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
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT/ COUNTER-CLAIMANT JEDSON
ENGINEERING'S MOTION  FOR RECONSIDERATION OF ORDER
 OR, IN THE ALTERNATIVE, LEAVE TO FILE ADDITIONAL
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant/Counter-Claimant Jedson
Engineering's Motion  for Reconsideration of the
Court's Order , which denied Jedson
Engineering's Motion  for Partial Summary Judgment on
its Counterclaim against Plaintiff/Counter-Defendant DAK
Americas Mississippi, Inc. Jedson Engineering asks the Court
to reconsider its ruling and Jedson's earlier Motion 
for Partial Summary Judgment. Alternatively, Jedson
Engineering seeks leave to file a new Motion for Summary
Judgment or submit additional evidence to support its request
for summary judgment. After due consideration of the record,
the Motion, related pleadings, and relevant legal authority,
the Court is of the opinion that Jedson Engineering's
Motion  for Reconsideration and its alternative requests
for relief should be denied.
Brief factual background
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. To facilitate design and construction of the
slab, DAK issued several purchase orders to Jedson
Engineering (“Jedson”). Jedson has submitted the
final October 15, 2014, Purchase Order # 4500426907 issued
for the work, which contained certain Terms and Conditions,
including a limitation-of-liability clause. See Ex.
“3” [60-3] at 4.
the Court's diversity jurisdiction pursuant to 28 U.S.C.
§ 1332, DAK filed this lawsuit on January 31, 2018,
against Defendants Jedson and Rob't J. Bagget, Inc.
(“RJB”), which was the contractor selected to
construct the slab. 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, see Cross-cl.  at 12-16, which
RJB has voluntarily dismissed, see Order  at
Jedson's Motion  for Partial Summary
filed a Motion  for Partial Summary Judgment on its
Counterclaim, seeking 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.” Mot.  at 3. Jedson also
asked the Court to enter “an Order directing DAK to
elect its remedy pursuant to the Terms and Conditions.”
responded 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 maintained that section
6(B)(ii) of the Terms and Conditions renders the
limitation-of-liability clause inapplicable. Id.
countered that a plain reading of the contract demonstrates
that “the damage to property of Article 6(B) does not
apply to property which was the subject of Jedson's
contract.” Rebuttal  at 1. According to Jedson, the
“damage to property” mentioned in section
damage to existing property, not damage to
property created by Jedson's work or work being performed
by Jedson. Otherwise, the warranty would mean nothing and
would be superfluous, given the object of Jedson's scope
was to design property.
Id. at 8 (emphasis in original). Additionally,
Jedson maintained that section 6(B) is clearly “meant
to be a defense and indemnification clause for claims made by
third parties against the services provided pursuant to the
order, ” and that this section only applies to claims
brought by third parties. Id. at 10.
The Court's Order  denying Jedson's Motion
for Partial Summary Judgment
March 28, 2019 Order, the Court determined that Jedson had
not carried its burden as the movant of demonstrating that
the limitation-of-liability clause unambiguously applies to
DAK's claims against it. See Order  at 13.
The Court found that even if Jedson is correct that the
contract is unambiguous, such that damage to preexisting
property is necessary to trigger the exclusion in section
6(B)(ii), DAK had presented evidence creating a question of
fact on whether Jedson's actions “caused damage to
DAK's property, ” specifically whether Jedson
“caused the slab, and DAK's
property, to be unsuitable for DAK's intended purpose . .
. .” Id. at 12 (quoting Aff. of Colvin D. Mann
[79-1] at 3-4). The Court further noted that Jedson had not
addressed DAK's argument that under North Carolina law,
“[a]lthough ambiguous contracts are generally construed
against the drafter, ambiguous limitation of liability
clauses are disfavored and strictly construed.”
Id. at 12 (quoting Resp.  at 4 n.1). The Court
then denied Jedson's Motion . Id. at 13-14.
Jedson's Motion  to Reconsider
present Motion  asks the Court to reconsider its prior
Order , or alternatively, permit it to either file a new
dispositive motion or submit additional evidence in support
of its request for partial summary judgment. Jedson contends
that the Court did not find the limitation-of-liability
clause ambiguous and “misapprehended” certain
evidence in the summary judgment record, specifically the
Declaration [79-1] of Colvin D. Mann, P.E. See Mot.
 at 2-3. According to Jedson, the Court improperly
“speculate[d]” that “DAK's
property” in the Declaration is something other than
the slab itself, which resulted in a “critical
error” in the Court's analysis. Id. Jedson
maintains that “the only damage to DAK's property
is the slab Jedson designed, ” id. at 3, and
requests that the Court reconsider its Order and find the
limitation-of-liability clause valid and ...