General Acc. Ins. Co. v. Insurance Co. of North America8/6/1990
JOHN F. CORRIGAN, Judge.
Plaintiffs, General Accident Insurance Company, McKee-Otto, Davy McKee Corp., Davy, Inc., Davy International, Inc., and Dr. C. Otto & Co., GMBH, appeal from the judgment of the trial court which granted partial summary judgment to defendant, Insurance Company of North America, in plaintiffs' action for breach of contract. For the reasons set forth below, we affirm.
In 1979, McKee-Otto, a joint venture comprised of Davy McKee Corp. and Dr. C. Otto & Co., GMBH entered into a contract with Bethlehem Steel whereby McKee-Otto agreed to "design, install, furnish, fabricate, erect and place into service one 6 meter 80 (nominal) oven coke battery * * *" at Bethlehem's Sparrows Point Plant in Baltimore, Maryland. This agreement provided that:
"All work performed and materials furnished shall be of the kind and quality described in said plans and specifications and the provisions hereof and shall be first class throughout. * * *"
Following completion of the oven coke battery, Bethlehem notified McKee Otto that it considered the work defective and out of compliance with the contract specifications. Thereafter, Bethlehem brought suit against McKee Otto and its partners, Davy McKee Corp. and Dr. C. Otto & Co., GMBH. Bethlehem also joined Davy McKee Corp., Davy, Inc., Davy International, Inc., and Davy Corporation Limited in this action due to their alleged affiliation with McKee-Otto. In relevant part, the Bethlehem complaint alleged:
"18. Although Sparrows Point Battery `A' began operating on April 23, 1982, it contains a number of substantial defects and deficiencies, has defective and deficient materials, is not `first class throughout', and fails to conform with the contract, contract plans, and contract specifications in significant respects. Among many other defects and deficiencies, the bricks comprising the oven walls have moved and are no longer properly aligned, ansthe Oven and the Oven walls are not capable of withstanding coking pressure of at least 2 psi as called for in the contract specifications.
"* * *
"25. McKee-Otto's has failed to engineer, design, fabricate, and construct Sparrow's Point Battery `A' in a substantial and workmanlike manner, and the performance of its work and the materials supplied under the contract are not `first class throughout' but are defective and deficient and are not in accordance with the contract, plans, and specifications.
"* * *
"27. All of the defective work, defective materials, non-compliance with the contract specifications, deterioration and movement of the bricks in the oven walls, along with failure to design, construct, and deliver Sparrows Point Battery `A' with walls that are able to withstand at least 2 psi coking pressure * * * are breaches of McKee-Otto's express warranties * * *[;]
"* * *
"30. "* * * are breaches of McKee-Otto's implied warranty of merchantability in its contract with Bethlehem * * * [;]
"* * *
"33. * * * are breaches of McKee-Otto's implied warranty of fitness for particular purpose in its contract with Bethlehem * * * [;]
"* * *
"36. * * * are breaches of McKee-Otto's implied warranty of workmanlike performance; [and manifest negligence;]
"43. * * * McKee-Otto's failure to engineer, design, and/or construct for Bethlehem a coke oven battery free from such defects and deficiencies has * * *, rendered it unreasonably dangerous for its intended use * * *."
At all relevant times, McKee-Otto, Davy McKee Corp., Davy, Inc., and Davy Int
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