Salt Lake City Corporation v. Sekisui SPR Americas et al

Filing 136

MEMORANDUM DECISION AND ORDER granting 80 Sekisui Australias motion to dismiss the causes of action asserted against it in Salt Lake Citys Second Amended Complaint. Dismissal is with prejudice. ; granting 79 Sekisui Americas moti on to dismiss the causes of action asserted against it in Salt Lake Citys Second Amended Complaint. Dismissal is with prejudice. ; granting 84 HydraTechs motion to dismiss the causes of action asserted against it in Salt Lake Citys Second Amended Complaint. Dismissal is with prejudice. ; granting in part and denying in part 105 Sekisui Australias and Sekisui Americas motion to dismiss the crossclaims asserted against them in Southwests Amended Crosscomplaint. ; denying Salt Lake Citys and Southwests motions to certify questions to the Utah Supreme Court 93 and 121 . Signed by Judge Jill N. Parrish on 9/26/2019. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

SALT LAKE CITY CORPORATION;
Plaintiff;
v.
SEKISUI SPR AMERICAS, LLC; SEKISUI
RIB LOC AUSTRALIA PTY LTD.;
SOUTHWEST PIPELINE AND
TRENCHLESS CORP.; SAFECO
INSURANCE COMPANY OF AMERICA,
INC.; HYDRATECH ENGINEERED
PRODUCTS, LLC; and DOES 1–10;

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS TO
DISMISS AND DENYING MOTIONS TO
CERTIFY QUESTIONS TO THE UTAH
SUPREME COURT
Case No. 2:17-cv-01095-JNP-BCW
District Judge Jill N. Parrish

Defendants.

Salt Lake City Corporation hired Southwest Pipeline and Trenchless Corporation
(Southwest) to rehabilitate a sewer line. Southwest used components supplied by Sekisui Rib Loc
Australia Pty Ltd. (Sekisui Australia), Sekisui SPR Americas, LLC (Sekisui Americas), and
HydraTech Engineered Products, LLC (HydraTech) to complete the project. Salt Lake City
subsequently sued Southwest, Sekisui Australia, Sekisui Americas, and HydraTech, alleging that
the rehabilitated sewer line was leaking. Southwest filed crossclaims against Sekisui Australia,
Sekisui Americas, and HydraTech for breach of contract, apportionment of fault, and
indemnification.
Before the court are motions to dismiss Salt Lake City’s amended complaint filed by
Sekisui Australia, Sekisui Americas, and HydraTech, [Docket 79, 80, 84], and a motion to dismiss
Southwest’s amended crosscomplaint filed by Sekisui Australia and Sekisui Americas, [Docket

105]. Salt Lake City and Southwest also filed motions to certify statute of limitations questions to
the Utah Supreme Court. [Docket 93, 121].
The court GRANTS Sekisui Australia’s, Sekisui Americas’, and HydraTech’s motions to
dismiss Salt Lake City’s causes of action against them. The court GRANTS IN PART and DENIES
IN PART Sekisui Australia’s and Sekisui Americas’ motion to dismiss Southwest’s crossclaims
against them. Finally, the court DENIES Salt Lake City’s and Southwest’s motion to certify
questions to the Utah Supreme Court.
BACKGROUND
Salt Lake City requested bids to rehabilitate a sewer line by installing a liner within the
existing pipe. This “trenchless” method of rehabilitating the sewer line avoids the need to dig up
and replace the pipe. Southwest won the bid. Sekisui Australia and Sekisui Americas sold their
proprietary liner product to Southwest for use in the project. HydraTech supplied joints that were
used to connect and seal the sections of pipe liner used in the project.
Sometime in late 2012, Southwest finished the sewer line rehabilitation project and Salt
Lake City began to use the rehabilitated line to transport sewage to a treatment plant. On December
17, 2012, the city sent a letter to Southwest. The letter stated that on November 29, 2012, Salt Lake
City had tested the rehabilitated section of sewer line and had discovered “a significant defect and
leak in the liner.” The letter stated that the defect was “allowing 1.0 to 1.5 million gallons per day
. . . groundwater infiltration with extremely high total dissolved solids . . . into the pipeline.” The
letter demanded that Southwest “correct the defective work” by February 28, 2013. Over the next
two and a half years, Southwest and the city formulated a number of plans to fix the leaks and
Southwest made one unsuccessful attempt to repair the sewer line. On June 22, 2015, Southwest
declined to make any further plans to repair the sewer line.
2

On May 10, 2017, Salt Lake City sued Sekisui Australia and Sekisui Americas. On
November 8, 2017, the city amended its complaint to add claims against Southwest and
HydraTech. This amended complaint asserted claims for (1) breach of warranty, (2) products
liability, (3) negligence, and (4) negligent failure to warn against Sekisui Australia, Sekisui
Americas, and HydraTech. Meanwhile, Southwest sued Sekisui Australia and Sekisui Americas on
October 2, 2017. That lawsuit was consolidated with crossclaims that Southwest had asserted in
this lawsuit. The crossclaims asserted by Southwest included claims for breach of contract, breach
of warranty, and indemnification against Sekisui Australia and Sekisui Americas and an
apportionment of fault claim against Sekisui Australia, Sekisui Americas, and HydraTech.
The court dismissed all of Salt Lake City’s claims against Sekisui Australia, Sekisui
Americas, and HydraTech on statute of limitations grounds. The court granted the city leave to
amend its complaint to plead “the time and manner of its discovery of its causes of action against
the[se] defendants, as well as facts showing an inability to discover the causes of action sooner
through the exercise of reasonable diligence.” The court also dismissed Southwest’s crossclaim for
breach of contract against Sekisui Australia and Sekisui Americas on statute of limitations grounds
and dismissed the breach of warranty crossclaim against these two defendants because Southwest
failed to adequately plead this claim. The court granted Southwest leave to amend its
crosscomplaint to remedy these defects if it could.
Salt Lake City filed a second amended complaint, pleading additional facts related to its
assertion that the statute of limitations on the claims against Sekisui Australia, Sekisui Americas,
and HydraTech had been tolled by the discovery rule. Southwest also filed an amended
crosscomplaint. Southwest abandoned its breach of warranty crossclaim, but pleaded additional

3

facts related to its breach of contract crossclaim against Sekisui Australia and Sekisui Americas.
Southwest also added a new crossclaim against HydraTech for breach of contract.
Sekisui Australia, Sekisui Americas, and HydraTech moved to dismiss the claims asserted
against them in Salt Lake City’s Second Amended Complaint. Sekisui Australia and Sekisui
Americas also filed a motion to dismiss the claims asserted against them in Southwest’s amended
crosscomplaint. Finally, Salt Lake City and Southwest filed motions to certify to the Utah Supreme
Court questions about the proper statute of limitations to apply to the claims in this case.
ANALYSIS
I.

