Genesis Health Clubs, Inc. v. LED Solar & Light Company

Filing 50

MEMORANDUM AND ORDER granting in part and denying in part 46 Defendant's Motion for Summary Judgment. The motion is granted with respect to plaintiff's claim for breach of contract and its claims for damages for return of the purchase price and the costs of an electrician, and defendant is awarded judgment on those claims. The motion is otherwise denied. Signed by District Judge John W. Lungstrum on 03/26/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GENESIS HEALTH CLUBS, INC.,

)
)
Plaintiff,
)
)
v.
)
)
LED SOLAR & LIGHT COMPANY,
)
)
Defendant.
)
)
_______________________________________)

Case No. 13-1269-JWL

MEMORANDUM AND ORDER
In this diversity action governed by the Uniform Commercial Code (UCC)1,
plaintiff brings claims for breach of contract and breach of express and implied
warranties relating to its purchase of lights from defendant. This matter comes before
the Court on defendant’s motion for summary judgment (Doc. # 46). For the reasons set
forth below, the motion is granted in part and denied in part. The motion is granted
with respect to plaintiff’s claim for breach of contract and its claims for damages for
return of the purchase price and the costs of an electrician, and defendant is awarded
1

Both parties have applied Kansas’s version of the UCC in their briefs. See
K.S.A. § 84-1-101 et seq. Because the parties’ contract involved the sale of lighting for
plaintiff’s facility in Kansas and was apparently executed in Kansas, the Court will also
apply Kansas law. See K.S.A. § 84-1-105(1) (Kansas UCC applies to transactions
bearing an appropriate relation to Kansas); see also Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496 (1941) (in diversity action, forum state’s choice-of-law rules govern
which state’s substantive law applies); Layne Christensen Co. v. Zurich Canada, 30 Kan.
App. 2d 128, 142 (2002) (Kansas applies the law of the place of contracting to interpret
a contract).

judgment on those claims. The motion is otherwise denied.

I.

Summary Judgment Standards

Summary judgment is appropriate if the moving party demonstrates that there is
“no genuine dispute as to any material fact” and that it is “entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the
evidence and all reasonable inferences therefrom in the light most favorable to the
nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th
Cir. 2006). An issue of fact is “genuine” if “the evidence allows a reasonable jury to
resolve the issue either way.” Haynes v. Level 3 Communications, LLC, 456 F.3d 1215,
1219 (10th Cir. 2006). A fact is “material” when “it is essential to the proper disposition
of the claim.” Id.
The moving party bears the initial burden of demonstrating an absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. Thom v.
Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant
that does not bear the ultimate burden of persuasion at trial need not negate the other
party’s claim; rather, the movant need simply point out to the court a lack of evidence
for the other party on an essential element of that party’s claim. Id. (citing Celotex, 477
U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon
2

the pleadings but must “bring forward specific facts showing a genuine issue for trial as
to those dispositive matters for which he or she carries the burden of proof.” Garrison
v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient
evidence pertinent to the material issue “must be identified by reference to an affidavit,
a deposition transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J.
Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir. 2002).
Finally, the court notes that summary judgment is not a “disfavored procedural
shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed. R.
Civ. P. 1).

II.

Breach of Contract

Defendant seeks summary judgment on plaintiff’s claim for breach of contract on
the basis that the claim is redundant of plaintiff’s warranty claims. See Lohmann &
Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F. Supp. 2d 1147, 1153 (D. Kan. 2007)
(Lungstrum, J.) (granting summary judgment on a contract claim that was not factually
distinct from the plaintiff’s warranty claims). In response, plaintiff argues that its
contract claim is distinct from its warranty claims because the contract claim includes
allegations that defendant breached by failing to deliver the lights in a timely fashion and
that defendant breached the covenant of good faith and fair dealing that is implied in
every contract. Plaintiff may not assert any such claims for breach of contract, however,
3

because those claims are absent from the pretrial order, which now governs the case. See
Youren v. Tintic School Dist., 343 F.3d 1296, 1304 (10th Cir. 2003).
In the pretrial order, plaintiff alleges that defendant “breached the parties’ contract
by providing defective lighting that often did not work, did not provide the energy
savings guaranteed and, as such, impacted [plaintiff’s] cash flow (Count I).” These same
allegations are encompassed within plaintiff’s claims for breach of warranty as set forth
in the pretrial order (which also includes claims for breach of warranty relating to color
uniformity). Plaintiff also argues that it asserts that defendant breached its contract
because the tips of the lights were not sufficient and because lights burned out
prematurely. Those allegations merely describe why the lights did not work properly,
however. Plaintiff does allege in the pretrial order that the defects in the lights include
the fact that the lights would burn out prematurely, and those defects form a basis for
both the contract claim and the warranty claims. Accordingly, plaintiff has not shown
that its contract claim is factually distinct from its warranty claims, and the Court
therefore grants summary judgment on the contract claim in favor of defendant.

