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Case 1:03-cv-02461-MSK-MEH Document69 _ Filed 08/01/2005 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-OES LEPRINO FOODS COMPANY, Plaintiff, Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
DEFENDANT FELDMEIER EQUIPMENT, INC.’S MOTION FOR SUMMARY ADJUDICATION
Defendant Feldmeier Equipment, Inc. hereby moves the Court for and Order of Summary Adjudication against Plaintiff in accordance with Fed.R.Civ.P. 56.
L INTRODUUCTION
The Amended Complaint herein alleges various claims for relief which all arise out of Feldmeier's sale of a vertical stainless steel silo storage tank which was delivered to one of Leprino's cheese manufacturing facility located in Waverly, NY. (Amended Complaint, Paragraph 6). Purchase Agreement #03273 is dated June 6, 2000 for a 33,000 gallon stainless steel silo tank to be delivered to a Leprino facility located in Waverly, New York. Plaintiff now alleges that this storage silo is defective because: "The vent and overflow arrangement is not capable of performing in accordance with the Agreement's specifications and does not act as a failsafe mechanism as represented and agreed by Defendant" (Amended Complaint, Paragraph 10). This action was instituted by the filing of a Complaint in Denver District Court on November 4, 2003 which was removed to this Court. All of Plaintiffs theories are barred by either a two or three-year statute of limitation and the doctrine of release.
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Case 1:03-cv-02461-MSK-MEH Document69 _ Filed 08/01/2005 Page 2of7
Il. DESCRIPTION OF CLAIMS AND ISSUES TO WHICH SUMMARY ADJUDICATION IS WARRANTED
Defendant requests this Court issue summary adjudication on each of Plaintiffs claims as all claims are barred by the Statute of Limitations and the doctrine of release. On these defenses, the Defendant has the burden of proof by a preponderance of the evidence.
A. Leprino's Claims are Barred by the Statute of Limitations.
1. Statute of limitation periods accrue at the time of delivery of the product. See Glenn Peck, Ltd. V. Fritsche, 651 P.2d 414, 415 (Colo.App. 1981), cert den’d. (1982), or the possession of the goods, Prutch v. Ford Motor Co., 618 P.2d 657, 660 (Colo. 1980).
2. The specific statute of limitations for all actions against manufacturers of products (except breach of warranty claims) is two years. See C.R.S. §§13-80-106 and 107. The Colorado Appellate Courts have consistently held that by enacting this statute, the Colorado General Assembly manifested its intent to encompass all forms of product liability actions against manufacturers of products regardless of the substantive legal theory or theories upon which the action is brought, Persichini v. Brad Reagan, Inc., 735 P.2d 168 at 173 (Colo. 1987); Boyd v. A.O. Smith Havestore Products, 776 P.2d 1125 at 1127 (Colo.App. 1989) (product liability suit against manufacturer of grain silo). In any event, even if we were to look at more general statutes of limitations, the Plaintiff's claims for negligence [C.R.S. §13-80-102(1)(a)], manufacturers liability [C.R.S. §13-18-102(1)(b)] or product liability [C.R.S. §13-80-102(1)(b)] are still time-barred in two years.
The only exception to the two-year statute of limitations for all types of product liability theories is a claim for breach of warranty which is governed by Uniform Commercial Code. C.R.S. §4-2-725 allows for a three-year period of time in which to bring a suit based on a
warranty.
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Case 1:03-cv-02461-MSK-MEH Document69 _ Filed 08/01/2005 Page 3of7
3. Leprino failed to file its Complaint within either the two year or three year statute of limitations and therefore, its claims are barred.
B. Leprino Previously Released All Claims Against Feldmeier.
1. A Settlement Agreement was entered by the parties on September 25, 2000.
2. The Settlement Agreement, which was entered into by two sophisticated parties who were both represented by counsel, was entered in fairness and good faith. Goff v. Boma Investment Co., 116 Colo. 359, 365-366, 181 P.2d 459, 462 (1957).
3. Leprino ratified the Agreement. Jd. See also Duffy Theatres v. Griffith Consol. Theatres, Inc., 208 F.2d 316, 324 (1953) (must rescind or disaffirm release within a reasonable time).
4. The plain and unambiguous language of the Agreement bars all claims asserted in this litigation, including those that were not known at the time the parties executed the Agreement. Goff supra. Mountain Stone Co. v. H.W. Hammond, Co., 564 P.2d 958, 961 (Colo.App. 1977).
