United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM ORDER AND OPINION
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the Defendant Soprema's Motion for Summary Judgment, as supplemented, [Docs. 53, 85], and said Defendant's Motion to Strike [Doc. 71]. The dispute in this case surrounds the ineffective repair of leaking roofs on three warehouses owned by Plaintiffs David and Maureen Watkins. Plaintiffs bring this action against Defendant Soprema, Inc. (Soprema), a distributor of a product used in the repair. For the reasons that follow, the Court will grant the motion.
In analyzing the Motion for Summary Judgment, the Court must view the forecasts of evidence in the light most favorable to the Plaintiffs as the non-moving party. Adams v. UNC Wilmington, 640 F.3d 550, 556 (4th Cir. 2011). Doing so yields the following factual background.
The Watkins purchased three warehouse buildings, located in Brevard, North Carolina, approximately fifteen to eighteen years ago. [Doc. 53-1 at 6]. All three warehouses were originally constructed with a built-up roofing system. [Id. at 7]. When the Watkins bought the buildings in the 1990s, a ballasted single-ply PVC membrane roof had been installed on top of the built-up roof. [Id.]. Plaintiffs began to experience leaks in the roofs in 2006 when this single-ply membrane split. [Id. at 7-8]. Watkins decided to repair the roofs in 2006 using polyurethane foam. [Id. at 10]. Watkins believed this material would provide a durable, watertight treatment for his roofs. [Id.].
After obtaining bids, Plaintiffs contracted with Stephen Hollingsworth to undertake the repair. [Id. at 11]. Hollingsworth used a Spray Polyurethane Foam ("SPUF") product on the roofs. [Doc. 53-2 at 6]. Hollingsworth gave Plaintiffs a warranty that he would replace or repair the roofs as necessary to guarantee a watertight roof for up to 10 years. [Doc. 53-1 at 9]. This warranty was a personal guarantee individually executed by Hollingsworth. [Id.].
The roofs remained leak-free for approximately three years after the SPUF repair performed by Hollingsworth. When the leaks returned in 2009, Watkins ascended the roof and saw that the SPUF covering building 2 was "delaminated and separated." [Id. at 13-14]. Watkins realized that there was water trapped between the layers because he experienced a "floating sensation" when walking on the surface of the roof. [Id.]. Watkins demanded that Hollingsworth, who now owned Superior Contractors, Inc. ("Superior"), fix the leaking roofs pursuant to his warranty. [Id. at 15].
Hollingsworth agreed to honor his warranty and make the repairs. He told Plaintiffs that he was then using a "liquid product" for coating roofs in which he had "a lot of confidence." [Id.]. The product he recommended was Elastikote 1000 manufactured by Defendant Elastikote. [Id. at 17]. Hollingsworth's warranty work was to be at no charge to Watkins. [Id. at 26]. Hollingsworth, however, did not have the funds necessary to procure the material, so Plaintiffs agreed to advance Hollingsworth the $108, 000 to purchase the Elastikote 1000 product. [Id.]. Hollingsworth recommended Watkins contact John Frye, a salesman employed by Elastikote. [Id. at 17]. Frye had previously been employed by Soprema, but that employment ended months earlier. [Doc. 53-3 at 2]. Soprema was a distributor of the Elastikote 1000 product. [Id.].
Watkins contacted Frye, who told Watkins that Elastikote 1000, an acrylic coating membrane, would be a good product to use for his roofs. [Doc. 53-1 at 16; 18]. Frye explained to Watkins that Elastikote 1000 would stick to various materials and would provide a "dry, watertight seal" for a flat roof. [Id. at 18]. Frye told Watkins that he (Frye) would contact Soprema and ask that Soprema send a representative to meet with Watkins. [Id.].
On October 26, 2009, Erik Karabin, the North and South Carolina district sales manager for Soprema, came to Watkins' office to meet with him. [Id. at 18-19]. Karabin told Watkins that the Elastikote 1000 product was an appropriate material for a "flat, built-up" roof. [Id. at 48]. Watkins spent 15 to 20 minutes speaking with Karabin, during which time Karabin gave Watkins some product literature. [Id. at 18]. This was the only contact Plaintiffs ever had with a representative of Soprema other than its accounting department regarding payment issues on Hollingsworth's account. [Id. at 45].
