Tull Bros. v. Peerless Products, Inc.
953 F. Supp. 2d 1245
S.D. Ala.2013Background
- Tull Brothers (subcontractor/installer) sued Peerless Products (window manufacturer/designer) after extensive field testing of installed windows at the University of South Alabama’s Shelby Hall revealed repeated water-penetration failures, prompting large remedial efforts (~$579,000 claimed).
- South Alabama (owner) purchased windows directly from Peerless and then assigned limited warranty rights to Tull Brothers; Tull remained the installer under its subcontract with the general contractor, Elkins.
- Central factual dispute: whether failures arose from a defectively designed subsill back leg (1-inch vs. an alleged preferable 2-inch) or from defective installation/quality control by Tull.
- Multiple rounds of Thompson Engineering field tests produced mixed results; after remediation by a manufacturer representative some mock-up tests passed, but later testing showed inconsistent results and further failures.
- Procedurally: Peerless moved for summary judgment on negligence, express warranty, contractual indemnity, and breach of contract claims. The court applied Alabama law and resolved each claim on summary judgment or carried it to trial as described below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence duty/standing to recover in tort | Peerless owed Tull a duty because Peerless designed windows knowing Tull would rely on proper design; design caused Tull’s extra costs | Failures reflect Tull’s installation/quality-control problems, not design defect | Denied summary judgment; factual disputes exist about duty and breach (negligence claim goes to trial) |
| Breach of express written warranty (Purchase Order) | Windows were nonconforming due to defective design, triggering express warranty assigned to Tull | Purchase Order warranty covers defects in materials/workmanship, not design; tests showed passing results | Granted for defendant; express warranty claim fails as a matter of law (warranty limited to materials/workmanship) |
| Contractual indemnity (hold harmless in Purchase Order) | Tull seeks indemnity for curative costs under hold-harmless assigned from owner | Indemnity applies only if indemnitee was "held liable" for third-party claims; assignment limited; no such liability shown | Granted for defendant; contingency (being held liable to a third party) not shown, indemnity not triggered |
| Breach of contract / third-party beneficiary / assignment | Tull claims it stands in South Alabama’s shoes via assignment and/or is intended third-party beneficiary of Purchase Order | Peerless: Tull lacks privity; assignment limited; was at most an incidental beneficiary | Third-party beneficiary claim denied (Tull was at best incidental beneficiary); claim based on assignment to stand in purchaser’s shoes is carried to trial |
Key Cases Cited
- Van T. Junkins & Assocs. v. U.S. Indus., Inc., 736 F.2d 656 (11th Cir.) (sham affidavit doctrine—courts may disregard affidavits that directly and inherently contradict prior sworn testimony)
- Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir.) (limitations on application of sham affidavit rule)
- McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir.) (illustrating when affidavit contradictions may be disregarded)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden-shifting principles)
- Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So.2d 496 (Ala. 1984) (tort duty to third-party subcontractor where contracting party knows others will rely on performance)
- East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (U.S. 1986) (economic-loss rule—distinguishing contract/warranty remedies from tort for purely economic losses)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (U.S. 1992) (manufacturer’s liability for breach of express warranty measured by warranty terms)