MOTIONS TO DISMISS SALT LAKE CITY’S COMPLAINT
A. Personal Jurisdiction
Sekisui Australia renewed its argument that this court lacks personal jurisdiction to hear

Salt Lake City’s claims against it. But it did not assert new jurisdictional facts or provide new
arguments. Instead, Sekisui Australia “incorporate[d] by reference the personal jurisdiction
arguments made in its Motion to Dismiss filed on December 8, 2017.” The court, therefore, adopts
the analysis of this issue set forth in its September 28, 2018 Order. The court concludes that it has
specific personal jurisdiction over Sekisui Australia and denies the motion to dismiss the claims
against it.
B. Statute of Limitations
Sekisui Australia, Sekisui Americas, and HydraTech (collectively, the defendants) argue
that all of the causes of action asserted against them should be dismissed because the allegations
of the complaint establish that these claims are barred by the applicable statutes of limitations. In
order to determine whether the defendants’ statute of limitations arguments have merit, the court
must answer three questions: (1) What are the applicable limitation periods for each cause of
4

action? (2) When did each limitations period begin to run? and (3) Do the allegations of the
complaint indicate that any of the statutes of limitations may have been tolled by the discovery
rule? The court addresses each of these questions in turn.
1) Applicable Limitations Periods
a) Utah Code section 78B-2-225
The court explained in its September 28, 2018 Order that it must look first to Utah Code
section 78B-2-225, which provides limitations periods for actions arising out of improvements to
real property (improvements to real property statute). The parties concede that this statute applies
to Salt Lake City’s claims and that it is the starting point for the statute of limitations analysis.
The improvements to real property statute provides:
(3)(a) An action by or against a provider [any legal entity
contributing to the construction of an improvement] based in
contract or warranty shall be commenced within six years of the date
of completion of the improvement or abandonment of construction.
Where an express contract or warranty establishes a different period
of limitations, the action shall be initiated within that limitations
period.
(b) All other actions by or against a provider shall be commenced
within two years from the earlier of the date of discovery of a cause
of action or the date upon which a cause of action should have been
discovered through reasonable diligence. If the cause of action is
discovered or discoverable before completion of the improvement
or abandonment of construction, the two-year period begins to run
upon completion or abandonment.
(4) Notwithstanding Subsection (3)(b), an action may not be
commenced against a provider more than nine years after
completion of the improvement or abandonment of construction. In
the event the cause of action is discovered or discoverable in the
eighth or ninth year of the nine-year period, the injured person shall
have two additional years from that date to commence an action.

5

UTAH CODE § 78B-2-225(3)–(4). Subsections (3)(b) and (4) set the applicable statute of limitations
and statute of repose for all the non-warranty claims brought against the defendants—i.e., products
liability, negligence, and negligent failure to warn. Indeed, Salt Lake City concedes that subsection
(3)(b) applies. These claims, therefore, must be brought within two years of when the causes of
action were discovered or should have been discovered through the exercise of reasonable
diligence or the completion or abandonment of the project. These causes of action must also be
brought within a nine-year statute of repose.
Subsection (3)(a) establishes a limitations period for the warranty claims against the
defendants. A warranty action related to an improvement to real property “shall be commenced
within six years of the date of completion of the improvement or abandonment of construction.”
The parties dispute the meaning of this subsection. Salt Lake City argues that subsection (3)(a) is
a statute of limitations. Under this theory, the city would have six years from the completion or
abandonment of the sewer line project to assert a warranty claim. No other limitation on the time
to bring an action would apply. The defendants, on the other hand, argue that subsection (3)(a) is
a statute of repose and that a statute of limitations must also be applied to the warranty claims.
In its previous Order, the court disagreed with Salt Lake City’s assertion that subsection
(3)(a) is a statute of limitations. “A statute of limitations requires a lawsuit to be filed within a
specified period of time after a legal right has been violated or the remedy for the wrong committed
is deemed waived. A statute of repose bars all actions after a specified period of time has run from
the occurrence of some event other than the occurrence of an injury that gives rise to a cause of
action.” Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah 1985). Generally, a
statute of repose period may not be extended, “regardless of usual reasons for ‘tolling’ the statute.”
Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 219 (Utah 1984) (quoting RESTATEMENT
6

(SECOND) OF TORTS § 899 cmt. g (1979)). Because subsection (3)(a) ties its six-year limitations
period to something other than the violation of a legal right and because it may not be tolled, it “is
therefore a statute of repose.” Willis v. DeWitt, 350 P.3d 250, 253 (Utah Ct. App. 2015).
Salt Lake City argues that both this court and the Utah Court of Appeals in Willis erred by
categorizing subsection 3(a) as a statute of repose. The city relies upon Brigham Young University
v. Paulsen Construction Co., 744 P.2d 1370, 1373 (Utah 1987), which states: “In construction
contract cases, an owner’s claim of defective construction against a general contractor is generally
considered to accrue on the date that construction is completed.” Salt Lake City contends that
because the accrual date for a warranty claim against a contractor is generally the same as the
completion date of the project at issue, subsection 3(a), which is tied to the completion or
abandonment of a project, is effectively a statute of limitations.
The court disagrees. Although the date that a legal right has been violated is often the same
as the completion date of a project, these two dates do not invariably coincide. Subsection 3(b)
recognizes as much. This subsection provides that a non-warranty claim accrues either when it was
or should have been discovered or on the completion date of the project, whichever occurs later.
Because the limitations period in subsection 3(a) is tied to an event other than the occurrence of
the injury, it is a statute of repose. Indeed, when the Utah Supreme Court interpreted the
predecessor to Utah Code section 78B-2-225, it held that limitations periods of six years and twelve
years “after completion of the improvement or abandonment of construction” were statutes of
repose: “Because these periods start to run on the date of completion or abandonment of the
improvement without regard to the ‘occurrence of an injury that gives rise to a cause of action,’
they are statutes of repose.” Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194,
1202 (Utah 1999) (quoting Berry, 717 P.2d at 672); see also Gables & Villas at River Oaks
7

Homeowners Ass’n v. Castlewood Builders, LLC, 422 P.3d 826, 828 (Utah 2018) (referring to Utah
Code section 78B-2-225(3)(a) as a statute of repose). Therefore, identical language found in the
current version of this statute marks subsection 3(a) as a statute of repose.
As a statute of repose, subsection 3(a) does not supplant the applicable statute of limitations
for Salt Lake City’s breach of warranty claims against the defendants. Subsection (9) of the statute
states: “This section does not extend the period of limitation or repose otherwise prescribed by law
or a valid and enforceable contract.” UTAH CODE § 78B-2-225(9). Thus, a statute of limitations
“otherwise prescribed by law” must also be applied to warranty claims that are related to an
improvement to real property.
b) Statute of Limitations for the Warranty Claims
The court, therefore, must determine the appropriate statute of limitations for the warranty
claims. Salt Lake City argues that the six-year statute of limitations for written contracts is the
relevant limitations period. See UTAH CODE § 78B-2-309(2). Sekisui Australia and Sekisui
Americas, on the other hand, contend that the two-year statute of limitations found in the Utah
Product Liability Act (UPLA) should be applied to the warranty claims. See UTAH CODE
§ 78B-6-706. The court concludes, however, that the four-year statute of limitations under the Utah
Uniform Commercial Code (UCC) applies to the breach of warranty claims. See UTAH CODE
§ 70A-2-725(1).
First, the UCC statute of limitations controls over the statute of limitations for an action on
a written obligation. The UCC establishes a four-year statute of limitations for warranties related
to a contract for the sale for goods, i.e., items that are movable at the time of identification to the
contract for sale. UTAH CODE § 70A-2-725(1) (“An action for breach of any contract for sale must
be commenced within four years after the cause of action has accrued.”); see also id.
8

