United States District Court, N.D. Alabama, Western Division
FCCI INS. CO., Plaintiff;
CAPSTONE PROCESS SYS., LLC, et al., Defendants
For FCCI Insurance Co, Plaintiff: Fredrick Lane Finch, Jr, HAND ARENDALL, LLC, Birmingham, AL.
For Capstone Process Systems LLC, Nu-West Industries, Inc., Defendants: James E Fleenor, Jr, LEAD ATTORNEY, Wilson F Green, FLEENOR GREEN & McKINNEY LLP, Tuscaloosa, AL.
MEMORANDUM OF OPINION
L. SCOTT COOGLER, UNITED STATES DISTRICT JUDGE.
The Court has before it two motions for summary judgment. Defendants Capstone Process Systems, LLC (" Capstone" ) and Nu-West Industries, Inc. (" Nu-West" ) have moved for summary judgment on all claims asserted against them. (Doc. 24). Plaintiff FCCI Insurance Company (" FCCI" ) has also moved for summary judgment on all counts, (Doc. 26), and made a motion to strike certain evidence submitted in support of the Defendants' motion for summary judgment. (Doc. 31). For the reasons stated below, FCCI's motion for summary judgment is due to be GRANTED, while Defendants' motion is due to be DENIED. FCCI's motion to strike is due to be DENIED as moot.
The facts in this case have been almost entirely stipulated. To the extent inferences may be drawn from the facts, the Court will view all facts and make inferences in the light most favorable to the non-moving party on each motion.
Nu-West is an agricultural company located in Idaho, while Capstone is a company specializing in rubber and rubber installation based in Alabama. In January of 2008, Nu-West determined tat one of its machines, referred to in this litigation as the " Vessel," needed to be re-rubbered. Nu-West contracted with Capstone to perform the work.
In the contract, Capstone agreed to provide and install the rubber, provided warranties for the goods and services involved, and agreed to complete the work in June 2008. As provided for in the contract, Capstone began to work on the Vessel in June. Evidence, including Capstone's own cure sheets, suggests that Capstone undercured the rubber. Capstone left the premises on June 29, and after reassembling the Vessel Nu-West attempted to put it back into service on July 4. On July 7, 2008, the rubber failed, and the Vessel had to be shut down.
Capstone was contacted about the rubber failure and returned to re-rubber the Vessel at their own expense, this time curing the rubber for a longer time and at
a higher temperature. Capstone completed this process near the end of July, and the Vessel was put back into service on or about August 7, 2008. The second installation of the rubber was successful.
During the time the Vessel was inoperable, Nu-West was unable to manufacture as much super phosphoric acid, or " SPA," as it would have had the vessel been in service. Nu-West has submitted expert reports that the temporary loss of use of the Vessel caused over $3 million in lost profits.
At all times relevant to this litigation, Capstone carried a commercial general liability policy (" CGL policy" ) with FCCI. In relevant part, " Coverage A" of the CGL policy provides coverage for " Bodily Injury and Property Damage Liability," while " Coverage G" of the General Liability Advantage Endorsement ...