United States District Court, S.D. Mississippi, Southern Division
DAK AMERICAS MISSISSIPPI, INC. PLAINTIFF
JEDSON ENGINEERING, INC. and ROB'T J. BAGGETT, INC. DEFENDANTS JEDSON ENGINEERING COUNTER-CLAIMANT
DAK AMERICAS MISSISSIPPI, INC. COUNTER-DEFENDANT
OPINION AND ORDER DENYING DEFENDANT COUNTER-CLAIMANT JEDSON
ENGINEERING'S MOTION  FOR PARTIAL SUMMARY JUDGMENT ON
ITS COUNTERCLAIM, AND DENYING AS MOOT
PLAINTIFF/COUNTER-DEFENDANT DAK AMERICAS MISSISSIPPI,
INC.'S MOTION  TO SUBSTITUTE RESPONSE IN OPPOSITION
TO JEDSON ENGINEERING'S MOTION  FOR PARTIAL SUMMARY
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT are Defendant/Counter-Claimant Jedson
Engineering's Motion  for Partial Summary Judgment on
its Counterclaim against Plaintiff/Counter-Defendant DAK
Americas Mississippi, Inc., and Plaintiff/Counter-Defendant
DAK Americas Mississippi, Inc.'s Motion  to
Substitute Response to Jedson Engineering's Motion 
for Partial Summary Judgment. After due consideration of the
record, the parties' Motions, related pleadings, and
relevant legal authority, the Court is of the opinion that
Jedson Engineering's Motion  for Partial Summary
Judgment should be denied and DAK Americas Mississippi,
Inc.'s Motion  to Substitute Response should be
denied as moot.
dispute arises out of the design and construction of a
concrete storage slab at DAK Americas Mississippi, Inc.'s
(“DAK”) PET resin manufacturing facility located
in Bay St. Louis, Hancock County, Mississippi. See
Compl.  at 2. According to DAK, it was in need of creating
a suitable area for staging, unloading, and storing stacked
shipping containers. This required a slab that was suitable
for operating loaders and other heavy equipment necessary to
transport, unload, and stack shipping containers.
Id. Jedson Engineering (“Jedson”) is an
engineering firm located in Cincinnati, Ohio. It was engaged
by DAK to design the slab and supervise its construction.
Id. Defendant Rob't J. Bagget, Inc.
(“RJB”) was selected as the contractor to
construct the slab. Id. at 3.
facilitate design and construction, DAK issued several
purchase orders to Jedson. Jedson has submitted the final
October 15, 2014, Purchase Order # 4500426907 issued for the
work, which included certain Terms and Conditions relevant
here, as follows:
5. Warranty: [Jedson] expressly warrants
that the Services will . . . meet [Jedson's] Order, all
referenced or attached specifications, tolerances,
limitations, drawings, samples and information; be of
merchantable quality, free from defects on workmanship and
material, be fit for such purposes as expressed in the Order,
or are reasonable [sic] inferable from the terms of the
Order; and in accordance with standard of care of other
professionals performing the same or similar work in that
locality. These warranties shall run to [DAK], its
successors, assigns, customers and the user of its products .
. . .
A) Should any Services, fail to conform with the warranties
of Article 6 [sic] [Jedson's] sole liability and
[DAK's] sole remedies shall be as follows: [Jedson] shall
rework the Services promptly following [DAK's]
notification or, at [DAK's] option, refund the purchase
B) To the extent permitted by law, neither party shall be
liable to the other for any special, consequential or
punitive damages, even if caused by negligence, willful
misconduct or breached [sic] of contract. The preceding
sentence and the liability/remedies limitations of A) above
do not apply to, and each party shall indemnify and defend
the order against (i) fines or civil penalties; (ii)
loss or damage to the indemnified party's property; and
(iii) costs (including legal fees and expenses) and liability
arising from claims, suits, causes of action, action,
judgments, by third parties (including legal fees and
expenses) and liability arising from claims, suits, causes of
action, action, judgments by third parties (including either
party's employees) based on death, personal injury, loss
or damage to property or the environment to the extent (i),
(ii) and (iii) are caused by the negligence, willful
misconduct or breach of contract of the indemnifying party.
Ex. “3” [60-3] at 4. The term
“Services” is defined as “any services and
work ordered by [DAK] pursuant to the [Purchase]
to DAK, even though Jedson knew of DAK's intended
purposes for the slab and agreed to design and supervise its
construction accordingly, Jedson failed to design a
sufficient slab and failed to manage and supervise the
construction in the manner necessary to fit DAK's
intended purposes. See Compl.  at 2-4. DAK claims
that, within months of completion of construction, it
discovered issues with the new concrete slab, including what
it characterizes as serious cracking and chipping.
Id. at 4-5.
the Court's diversity jurisdiction pursuant to 28 U.S.C.
§ 1332, DAK filed this lawsuit on January 31, 2018,
against Defendants Jedson and RJB. DAK alleged negligent
design, negligent construction management, and breach of
contract claims against Jedson, and negligent construction
and breach of contract claims against RJB. See
Compl.  at 6-10. Jedson filed a Counterclaim  against
DAK seeking a declaratory judgment determining DAK's
rights and Jedson's responsibilities under the
limitation-of-liability clause contained in section 6(A) of
the Purchase Order [15-1] and limiting DAK's remedies
against Jedson accordingly. Jedson also advanced claims for
specific performance and bad faith breach of contract.
Countercl.  at 18-21. RJB filed a Cross-claim 
against Jedson asserting claims for implied contractual
indemnity, common law indemnity, legal/Spearin
immunity, negligent design, and negligent supervision,
Cross-cl.  at 12-16, but RJB later voluntarily dismissed
its Cross-claim, Order  at 1-2.
Jedson's Motion  for Partial Summary
Motion  for Partial Summary Judgment seeks a declaration
from the Court that “the Terms and Conditions attached
to the final purchase order are valid and enforceable and
operate [to] limit DAK's recovery to 1) refund of the
purchase price or 2) rework of services.” Jedson's
Mot.  at 3. Jedson also asks the Court to enter “an
Order directing DAK to elect its remedy pursuant to the Terms
and Conditions.” Id.
responds that the limitation-of-liability clause does not
unambiguously apply because Jedson damaged DAK's property
due to Jedson's own negligence or breach of contract.
See Resp.  at 3-5. DAK maintains that section
6(B)(ii) of the Terms ...