily carried between stacked apartments
through the structural wall and floor components.”
{¶55} Further, Rialto offered evidence that could persuade a jury that testing
ExtremeGreen on its own was not feasible. In his deposition, Skoug testified that
engineers “can’t just do an STC or an ICC or any other kind of acoustic test of the
product itself and determine if, in a floor/ceiling assembly, it meets some
requirement.” While such a test could, in theory, be performed, “it wouldn’t have any
meaning.” Instead, engineers like Skoug test items used “within a floor/ceiling
19 OHIO FIRST DISTRICT COURT OF APPEALS
assembly, either in the laboratory condition or when . . . tested in the field.”
{¶56} US LBM insists that Ohio caselaw requires more. It cites two Sixth
District cases, Roman v. Volkswagen of Am., Inc., 2008-Ohio-2086 (6th Dist.), and
Teetors v. Benson Truck Bodies, 1994 Ohio App. LEXIS 705 (6th Dist. Feb. 25, 1994),
for the proposition that a factfinder cannot generally presume, absent evidence, that
an assembly’s deficient performance is attributable to a particular cause or
component.
{¶57} We agree with the rule expressed in Roman and Teetors as a general
matter, but hold that Rialto easily clears that hurdle. A closer look at those cases makes
clear why.
{¶58} In Roman, a breach-of-warranty plaintiff “failed to offer any evidence
that [her] engine’s malfunction was due to a defect in manufacturing that was present
at the time the vehicle left [the manufacturer’s] control,” as required by the express
warranty in that case. Roman at ¶ 22. Roman differs from this case, because the
plaintiff in Roman could point to no cause of the sludge that had ruined her engine,
and no reason for her engine malfunction apart from the sludge. See id. at ¶ 20.
Beyond this, all she could show was that she had properly maintained her vehicle. Id.
at ¶ 22. But here, Rialto’s experts expressly opined as to causation. And their reports
and testimony supported their opinions by eliminating most other components as
possible causes of the noise and by providing a credible mechanical explanation.
{¶59} In Teetors, the court granted summary judgment against a product-
liability plaintiff because his expert had opined that the plaintiff’s injury had been
caused either by a part manufactured by the defendant or by another, unrelated part.
Teetors, 1994 Ohio App. LEXIS 705, at *6. But that is a far cry from this case, in which
Skoug concluded, based on the data and mechanical analysis provided in his report,
20 OHIO FIRST DISTRICT COURT OF APPEALS
that “the ExtremeGreen MGO used at the Project significantly failed at providing the
specified sound isolation, may not have the ability to provide the specified sound
isolation in a field installed application, and is not suitable for its intended use.”
Skoug’s conclusion offered clear evidence that ExtremeGreen caused the deficiencies
in the sound isolation—not equivocation and ambiguity, as in Teetors.
{¶60} The testimony, affidavits, and reports of Skoug and Fronapfel offered
circumstantial evidence that ExtremeGreen was the cause of the Project’s noise
problems, and Skoug directly stated that ExtremeGreen failed to perform as promised.
At bottom, US LBM asks that we disbelieve Skoug’s conclusion and decline to draw
any inferences from Skoug’s and Fronapfel’s statements failing to identify another
cause. But a reasonable factfinder could accept Skoug’s opinion based on the data and
opinions he and Fronapfel provided, so we must do likewise at this stage.
iii.
{¶61} Rialto’s experts provided evidence from which a reasonable factfinder
could conclude that ExtremeGreen was not merchantable or suitable for its intended
purpose—either because assemblies constructed with ExtremeGreen failed to
reasonably conform to the manufacturer’s representations or because they failed to
meet relevant building-code minimums.
{¶62} But while a reasonable factfinder could reach these conclusions, it
would not be required to do so. US LBM pointed to evidence casting some doubt on
Rialto’s case. For example, US LBM pointed to testimony that Rialto may have stored
the ExtremeGreen improperly. This fact, taken in conjunction with the manufacturer’s
high listed STC and IIC ratings for ExtremeGreen, would be sufficient to create a jury
question regarding the cause of ExtremeGreen’s deficient performance.