On November 10, 2009, Watkins executed a contract with Superior for the repair of the roofs of buildings 1, 2, and 3. [Id. at 20-21]. It is not explained in the record why Plaintiffs entered into this new contract with Superior (i.e. Hollingsworth's company) when Hollingsworth had agreed to repair the roofs pursuant to his own prior guaranty. Pursuant to the contract, however, Hollingsworth agreed to do more than simply repair the roofs. Instead he agreed to remove all the SPUF foam he had previously installed on each roof and to coat the roofs with Elastikote 1000. [Id. at 22; 24].
Prior to the application of the Elastikote 1000 product, Frye went to Plaintiffs' warehouse in Brevard one time, either "late November, [or] early December of '09." [Id. at 25; 31]. According to Watkins, Frye said that properly applied SPUF foam could remain in place, but if Hollingsworth found water under the foam, that particular portion of the SPUF needed to be cut out, the surface dried out, filled again with fresh foam, and coated. [Id. at 30]. Frye never returned to the project. [Id. at 31].
Plaintiffs had no contract with Soprema. [Id. at 41-42]. Watkins never purchased anything from Soprema, but he did send some payments to Soprema on behalf of Hollingsworth when Hollingsworth directed him to do so. [Id.]. Hollingsworth wrote into his contract with Plaintiffs that Soprema would issue a ten-year material warranty only for the Elastikote 1000 product. [Id. at 22-23]. Further, Watkins knew this material warranty would not be issued by Soprema until the application of the Elastikote 1000 was complete and the roofs were dry and leak-proof. [Id. at 28]. Watkins understood that any warranty issued by Soprema would be a materials warranty and would cover only the Elastikote 1000 product. [Id. at 47]. He also understood that, this would not include a workmanship warranty covering leaks resulting from deficient workmanship. [Id.]. The roof repairs, however, were never finished and Hollingsworth never achieved making the roofs dry and leak-proof. [Id. at 28]. As a result, Soprema never issued a material warranty to Plaintiffs. [Id. at 29].
Prior to the application of the Elastikote 1000 product, Hollingsworth cut out and removed "one little tiny bit" of the SPUF on building 1 that appeared "squishy." [Id. at 24; 31]. He did not, however, replace the foam in this location. [Id. at 34]. Hollingsworth removed most of the SPUF on building 2, [Id. at 33], but did not remove any SPUF from building 3. [Id. at 24].
In late 2012, the roof of building 3 began to leak again. [Id. at 37]. Watkins climbed up onto the roofs and observed splits in various locations on the roof surfaces of all three buildings. [Id. at 35]. Following his inspection of the roofs, Watkins called Frye (Elastikote's representative) to track down Hollingsworth about the roof problems. [Id. at 28; 39]. Watkins made no other attempts to notify Elastikote about the leak issues. [Id. at 39-40]. Watkins never undertook to contact Soprema. [Id.]. Watkins ultimately located Hollingsworth, but when Hollingsworth was unable to fix the leaks, Watkins engaged Jeff Martin, of TAC Roof Designs, in an effort to seek a solution. [Doc. 53-2 at 2; 7]. Martin in turn contacted Scott Hall, a roofing contractor with Team Roofing, to perform repairs of the Watkins' warehouse buildings roofs. [Doc. 53-4 at 2]. By the time Watkins hired Team Roofing to remove the rest of the SPUF foam and perform roofing repairs in 2012, several roof locations on each of the three buildings were "weeping." [Doc. 53-1 at 36-37].
No evidence has been presented showing any forensic, chemical, or substantive analysis of the Elastikote 1000 product or showing that it was defective in any respect. Martin was not asked to perform any tests on the Elastikote 1000 coating product. [Doc. 53-2 at 14-5]. Watkins himself did not do any material testing on the Elastikote 1000 product. [Doc. 53-1 at 23]; [Doc. 53-2 at 18]. Hall visually evaluated the roofs, but did not perform any chemical analysis on the Elastikote 1000 product. [Doc. 53-1 at 46]; [Doc. 53-2 at 3].
