School District No. 1J Multnomah County v. ACandS, Inc.

767 F. Supp. 1051, 1991 U.S. Dist. LEXIS 8418
CourtDistrict Court, D. Oregon
DecidedJune 20, 1991
DocketCiv. Nos. 90-1316-FR, 90-753-FR
StatusPublished
Cited by3 cases

This text of 767 F. Supp. 1051 (School District No. 1J Multnomah County v. ACandS, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
School District No. 1J Multnomah County v. ACandS, Inc., 767 F. Supp. 1051, 1991 U.S. Dist. LEXIS 8418 (D. Or. 1991).

Opinion

OPINION

FRYE, District Judge:

The following motions are pending:

1) the motion for summary judgment of defendant T & N pic (# 173);

2) the motion for partial summary judgment of defendant GAF Corporation (# 175);

3) the motion for partial summary judgment of defendant Owens-Corning Fiberglas (# 178);

4) the motion for partial summary judgment of defendant Georgia-Pacific Corporation (# 181);

5) the motion for partial summary judgment of defendants Armstrong Cork Company, Inc. and Armstrong World Industries, Inc. (# 182);

6) the motion for partial summary judgment of defendant United States Gypsum Company (# 185);

7) the motion for summary judgment of defendant U.S. Mineral Products Company (# 188);

8) the motion for partial summary judgment of defendant Fibreboard Corporation (# 189);

9) the motion for partial summary judgment of defendant W.R. Grace & Co.-Conn. (# 190);

10) the motion for partial summary judgment of defendant The Flintkote Company (# 193);

11) the motion for partial summary judgment of defendant A.P. Green Refractories Co. (# 195); and

12) the motion for summary judgment of defendant Keene Corporation (# 198).

BACKGROUND FACTS

The plaintiff, School District No. 1J Multnomah County, Oregon (the School District), brings this action against the defendants based upon strict liability, negligence and breach of warranty. The School District alleges that it has been damaged by the asbestos-containing products supplied by these defendants to the School District for use in its school buildings.

The School District owns some 105 buildings which are used as elementary schools, middle schools, high schools and other instructional centers. On June 18, 1990, this court ordered the School District to identify in its responses to the interrogatories served upon the School District by the defendants each of the school buildings in which the product of each of the defendants was allegedly installed. On December 3, 1990, the School District returned its responses to the interrogatories served upon it by the defendants.

Each of the twelve moving defendants seeks an order of summary judgment with prejudice in its favor as to all of those buildings in the School District where that defendant’s product was not listed as a “product installed” on the School District’s responses to interrogatories and the exhibits attached thereto and as to all of those school buildings for which there is no proof of the actual installation of that defendant’s product other than the contract specifications.

The School District appears to concede in its responses that summary judgment may be granted as to any defendant where that defendant’s product was not listed as a product installed in any given school building. However, the School District opposes summary judgment for any defendant where that defendant’s product was identified in the contract specifications for any building.

The contract specifications used by the School District for the construction, alteration and remodelling of school buildings indicate the product to be installed and the manufacturer of that product, and in certain instances use the words “or approved equal” after the product is identified.

A contract specification used by the School District becomes a part of the contract between the School District and the supplier after the contract is executed. If a contract specification calls for the specif[1054]*1054ic product of a specific manufacturer to be installed, but uses the words “or approved equal,” it has been the custom and practice of the School District to require that the product specified be used by the contractor. It has also been the custom and practice of the School District since 1951 that a contractor who desires to use an “approved equal” must make a written application to the architect for approval of a product other than the product specified, and that the architect must approve in writing the request of the contractor for use of a product other than the product specified. If a contract specification called for a specific manufacturer, the product of that manufacturer must have been installed unless the contractor made a written request to substitute the product of another manufacturer and the architect approved the substitution in writing.

CONTENTIONS OF THE PARTIES

The moving defendants contend that 1) as to the majority of the school buildings, there is no indication that the products of the moving defendants were either specified for installation or listed as actually installed; and 2) to the extent that the School District relies on contract specifications as evidence of what was actually installed, the specifications are speculative.

The defendants argue that the contract specifications alone are insufficient to prove that the product of a particular defendant was installed in a specific school building because the contract specifications alone are insufficient to establish the element of causation in the School District’s theories of recovery. The defendants contend that contract specifications are evidence only of the requested or suggested product, and not the product that was in fact installed.

The defendants rely in particular upon Catasauqua Area School Dist. v. Raymark Indus., 662 F.Supp. 64 (E.D.Pa.1987), in which the issue was -whether there was sufficient evidence to show that asbestos-containing roofing felts manufactured by Bird & Son were installed in a high school during its construction. In that case, the plaintiff relied “primarily on a materials list of products approved for installation.” Id. at 65. The court reviewed the evidence presented by both parties and concluded “[i]n sum, the cumulative value of plaintiff’s evidence is simply insufficient to establish that Bird’s products were actually present in the high school.” Id. at 66.

The School District responds that the specification of a single product, or its equal, creates the rebuttable presumption that the specified product was installed. The School District contends that the contract specifications became a part of the contract between the School District and its suppliers, and the law of the State of Oregon is that persons are presumed to have carried out their oral and written contracts. Multnomah County v. Dant & Russell, Inc., 158 Or. 350, 75 P.2d 986 (1938). The School District argues that when there is a contractual requirement that a party perform, absent evidence to the contrary, it is presumed that that party completed its obligations under the contract.

APPLICABLE STANDARD

Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett,

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Holcomb v. Georgia Pacific, LLC
289 P.3d 188 (Nevada Supreme Court, 2012)
Huber v. Watson
568 N.W.2d 787 (Supreme Court of Iowa, 1997)
School District No. 1J v. AcandS, Inc.
139 F.R.D. 164 (D. Oregon, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
767 F. Supp. 1051, 1991 U.S. Dist. LEXIS 8418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/school-district-no-1j-multnomah-county-v-acands-inc-ord-1991.