The opinion of the court was delivered by: John T. Curtin United States District Judge
In this action, plaintiff American Ref-Fuel Company of Niagara, LP, seeks to recover against defendant Gensimore Trucking, Inc., for property damage sustained as the result of an explosion in a storage silo at plaintiff's "waste-to-energy" facility located in Niagara Falls, New York. Defendant now moves for summary judgment dismissing the complaint. For the reasons that follow, defendant's motion is denied in part and granted in part.
The following facts, adapted from the parties' statements filed pursuant to Rule 56.1 of the Local Rules of Civil Procedure of the United States District Court for the Western District of New York (see Items 72 and 78), are undisputed.
American Ref-Fuel owns and operates a waste-to-energy facility in Niagara Falls, at which it burns municipal solid waste for conversion into energy in the form of steam and electricity. The conversion process involves the use of the product "Sorbalime," which is introduced into the facility's air pollution control system to remove heavy metal contaminants prior to release of cleaned gasses into the atmosphere. Sorbalime was developed and patented in Germany by the Marker Company, and was originally marketed and sold in North America pursuant to a license granted to the Dravo Lime Company, located in Pittsburgh, Pennsylvania. The product consists of a combination of activated carbon, elemental sulfur, and lime. These components are blended in varying percentages by weight, depending on the specifications of each particular customer based on its individual capacity and use.
In 1997, Dravo Lime entered into a contract with American Ref-Fuel to provide Sorbalime at its Niagara Falls facility (see Item 73, Ex. H). According to Dravo Lime's "Certification of Sorbalime(r) Composition," American Ref-Fuel specified a "target" composition of 2.5% activated carbon, 1.1% elemental sulfur, and 96.4% lime (Item 78, Ex. 1).
Defendant Gensimore is a trucking company located in Pleasant Gap, Pennsylvania. Gensimore became involved with Sorbalime in 1997 when it was approached by David Gabis of Elite Steel, a company that worked with Dravo Lime. Acting as intermediary between Gensimore and Dravo Lime, Mr. Gabis entered into a contract with Gensimore to provide blending and delivery services for Dravo Lime's Sorbalime customers. Under this arrangement, Gensimore would obtain the necessary component materials from Dravo Lime or local suppliers, and would prepare the Sorbalime blend according to the product specifications for each individual customer. Gensimore would then deliver the product to the customer and send the bill to Dravo Lime (see generally Transcript of Daniel Gensimore's Deposition, Item 73, Ex. D; see also id., Ex. I).
In October 1998, Dravo Lime was purchased by Carmeuse N.A., also located in Pittsburgh. Carmeuse is engaged in the business of designing, manufacturing, selling, and distributing chemical and metallurgical lime and lime-related environmental technologies. The purchase included Dravo Lime's contractual and licensing rights, including all rights with respect to the licensing and sale of Sorbalime. Carmeuse also continued Dravo Lime's business relationship with Gensimore for the blending and delivery of Sorbalime. However, Carmeuse discontinued Mr. Gabis's services as middleman.
On August 31, 2000, Gensimore driver Paul Cogan arrived at American Ref-Fuel to deliver a pre-blended load of Sorbalime. Mr. Cogan testified that he had made the same trip from the Gensimore facility to the American Ref-Fuel plant more than fifty times and followed the same procedures for transfer of the product to American Ref-Fuel's storage silos. After signing in, weighing in, and delivering paperwork along with a one-gallon sample of the Sorbalime blend, Mr. Cogan backed the truck in alongside the silos to deliver the product. He attached a hose to an air compressor and began unloading the Sorbalime into one of the storage silos. When the truck was almost empty, an explosion occurred inside the silo, causing damage to the silo structure but no personal injuries (see generally Transcript of Paul Cogan's Deposition, Item 73, Ex. L).
Plaintiff originally commenced this action against Gensimore and Dravo Lime in November 2002, and amended the complaint in March 2003 to substitute Carmeuse for Dravo Lime, seeking to recover for the damage to the silo "in an amount in excess of $150,000" (Item 4, ¶ 10). Plaintiff alleges that the Sorbalime supplied by Carmeuse and Gensimore was "defectively designed, manufactured and blended," rendering it unreasonably dangerous and unfit for its ordinary and intended uses (see, e.g., id. at ¶ 12), giving rise to liability under theories of products liability, negligence, and breach of warranty.*fn1
Gensimore now moves for summary judgment on the following grounds:
1. Plaintiff's claims based on products liability and negligence are subject to the affirmative defense of "contract specification."
2. Plaintiff's claim for breach of implied warranty is unavailable in this case, where only property damage is alleged.
Each of these grounds is discussed in ...