III.

Breach of Warranty – Energy Savings
A.

Implied Warranty of Merchantability

Plaintiff asserts claims for breach of implied and express warranties based on the
alleged failure of the lights to produce a certain energy savings in the facility. Defendant
seeks summary judgment on plaintiff’s claim for breach of the implied warranty of
4

merchantability as it relates to energy savings. Defendant alleges, without citation to
authority, that a product’s energy savings cannot fall within that implied warranty’s
scope. As plaintiff points out, however, the relevant statute provides that to be
merchantable goods must “pass without objection in the trade under the contract
description,” see K.S.A. § 84-2-314(2)(a), and the parties’ contract provided that
defendant warranted “watt for watt exchange a minimum of 35% deduction in wattage
consumption.” In its reply brief, defendant has not even attempted to explain why an
implied warranty would therefore not exist under the statute to the extent of the warranty
contained in the contract. Accordingly, plaintiff may pursue a claim for breach of the
implied warranty of merchantability to the extent of the 35-percent warranty contained
in the contract, and the Court denies this basis for summary judgment.
B.

Express Warranty

Plaintiff also pursues a claim for breach of express warranty based on its alleged
lack of energy savings from the use of defendant’s lights. Defendant does not dispute
that it expressly warranted in the contract a “35% deduction in wattage consumption”
from the lights alone,2 but it does argue that it made no warranty regarding either a
reduction in wattage for plaintiff’s facility generally or a savings of a particular amount

2

Defendant states in its brief it is undisputed that their lights satisfied the warranty
of a 35-percent deduction in wattage consumption of the lights alone, but it has not cited
evidence to support that fact. (The testimony cited by defendant relates only to the
wattage of lights installed to replace some of defendant’s lights.) Thus, defendant has
not met its burden to show an absence of material fact on that question.
5

of money. Plaintiff claims that defendant, through its agent, Bruce Redinger, did
expressly warrant a savings in energy costs at its facility sufficient to cover its payments
on the loan that it received to pay for the lights.
1.

AGENCY

Defendant first argues that Mr. Redinger’s statements to plaintiff did not create
an express warranty by defendant because Mr. Redinger was not its agent. Defendant
argues that Mr. Redinger, who owns his own company, served only as a dealer, and it
points to a lack of any evidence that Paul Arnone, defendant’s representative involved
in the project, communicated to plaintiff that Mr. Redinger was acting as defendant’s
agent.
The Court concludes, from a review of the evidence submitted by the parties, that
an issue of fact remains for trial concerning whether Mr. Redinger acted as either an
actual or apparent agent for defendant. In particular, the Court notes the following
evidence: Mr. Redinger took the lead in communicating with plaintiff concerning
specifications and warranties for the lights; Mr. Redinger referred to defendant’s
facilities as “our” facilities; it appeared to plaintiff from the statements and conduct of
Mr. Redinger and Mr. Arnone that Mr. Redinger was acting with authority from
defendant; Mr. Arnone referred to Mr. Redinger at one time as the “account manager”
for plaintiff’s project; Mr. Arnone was involved in various communications regarding
the project, but never indicated that Mr. Redinger did not have authority to make
statements concerning defendant’s responsibilities; and Mr. Redinger stated in his
6

affidavit that Mr. Arnone authorized him to make the statements that he did to plaintiff
on behalf of defendant.3 In addition, the Court notes that plaintiff did not purchase the
lights from Mr. Redinger as a dealer, but instead entered into a contract directly with
defendant. In keeping with the applicable summary judgment standard, the Court must
weigh the evidence in the light most favorable to plaintiff, the non-moving party, and so
weighed, that evidence precludes a ruling that Mr. Redinger could not have been acting
as defendant’s agent as a matter of law. Accordingly, the Court denies this basis for
summary judgment.
2.