{¶63} We therefore hold that disputes of material fact precluded the trial court
21 OHIO FIRST DISTRICT COURT OF APPEALS
from entering summary judgment for either party on Rialto’s claims for breach of the
warranties of merchantability and fitness for intended purpose.
2. Warranty Against Design Defects
{¶64} In the Agreement, US LBM also warranted that the goods and materials
it delivered would be “free from defects in design except to the extent that such items
comply with any detailed designs provided by” Rialto. Rialto contends that the
ExtremeGreen it received failed to conform to this warranty as well. We hold that this
claim fails as a matter of law.
{¶65} “Defect in design,” like “merchantable quality,” has a commonly
understood legal meaning. Black’s Law Dictionary defines “design defect” to mean an
“imperfection occurring when the seller or distributor could have reduced or avoided
a foreseeable risk of harm by adopting a reasonable alternative design, and when, as
a result of not using the alternative, the product or property is not reasonably safe.”
(Emphasis added.) Black’s Law Dictionary (11th Ed. 2019). The Third Restatement of
Torts likewise states that a product “is defective in design when the foreseeable risks
of harm posed by the product could have been reduced or avoided by the adoption of
a reasonable alternative design . . . , and the omission of the alternative design renders
the product not reasonably safe.” (Emphasis added.) See Restatement of the Law 3d,
Torts, Products Liability, § 2(b) (1998).
{¶66} These definitions, all of which draw on the common law of products
liability, focus on a product’s safety and the risk of harm. They do not encompass
products that are merely ineffective or substandard, as Rialto alleges the
ExtremeGreen here was.
{¶67} Context suggests that, as it is used in the Agreement, “defect in design”
was intended to carry this safety-focused, legal meaning, rather than its broader,
22 OHIO FIRST DISTRICT COURT OF APPEALS
colloquial definition. This is so for two reasons.
{¶68} First, the surrounding warranty provisions clearly use legal terms like
“defects in title” and “merchantable quality” in their legal sense. A word is known by
the company it keeps, and the meaning of an ambiguous or broadly-worded list item
will often be informed by the words that surround it. Compare Scalia & Garner,
Reading Law, § 31, at 195 (“When several nouns or verbs or adjectives or adverbs—
any words—are associated in a context suggesting that the words have something in
common, they should be assigned a permissible meaning that makes them similar.”);
Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995). The Agreement’s surrounding terms
therefore suggest we should read “defect in design” in its ordinary legal sense. See
Scalia & Garner, § 6, at 73.
{¶69} Second, reading “defect in design” to cover failings that lead to poor
performance as well as those that jeopardize safety would create substantial overlap
with the warranty of merchantability. If a product operates as described and as an
ordinary product of that type should (i.e., is “merchantable”), by what standard could
a factfinder say that product was defective in its design, save for reasons of safety? We
presume the contract’s drafters did not intend such redundancy.
{¶70} We therefore hold that the warranty against “defects in design” in the
Agreement constituted a promise that the products US LBM delivered would not be
designed in a manner that created an unreasonable risk of harm, damage, or injury to
person or property. It did not cover mere deficiencies in the products’ performance of
their intended functions, except to the extent those deficiencies created risks of harm.
{¶71} Because Rialto has neither alleged that ExtremeGreen’s design created
an unreasonable risk of harm to person or property, nor offered evidence to that effect,
we hold that the trial court properly awarded US LBM summary judgment on Rialto’s
23 OHIO FIRST DISTRICT COURT OF APPEALS
claim for breach of the design-defect warranty.
3. The “Detailed Design” Exception
{¶72} US LBM next argues that it cannot be held liable because its warranties
did not apply “to the extent that such items comply with any detailed designs provided
by” Rialto. By specifically requesting ExtremeGreen, US LBM asserts, Rialto was
requiring it to “comply with” a “detailed design.”
{¶73} But the text of the Agreement makes clear that the detailed-design
exception applies only to the warranty against “defects in design.” The exception does
not appear in or apply to the Agreement’s other warranties of merchantability or
suitability for intended purpose. Because we have already held that the trial court
properly rejected Rialto’s design-defect-warranty claim, we need not consider whether
the delivery of ExtremeGreen fell within this detailed-design exception.
