Certain-Teed Products Corp. v. Goslee Roofing & Sheet Metal, Inc.

Thompson, J., delivered the opinion of the Court. On May 21, 1970, Goslee Roofing & Sheet Metal, Inc. (Goslee), seeking to recover damages resulting from its re-roofing of Chesapeake College, brought an action in the Circuit Court for Queen Anne’s County against Certain-Teed Products Corporation (Certain-Teed), the Dow Chemical Corporation (Dow), Charles E. Brohawn & Bros., Inc. (Brohawn) and McLeod, Ferrara & Ensign, A.I.A. (McLeod). Goslee’s cause of action was based primarily on negligence in manufacture of and breach of warranty in connection with the roofing materials originally sold to it by Certain-Teed and Dow and negligence in construction and design against Brohawn (the general contractor) and McLeod (the architect). ⁴⁵⁵ On October 28, 1970, Certain-Teed filed a counterclaim against Goslee for the unpaid purchase price of the products sold to Goslee for the purpose of re-roofing Chesapeake College.

The case was subsequently removed to the Circuit Court for Talbot County on May 26,1971. Trial commenced on January 3, 1973 and concluded on January 12, 1973. Goslee dismissed its case against McLeod prior to trial. On March 5, 1974 Judge Harry E. Clark found against Certain-Teed on the issue of warranty and against Dow on the issues of warranty and negligence.

Judgments were entered in favor of Goslee against Brohawn for $3,207.19 and against Certain-Teed and Dow for $73,204.34. A judgment was also entered in favor of Certain-Teed on its counterclaim against Goslee. Goslee has not appealed that judgment nor has Brohawn appealed the judgment entered against it. Certain-Teed claims that any warranty created by its sale to Goslee was not breached, that even if a breach occurred it was not the proximate cause of the damages suffered by Goslee, and that the trial court erred in its compilation of damages.

Dow claims that the trial court erred in refusing to allow it to call an expert witness, that Goslee was under no legal obligation to re-roof and thus should not have been awarded damages for doing so and that the lower court erred in its compilation of damages. In its cross-appeal Goslee claims that certain items should have been included in its damage award against Certain-Teed and Dow. FACTS In the spring of 1967, Chesapeake Community College awarded a contract to build the college’s first five buildings to Brohawn, the general contractor. In September 1967, Brohawn accepted the proposal of Goslee, a roofing and sheet metal contractor, to provide build-up roofs for all five of said buildings at and for the sum of $64,000.00.

This sub-contract required Goslee to furnish all labor, materials and equipment necessary to build and complete the roofs in accordance with the owner’s plans, specifications and addenda, if any, as prepared by McLeod. The original plans ⁴⁵⁶ and specifications for the roofs called for a build-up roof to be installed over the concrete slab roof deck. The roof was to be comprised of a layer of insulation to be attached to the roof deck and a conventional four-ply twenty-year bonded type membrane roofing system with an aggregate surface to be attached to said insulation. In October 1967, Billy N. Beauchamp, Certain-Teed’s territorial manager, contacted David B. Webster, Goslee’s General Manager and Estimator, in an attempt to sell Certain-Teed’s Dual 80 GSI roof system, which involves the use of two plies of forty pound asphalt coated felt, instead of the four-ply contained in the specifications described above.

During the same period one Joseph Baxter, a salesman for G. & W. H. Corson Co., the exclusive distributor of Dow’s products in the Mid-Atlantic States, attempted to sell Dow’s. Styrofoam RM brand plastic foam as the substrate and insulation for the roofs. Webster testified that he told Beauchamp and Baxter that if they could convince the architects to substitute their products for those in the specifications, Goslee would use them on the Chesapeake College project. Thereafter a meeting was held in McLeod’s offices in Washington, D.C., between Robert S. Tomlinson, McLeod’s architect-in-charge of the Chesapeake College project, a Mr. Vercoe, a representative of Corson, and Billy N. Beauchamp.

The trial court aptly summed up the testimony relative to this meeting: “From the depositions of Vercoe and Beauchamp, which were admitted into evidence, it appears they attended this meeting for the sole purpose of persuading McLeod to approve the use of Certain-Teed’s Dual 80 GSI roofing system and Styrofoam RM for subject job. Vercoe reported that Styrofoam RM was as good an insulator and foundation or substrate for an asphalt coated membrane roof system as any on the market and bad the added advantage of being more viater ijesistant, thus making it slower to ⁴⁵⁷ deteriorate with the passage of time and exposure to moisture. Beauchamp reported that since Certain-Teed’s Dual 80 GSI roofing system was only a two-ply system, it would be cheaper for the roofer to apply, since it would take less time and labor to apply and thus would enable the general contractor to start inside work sooner than if the conventional four-ply system was used (a coated base sheet with three plies of fifteen pound felt) which Certain-Teed also manufactured. Each deponent admitted that this was the first time he had proposed the use of Certain-Teed’s Dual 80 GSI roofing system in conjunction with Styrofoam RM.” Mr. Tomlinson testified as to that meeting as follows: “Q. Can you or not give us the substance of that?