Martin testified that he saw blistering and splitting of the roofs' surfaces, which he opined was evidence of water migrating within the roof layers. [Doc. 53-2 at 8-9]. Martin said that water normally enters a roofing system through penetrations and roof curves. [Id. at 9]. He saw prominent splits in the Elastikote 1000 coating and the SPUF foam. [Id. at 11]. He opined that the blistering and the splitting of the Elastikote 1000 coating occurred due to the improper installation of the SPUF in 2006 and the lack of bonding between the top layers of that foam. [Id. at 12]. Martin could physically separate the layers on portions of the foam. [Id. at 13]. Also, according to Martin, there were irregularities in the thickness of the SPUF foam. [Id. at 16]. In some places the foam was so thin that "it appeared to be much thinner than normal SPUF roofs that you see." [Id. at 16-17]. Martin stated that his walking on the roof was sufficient for him to feel separation between the layers at the locations of the blisters. [Id. at 13]. Martin stated that he concluded there was water trapped on top of the original built-up roof, below the SPUF foam and within the layers of the SPUF foam. [Id. at 9]. Improper installation of Hollingsworth's 2006 SPUF roof allowed water to penetrate the foam and become trapped. [Id.]. He said the trapped water, in turn, fueled "vapor drive, " a condition in which the water vapor confined in and below the SPUF layer expanded, causing the foam to rise and bubble. [Id. at 9-10]. The rising and bubbling foam in turn caused the top coating to blister and split, through which more water was able to enter the roof system, eventually destroying the Elastikote 1000 coating. [Id.].
According to Martin, while Elastikote 1000 provided a sufficient temporary solution for a roof leaking due to a saturated foam membrane, given Hollingsworth's 2006 flawed SPUF application, it was not a long-term solution. [Id. at 20-1; 24]. Martin conceded that no manufacturer would warrant a roof under such circumstances. [Id. at 20].
Plaintiffs, David Watkins and Maureen Watkins, husband and wife, began this lawsuit in North Carolina state court with a Complaint filed in the Transylvania County Superior Court on September 5, 2012. [Doc. 1-1]. Plaintiffs' original Complaint alleged claims for (1) breach of express warranties, (2) breach of implied warranty of merchantability, (3) breach of warranty of fitness for a particular purpose, (4) negligent manufacture of material (Elastikote only), (5) general negligence, and (6) fraud. [Id.]. Defendants removed this case to this Court on October 5, 2012. [Doc. 1]. Elastikote filed its Answer the day of removal. [Doc. 2]. Soprema filed a Motion to Dismiss Counts Five and Six of Plaintiffs' Complaint [Doc. 8] on October 24, 2012, and, later that day, filed its Answer [Doc. 11]. After the parties briefed Soprema's dismissal motion, the Magistrate Judge issued his Memorandum and Recommendations [Doc. 41] recommending the Court deny Soprema's motion to dismiss count five of Plaintiffs' Complaint and the Court grant Soprema's motion to dismiss count six of Plaintiffs' Complaint. [Id. at 11]. On April 19, 2013, the Court accepted both of the Magistrate Judge's recommendations in an order filed that day. [Doc. 46].
On August 13, 2013, Plaintiffs filed a Motion to Amend Complaint. [Doc. 50]. Three days later, Soprema filed its Motion for Summary Judgment. [Doc. 53]. On August 20, 2013, Elastikote filed its Motion for Summary Judgment. [Doc. 55]. The Magistrate Judge granted Plaintiffs' Motion to Amend Complaint on September 20, 2013 [Doc. 67], and Plaintiffs filed their Amended Complaint September 24, 2013. [Doc. 68]. Both Suprema and Elastikote filed Answers to Plaintiffs' Amended Complaint on October 8, 2013. [Docs. 72, 73]. Following the filing of Plaintiffs' Amended Complaint, Elastikote and Soprema supplemented their summary judgment motions, [Docs. 80, 85], and moved to strike portions of an affidavit filed by Plaintiffs in response to the summary judgment motions. [Doc. 71].
On November 22, 2013, this matter came on for hearing before the Court. At the beginning of this hearing, before the arguments of counsel began, Plaintiffs filed a Motion for Voluntary Dismissal of Second, Third and Fourth Claims, and Claim One as to Elastikote only. [Doc. 89]. The Court granted Plaintiffs' dismissal motion from the bench. What remained of Plaintiffs' Amended Complaint, then, were: Claim One, breach of express warranties alleged against Soprema only; Claim Five, negligence alleged against both Defendants; and new Claim Seven, unfair and deceptive trade practices alleged against both Defendants.
After the hearing, while this matter was under advisement, Plaintiffs moved to dismiss all claims against Elastikote, [Doc. 90], which motion was granted. [Doc. 91]. This leaves for disposition only Defendant Soprema's Motion for Summary Judgment as to Claims One ...