DISCLAIMER OF WARRANTY

Defendant also disputes that Mr. Redinger made any such warranty concerning
monetary savings, based on his disclaimer contained in an e-mail sent to plaintiff prior
to plaintiff’s execution of the contract with defendant. In that e-mail, in response to
plaintiff’s question about the contract’s warranty of a 35-percent deduction in wattage,
Mr. Redinger explained that the warranty referred to wattage of the lights alone. He

3

Defendant argues that the Court may not consider Mr. Redinger’s affidavit on
this issue, based on the Kansas Supreme Court’s statement in Allison v. Borer, 131 Kan.
699 (1930), that “[a]cts and declarations of agents are inadmissible to prove agency.”
See id. at 703. First, it is not clear that the supreme court, by that statement, meant to bar
not only contemporaneous statements by the alleged agent at the time he purportedly
acted for the alleged principal, but also later testimony by the agent. Moreover, in
Richards v. Newstifter, 70 Kan. 350 (1904), which defendant has cited on this point and
which was cited in Allison, the supreme court made clear that the alleged agent’s
declarations may be considered with respect to the question of the principal’s ratification
of the agent’s conduct. See id. at 351-52. On this issue of agency, the Court has not
relied solely on the affidavit of Mr. Redinger, and other evidence of agency exists here;
accordingly, the Court may conclude that an issue of fact remains for trial here.
7

noted that a calculation of a 49,110-watt decline for the lights multiplied by plaintiff’s
electric utility rate at that time yielded a monthly savings of $3,928.80, which “seem[ed]
to be a very safe number” to justify the purchase. He stated, however, that he could not
guarantee that monetary figure or a 35-percent reduction in plaintiff’s entire utility bill
because of possible future rate changes, the fact that not every bulb was at full capacity
wattage, and the fact that he did not know about the portion of plaintiff’s electricity
usage related to plaintiff’s HVAC system (and thus unrelated to the lighting). Defendant
argues that the e-mail demonstrates as a matter of law that Mr. Redinger did not warrant
a 35-percent reduction in the wattage for the facility as a whole or savings of a particular
amount.
The Court rejects this argument for summary judgment. Mr. Redinger stated in
his affidavit that he, on behalf of defendant, did represent to plaintiff that plaintiff’s
“overall energy savings would be sufficient to cover the additional expense [plaintiff]
would incur by obtaining a loan to purchase the LED bulbs,” and that plaintiff’s
purchase of the lights “with a 49,100 watt decline in consumption would result in a
$3,928.80 monthly savings.” These statements by Mr. Redinger appear to contradict the
statements in his e-mail. Nevertheless, because the Court must weigh the evidence in
the light most favorable to plaintiff at this stage, it must credit the affidavit.4 Therefore,
the Court cannot conclude as a matter of law that Mr. Redinger made no express

4

Defendant has not cited to any deposition testimony by Mr. Redinger concerning
the e-mail that would contradict his affidavit.
8

warranty concerning a reduction in plaintiff’s utility bills.
3.

OPINION

Finally, defendant argues that any such statement by Mr. Redinger about
plaintiff’s future monetary savings would represent an opinion and not a statement of
fact as required for creation of an enforceable warranty. In Young & Cooper, Inc. v.
Vestring, 214 Kan. 311 (1974), the Kansas Supreme Court summarized Kansas law on
this issue as follows:
In the sale of goods representations of fact made in the course of
negotiations which are capable of determination are warranties, but mere
expressions of opinion, belief, judgment or estimate by a dealer in sales
talk are not. Where opinions are coupled with representations of fact
which relate to such matters and are susceptible of exact knowledge, they
constitute more than a mere opinion and are properly regarded as
representations of fact, and, to the extent they are representations of fact,
they constitute warranties.
See id. at 311, syl. ¶ 4. Defendant argues that any promise about future savings on
plaintiff’s energy bills was a mere opinion, for the same reasons set forth in Mr.
Redinger’s e-mail—the rate could change in the future and plaintiff’s energy
consumption unrelated to the lighting was unknown. In his affidavit, however, Mr.
Redinger explains how plaintiff’s savings could easily be calculated. Therefore, the
Court concludes that an issue of fact remains concerning whether the alleged express
warranty represented a mere statement of opinion by defendant or whether it concerned
a factual matter capable of determination, and accordingly, the Court denies this basis
for summary judgment.

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IV.

Breach of Warranty – Color
A.

Implied Warranty of Merchantability

Plaintiff asserts that defendant breached the implied warranty of merchantability
by selling lights that were not uniform in color. Defendant argues that any such defect
does not fall within this implied warranty because color does not go to the “core”
function of a light. The Court rejects this argument for summary judgment. The implied
warranty of merchantability requires that goods “run . . . of even kind [and] quality.” See
K.S.A. § 84-2-314(d). Defendant has not cited any authority to suggest that this
particular requirement for merchantability requires that the issue relate to the core
function of the goods, and the Court cannot at any rate rule as a matter of law that a
light’s color does not implicate a core function. The Court denies this basis for summary
judgment.
B.