§ 70A-2-106(1) (defining “contract for sale” as the sale of goods); id. § 70A-2-105(1) (defining
“goods” to mean “all things . . . which are movable at the time of identification to the contract for
sale”). “[W]here the Uniform Commercial Code sets forth a limitation period for a specific type
of action, this limitation controls over an older, more general statute of limitations.” Perry, 681
P.2d at 216. Thus, an action on a written warranty for the sale of goods is controlled by the UCC
four-year statute of limitations rather than the general six-year statute of limitations for an action
on a written obligation. Id. Because the liner sections and the joint seals supplied by the defendants
were movable at the time they were sold, any warranties associated with the sale are governed by
the statute of limitations found in the UCC.
Salt Lake City argues, however, that the UCC statute of limitations does not apply because
there was no contract for sale between the city and any of the defendants. The city entered into a
contract with Southwest to install a liner system within an existing sewer line. Salt Lake City
eventually agreed to pay Southwest $3,950,107 for materials and labor to perform the work.
Southwest then purchased the liner sections from either Sekisui Australia or Sekisui Americas and
installed them in the city’s sewer line. Salt Lake City contends that because Southwest acted as an
intermediary between the seller of the goods and the city, which ultimately took title to the goods,
there is not a valid contract for sale between the city and the Sekisui defendants that would trigger
the UCC statute of limitations.
The court disagrees. The Utah Supreme Court has indicated that the existence of a
middleman does not negate the UCC statute of limitations for a breach of warranty action against
the original supplier of a good. In Perry v. Pioneer Wholesale Supply Co., a subcontractor ordered
doors from a wholesaler, which then obtained the doors from a manufacturer. 681 P.2d 214, 216
(Utah 1984). The subcontractor sued both the wholesaler and the manufacturer for breach of
9

warranty, alleging that the doors were defective. Id. Despite the fact that the subcontractor did not
purchase the doors directly from the manufacturer, the Utah Supreme Court held that the four-year
UCC statute of limitations applied to the warranty claim against both the wholesaler and the
manufacturer. Id. Similarly, the breach of warranty claim against the Sekisui defendants is
governed by the UCC statute of limitations even though Salt Lake City purchased the liner sections
through an intermediary.
The court also rejects the Sekisui defendants’ argument that the two-year statute of
limitations under the UPLA should be applied to the warranty claims. As noted above, the UCC
provides for a four-year statute of limitations for an “action for breach of any contract for sale.”
UTAH CODE § 70A-2-725(1). The Utah Supreme Court has held that this statute of limitations
applies to a breach of warranty claim to the extent that the plaintiff seeks “economic or breach of
contract damages.” Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 16 (Utah
1990). But if the breach of warranty claim is for “personal injury damages or tortious injury,” the
UCC statute of limitations does not apply. Id. at 18; accord Utah Local Gov’t Tr. v. Wheeler Mach.
Co., 199 P.3d 949, 955–56 (Utah 2008). Instead, in an “action for damages for personal injury,
death, or property damage allegedly caused by a defect in a product” the two-year UPLA statute
of limitations should be applied. UTAH CODE §§ 78B-6-703(1), -706.
Under its breach of warranty claim, Salt Lake City seeks compensation for the cost to repair
or remove and replace the allegedly faulty liner sections sold by the Sekisui defendants. In other
words, the city seeks contractual expectation damages—or to be placed in the position it would
have occupied had the Sekisui defendants performed their promise to provide liner sections that
did not leak. See Trans-W. Petroleum, Inc. v. United States Gypsum Co., 379 P.3d 1200, 1206 (Utah
2016) (defining expectation damages for breach of a contract). These consequential damages for
10

the alleged breach of the warranty are properly categorized as contract damages governed by the
four-year statute of limitations found in the UCC. 1
c) Conclusion
The breach of warranty claims against the defendants are subject to the four-year statute of
limitations found in the UCC, UTAH CODE § 70A-2-725(1), and the six-year statute of repose
dictated by the improvements to real property statute, UTAH CODE § 78B-2-225(3)(a). The products
liability, negligence, and negligent failure to warn claims are governed by the two-year statute of
limitations and nine-year statute of repose found in the improvements to real property statute.
UTAH CODE § 78B-2-225(3)(b)–(4).
2) The Accrual Date of the Non-Warranty Claims
Utah Code section 78B-2-225(3)(b) provides that a non-warranty claim may accrue either
upon discovery of the cause of action or upon the completion or abandonment of the improvement
at issue, whichever occurs last:
All [non-warranty] actions by or against a provider shall be
commenced within two years from the earlier of the date of
discovery of a cause of action or the date upon which a cause of
action should have been discovered through reasonable diligence. If
the cause of action is discovered or discoverable before completion
of the improvement or abandonment of construction, the two-year
period begins to run upon completion or abandonment.

Salt Lake City also alleges that the faulty liner sections damaged other facilities owned by the
city. A claim for damage to other property seeks tort damages and would not be subject to the UCC
statute of limitations. But Salt Lake City does not assert its claim for property damages under its
breach of warranty claims. The property damages are properly categorized as a remedy sought
under its product liability claims. As discussed above, the product liability claims are subject to
the two-year statute of limitations contained in the improvements to real property statute. See UTAH
CODE § 78B-2-225(3)(b).
1

11

Salt Lake City argues that construction work on the sewer line was never completed. The city
alleges in its complaint that it discovered leaks in the rehabilitated sewer line on November 29,
2012. In a letter dated December 17, 2012, Salt Lake City notified Southwest of the leaks and
demanded that Southwest remedy the leaks. Over the next two and a half years, Southwest and the
city formulated a number of plans to fix the leaks and Southwest made one unsuccessful attempt
to repair the sewer line. On June 22, 2015, Southwest declined to make any further plans to repair
the sewer line. Salt Lake City alleges that because of the leaks in the sewer pipe liner, Southwest
never achieved “Substantial Completion” of the project under the terms of the contract between
the city and Southwest. Salt Lake City argues that because Southwest never completed the project,
it abandoned it one year after it declined to perform any additional design or construction work on
the sewer line project. See UTAH CODE § 78B-2-225(1)(a) (“‘Abandonment’ means that there has
been no design or construction activity on the improvement for a continuous period of one year.”).
The city asserts, therefore, that regardless of when it discovered its non-warranty causes of action
against the defendants, these claims did not accrue until Southwest abandoned the project on June
22, 2016.
The court disagrees with the city. Because Southwest completed the sewer line
rehabilitation project, it was never abandoned. “Completion of the improvement” is a defined term
in the improvements to real property statute. As used in this statute, this term means
the date of substantial completion of an improvement to real
property as established by the earliest of:
(i) a Certificate of Substantial Completion;
(ii) a Certificate of Occupancy issued by a governing agency; or
(iii) the date of first use or possession of the improvement.

12

Id. § 78B-2-225(1)(c). Although Salt Lake City may not have issued a Certificate of Substantial
Completion, it did begin to use the sewer line. The city attached to its First Amended Complaint
the December 17, 2012 letter it sent to Southwest. In the letter, Salt Lake City asserted that it
became aware of the leaks in the rehabilitated sewer line because high concentrations of dissolved
solids were detected in a sewage treatment plant. The city traced the source of the dissolved solids
to the rehabilitated sewer line through tests conducted on November 29, 2012. Salt Lake City
further alleged in its Second Amended Complaint that it was difficult to determine whether the
liner sections or the joint seals were defective after the city became aware of the leaks because the
sewer line was in active use.
In short, the city had begun to use the rehabilitated sewer line to transport sewage to the
treatment plant by the time that it conducted the November 29, 2012 tests. Under the terms of the
improvements to real property statute, the sewer rehabilitation project had been completed by this
date. The court, therefore, rejects Salt Lake City’s argument that the accrual date of the
non-warranty causes of action was extended until June 22, 2016. 2
3) The Discovery Rule
Both of the statutes of limitations that govern the claims against the defendants incorporate
the discovery rule. Utah Code section 78B-2-225(3)(b) states that an action “shall be commenced
within two years from the earlier of the date of discovery of a cause of action or the date upon

Salt Lake City also argues that the warranty claims did not accrue until Southwest abandoned the
sewer rehabilitation project on June 22, 2016. But this argument rests upon the city’s assertion
that Utah Code section 78B-2-225(3)(a) establishes the statute of limitations for the warranty
claims. As explained above, the court concludes that the appropriate statute of limitations for these
claims is found in Utah Code section 70A-2-725(1), which does not reference the completion or
abandonment date of an improvement to real property.
2