A. Well, first we had not used the Dual 80 roofing or its type recently and we were most concerned with the adequacy of the type of material for a four ply built-up roof, and this was our first concern. Secondly there was a cause for concern because of the compatability of the insulation because the manufacturer’s literature seemed to caution against this type of use.” * * * * “A. As I say, primarily we were concerned with the results of this but also concerned with the compatability. We were given the names of two or three jobs where Certain-Teed was used. I did some telephone checking on that.

I had some notes but I have since destroyed them, and I can’t give any particular reference, but we were concerned about other situations elsewhere and did check those. We found nothing derogatory and nothing to indicate we should be alerted to any problem and, on that basis, found no objection to Certain-Teed. We asked Dow to certify that they had no objection to using ⁴⁵⁸ their products of Certain-Teed and, with that letter, we proceeded to approve it.” * * * * “Q. Mr. Tomlinson, was or did the specifications for this job include the requirement that the built-up roof be bondable, that is, that the owner be eligible to obtain a bond should it elect to do so? A. That’s correct.

Q. And the bond was to have been what type of bond in terms of nature and duration? A. Twenty years on the roofs which were not flashed, which is common in the trade, furnished by the roofing manufacturer, the manufacturer of the roofing service products. Q. In this case that would have been which firm? A. Certain-teed.

Q. Was the bondability feature discussed with the Certain-Teed representative at the time? A. I am quite sure it was because this was a cause of concern in evidencing that this substitution would be equal to that which was specified in having the 20 year life. Q. Was it one of your objectives in making an investigation and inquiry into Dual 80 that Certain-Teed be willing to bond any material in this application on a 20 year bond specification? A. I am quite sure it was.

I can’t remember exact conversations but this was the tone of all concerned, durability and, therefore, bondability.” The architect did approve the use of Certain-Teed’s and Dow’s materials; Goslee thereupon purchased and used both products. Goslee began roofing the library at Chesapeake College on April 15, 1968, the Science Building on June 17, 1968, the Humanities Building on August 22, 1968, the Gymnasium on October 8, 1968 and the College Center on November 19, 1968. Each building’s roof took approximately one month to complete. ⁴⁵⁹ On March 13, 1969, Goslee was notified of leaks in the roofs of the Library, Science and Humanities Buildings. Goslee inspected these roofs and found a number of splits in the membrane along the longitudinal joints of the substrate.

In June 1969, due to pressure from the owner and general contractor, Goslee attempted to correct the leaks by removing the loose slag in the areas where the splitting had occurred and flooding those areas with asphalt. Less than 3 months after this action, however, the leaks reappeared. Goslee, on the continued urging of Chesapeake College and Brohawn concerning corrective action, sought the advice of Certain-Teed personnel. Goslee then re-roofed the three buildings in accordance with Certain-Teed’s advice during the fall of 1969.

In the meantime Goslee received complaints that the roofs of the Gymnasium and College Center Building were leaking due to the same type of splitting in the membrane as had been encountered in the other three buildings. On May 5, 1970, Tomlinson requested Brohawn to take immediate steps to replace the roofs of the Gymnasium and College Center. This letter failed to achieve the desired result and Tomlinson wrote another letter dated July 17, 1970 which read as follows: “In our letter of 5 May you were requested to take immediate steps to completely replace the roofs on the College Center and the Physical Education Buildings, since both of these roofs have now shown the expected deterioration, failure and interior damages. To date we are not aware that any efforts have been made to comply with the requests of that letter. “You are, therefore, notified, in accordance with the terms of the Contract as stated above, that unless work has been started on the complete replacement of the roofs on the College Center and Physical Education Buildings on or before 3 August 1970, the Owner will exercise his right to carry out the work and employ another roofing firm to provide the necessary roofing and insulation replacements.

This notice to you complies with the terms of the ⁴⁶⁰ Contract in that at least 7 days will have elapsed from the time which you received it and the time that other steps will be taken to provide satisfactory work as required by the conditions of your Contract. * * * * After the contents of this letter were disclosed to Goslee, it commenced within the time limit to re-roof these buildings in the same manner it had re-roofed the others. The re-roofing procedure substituted fiber-glass insulation for Dow’s Styrofoam RM; Certain-Teed’s Dual 80 felts were again used. Certain-Teed’s Appeal A. The Warranty and the Breach • Certain-Teed claims that it breached no warranty running to Goslee. Goslee on the other hand claims that all three of the traditional warranties were breached by Certain-Teed.

We find that Certain-Teed did give and breach an implied warranty of fitness for a particular use. Md. Code, Art. 95B, § 2-315 defines the implied warranty of fitness for a particular use: “2-315. Implied warranty; fitness for particular use; applicable to lease and bailment of goods; (1) Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.” The particular use envisioned by Goslee was that Certain-Teed’s membranes when used in a built-up roofing system in conjunction with Dow’s substrate would produce a 20 year bonded roof. One of the Goslee experts, Stafford, ⁴⁶¹ testified that Certain-Teed’s Dual 80 GSI was inherently too weak to survive normal weather conditions for twenty years and therefore should not be used for a roof that must qualify for a twenty-year bond.