Express Warranty

Plaintiff also asserts that defendant breached its express warranty, made by Mr.
Redinger, that the lights would be uniform in color and would be white without any
“yellowish hue”. Defendant first asserts that Mr. Redinger was not acting as its agent
when he made any such warranty, but, as set forth above, the Court concludes that an
issue of fact remains for trial on that issue.
Defendant also argues that evidence of any such warranty is barred by the parol
evidence rule, in light of the statement in the parties’ contract that “[a]ny other verbal or
written proposals or agreements preceding this proposal are void.” K.S.A. § 84-2-202
10

provides the applicable law, as follows:
Terms with respect to which the confirmatory memorandum of the parties
agree or which are otherwise set forth in a writing intended by the parties
as a final expression of their agreement with respect to such terms as are
included therein may not be contradicted by evidence of any prior
agreement or of a contemporaneous oral agreement but may be explained
or supplemented:
...
(b) by evidence of consistent additional terms unless the court finds
the writing to have been intended also as a complete and exclusive
statement of the terms of the agreement.
See id. The alleged express warranty concerning color would not conflict with any term
in the parties’ written contract, but defendant argues that the contract may not be
supplemented with such a warranty because the contract was intended to be the
“complete and exclusive statement of the terms of the agreement,” as shown by the
statement in the contract that previous “proposals or agreements” were void.
The Court rejects this basis for summary judgment, as it concludes that a question
of fact remains concerning the intent of the parties in executing the agreement. See
Transamerica Oil Corp. v. Lynes, Inc., 723 F.2d 758, 763 (10th Cir. 1983) (parties’
intent under section 84-2-202 presents a question of fact for the court to decide before
admitting parol evidence). The Court cannot conclude as a matter of law that the parties
intended that the contract would be the exclusive statement of all terms and that any
previous express warranties would be nullified. Defendant has not pointed to any
evidence of the parties’ intent in this regard other that the statement in the contract, and

11

in the absence of such evidence, the Court will not interpret that statement as a
disclaimer of all prior warranties. The Court notes that the statement refers only to
“proposals or agreements,” it immediately follows the statement that “[t]his proposal”
is valid for 30 days, and the proposal above the parties’ signatures involved only the
number, wattage, and cost of the lights; thus, the statement is most reasonably read to
disclaim only proposals or agreements concerning those terms. Moreover, as noted by
plaintiff, even if the contract were ambiguous on this issue, it would be interpreted
against the drafter, which appears to be defendant in this case. See Liggatt v. Employers
Mutual Cas. Co., 273 Kan. 915, 921 (2002). Moreover, the cases cited by defendant
involve more explicit disclaimers of warranties and are therefore distinguishable from
the present case. See BHC Dev., L.C. v. Bally Gaming, Inc., 2013 WL 6261430, at *2,
3, 9 (D. Kan. Dec. 4, 2013) (agreement disclaimed all warranties and contained a merger
clause that provided that the agreement constituted the entire understanding and contract
between the parties); Ray Martin Painting, Inc. v. Ameron, Inc., 638 F. Supp. 768, 773
(D. Kan. 1986) (contract provided that no other agreement or understanding could
modify the warranty); AgriStor Leasing v. Meuli, 634 F. Supp. 1208, 1219 (D. Kan.
1986) (disclaimer stated that no other express warranty had been made); Jordan v.
Doonan Truck & Equip., Inc., 220 Kan. 431, 432 (1976) (disclaimer stated that there was
no warranty).
C.

Need for Expert Testimony

Finally, defendant notes that plaintiff has not designated an expert to opine on the
12

issue of the uniformity of the lights’ color, and it argues that plaintiff may not pursue this
claim in the absence of such expert testimony. The Court rejects this argument as a basis
for summary judgment. “There is no fixed or general rule that requires expert
testimony.” See Randolph v. Collectramatic, Inc., 590 F.2d 844, 848 (10th Cir. 1979).
Defendant relies on Voelkel v. General Motors Corp., 846 F. Supp. 1468 (D. Kan. 1994),
in which the court concluded that expert testimony was required regarding a particular
automobile defect. See id. at 1477 n.3. The court noted in Voelkel, however, that expert
testimony is required only if a lay factfinder lacks the competency and is not equipped
by common knowledge and skill to draw proper conclusions concerning the issue at
hand. See id. (citing Kansas cases). The Court cannot say at this stage that expert
testimony is required for consideration of this issue; accordingly, the Court declines to
bar the claim at this juncture.

