Potts et al v. Martin & Bayley, Inc.

Filing 191

MEMORANDUM OPINION & ORDER by Judge Joseph H. McKinley, Jr on 7/18/11; Defendant Catlow's motion for Summary Judgment on Defendant Martin & Bayley's reimbursement claim 151 is DENIED.cc:counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:08-CV-00015-JHM
VANESSA L. POTTS and JOHN L. POTTS

PLAINTIFFS

v.
MARTIN & BAYLEY, INC., d/b/a/ Hucks,
CATLOW, INC. and HUSKY CORPORATION

DEFENDANTS

and
MARTIN & BAYLEY, INC., d/b/a/ Hucks

CROSS-CLAIMANT

v.
CATLOW, INC. and HUSKY CORPORATION

CROSS-DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court for the limited purpose of addressing Defendant Catlow Inc.’s
Motion for Summary Judgment as to Defendant Martin & Bayley Inc.’s third-party reimbursement
claim [DN 151]. This issue was reserved by the Court in its Memorandum, Opinion and Order dated
June 24, 2011 [DN 180], for the purpose of having Martin & Bayley file a sur-reply. Having
received the sur-reply, this matter is ripe for decision.
I. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the basis for its
motion and of identifying that portion of the record which demonstrates the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a

genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving
party, the non-moving party is required to do more than simply show there is some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The rule requires the non-moving party to present specific facts showing that a genuine
factual issue exists by “citing to particular parts of materials in the record” or by “ showing that the
materials cited do not establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1).
“The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will
be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving
party].” Anderson, 477 U.S. at 252.
II. BACKGROUND
The facts of this case are well known to the parties and the Court. The Court refers any
reader not familiar with these facts to its earlier Memorandum, Opinion and Order dated June 24,
2011.
III. DISCUSSION
Catlow has moved for summary judgment as to Martin & Bayley’s claim for reimbursement.
While not totally clear, Martin & Bayley’s request for reimbursement damages appears to be a
request for damages associated with the breach of warranties claim found in its Third Party
Complaint. Def. Martin & Bayley’s Third Party Compl. ¶ 10. Catlow first argues that the
reimbursement claim fails due to a lack of privity. However, this defect has been cured by an
assignment of warranty rights from Jorgenson Petroleum, the initial purchaser of the Catlow nozzles,
to Martin & Bayley.

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Catlow next argues that it is entitled to summary judgment because the warranty associated
with those nozzles was an 18 month warranty, and that there was no evidence that it had ever failed
to “honor its warranty by replacing and/or refunding nozzles returned by Jorgenson under
warranty[.]” Aff. Carmack 3. Martin & Bayley contends, in its sur-reply, that there are genuine
disputes of material fact regarding the costs incurred in purchasing extra Catlow nozzles due to the
nozzles’ repeated failures. Furthermore, Martin & Bayley contends that the nozzles were not fit for
the ordinary purposes for which such goods are used, violating the nozzles’ implied warranty of
merchantability.
Martin & Bayley argues that Catlow’s express warranty does not act to eliminate all other
warranties, express and implied, associated with the nozzles. Under Kentucky law, “[w]arranties
whether express or implied shall be construed as consistent with each other and as cumulative, but
if such construction is unreasonable the intention of the parties shall determine which warranty is
dominant.” Ky. Rev. Stat. Ann. § 355.2-317. Catlow has failed to produce evidence that its express
18 month warranty was intended to eliminate all other warranties, including the implied warranty
of merchantability. Therefore, the Court finds that there are genuine disputes of material fact
regarding Martin & Bayley’s claim against Catlow for violations of the implied warranty of
merchantability. These genuine disputes of material fact preclude granting summary judgment in
Catlow’s favor as to Martin & Bayley’s reimbursement/warranty claim.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant Catlow’s
Motion for Summary Judgment on Defendant Martin & Bayley’s reimbursement claim [DN 151]

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is DENIED.

July 18, 2011

cc: counsel of record

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