4. Failure to Show Damages
{¶74} In its final argument for summary judgment on the warranty claims, US
LBM argues that, even assuming Rialto successfully showed that the delivered
ExtremeGreen breached some warranty, Rialto still “failed to prove that it has been
damaged by [US LBM’s] provision of the Product or by any other alleged breach of the
agreement.” Specifically, US LBM argues that the calculations and testimony of
Rialto’s damages expert were unreliable or uncertain.
{¶75} A court may grant summary judgment for a defendant where a plaintiff
claiming breach of contract “has failed to provide evidence of economic damages
resulting from the breach of contract and has failed to seek injunctive relief or specific
performance of a contractual duty, but instead rests his or her right to proceed to trial
solely on a claim for nominal damages.” DeCastro v. Wellston City School Dist. Bd. of
Edn., 2002-Ohio-478, ¶ 21. But this rule is limited. It covers only those cases “in which
24 OHIO FIRST DISTRICT COURT OF APPEALS
the plaintiff not only failed to provide evidence of actual damages in response to a
motion for summary judgment but could not even theorize the existence of economic
damages.” (Emphasis added.) Id. at ¶ 15.
{¶76} But Rialto does not claim an intangible, unmeasurable, and ephemeral
loss like the DeCastro plaintiff, who sued because his “four-day in-school suspension”
had caused him to “miss out on ‘activities that are unique to the final days of a high
school senior.’” Id. at ¶ 3. In this case, Rialto offered plenty to support a theory of
economic damages. First, Rialto’s proof of breach, if credited, would itself suggest
economic loss. Rialto provided evidence that ExtremeGreen was unfit for its intended
or ordinary purpose. That means damages, whether conceptualized as the amount
Rialto overpaid for a substandard component or as the cost of replacement. Second,
even if a theory of economic damages were not self-evident, Rialto offered an affidavit
from Seth Guttman, the vice president of its property-management company, that
supported the existence of consequential damages. Guttman averred that, “due to the
noise issues, Rialto has been damaged through lost rent, unit turnover costs,
additional administrative costs to assess noise complaints, costs of temporary repairs,
diminished property value, and the inability to raise rents to market rates.” This was
clear evidence of consequential damages.
{¶77} Rialto was not required to quantify its damages to survive US LBM’s
summary-judgment motion. And because Rialto did not seek summary judgment on
damages in its favor, it was required to present only a colorable theory of economic
harm to proceed. It did so.
D. Indemnity Claim
{¶78} Rialto’s final argument concerns the Agreement’s indemnification
provision, which reads as follows:
25 OHIO FIRST DISTRICT COURT OF APPEALS
INDEMNIFICATION. Seller will indemnify and hold Owner
harmless from actual claims, costs, proceedings, judgments, liabilities,
and expenses, including without limitation, reasonable attorney fees
that result from, or are related to, the claimed breach of any of Seller's
warranties, the goods or materials being defective, the goods or
materials being negligently designed or manufactured, or the failure of
Seller to perform any of its obligations under the terms of the
Agreement, including but not limited to timely delivery of the goods,
materials or services that are the subject of this Agreement, except when
such claims, costs, proceedings, judgments, liabilities, and expenses
result proximately from (a) Owner’s gross negligence or (b) Owner’s
breach of a statutory or legal duty.
Rialto contends that this provision allows it to recover fees, costs, and expenses
associated with litigating US LBM’s breach of warranty. US LBM counters that Rialto’s
right to indemnification for costs and fees is triggered only by third-party claims, not
by a direct action between the contracting parties for breach. The trial court agreed
with US LBM. See Rialto I, 2025 Ohio Misc. LEXIS 804, at *5-6. We agree with the
trial court.
{¶79} Contracting parties can structure their indemnity agreements to compel
the indemnitor to compensate the indemnitee for the indemnitee’s litigation expenses.