13

which a cause of action should have been discovered through reasonable diligence.” Utah Code
section 70A-2-725(2), on the other hand, contains a partial discovery clause for warranty claims.
That statute provides:
A cause of action accrues when the breach occurs, regardless of the
aggrieved party’s lack of knowledge of the breach. A breach of
warranty occurs when tender of delivery is made, except that where
a warranty explicitly extends to future performance of the goods and
discovery of the breach must await the time of such performance the
cause of action accrues when the breach is or should have been
discovered.
In the absence of an explicit warranty of future performance, therefore, a warranty claim accrues
upon delivery of the good. If there is an explicit warranty of future performance, the action accrues
when the breach “is or should have been discovered.”
The defendants argue that the discovery rule does not toll either of these statutes of
limitations beyond November 29, 2012, the date when Salt Lake City discovered “a significant
defect and leak in the liner” installed by Southwest. HydraTech also argues that the discovery rule
does not apply to the warranty claim against it because it did not make a warranty of future
performance. The court first addresses the general application of the discovery rule to all of the
claims against the defendants before turning to the question of whether HydraTech made an
explicit warranty of future performance that triggered the discovery rule as to this warranty claim.
“As a general rule, a statute of limitations begins to run ‘upon the happening of the last
event necessary to complete the cause of action.’” Russell Packard Dev., Inc. v. Carson, 108 P.3d
741, 746 (Utah 2005) (citation omitted). One exception to this general rule is the discovery rule,
which delays the commencement of the limitations period until “a plaintiff either discovered or
should have discovered his or her cause of action.” Id. (citation omitted). Under this standard, “all
that is required to trigger the statute of limitations is sufficient information to put plaintiffs on
14

notice to make further inquiry if they harbor doubts or questions.” Macris v. Sculptured Software,
Inc., 24 P.3d 984, 990 (Utah 2001). “Whatever is notice enough to excite attention and put the
party on his guard and call for inquiry is notice of everything to which such inquiry might have
led. When a person has sufficient information to lead him to a fact, he shall be deemed conversant
of it.” McBroom v. Child, 392 P.3d 835, 846 (Utah 2016) (citation omitted).
In its prior Order, the court ruled that the results of the November 29, 2012 tests gave rise
to a duty to investigate the cause of the leaks in the line and the identity of the manufacturer of any
faulty components that may have contributed to the leak. See Hansen v. Novartis Pharm. Corp.,
No. 2:08-CV-985, 2011 WL 6100848, at *3 (D. Utah Dec. 7, 2011) (the statute of limitations for a
claim based upon a defective product “begins to run when the plaintiff discovers, or should have
discovered: (1) that she has been injured; (2) the identity of the maker of the allegedly defective
product; and (3) that the product had a possible causal relation to her injury”) (citing Aragon v.
Clover Club Foods Co., 857 P.2d 250, 252–53 (Utah Ct. App. 1993)). Because Salt Lake City did
not file its initial complaint against the Sekisui defendants until May 10, 2017 or amend its
complaint to include claims against HydraTech until November 8, 2017, the city did not file its
claims against the defendants within either the two-year statute of limitations or the four-year
statute of limitations as measured from the discovery of the leaks in the sewer line. The court,
therefore, dismissed the claims against the defendants and granted Salt Lake City leave “to amend
its complaint, if it can, to allege the time and manner of its discovery of its causes of action against
the defendants, as well as facts showing an inability to discover the causes of action sooner through
the exercise of reasonable diligence.”
In response, the city filed its Second Amended Complaint. It added the following
allegations relevant to the application of the discovery rule in this case:
15

The City’s ability to inspect and evaluate Southwest’s workmanship,
the performance of the SPR PE liner and the performance of the
HydraTech seals was limited. The sewer line being rehabilitated was
and is buried 13 - 18 feet below the surface, was and is in active use,
is the primary sewer line servicing downtown Salt Lake City and the
Capitol, Avenues and Marmalade districts, and the means to inspect
the sewer line is practically limited to CCTV images obtained from
inside the sewer line. Given that the three year [sic] material and
workmanship warranties and correction period “reset” after
Southwest’s attempted repairs . . . , the City acted reasonably and
diligently by affording Southwest, as required expressly by contract
and the implied covenants of good faith and fair dealing, multiple
opportunities to inspect, investigate, identify and repair the defects
in the Project.
Salt Lake City’s new allegations do not comply with the court’s prior Order granting leave
to amend and do not provide a factual basis for concluding that the city’s claims are tolled by the
discovery rule. First, Salt Lake City’s assertion that its ability to discover the cause of the leaks
was “practically limited” to closed circuit television (CCTV) images is insufficient to establish
that the discovery rule tolled the statutes of limitations. The city does not contest that the November
29, 2012 discovery of leaks in the rehabilitated sewer line triggered an obligation to investigate
any claims the city might have against the manufacturers of components used in the repairs. Thus,
Salt Lake City is charged with knowledge of any facts that a reasonable investigation would have
uncovered. McBroom, 392 P.3d at 846. The city, however, does not allege that it could not have
discovered purported defects in the liner sections or the joint seals that contributed to the leaks
through the use of CCTV inspections or other reasonable investigation methods. In other words,
the Second Amended Complaint did not comply with the court’s explicit directive to allege “facts
showing an inability to discover the causes of action . . . through the exercise of reasonable
diligence.”

16

Second, the amended complaint does not allege the time and manner of the Salt Lake City’s
discovery of facts suggesting that the defendants were at fault for the leaks. The time and manner
of discovery is necessary to determine whether the delay was excused under the discovery rule.
The Supreme Court has long recognized this principle: “A general allegation [in a complaint] of
ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any
particular discovery, it should be stated when it was made, what it was, how it was made, and why
it was not made sooner.” Wood v. Carpenter, 101 U.S. 135, 140–41 (1879) (cited by Universal
C.I.T. Corp. v. Courtesy Motors, Inc., 333 P.2d 628, 629 (Utah 1959)). Despite this court’s explicit
notice to Salt Lake City that it needed to amend its complaint to allege the time and manner of
discovery of its claims against the defendants, the Second Amended Complaint contains no such
allegation. There is no explanation of why the city had obtained sufficient knowledge of facts to
sue the defendants by May 10, 2017 and November 8, 2017 but could not have discovered through
reasonable diligence these facts sooner. Accepting that inspection of the liner sections and joint
seals was practically limited to CCTV images, there is no proffered justification as to why CCTV
images were sufficient to permit the city to sue the defendants when they did but were insufficient
to obtain the necessary facts to sue if this technology had been employed and acted upon sooner.
In short, without an explanation as to when and how Salt Lake City discovered the information
that permitted it to pursue its claims, the city has not shouldered its burden of showing that the
discovery rule excuses its untimely claims against the defendants.
Finally, Salt Lake City argues that its neglect in conducting an investigation to discover
facts supporting its claims against the defendants should be excused because it relied upon
Southwest to discover these facts. In other words, the city argues that it acted reasonably by
outsourcing to Southwest its obligation to promptly investigate and discover facts that would allow
17

the city to sue the Sekisui defendants and HydraTech. The court rejects this argument because it is
not supported by the allegations of Salt Lake City’s complaint. The December 17, 2012 letter the
city sent to Southwest demanded that Southwest repair the leaks discovered in the rehabilitated
sewer line; the letter did not include a request for Southwest to discover facts supporting legal
claims against the defendants. The Second Amended Complaint alleges that over the subsequent
two and a half years, Southwest proposed several plans to repair the line in order to fulfill its
contractual obligation to remedy the defective work. The complaint does not allege that Salt Lake
City instructed Southwest to investigate potential claims against manufacturers of components
used in the rehabilitation project. Thus, the allegations of the Second Amended Complaint do not
support the city’s argument that it reasonably relied on Southwest to uncover any claims against
the defendants.
Moreover, even if Salt Lake City had alleged facts supporting its argument, the city does
not provide any caselaw supporting the proposition that it can transfer its discovery obligations to
a third party. Although it may be reasonable to employ experts to investigate technical matters, the
city cannot fully divest itself of its duty to diligently investigate any claims it might have had
against the defendants and wait two and a half years for a third party to investigate.
In short, the court finds that Salt Lake City has not alleged facts that could support the
application of the discovery rule to delay the accrual date of its claims against the defendants. See
Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (when a complaint
pleads dates indicating that a statue of limitations has run, “the plaintiff has the burden of
establishing a factual basis for tolling the statute”); Berneau v. Martino, 223 P.3d 1128, 1134–35
(Utah 2009) (“[B]efore a statute of limitations may be tolled . . . , the plaintiff must make an initial
showing that he did not know nor should have reasonably known the facts underlying the cause of
18