Il. FACTS THAT ARE NOT GENUINELY IN DISPUTE
A. Leprino's Claims Are Barred By the Statute of Limitations.
L. The Silo Was Delivered to Leprino October 16, 2000. It is undisputed that the silo at issue was first delivered in July, 2000. Deposition of Charles Richard Swetland (Leprino’s Project Engineer of the Waverly Plant) at p. 54, attached as Exhibit 1. The silo had been damaged in transport and was returned to Feldmeier and repaired by Feldmeier. Jd. After the silo was fully repaired, it was re-delivered to Leprino on October 16, 2000. See Bill of Lading attached as Exhibit 2 (previously marked as Deposition Exhibit No. 10)
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and deposition testimony of Mr. Swetland, p. 60, attached as Exhibit 1. Since the delivery of the silo, Leprino had full possession of the same. Feldmeier did no further work at the Waverly site. Deposition of Mr. Swetland, pp. 60-61 (Exhibit 1).
2. Leprino Failed to File its Complaint Within Either the Two or Three Year Statute of Limitations. Leprino filed its Complaint against Feldmeier in District Court for the City and County of Denver on November 4, 2003. See Complaint and attached Lexis-Nexis File and Serve e-mail indicating a Complaint was filed November 4, 2003 at 6:14 p.m., attached as Exhibit 3.
3. Leprino's Claims Are Therefore Barred Under Both the Two Year and Three Year Limitation Periods. Whether the two-year or three-year statute of limitations applies, Plaintiff brought this claim too late. The two-year statute of limitations would have run October 16, 2002 and the three-year statute of limitations, October 16, 2003.
B. Leprino Previously Released All Claims, Whether Known or Unknown, Against Feldmeier.
1. The Parties Entered a Settlement Agreement. On September 25, 2000, the parties entered a Settlement Agreement. The Settlement Agreement is attached as Exhibit 4. See also Affidavit of Jake Feldmeier, §5, attached as Exhibit 5. The Agreement applies to the Waverly, NY silo, the only silo at issue in this lawsuit. See Exhibit 4, (JA, 1 and 2 and “Exhibit B” attached hereto; Exhibit 5, 45.
2. The Agreement Was Entered Into In Fairness and Good Faith. The Settlement Agreement specifically identifies consideration for which the parties bargained. See Exhibit 4, §{1-3 of the Agreement as well as "Exhibit B" attached thereto. Exhibit B of the Agreement clearly identifies a negotiated compromise between the parties. See also Affidavit of
Jake Feldmeier, {6 (Exhibit 5). There is no evidence of fraud, bad faith or misconduct, and in
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Case 1:03-cv-02461-MSK-MEH Document69 _ Filed 08/01/2005 Page 5of7 fact, both parties were represented by counsel. Affidavit of Jake Feldmeier, {]6 (Exhibit 5). The Settlement Agreement states on its face that "[e]ach party to this settlement has received independent legal advice from its attorney(s) with respect to the legal consequences of making the settlement provided for herein and with respect to the execution of this settlement.” Exhibit 4 at 410.
3. Plaintiff Ratified the Agreement. Both parties to the Settlement Agreement signed the Agreement indicating their mutual assent to the terms of the same. See Exhibit 4 at pp. 1 and 3, Exhibit 5, 7. Additionally, a payment was made by Leprino to Feldmeier. Jd. at Exhibit 5, 7. Leprino paid money and Feldmeier compromised its demand in consideration of the settlement. Jd. Leprino has never attempted to rescind or disaffirm this agreement. Id. at {8.
4. The Plain and Unambiguous of the Release Bars the Claims Asserted by Leprino in this Litigation. The Settlement Agreement plainly states that it is a full settlement, accord and satisfaction of any and all of the disputes between the parties and that: The parties acknowledge that they may hereafter discover facts different from, or in addition to, those which each now knows or believes to be true, and each of the parties agrees that this Settlement shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof. (Emphasis applied). Such broad language clearly indicates that all of Leprino’s claims, even those it did not have knowledge of at the time of execution of the Agreement, are barred.
WHEREFORE, Defendant Feldmeier respectfully requests that the Court dismiss all claims against it by Leprino on the grounds that all claims were previously released and/or that Leprino failed to comply with the applicable statutes of limitations.
Respectfully submitted this 1“ day of August, 2005.
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Case 1:03-cv-02461-MSK-MEH Document 69 Filed 08/01/2005 Page 6 of 7 Case 1:03-cv-02461-MSK-MEH Document69 _ Filed 08/01/2005 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on this 1‘ day of August, 2005, I caused a true and correct copy of the foregoing DEFENDANT FELDMEIER EQUIPMENT, INC.’S MOTION FOR SUMMARY ADJUDICATION to be delivered to the following via U.S.D.C. ECF and/or U.S. First Class mail:
Michael G. Bohn, Esq.
Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Ste. 200 Denver, CO 80206 Mr. Jake Feldmeier Feldmeier Equipment, Inc.
6800 Townline Road Syracuse, NY 13211 s/ Angela Rose Angela Rose, Legal Assistant
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