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Dow Corning Corporation v. Hyspan Precision Products11/13/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this case for breach of contract and related counts, plaintiff Dow Corning Corporation (Dow) appeals a judgment for defendant Hyspan Precision Products (Hyspan). Dow contends the court erred by admitting evidence of, and allowing the jury to determine the applicability of a five-year warranty; excluding a proposed question regarding the nature of the products at issue from the verdict form; granting non-suit on the tort causes of action, and awarding Hyspan attorney fees under Civil Code section 1717. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUD
Dow used a high-temperature, high-pressure, circulating water system to heat the buildings on its campus in Midland, Michigan. In 1988 and 1989, Dow purchased expansion joints from Hyspan, which is located in San Diego County, for an upgrade of the heating system. The expansion joints contained stainless steel bellows, which are "accordian-type conduits" designed to expand and contract to accommodate fluctuations in water pressure.
Beginning in May 1996 a few of the expansion joints developed leaks. Dow replaced the faulty expansion joints with new ones it obtained from Hyspan. However, Dow later replaced all of the Hyspan products with expansion joints manufactured by another company. Dow sued Hyspan for breach of the implied warranties of merchantability and fitness, breach of express warranty, breach of contract, negligence, strict products liability and negligent and intentional misrepresentation.
A principal issue at trial was which, if any, express warranties applied to the expansion joints. When negotiating its purchase in 1988, Dow requested warranty information from Hyspan. In response, a Hyspan representative wrote to Dow in a June 8, 1988 letter that the expansion joints carried a five-year limited warranty. Hyspan's theory was that since a five-year warranty applied, Dow could recover no damages related to the expansion joints it purchased in 1988 and 1989.
Dow argued the five-year warranty was inapplicable, because Hyspan's catalogue stated that such a warranty applied to expansion joints manufactured "to standard catalog construction or standard construction," and Dow ordered customized expansion joints. Dow argued that a 25 to 30 year warranty applied to the expansion joints. Dow, without Hyspan's input or knowledge, calculated that period based on Hyspan's representation that the expansion joints had a "full-cycle rating" of 10,000 cycles. A full cycle is the complete expansion and return to pre-expansion state of the bellows within an expansion joint. Dow expected the expansion joints to undergo a partial cycle each day, but divided the 10,000 cycles by 365 days, or one full cycle per day, the quotient of which is approximately 27 years, to arrive at an express warranty of 25 to 30 years.
Dow moved in limine to exclude any evidence of a five-year warranty. The court denied the motion and determined the jury should resolve factual issues regarding the parties' conflicting warranty claims.
The court granted Hyspan's motion for non-suit on Dow's causes of action for strict products liability and negligence, on the ground that the costs of replacing the expansion joints were non-compensable economic damages. In special findings of fact, the jury determined a five-year warranty applied to the expansion
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