action in time to reasonably comply with the limitations period.”). Thus, Salt Lake City was on
inquiry notice of its claims against the defendants more than four years before it asserted them
against the defendants on May 10, 2017 and November 8, 2017. Because the city’s warranty claim
against HydraTech is barred by the four-year statute of limitations, the court need not resolve the
issue of whether HydraTech made an express warranty of future performance.
4) Conclusion
The court concludes that all of Salt Lake City’s claims against Sekisui Australia, Sekisui
Americas, and HydraTech are barred by the applicable statutes of limitations. Because the court
has already permitted the city leave to amend its complaint to plead facts supporting its claim that
the statutes of limitations should be tolled, further leave to amend would be futile. See Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009). (“Refusing leave to amend is generally only
justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” (citation omitted)). The court, therefore, dismisses Salt Lake City’s claims against
these defendants with prejudice.
II.

MOTION TO DISMISS SOUTHWEST’S CROSSCLAIMS
Southwest’s amended crosscomplaint alleges claims against the Sekisui defendants for (1)

breach of contract, (2) apportionment of fault under Utah’s Liability Reform Act (LRA), and (3)
indemnification. Southwest also added a new crossclaim against HydraTech for breach of contract.
The Sekisui defendants argue that all three of the crossclaims asserted against them should be
dismissed.

19

A. Breach of Contract Crossclaim
Southwest alleges that it entered into a single written agreement with the Sekisui
defendants, the terms of which are contained in six separate documents or categories of documents:
(1) a November 1, 2008 Sales Agreement between the Sekisui defendants and Southwest; (2) a
November 26, 2009 letter from Sekisui Australia to Southwest providing design calculations for
the Salt Lake City sewer line project; (3) a 2009 Project Manual, which constitutes the written
contract between Salt Lake City and Southwest for the sewer line project; (4) a December 31, 2009
purchase order and subsequent purchase orders from Southwest to Sekisui Americas for liner
sections to be used in the project; (5) a November 7, 2012 letter from Sekisui Americas and
addressed “To Whom It May Concern” providing a three-year warranty on the liner sections
installed in the sewer line project; and (6) a “Sekisui Australia letter confirming Southwest is a
licensed [liner section] contractor and that Sekisui would provide on-site support services during
installation.” Southwest further alleges that the Sekisui defendants breached the terms of three of
these documents—the Sales Agreement, the November 26, 2009 letter, and the Project Manual—
by failing to provide adequate instructions and performance specifications and by failing to provide
a method and system that would be free from leaks.
The Sekisui defendants argue that Southwest’s breach of contract crossclaim should be
dismissed for two reasons. They first assert that Southwest’s complaint fails to state a claim for
relief for breach of contract. They further contend that even if Southwest has stated a claim, it is
barred by the four-year statute of limitations found in the UCC.
1) Failure to State a Claim
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a
complaint if it fails “to state a claim upon which relief can be granted.” “To survive a motion to
20

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The complaint must allege more than labels or legal conclusion and its factual allegations “must
be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
a) The Project Manual and the November 26, 2009 Letter
The Sekisui defendants first argue that Southwest has not alleged facts showing that two
of the documents that it relies upon can support its breach of contract crossclaim. The Sekisui
defendants assert that the Project Manual cannot support a breach of contract claim against them
because it is a contract between Southwest and Salt Lake City. They further contend that the
November 26, 2009 letter containing design calculations for the Salt Lake City project is not a
contract and therefore cannot be the basis for a breach of contract claim. Southwest responds that
these two documents should not be considered separately but should be evaluated as part of the six
separate documents or categories of documents that allegedly constitute a single agreement
between the parties.
Southwest relies upon Sacramento Baseball Club, Inc. v. Great N. Baseball Co., 748 P.2d
1058 (Utah 1987) and Bullfrog Marina, Inc. v. Lentz, 501 P.2d 266 (Utah 1972) to support its
contention that the Project Manual and the November 26, 2009 letter should be evaluated as part
of a larger written agreement. In Sacramento Baseball, the parties entered into two
contemporaneous contracts for the sale of a minor league baseball team: a sales agreement and a
consultation agreement. 748 P.2d at 1059. Reasoning that “[a]n agreement may be a single contract
even though it consists of several writings that the parties have never physically attached to each
other,” the Utah Supreme Court held that the two separate agreements constituted one contract
21

because they were executed with the single purpose of effectuating the sale of a baseball team. The
parties in Bullfrog Marina also signed two separate contracts—an employment contract and a lease
agreement—dated within two weeks of one another. 501 P.2d at 265. The trial court found that the
two contracts should be considered to be one agreement because they were intended to operate
together to facilitate the operation of a houseboat rental business. Id. at 270. The Utah Supreme
Court affirmed, holding that “where two or more instruments are executed by the same parties
contemporaneously, or at different times in the course of the same transaction, and concern the
same subject matter, they will be read and construed together so far as determining the respective
rights and interests of the parties, although they do not in terms refer to each other.” Id. at 271; see
also Atlas Corp. v. Clovis Nat. Bank, 737 P.2d 225, 229 (Utah 1987) (“[I]nasmuch as the
agreements and the mining deed were executed substantially contemporaneously and are clearly
interrelated, they must be construed as a whole and harmonized, if possible.).
Southwest’s reliance upon Sacramento Baseball and Bullfrog Marina, however, is
misplaced. Those cases stand for the proposition that separate, signed contracts between two
parties can be interpreted together if they are signed contemporaneously or in the course of the
same transaction and they concern the same subject matter. But these authorities do not support
the rather extraordinary proposition that a party to one contract can be bound by a separate contract
between different parties. Thus, the Sekisui defendants are not bound by the Project Manual
because it is a written contract between Southwest and Salt Lake City and the Sekisui defendants
are not a party to that contract.
Nor has Southwest shown that the November 26, 2009 letter can be integrated into a
multi-agreement contract. In Sacramento Baseball and Bullfrog Marina, two separate contracts
were read together as one contract. But Southwest has not alleged any facts indicating that the
22

letter constituted a contract with Sekisui Australia. The letter simply attaches two pages of
technical design calculations for the Salt Lake City sewer line project. There is no evidence of an
offer, acceptance, or even recognizable obligations imposed upon the parties to support the
formation of a contract. The legal principle that separate contracts can be read as one cannot be
used to elevate letters or emails to the status of a binding contract.
Moreover, the Sales Agreement contains an integration clause that prevents other
documents from adding terms to this contract. Courts will not allow extrinsic evidence of a separate
agreement between the parties in the face of a clear integration clause. Tangren Family Tr. v.
Tangren, 182 P.3d 326, 331 (Utah 2008). Here, the Sekisui defendants and Southwest signed a
November 1, 2008 contract entitled “Customer Specific Terms and Conditions.” Paragraph 1 of
this agreement states:
The terms of this Contract shall be comprised of . . . (i) these
Customer Specific Terms and Conditions, (ii) the General Terms and
Conditions for Sales and Delivery as attached hereto as Exhibit 1,
(iii) the Global Price List for Rehabilitation Materials as attached
hereto as Exhibit 2, (iv) the Charge List for Training and Technical
Support as attached hereto as Exhibit 3, and (v) the Purchase
Contract Proposal for a set of [liner section] equipment hereto [sic]
as Exhibit 4.
Taken together, these listed documents form the Sales Agreement between the Sekisui Defendants
and Southwest. Paragraph 22 of the General Terms and Conditions for Sales and Delivery further
states: “These General Terms and Conditions together with the Customer Specific Terms and
Conditions and the Global Price List for Rehabilitation Materials, Charge List and, if applicable,
equipment purchase or lease contract contain the entire agreement between the Buyer [Southwest]
and Seller [the Sekisui defendants] with respect to the subject matter hereof . . . .” In short, the