See Worth v. Aetna Cas. & Sur. Co., 32 Ohio St.3d 238 (1987), syllabus. The “historical
scope” of such provisions, however, was limited to remuneration for litigation
expenses incurred in litigation between the indemnitee and third parties. See Mead
Corp. v. ABB Power Generation, Inc., 319 F.3d 790, 798 (6th Cir. 2003), citing
Restatement of the Law, Restitution, § 76 and Comment b (1937).
26 OHIO FIRST DISTRICT COURT OF APPEALS
{¶80} Parties can also bargain for a specific provision to shift attorney fees and
litigation costs, in the event of a lawsuit. Wilborn v. Bank One Corp., 2009-Ohio-306,
¶ 7. But such provisions are ordinarily distinct from general indemnity provisions.
{¶81} Here, Rialto seeks to shift fees incurred in a direct action between the
contracting parties in the absence of an express fee-shifting clause. The question, then,
is whether the Agreement’s indemnification provision covered such fees.
{¶82} The answer depends on context. The term “indemnify” and its variants
can, in some cases, be broad enough to cover fees and costs incurred as part of
interparty litigation. See Black’s Law Dictionary (11th Ed. 2019) (defining
“indemnify” as to “reimburse (another) for a loss suffered because of a third party’s
conduct or one’s own act or default,” and “indemnity” as a party’s “duty to make good
any loss, damage, or liability incurred by another”). However, given the prevalence of
distinct fee-shifting provisions, some courts have looked to context to determine
whether a general indemnification provision was intended to allow for the shifting of
fees and costs in an interparty dispute.
{¶83} Menard, Inc. v. Dipaolo Indus. Dev., L.L.C., 2023-Ohio-1188 (11th
Dist.), provides one example of this contextual analysis. In Menard, the Eleventh
District held that a contract’s broadly-worded indemnification provision did not
permit fee-shifting in an interparty action, because the next sentence of the contract
referred to the plaintiff’s right to settle claims without defendant’s consent, in the
event defendant failed to “defend” plaintiff. Id. at ¶ 50. Because an indemnitor cannot
“defend” the indemnitee against the indemnitor’s own claims, the court held that
context counseled that the parties had contemplated that the indemnification clause
could not have been meant to cover interparty disputes. Id. at ¶ 55-56.
{¶84} The Federal Court of Appeals for the Sixth Circuit, applying Ohio law,
27 OHIO FIRST DISTRICT COURT OF APPEALS
has shown a similar sensitivity to context in Mead, 319 F.3d 790. There, the court
considered a promise to “‘indemnify and hold Purchaser and its agents . . . harmless
from and against all expenses, costs, charges, damages, claims, suits, losses or
liabilities (including attorneys fees) of every kind whatsoever to the extent caused by
the negligence of Seller.’” Id. at 797. The Sixth Circuit concluded that this broad
language (very much like the language in the Agreement here) did not include a right
to attorney fees incurred in an interparty action. Id. at 797-798. The expansive
language, the court said, was rendered ambiguous by a different contractual provision
that limited all liability, “‘[e]xcept for third party claims for injury . . . [and] property
damage for which Seller may be liable subject to Indemnity.’” Id. at 798. To resolve the
ambiguity, the Sixth Circuit construed the clause contra proferentem, resolving it
against the purchaser. Id.; see also Scalia & Garner, Reading Law, at 427 (defining
“contra proferentem rule”). It therefore held that the indemnity provision required
the seller to hold the purchaser harmless, not for fees incurred in a direct, interparty
action, but “only for third-party claims, which is the historical scope of usual
indemnification provisions.” Mead at 798, citing Restatement of the Law, Restitution,
§ 76 and Comment b (1937).
{¶85} Not every Ohio case is so context sensitive; the Third District appears to
have adopted a more categorical rule. In United Gulf Marine, L.L.C. v. Continental
Refining Co., L.L.C., 2019-Ohio-666, ¶ 19 (3d Dist.), the Third District considered a
broad indemnity provision that included a general promise to indemnify for attorney
fees, but no reference to direct, interparty litigation. Nevertheless, the Third District
held that the “plain language of the indemnity provision” had clearly and
unambiguously promised indemnity for attorney fees incurred in direct litigation
between the contracting parties. Id. at ¶ 24. To support its broad reading, however, the
28 OHIO FIRST DISTRICT COURT OF APPEALS
United Gulf Marine court could muster only one case in which a court had treated an
indemnification clause as covering expenses incurred in direct, interparty litigation:
its own opinion in Heffner Invests. Ltd. v. Piper, 2008-Ohio-2495 (3d Dist.). And
Piper, in turn, cited no cases to justify its implicit assumption that a promise to
“indemnify, defend and save harmless” a landlord for attorney fees necessarily
included an agreement to shift attorney fees incurred in an action for breach of the
lease. See id. at ¶ 50-61.