V.

Breach of Warranty – Defective Lights

Plaintiff also claims that defendant breached the implied warranty of
merchantability because the lights did not operate properly. Defendant’s only argument
for summary judgment on this claim is that expert testimony is required to prove this
claim. The Court rejects this argument for the same reason stated in the preceding
section. Moreover, plaintiff has designated two non-retained experts who will testify
concerning the operation of the lights. In its reply brief, defendant complains that
plaintiff has belatedly “trotted out” these experts to give “expanded” opinions to defeat
13

summary judgment. The Magistrate Judge ruled, however, that plaintiff could make
those expert designations out of time, and defendant did not file a timely objection to that
ruling. Nor has defendant demonstrated that these experts’ proffered opinions go beyond
those permitted by the Magistrate Judge or are otherwise objectionable. Accordingly,
the Court denies this basis for summary judgment.

VI.

Damages
A.

Purchase Price

As set forth in the pretrial order, plaintiff seeks to recover as damages its purchase
price for the lights, in the amount of $82, 271.50. Defendant seeks summary judgment
on that claim. Defendant argues that plaintiff may not recover the purchase price under
the UCC unless it properly rejected or revoked its acceptance of the lights, and that
plaintiff did not reject or revoke acceptance in this case. The Court agrees that defendant
is entitled to summary judgment on this basis.
K.S.A. § 84-2-711 provides that a buyer may cancel a contract and recover so
much of the purchase price that has been paid if it “rightfully rejects or justifiably
revokes acceptance.” See id. If a buyer has accepted goods (that is, has not rejected or
revoked acceptance), it may recover as damages for breach of warranty the difference
between the value of the goods as accepted and their value if they had been as warranted,
in addition to incidental and consequential damages. See K.S.A. § 84-2-714. Thus, a
buyer may only recover the purchase price and cancel the contract if it has properly
14

rejected the goods or revoked acceptance of the goods. See 1 Barkley Clark, et al., The
Law of Product Warranties §§ 7:20, 7:21, 7:26 (2d ed. 2002).
In opposing summary judgment, plaintiff does not dispute that it must have
rejected or revoked acceptance of the lights in order to recover the purchase price.
Plaintiff argues, however, that it did reject or revoke acceptance in this case.
Specifically, plaintiff argues that once the lights were determined to be defective, it gave
notice of defendant’s breach in accordance with K.S.A. § 84-2-607(3)(a), which provides
that “[w]here a tender has been accepted . . . the buyer must within a reasonable time
after he discovers or should have discovered any breach notify the seller of breach or be
barred from any remedy.” See id. Plaintiff argues that it communicated with defendant
concerning the breach and allowed defendant the opportunity to cure the breach, and that
when defendant failed to effect a cure, it began to return the lights and revoked or
rejected at that time. Plaintiff has not pointed to any evidence, however, that it actually
did revoke its prior acceptance of the lights. Plaintiff has provided evidence of
communications between the parties concerning alleged defects in the lights; but plaintiff
has not provided any evidence of any communication in which it stated that it was
canceling the contract or rejecting acceptance of the lights or revoking prior acceptance
of the lights.
K.S.A. § 84-2-606 provides that acceptance of goods occurs when the buyer fails
to make an effective rejection after a reasonable opportunity to inspect the goods, or
when the buyer does any act inconsistent with ownership of the goods by the seller. See
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id. A buyer may reject goods within a reasonable time of delivery with notice to the
seller. See K.S.A. § 84-2-602(1). The Court concludes as a matter of law that plaintiff
did not reject the lights delivered by defendant. Plaintiff has cited no evidence that it
gave any notice to defendant that it was rejecting the goods. In fact, plaintiff’s argument
that it gave notice of breach under K.S.A. § 84-2-607(3)(a) supports the conclusion that
plaintiff accepted the lights, as that subsection addresses notice of breach after
acceptance. See id. Moreover, plaintiff does not dispute that it used and continues to use
some of the lights, and such use without compensation to defendant is inconsistent with
ownership of the lights by defendant. See K.S.A. § 84-2-606.
The Court also concludes as a matter of law that plaintiff did not effectively
revoke acceptance of the lights. Revocation of acceptance requires notice of the
revocation to the seller. See K.S.A. § 84-2-608(2). Again, plaintiff may have notified
defendant of a breach, but it did not notify defendant that it was revoking acceptance and
canceling the contract, and the comments to section 84-2-608 indicate that mere notice
of a breach under the preceding section is generally not sufficient to effect revocation of
acceptance. See id. cmt. 5; id. Kan. cmt. 3 (referring to Official Comment 5 for the
required contents of the notice of revocation); see also 1 Barkley Clark, supra, § 7:14
(more is required for revocation of acceptance than simple notice of breach; imposition
of separate notice-of-breach requirement in section 2-607 shows intent of drafters for
something more in section 2-608(2)); James J. White & Robert S. Summers, Uniform
Commercial Code § 9-4, at 433 (6th ed. 2010) (mere notification of breach under section
16

