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UNITED STATES EX REL. SAUNDERS CONCRETE CO.

September 30, 1995

UNITED STATES OF AMERICA, for the use and benefit of SAUNDERS CONCRETE CO., INC., Plaintiff,
v.
TRI-STATE DESIGN CONSTRUCTION CO, INC., and EMPLOYERS INSURANCE OF WAUSAU, A Mutual Company, Defendants.


Frederick J. Scullin, Jr., U.S. District Judge


The opinion of the court was delivered by: SCULLIN

Introduction

 This is an action under the New York Uniform Commercial Code for damages arising out of the installation of allegedly defective concrete by plaintiff Saunders Concrete Co. ("Saunders"). Saunders' claim against Tri-State Design Construction Co. ("Tri-State"), the buyer of the concrete, for the contract price has been settled. Thus, the only claim remaining in the case is Tri-State's counterclaim seeking consequential damages for breach of contract.

 The matter comes before the Court on Tri-State's motion for joinder of a third-party defendant, Atlantic Testing laboratories ("Atlantic") and Saunders' motion for summary judgment on Tri-State's counterclaim.

 Background

 On November 9, 1992, plaintiff Saunders filed a summons and complaint against defendants Tri-State and Employers Insurance of Wausau alleging that they failed to pay for concrete sold and delivered by Saunders in the amount of $ 26,939.06. Saunders' Complaint P 12. Defendant Tri-State counterclaimed, seeking $ 100,000 damages for Saunders' alleged breach of the contract. Tri-State's Answer P 6. On October 19, 1993, the parties settled Saunders' $ 26,211.71 claim for payment under the contract by agreeing that Tri-State would pay $ 25,726.41, plus interest, with the remaining $ 485.30 as a counterclaim or setoff to Tri-State's damages claim. October 19, 1993 Order at 1-2.

 Tri-State entered into a contract with the United States of America, Small Business Administration, in furtherance of a contract made between the Federal Aviation Administration and the Small Business Administration, for the construction of a building at the Syracuse-Hancock International Airport. Otto Aff. Ex. B. Subsequently, Tri-State entered into a contract with Saunders to supply the required concrete--six cubic yards of 4,000 pound concrete at a slump *fn1" of four inches--in accordance with ASTM standards. Otto Aff. Ex. A. Tri-State also entered into a contract with Atlantic on July 12, 1991, whereby Atlantic agreed to provide an ACI-certified technician to inspect, test, and approve or reject the concrete delivered by Saunders. Adorante Aff. PP 4, 5, 7. Although Atlantic provided an inspector, Tri-State later learned that the inspector was not ACI-certified. O'Konski Aff. P 11.

 At 8:16 a.m., on September 5, 1991, Saunders batched the concrete and delivered it to the airport at approximately 8:59 a.m. Otto Aff. Ex. 9. The delivery slips indicated that the six yards of concrete contained only 27.8 gallons of water per yard, instead of the required 30 gallons per yard. Otto Aff. Ex. 13. Because the concrete was too stiff and would not come down the chute, Tri-State's superintendent told Saunders' truck driver to produce the proper slump. Notice of Motion Ex 10, Kubacki Dep. at 19-20 (hereinafter "Kubacki Dep."). Water was added several times before the proper slump was achieved and the concrete poured. Kubacki Dep. at 20-24. Prior to pouring, Atlantic concluded that the temperature (82 [degrees] F) and slump of the concrete (5 inches) was acceptable. Otto Aff. Ex. 13. It is unclear what time the water was added and the cement poured. Kubacki Dep. at 21, 26.

 After most of the concrete had been poured, the concrete remaining in the truck became stiff, and Tri-State's superintendent ordered that more water be added so that the proper slump could be achieved and the job finished. Kubacki Dep. at 35. However, the superintendent examined the concrete and decided not to pour it because it was "done." Kubacki Dep. at 35. Subsequently, Tri-State signed the delivery ticket, acknowledging that it "inspected, approved and received" the concrete and had authorized the addition of eighteen gallons of water. Kubacki Dep. at 46-48; see Otto Aff., Ex. 9. However, it is unclear what portion of the eighteen gallons was added to the concrete actually used. Later that day, another Saunders' truck finished the job by delivering one cubic yard of cement. Kubacki Dep. at 65.

 Subsequent strength tests of the concrete at seven and twenty-eight days after delivery revealed that the concrete was under strength. Otto Aff. Ex. 13. Further tests revealed that the concrete was under strength because it contained too much water. Otto Aff. Ex. B. Tri-State seeks damages, including the costs and expenses incurred: (1) in removing and replacing the defective concrete and (2) as a result of significant delays in the airport project. Tri-State's Answer PP 6, 7.

 The Court will first consider Tri-State's motion for joinder of Atlantic, and then evaluate Saunders' motion for summary judgment.

 Discussion

 A. Joinder

 Fed. R. Civ. P. 20(a) provides:

 
All persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

 In the alternative, Rule 20(b) provides:

 
The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

 Rule 20 "is to be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits." League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977) (citing Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974)).

 In order for Tri-State to join Atlantic, Tri-State must first show that its right to relief against both Atlantic and Saunders arises out of the same transaction or occurrence, pursuant to Rule 20(a). Courts have taken a case-by-case approach to this issue. See Wright & Miller, Federal Practice and Procedure § 1653 at 382 (1986). The Eighth Circuit stated that a transaction or occurrence under Rule 20 was "all 'logically related' events entitling a person to institute a legal action against another." Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). Other courts have found a single transaction or occurrence where there would be an overlapping of proof and the duplication of testimony, thereby causing delay, inconvenience and added expense to the court and parties involved. Wright & Miller, Federal Practice and Procedure § 1653 at 385.

 Tri-State alleges that Saunders supplied defective concrete as a result of improper mixing at the plant or the addition of water at delivery. O'Konski Aff. P 14. Tri-State also alleges that Atlantic improperly inspected the concrete, thereby falling to discover the defect and causing Tri-State's loss. O'Konski Aff. PP 15-17. In both instances, the cause of action arises out of the same transaction or occurrence--the delivery and installation of the concrete. Further, the adding of water by Saunders' driver and the contemporaneous inspection of the concrete by Atlantic's agent are "logically related" events in which the testimony and proof involved would overlap. Thus, Tri-State's right to relief against Saunders and Atlantic arises out of the same transaction or occurrence. Fed. R. Civ. P. 20(a).

 Next, Tri-State must demonstrate that a common question of law or fact will arise. Rule 20(a) requires only that there be at least one common question of law or fact. Wright & Miller, Federal Practice and Procedure § 1653 at 387 (citing Hall v. E.I. Du Pont de Nemours & Co., 345 F. Supp. 353, 381 (E.D.N.Y. 1972)). Although this case may involve different bases of liability concerning the duties owed by Saunders and Atlantic, it involves identical factual issues concerning the condition of the concrete (i.e., whether it was clearly defective upon delivery), the actions taken by the various parties ...


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