Forever Barred - $5 Million Claim in Damages – Rumberger Kirk & Caldwell Litigation Team Wins Another for CentiMark

07.02.09

MIAMI, FL -- A litigation team led by Rumberger Kirk & Caldwell partner Gregory Palmer, obtained final summary judgment for CentiMark Corporation in Pacific Ins. Co., Ltd., et al. v. CentiMark Corp., previously pending in the Complex Business Litigation Court in and for Miami-Dade County, Florida. The Court sided with Rumberger Kirk & Caldwell and CentiMark and held that all counts of the Plaintiff’s three-count Complaint were untimely, forever barring the Plaintiff’s claims against CentiMark for which the Plaintiff demanded an award in excess of $5 million.

Pacific Insurance alleged that a Miami warehouse’s roof installed by CentiMark had sustained damages during Hurricane Wilma in 2004 because it had been improperly installed and failed to meet building code requirements. CentiMark is the largest commercial roofing contractor in North America. At the time of the storm, the building in question was leased by Coronet Paper Products, LLC and owned by DMK Properties, Ltd., each of whom were insured by the Pacific Insurance, and each of whom received a combined multi-million dollar benefit following the storm. Pacific Insurance then instituted a subrogation action against CentiMark in an attempt to recoup these payments. The insurer’s complaint set forth claims against CentiMark for: (1) breach of contract on behalf of DMK, who contracted with CentiMark for installation of the subject roof; (2) negligence on behalf of Coronet, the tenant, a non-signatory to the roofing contract; and (3) negligence per se for CentiMark’s alleged violation of the building code. However, Rumberger Kirk & Caldwell and CentiMark argued and the Court agreed, that none of these counts could withstand summary judgment.

In entering summary judgment in CentiMark’s favor, the Court relied upon the one year limitation-of-action provision in the parties’ contract which expressly requires any action arising from CentiMark’s materials or workmanship to be instituted within one year of discovery of the alleged defect. Rumberger Kirk & Caldwell and CentiMark successfully argued that, although contractual provisions that limit the statutory limitations period are unenforceable in Florida, these provisions are valid and enforceable under Pennsylvania law, which the Court found to govern the dispute pursuant to the contract’s choice of law provision. Because the insurer did not institute its subrogation against CentiMark within one year of discovering the alleged roof damage, its claims were time-barred.

In obtaining this ruling, Rumberger Kirk & Caldwell and CentiMark also successfully argued that the contract’s limitation-of-action provision barred the insurer’s negligence claims brought on behalf of Coronet, even though Coronet was not an express party to the contract with CentiMark. In line with CentiMark’s arguments, the Court found that Coronet was an intended third party beneficiary of the contract and was bound by the one year limitation-of-action provision. As a result, all of the Plaintiff’s claims against CentiMark, and its multi-million dollar demand, were forever barred. The Rumberger Kirk & Caldwell team included attorneys Michael Holt, Dorothy Negrin, and Dara Lorion.

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Rumberger, Kirk & Caldwell provides litigation and counseling services in a wide range of civil practice areas including products liability, commercial litigation, intellectual property, environmental, employment, insurance, professional liability, health care and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama.