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Westfield Ins. Co. v. Huls Am.6/9/1998
JOHN C. YOUNG, Judge.
Appellants appeal from a February 24, 1997 judgment entry of the trial court granting summary judgment in favor of appellee. Plaintiffs-appellants insurance companies Westfield Insurance, Cincinnati Insurance, General Accidents Insurance, Indiana Insurance, State Automobile Insurance and Shelby Insurance (hereinafter collectively "Westfield") were insurers of business tenants of appellant/third-party defendant UAP Columbus J.V. 326132 ("UAP Columbus"), owners of the Lane Avenue Shopping Mall located in Columbus, Ohio. The mall was managed by appellant/third-party defendant Standard Management Company ("Standard"). Appellant-intervening plaintiff Hartford Fire Insurance Company ("Hartford") is an insurer of UAP Columbus (hereinafter appellants UAP Columbus, Standard and Hartford will be collectively referred to as "UAP").
On January 17, 1994, a TROCAL S-60 system roof covering the mall shattered and leaked. The mall tenants were forced to cease doing business for a period of months while repairs were made. The resulting loss of business caused the tenants economic business loss, which Westfield compensated under the tenants' inforce insurance policies. On January 13, 1995, appellants Westfield filed suit in subrogation against the manufacturer/supplier of the TROCAL roof, appellee-defendant HULS America, Inc. ("HULS"), which is a successor in interest to the original manufacturer/supplier Dynamit Nobel of America/KayFries Holding Company. The Westfield complaint alleges (1) a product liability claim under R.C. 2307.71 et seq. and (2) a negligent failure of HULS to warn the tenants that the TROCAL system was prone to shattering. Westfield claims the right to file suit as beneficiaries of UAP's right to be warned of the roof defect as original purchasers of the roof system. Westfield alleges that a defective TROCAL S-6sroof was the proximate cause of the roof leak at the UAP mall, resulting in economic damage to the mall tenants insured by Westfield. See R.C. 2307.79.
On February 21, 1995, appellee HULS filed its answer to Westfield's complaint and filed a third-party complaint against UAP Columbus and Standard, alleging that UAP Columbus and Standard's failure to replace the roof, after they were warned of its weakened condition, was the cause of the water leakage. UAP Columbus and Standard answered HULS's complaint, asserting counterclaims alleging that HULS was liable to them for violations of the Ohio Product Liability Act (R.C. 2307.71 et seq.), negligence, breach of express and implied warranties, and misrepresentation of the nature of the TROCAL roof system. On September 15, 1995, Westfield amended its complaint to include as defendants UAP Columbus and Standard. On December 14, 1995, Hartford, as insurer and subrogee of UAP Columbus and Standard, intervened in the action, filing its complaint against HULS, asserting claims against appellee for breach of express and implied warranties, violations of Ohio product liability law, negligence, and misrepresentation. In their respective complaints, Westfield alleged economic damage proximately caused by the defective roof and HULS's failure to warn, and UAP alleged economic and property damage, including damage to the alleged defective TROCAL roof.
On September 18, 1996, HULS Med its motion for summary judgment against appellants Westfield and UAP, claiming that (1) the roof was a fixture and therefore not subject to the provisions of R.C. 2307.71 et seq., (2) the warranty claims of appellants were barred because (a) HULS's liability was limited by the terms of the warranty, (b) the warranty terms limited the warranty to maintaining the roof in a watertight condition for t
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