23

Sales Agreement contains an integration clause that defines the universe of documents that form
the entire agreement. Other documents cannot accrete additional terms to the Sales Agreement.
Accordingly, the Sekisui defendants are entitled to dismissal of the breach of contract
crossclaim to the extent that it is based upon breaches of the terms of the Project Manual or the
November 26, 2009 letter. 3
b) The Sales Agreement
Southwest alleges that the Sekisui defendants breached two provisions of the Sales
Agreement. It asserts that the Sekisui defendants breached paragraph 9.2 of the Customer Specific
Terms and Conditions, which states that onsite installation training provided by Sekisui employees
is available “upon request.” Southwest also claims that the Sekisui defendants breached paragraph
13.1 of the General Terms and Conditions, which warrants that the liner sections provided by
Sekisui “shall be free from defects in design, materials, and workmanship.” The Sekisui defendants
concede that the Sales Agreement is a binding contract but argue that the court should conclude as
a matter of law that they did not breach either of these provisions.
The Sekisui defendants first argue that they did not breach the installation training
provision because Southwest avers in its crosscomplaint that a Sekisui employee was regularly at
the jobsite to provide training. The court concludes, however, that it cannot resolve this claim as a
matter of law. Arguably, the installation training provision creates a duty to provide adequate onsite
training. The crosscomplaint does not state that the training provided by the Sekisui representative

The Sekisui defendants also argue that they are entitled to dismissal as to the Sales Agreement
because, as a matter of law, they did not breach the terms of this agreement. The court need not
address this argument because it concludes that the Sales Agreement claim is barred by the
applicable statute of limitations.
3

24

was effective or adequate. Southwest asserts only that a representative was present. Thus,
Southwest has pled a plausible crossclaim for breach of this provision.
Second, the Sekisui defendants argue that they should prevail on the breach of the warranty
provision claim because paragraph 13.2 of the General Terms and Conditions explicitly provides
that Southwest’s “sole and exclusive remedy to any warranty claim shall be limited to the
replacement of” defective materials. But this is only an argument that the remedy for breach of
this provision is limited; it is not a valid reason to dismiss the crossclaim.
Therefore, the court rejects Southwest’s arguments for dismissal of the breach of contract
crossclaim to the extent that it is based upon breaches of the training and warranty provisions of
the Sales Agreement.
2) Statute of Limitations
The Sekisui defendants argue that even if Southwest stated a claim for breach of contract,
this crossclaim is barred by the four-year UCC statute of limitations for contracts for the sale of
goods. Southwest concedes that the court can consider the fact that it received the December 17,
2012 letter informing it that Salt Lake City had discovered “a significant defect and leak in the
liner” provided by the Sekisui defendants. Southwest argues, however, that the court should apply
the six-year limitations period found in Utah Code section 78B-2-225(3)(a), which would make
its October 2, 2017 complaint timely. Alternatively, Southwest asserts that the court should apply
the six-year statute of limitations for written contracts found in Utah Code section 70A-2-725(1).
a) Utah Code section 78B-2-225(3)(a)
Like Salt Lake City, Southwest asserts that Utah Code section 78B-2-225(3)(a) is a statute
of limitations and that it is the only limitations period that may be applied to its breach of contract
crossclaim. For the same reasons articulated above, the court rejects this argument.
25

The Utah Supreme Court has held that a limitations period tied to the completion or
abandonment of a construction project is a statute of repose. Craftsman Builder’s Supply, Inc. v.
Butler Mfg. Co., 974 P.2d 1194, 1202 (Utah 1999) (“Because these periods start to run on the date
of completion or abandonment of the improvement without regard to the ‘occurrence of an injury
that gives rise to a cause of action,’ they are statutes of repose.” Craftsman Builder’s Supply, Inc.
v. Butler Mfg. Co., 974 P.2d 1194, 1202 (Utah 1999) (citation omitted). Because section
78B-2-225(3)(a) runs upon completion or abandonment of the relevant improvement to real
property, it is likewise a statute of repose. See Gables & Villas at River Oaks Homeowners Ass’n
v. Castlewood Builders, LLC, 422 P.3d 826, 828 (Utah 2018) (referring to Utah Code section
78B-2-225(3)(a) as a statute of repose); Willis v. DeWitt, 350 P.3d 250, 253 (Utah Ct. App. 2015)
(holding that Utah Code section 78B-2-225(3)(a) is a statute of repose). The court, therefore, must
apply the appropriate statute of limitations to the breach of contract crossclaim in addition to this
statute of repose. See UTAH CODE § 78B-2-225(9) (“This section does not extend the period of
limitation or repose otherwise prescribed by law or a valid and enforceable contract.”).
b) The Appropriate Statute of Limitations
The parties dispute which statute of limitations to apply to the breach of contract
crossclaim. Southwest argues that the six-year statute of limitations for written contracts should be
applied. See UTAH CODE § 78B-2-309(2). The Sekisui defendants, on the other hand, assert that
the four-year UCC statute of limitations for a contract for the sale of goods should govern. See id.
§ 70A-2-725(1).
In order to determine which of these statues of limitations applies to Southwest’s breach of
contract crossclaim, the court must determine whether the Sales Agreement is a contract for goods
or for services. The UCC statute applies to the former, while the general statute of limitations for
26

a written contract applies to the latter. The complicating factor in this case is that the Sales
Agreement is for both goods and services. The Sales Agreement expressly incorporates into the
agreement individual purchase orders of liner materials made by Southwest. This portion of the
Sales Agreement is for goods. The contract also required Southwest employees to complete a
two-week training program for the installation of Sekisui materials and provides that Southwest
may purchase additional onsite training from the Sekisui defendants. This portion of the contract
is for services. Thus, the Sales Agreement is a classic example of a mixed contract for both goods
and services.
Utah employs the predominate purpose test to determine whether a mixed contract is
controlled by the UCC or not. In Utah Local Government Trust v. Wheeler Machine Co., a city
entered into a mixed contract with a contractor, which was obligated to provide two diesel
generators as well as installation and testing services. 199 P.3d 949, 950 (Utah 2008). The city
sued the contractor after one of the installed generators caught fire, damaging the city’s building
and equipment. In determining whether the contract at issue in that case was for a product, the
Utah Supreme Court looked to UCC law and the predominant purpose test, holding that “[w]hen
a mixed contract is presented, it is necessary for a court to review the factual circumstances
surrounding the negotiation, formation and contemplated performance of the contract to determine
whether the contact is predominantly or primarily a contract for the sale of goods,” in which case
the UCC would control. Id. at 956 (quoting Neilson Bus. Equip. Ctr., Inc. v. Italo V. Monteleone,
M.D., P.A., 524 A.2d 1172, 1174 (Del. 1987)) (alteration in original). Alternatively, “if service
predominates, and the transfer of title to personal property is only an incidental feature of the
transaction, the contract does not fall within the ambit of [the UCC].” Id. (citation omitted)
(alteration in original).
27