2-607(3) is not enough to effect revocation of acceptance). Nor does plaintiff’s return
of a small portion of the lights constitute revocation of acceptance. See K.S.A. § 84-2608 Kan. cmt. 3 (citing to Delhomme Indus. Inc. v. Houston Beechcraft, Inc., 735 F.2d
177 (5th Cir. 1984), for the proposition that a buyer who “resells” goods back to the
seller has not revoked acceptance).
In short, plaintiff has not pointed to any evidence indicating that it did more than
try to obtain conforming lights from defendant or return a few of the lights, and that it
instead chose specifically to cancel the contract and to reject or revoke acceptance of the
lights. Accordingly, plaintiff may not recover the purchase price of the lights, and
defendant is awarded summary judgment on that claim by plaintiff.
The Court notes that because plaintiff did not reject or revoke acceptance of the
goods, it would ordinarily be entitled to seek damages under K.S.A. § 84-2-714 for the
difference between the value of the lights as delivered and the value of the lights if as
warranted. Plaintiff has not asserted any such claim in the pretrial order, however, or
provided any evidence of such difference in value. Accordingly, plaintiff is barred from
asserting any such claim for the difference in value. See 1 Barkley Clark, supra, § 7:26
(“If the buyer fails to present any evidence as to the value differential under § 2-714, he
is doomed.”).
B.

Costs of Electrician

Plaintiff also seeks damages in the amount of $7,565.00, which, according to the
pretrial order, plaintiff “spent to hire an independent electrician to install the lighting in
17

accordance with [defendant’s] requirements.” Defendant seeks summary judgment on
this claim on the basis that such costs did not result from any alleged breach, for the
reason that the parties’ contract called for plaintiff to bear installation costs. Plaintiff
does not dispute that defendant was not required to install the lights as part of the
contract. Nevertheless, plaintiff argues that it may recover this cost as incidental or
consequential damages suffered as a result of defendants’ breaches, which caused it to
“have to pay to have the facility and fixtures rewired or retrofitted to accommodate other
bulbs,” and to “incur additional costs to have the bulbs removed from the fixtures by an
electrician and have new bulbs installed in their place.” Thus, plaintiff argues in its brief
that its claim for $7,565.00 relates to the cost to fix things after the original installation
of the lights. Plaintiff’s representative, however, testified that $7,565.00 represented the
cost of hiring the electrician to install the lights initially, which cost plaintiff was
required to bear. Plaintiff has not provided any other basis or authority to support
recovery of that amount. Accordingly, defendant is granted summary judgment on this
claim for damages.5
C.

Costs Related to Plaintiff’s Loan

Finally, defendant argues that plaintiff may not recover damages for its lost
energy savings because it made no such express warranty relating to plaintiff’s utility

5

The Court need not address whether plaintiff could seek as incidental or
consequential damages to recover any costs for an electrician to fix things at the facility
or to install replacement lighting, as plaintiff has not included any such claim for
damages in the pretrial order.
18

bills. The Court has already concluded that defendant is not entitled to summary
judgment on that express warranty claim; accordingly, there is no basis for summary
judgment on this claim for damages.6

IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion
for summary judgment (Doc. # 46) is granted in part and denied in part. The motion
is granted with respect to plaintiff’s claim for breach of contract and its claims for
damages for return of the purchase price and the costs of an electrician, and defendant
is awarded judgment on those claims. The motion is otherwise denied.

IT IS SO ORDERED.

Dated this 26th day of March, 2014, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

6

In its motion for summary judgment, defendant has not addressed plaintiff’s
claims in the pretrial order that it “has been damaged as its employees have spent months
trying to remedy the problem created by [defendant’s] breach” and that “its business has
been damaged in the location where the defective lighting was installed.”
19