{¶86} Given the historical understanding of indemnification as providing
reimbursement for third-party claims, and given the prevalence of separate fee-
shifting provisions, we disagree with the Third District’s categorical rule. It is entirely
plausible—perhaps even likely—that an offeree would read a promise to indemnify the
offeror for litigation expenses against the historical backdrop that one indemnifies
another against third-party claims.
{¶87} We instead adopt a context-sensitive inquiry like that employed by the
Eleventh District and Sixth Circuit. When determining if a general promise to
indemnify for litigation expenses applies to expenses incurred in direct litigation
between the contracting parties, a court should ask (1) whether that indemnification
provision expressly permits or excludes fee awards in direct, interparty actions, and,
if not, (2) whether anything in the contract’s other provisions or structure suggest that
the indemnification clause was intended to go beyond the traditional understanding
of indemnity to impose fee shifting between contracting parties. Compare Mead, 319
F.3d at 798. If, after considering these questions, the court still has no clear answer, it
should employ standard interpretive tools to resolve the ambiguity. This could include
factfinding or the contra proferentem canon. Compare id.
{¶88} In this case, we hold that the Agreement is ambiguous as to whether,
29 OHIO FIRST DISTRICT COURT OF APPEALS
under the indemnification provision, US LBM must pay for costs and fees Rialto
incurred in this direct action between the parties. No language in the Agreement
affirmatively includes or excludes indemnification for fees incurred in an interparty
action—it speaks only to indemnification for fees and costs generally. Further, reading
the Agreement’s use of “indemnify” to encompass interparty litigation does not fit with
other words in the same list. Under Rialto’s reading, US LBM would be obligated to
“indemnify and hold [Rialto] harmless from actual claims . . . , judgments, [or]
liabilities” Rialto accrues to US LBM. Thus, if US LBM received a judgment against
Rialto, US LBM could potentially be obligated to pay itself.
{¶89} “[W]here there is doubt or ambiguity in the language of a contract it will
be construed strictly against the party who prepared it.” McKay Machine Co. v.
Rodman, 11 Ohio St.2d 77, 80 (1967); see also 18 Ohio Jur.3d, Contribution,
Indemnity, and Subrogation, § 29 (2024). Here, Rialto prepared the Agreement, so
Rialto cannot claim the benefit of the ambiguity it created. Compare Mead Corp., 319
F.3d at 798. Accordingly, we hold that the Agreement’s indemnification provision does
not require US LBM to “indemnify and hold [Rialto] harmless” for “costs,” “expenses,”
or “fees,” arising out of litigation between the parties regarding a breach of the
Agreement. The trial court therefore properly granted summary judgment to US LBM
on its claims under the indemnification clause.
III. CONCLUSION
{¶90} Issues of material fact precluded summary judgment on some—but not
all—of Rialto’s claims, so we sustain Rialto’s first assignment of error in part and
overrule it in part. However, those same disputes also precluded awarding summary
judgment for Rialto, so we overrule its second assignment of error.
{¶91} We reverse the trial court’s summary judgment for US LBM on Rialto’s
30 OHIO FIRST DISTRICT COURT OF APPEALS
claims for breach of its express warranties that the products it delivered would be of
merchantable quality and suitable for their intended purposes, in the manner and to
the extent described above. We affirm the trial court’s summary judgment for US LBM
in all other respects, and we affirm its denial of Rialto’s motion for partial summary
judgment. The cause is remanded so that litigation can proceed on Rialto’s remaining
claims in a manner consistent with the law and this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
KINSLEY, P.J., and MOORE, J., concur.