The Delaware caselaw quoted in Utah Local Government Trust notes the existence of an
additional consideration when applying the predominate purpose test. The Utah Supreme Court
relied on a Delaware Supreme Court case, Neilson Business Equipment Center, Inc. v. Italo V.
Monteleone, M.D., P.A., 524 A.2d 1172 (Del. 1987), when it adopted the primary purpose test.
Utah Local Gov’t Tr., 199 P.3d at 956. Nelson Business Equipment, in turn, cites an earlier
Delaware case, Glover School & Office Equipment Co. v. Dave Hall, Inc., 372 A.2d 221 (Del.
Super. Ct. 1977). Glover held:
Where a mixed contract is involved, it is necessary that the Court
review the factual circumstances surrounding the negotiation,
formation and contemplated performance of the contract to
determine whether the contract is predominantly or primarily a
contract for sale of goods or for services. If the cause of action
centers exclusively on the materials portion or the services portion
of the contract, the determination may rest upon that fact.
Id. at 223 (emphasis added); see also Foster v. Colorado Radio Corp., 381 F.2d 222, 226 (10th
Cir. 1967) (analyzing a contract for the sale of both goods and non-goods and applying the UCC
only to the portion of the contract involving goods). Thus, where a mixed contract contains
provisions that are attributable to either the goods portion of the contract or the services portion of
the contact, the provision sued upon can often be the determining factor as to whether the UCC
should be applied or not. If the plaintiff sues on a goods provision, the UCC applies; if the plaintiff
sues on a provision that clearly deals with services, the UCC does not apply.
Here, Southwest asserts breach of contract claims based upon two provisions of the Sales
Agreement: paragraph 9.2 and paragraph 13.1. Paragraph 9.2 is plainly a services provision. It
governs requests for Sekisui to provide onsite training services to Southwest. Paragraph 13.1, on
the other hand, is a goods provision. It provides a warranty for the liner sections supplied by the
Sekisui defendants to Southwest.
28

Because the Sales Agreement is distinctly divisible between services provisions and goods
provisions, the court concludes that the provision forming the basis of the claim determines
whether the UCC statute of limitations applies or not. Since the paragraph 9.2 claim is based upon
a services provision, the UCC does not apply and the six-year statute of limitations for written
contracts governs this claim. The paragraph 9.2 claim is therefore not barred by the statute of
limitations because Southwest filed its action within this six-year period. The paragraph 13.1
warranty claim, on the other hand, is based upon a goods provision of the Sales Agreement. Thus,
the four-year UCC statute of limitations applies to this claim. And since Southwest sued the Sekisui
defendants more than four years after its breach of contract action accrued, the paragraph 13.1
claim is barred by this statute of limitations.
In short, the court dismisses the paragraph 13.1 claim as untimely under the UCC statute
of limitations. But the court finds that the breach of contract claim arising under paragraph 9.2 is
timely and so denies dismissal as to this claim.
3) Conclusion
The court concludes that Southwest’s claims that the Sekisui defendants breached the terms
of the Project Manual and the November 26, 2009 letter fail as a matter of law. The court further
determines that Southwest’s claim that the Sekisui defendants breached paragraph 13.1 of the Sales
Agreement is barred by the UCC statute of limitations. But Southwest’s breach of contract claim
arising under paragraph 9.2 of the Sales Agreement is not barred by the applicable six-year statute
of limitations for written contracts. The court, therefore, denies the Sekisui defendants’ motion to
dismiss the breach of contract crossclaim because one of Southwest’s theories survives.

29

B. Apportionment of Fault Crossclaim
Salt Lake City asserts three causes of action against Southwest: breach of contract, breach
of the American Public Works Association (APWA) warranty, and breach of the workmanship
warranty. Southwest, in turn, asserts an

apportionment of fault crossclaim against Sekisui

Australia, Sekisui Americas, and HydraTech. This crossclaim seeks to allocate to these defendants
at least a portion of any liability Southwest may incur for Salt Lake City’s breach of contract and
breach of warranty claims.
Southwest’s apportionment of fault crossclaim is based on the Utah Liability Reform Act
(LRA), which permits a defendant to require the factfinder to allocate damages to other individuals
or entities based upon “the percentage or proportion of fault attributable” to the other individuals
or entities. UTAH CODE § 78B-5-819(1). “Fault” is a defined by the LRA to mean
any actionable breach of legal duty, act, or omission proximately
causing or contributing to injury or damages sustained by a person
seeking recovery, including negligence in all its degrees,
comparative negligence, assumption of risk, strict liability, breach
of express or implied warranty of a product, products liability, and
misuse, modification, or abuse of a product.
Id. § 78B-5-817(2).
The Sekisui defendants argue that the LRA can be used to apportion fault only for tort
claims, not contract claims. They further assert that because Salt Lake City’s claims against
Southwest are contract claims, the apportionment of fault crossclaim should be dismissed. The
court agrees.
The Utah Supreme Court has explicitly rejected the notion that the LRA can be extended
to “breach of contract actions and actions for breach of statutory duties since those actions also

30

involve an ‘actionable breach of legal duty.’” Graves v. N. E. Servs., Inc., 345 P.3d 619, 635 n.10
(Utah 2015) (citation omitted). In so holding, the court reasoned that
[t]he Liability Reform Act is all about tort law. Perhaps its principle
of “fault” could conceivably be read, in the abstract, to tread into
other legal fields. But we don’t read statutes in the abstract. We read
them in context. And given its context we think the better
construction would limit its principle of fault to tortious acts or
omissions, and not to exten[d] to breaches of duty rooted in contract
or statute.
Id. Thus, the LRA does not permit the allocation of fault for Salt Lake City’s breach of contract
claim against Southwest.
Similarly, fault for Salt Lake City’s breach of warranty claims against Southwest may not
be allocated because these causes of action sound in contract. A breach of warranty cause of action
may denote either a “tort-type action” or a “contract-type action.” Davidson Lumber Sales, Inc. v.
Bonneville Inv., Inc., 794 P.2d 11, 14 (Utah 1990). The term “warranty” has been used to describe
tort actions for strict products liability.4 Id; see also Bylsma v. R.C. Willey, 416 P.3d 595, 601 n.10
(Utah 2017) (holding that a breach of warranty claim for personal injuries caused by an allegedly
defective foot massager was functionally equivalent to a strict products liability claim under the
LRA). A breach of warranty claim can also denote a claim for contract damages. Davidson Lumber,
794 P.2d at 14. In this case, Salt Lake City alleges that Southwest breached the APWA warranty,
which guaranteed that “all work will be in accordance with the Contract Documents and will not
be defective” and the workmanship warranty, which warranted “against any shortcomings in the

The LRA lists “breach of express or implied warranty of a product” as an example of a cause of
action for which fault may be allocated. UTAH CODE § 78B-5-819(1). However, given the Utah
Supreme Court’s pronouncement in Graves that the LRA applies only to tort claims, this reference
to a breach of a product warranty claim must be limited to “tort-type” breach of warranty claims
that are akin to strict products liability claims.
4

31

workmanship.” These two warranties relate to workmanship, not products. Thus, the breach of
warranty claims based upon these warranties cannot be interpreted as tort claims akin to claims for
strict products liability. Instead, these breach of warranty claims seek contract damages for an
alleged failure to provide effective workmanship. Because these breach of warranty claims sound
in contract, the LRA does not permit Southwest to allocate fault for these claims to a third party.
See Graves, 345 P.3d at 635 n.10.
The court, therefore, grants the Sekisui defendants’ motion to dismiss the allocation of fault
crossclaim.
C. Indemnification Crossclaim
Finally, Southwest asserts an indemnification crossclaim against Sekisui Australia, Sekisui
Americas, and HydraTech. “In actions for indemnity, courts universally require proof of three
elements: (1) the payor (prospective indemnitee) must discharge a legal obligation the payor owes
to a third person; (2) the prospective indemnitor must also be liable to the third person; and (3) as
between the claimant payor and the prospective indemnitor, the obligation ought to be discharged
by the indemnitor.” Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 218 (Utah 1984).
The Sekisui defendants argue that the court should dismiss the indemnification crossclaim
because a provision of the Sales Agreement requires Southwest to indemnify the Sekisui
defendants. It provides:
The Buyer [Southwest] shall hold harmless and indemnify the Seller
[the Sekisui defendants] its officers, employees and agents from and
against any claims, demands, or causes of action whatsoever,
including without limitation those arising on account of any injury
or death of persons or damage to property caused by or arising out
of or resulting from the exercise or practice of the license granted
hereunder by the Buyer.

32

The court disagrees with the Sekisui defendants’ reading of the indemnification clause. While this
provision may require Southwest to indemnify the Sekisui defendants from liability, it does not
prohibit the reverse scenario: a claim that the Sekisui defendants should indemnify Southwest. The
Sales Agreement is silent on the question of whether the Sekisui defendants can be required to
indemnify Southwest. The court concludes, therefore, that the terms of the Sales Agreement do not
bar the indemnification crossclaim and denies the Sekisui defendants’ motion to dismiss it on this
ground.
D. Conclusion
The court denies the motion to dismiss to the extent that the Sekisui defendants seek
dismissal of the breach of contract and indemnification crossclaims. The court grants the motion
to dismiss to the extent that the Sekisui defendants seek dismissal of the apportionment of fault
crossclaim.
III.

MOTIONS TO CERTIFY QUESTIONS TO THE UTAH SUPREME COURT
Both Salt Lake City and Southwest also filed motions to certify to the Utah Supreme Court

questions regarding the appropriate statute of limitations to apply to the breach of warranty claims
and breach of contract crossclaims in this case. Salt Lake City requests that the following questions
be certified:
1. Is Utah Code Ann. § 78B-2-225(3)(a) a statute of limitations?
2. If Utah Code Ann. § 78B-2-225(3)(a) is not a statute of limitations, what statute of
limitations governs the breach of express warranty claims of an owner of an
improvement to real property against the manufacturers of a product incorporated into
that improvement?
Southwest requests that a single question be certified:
33

1. Is Utah Code Ann. § 78B-2-225(3)(a) the sole limitations and repose period to be
applied to actions described therein, or should courts apply other applicable statutes of
limitations along with it?
The court denies the motions to certify these questions to the Utah Supreme Court.
First, the motions to certify are untimely. Sekisui Australia, Sekisui Americas, and
HydraTech argued in their first motions to dismiss that the four-year UCC statute of limitations
should be applied to Salt Lake City’s breach of warranty claims. The Sekisui defendants also raised
a similar statute of limitations issue in their first motion to dismiss Southwest’s breach of contract
crossclaim. Instead of asking this court to certify questions of law regarding the appropriate statute
of limitations to apply to the claims and crossclaims, both Salt Lake City and Southwest argued
that the court should rule in their favor and apply the six-year limitations period found in Utah
Code section 78B-2-225(3)(a). Only after the court interpreted the relevant statutes and ruled
against them did Salt Lake City and Southwest ask this court to certify to the Utah Supreme Court
the same questions they had asked this court to decide. The appropriate time to request certification
was before this court ruled on the statute of limitations question. Litigants may not ask this court
to decide an issue and then ask for certification only after receiving a disappointing answer. See
Am. Nat’l Prop. & Cas. Co. v. McNeely, No. 1:16CV7DAK, 2016 WL 8787293, at *1 (D. Utah
Nov. 22, 2016) (“A party cannot assert that Utah law is clear on an issue and then seek redress
from another court when it receives an unfavorable ruling.”); Utah ex rel. Div. of Forestry, Fire &
State Lands v. United States, 335 F. Supp. 2d 1319, 1324 (D. Utah 2004) (“The proper time for
this motion [to certify] would have been at the time the court was considering the parties’ motions
. . . .”).

34

Second, the motions to certify do not pose questions on unsettled areas of Utah law. Under
Rule 41(a) of the Utah Rules of Appellate Procedure, the “Utah Supreme Court may answer a
question of Utah law certified to it by a court of the United States when requested to do so by such
certifying court acting in accordance with the provisions of this rule if the state of the law of Utah
applicable to a proceeding before the certifying court is uncertain.” The first question proposed by
Salt Lake City is whether Utah Code section 78B-2-225(3)(a), which ties its six-year limitations
period to “the date of completion of the improvement or abandonment of construction,” is a statute
of limitations or a statute of repose. In examining a predecessor to this statue, the Utah Supreme
Court held that the limitations period tied to the completion or abandonment of a construction
project was a statute of repose. Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194,
1202 (Utah 1999) (“Because these periods start to run on the date of completion or abandonment
of the improvement without regard to the ‘occurrence of an injury that gives rise to a cause of
action,’ they are statutes of repose.” (citation omitted)). Thus, it is settled that a limitations period
tied to completion or abandonment of an improvement, such as section 78B-2-225(3)(a), is a
statute of repose. See Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders,
LLC, 422 P.3d 826, 828 (Utah 2018) (referring to Utah Code section 78B-2-225(3)(a) as a statute
of repose); Willis v. DeWitt, 350 P.3d 250, 253 (Utah Ct. App. 2015) (holding that Utah Code
section 78B-2-225(3)(a) is a statute of repose).
The second question proposed by Salt Lake City—which statute of limitations should be
applied to a written warranty on goods incorporated into an improvement to real property—has
also been settled by the Utah Supreme Court. In Perry v. Pioneer Wholesale Supply Co., 681 P.2d
214, 216 (Utah 1984), a subcontractor asserted breach of warranty claims against a wholesaler and
a manufacturer, alleging that doors that the subcontractor had installed in a medical center were
35

defective. The Utah Supreme Court held that the breach of warranty claims based upon the
installed doors were governed by the UCC statute of limitations rather than the general statute of
limitations for written contracts. Id. (“[W]here the Uniform Commercial Code sets forth a
limitation period for a specific type of action, this limitation controls over an older, more general
statute of limitations.”).
Southwest’s proposed certification question sidesteps the issue of whether section 78B-2225(3)(a) is a statute of repose or a statute of limitations and asks instead whether it is the only
limitations period that should be applied to its breach of contract crossclaim. Although the Utah
Supreme Court has not addressed this question, the Utah Legislature has. Subsection (9) of this
statute states that “[t]his section does not extend the period of limitation or repose otherwise
prescribed by law or a valid and enforceable contract.” In other words, if a shorter limitations
period is “otherwise prescribed by law,” courts must apply the shorter limitations period in addition
to section 78B-2-225(3)(a).
In short, the court denies both Salt Lake City’s and Southwest’s motions to certify because
they are untimely and because they do not present novel legal questions.
CONCLUSION AND ORDER
The court orders as follows:
1. The court GRANTS Sekisui Australia’s motion to dismiss the causes of action asserted
against it in Salt Lake City’s Second Amended Complaint. [Docket 80.] Dismissal is
with prejudice.
2. The court GRANTS Sekisui Americas’ motion to dismiss the causes of action asserted
against it in Salt Lake City’s Second Amended Complaint. [Docket 79.] Dismissal is
with prejudice.
36

3. The court GRANTS HydraTech’s motion to dismiss the causes of action asserted
against it in Salt Lake City’s Second Amended Complaint. [Docket 84.] Dismissal is
with prejudice.
4. The court GRANTS IN PART AND DENIES IN PART Sekisui Australia’s and Sekisui
Americas’ motion to dismiss the crossclaims asserted against them in Southwest’s
Amended Crosscomplaint. [Docket 105.] The court grants the motion to the extent that
the Sekisui defendants seek dismissal of the apportionment of fault crossclaim.
Dismissal is with prejudice. The court denies the motion to the extent that the Sekisui
defendants seek dismissal of the breach of contract and indemnification crossclaims.
5. The court DENIES Salt Lake City’s and Southwest’s motions to certify questions to
the Utah Supreme Court. [Docket 93, 121.]
DATED September 26, 2019.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

37