To qualify for a twenty-year bond the membranes should have a tensile strength of 110-120 pounds per lineal inch, whereas, Certain-Teed’s Dual 80 GSI’s tensile strength is only 50-58 pounds per lineal inch. Robert E. Link, President of the National Roofing Contractors Association, testified that according to a survey conducted by that organization, there were ten times the number of problems reported on two-ply coated systems than on all other built-up roofing systems. Another expert produced by the plaintiff, Edward M. Ream, a roofing contractor, stated that he had ceased using Certain-Teed’s two ply system and Dow’s Styrofoam RM due to several leakage problems he had encountered in the past. This evidence makes clear the fact that Certain-Teed’s product was not fit for the particular use required by Goslee.

Certain-Teed attempts to escape liability in a number of ways. First it argues that the particular use was not communicated to it by Goslee and that thus the warranty was not created. This proposition is clearly incorrect in light of comment 1 to § 2-315 which provides as follows: “1. Whether or not this warranty arises in any individual case is basically a question of fact to be determined by the circumstances of the contracting.

Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his reliance on the seller’s skill and judgment, if the circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.” See Myers v. Montgomery Ward & Co., 253 Md. 282, 295 , 252 A. 2d 855 (1969), quoting from Hawkland, A Transactional Guide to the Uniform Commercial Code (1964) § 1.19020702. In the instant case it is clear that Certain-Teed’s agents had ⁴⁶² reason to know and, in fact, did know of the particular use contemplated by Goslee. Certain-Teed also argues that Goslee could not have relied on Certain-Teed’s expertise or skill because it was not represented at the conference with the architect when Certain-Teed’s product was approved.

This argument is a complete non-sequitur as a representative of Certain-Teed originally contacted Goslet, in an attempt to substitute Certain-Teed’s product for that called for in the specifications. The testimony of Goslee’s general manager, Webster, that he told Certain-Teed’s salesman, Beauchamp, that if he, Beauchamp, could convince the architect to substitute Certain-Teed’s product, Goslee would go along shows sufficient reliance by Goslee. Certain-Teed argues that reliance on its skill by Goslee was nonexistent because the architect performed his own investigation. The obvious answer to this contention is that any investigation was done by the architect, not Goslee.

We are also constrained to point out that the investigation, which consisted of the architect contacting several companies which had used Certain-Teed’s product and whose names were supplied by Certain-Teed’s representative, was not such that it would negate reliance. Compare Shay v. Joseph, 219 Md. 273 , 149 A. 2d 3 (1959), where the Court found a lack of reliance because the purchaser had performed tests on the seller’s product for three weeks prior to the sale and because it had specifically relied on those tests in deciding to buy. Certain-Teed also argues that no breach occurred because its product was at all times eligible for a 20 year bond which it claims was all that was warranted. This contention was fully answered by the trial court: “In its effort to escape liability, Certain-Teed raises two other points, the first of which is that it had fully discharged its obligation to Goslee when it signified its willingness to bond the roofs as soon as they had been completed and would have done so had the owner been willing to pay the premium for ⁴⁶³ such a bond.

This argument is specious to say the least, for, as we view it, Certain-Teed’s warranty of fitness for this particular purpose meant that its membrane applied over Styrofoam RM would provide a water-tight roof for a period of twenty years regardless of whether or not it was bonded. The promised performance of the Dual 80 GSI two-ply roofing system was in no way conditioned on the purchase of a bond.” Certain-Teed’s final attempt to escape is grounded on its contention that roofing industry custom has established that all that a seller warrants is that a bond will be issued on request and not that a roof will not leak. From this basis it argues that any warranty it may have given to Goslee was excluded or modified under Md. Code, Art. 95B, § 2-316 (3) (c). While that section clearly provides for the exclusion or modification of warranties in certain cases, this is not one of them.

Here our review of the record shows that Certain-Teed did not establish that the custom of the trade is as it alleges. There was therefore no modification. B. Causation Certain-Teed contends that Goslee failed to show that the breach of warranty by Certain-Teed was the proximate cause of the injuries suffered by Goslee. In a cause of action based on breach of warranty a plaintiff must show, as in typical negligence cases, that the breach was the proximate cause of the harm suffered.

Comment 13, Art. 95B, § 2-314. The two-step judicial procedure to determine what is or is not a proximate cause was described in Peterson v. Underwood, 258 Md. 9, 16-17 , 264 A. 2d 851 (1970): “It should be clarified at this point that our inquiry is directed specifically to the issue of ‘causation in fact’ which has been regarded as an aspect of ‘proximate cause.’ W. Prosser, Handbook of the Law of Torts, § 41, at 240 (3d ed. 1964), 2 F. Harper and F. James, The Law of Torts, § 20.2, at 1110 (1956). Proximate cause ultimately involves a ⁴⁶⁴ conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation.

Thus, although an injury might not have occurred ‘but for’ an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury. Bloom v. Good Humor Ice Cream Co., 179 Md. 384 , 18 A. 2d 592 (1941), or if the injury is so remote in time and space from defendant’s original negligence that another’s negligence intervenes. Dersookian v. Helmick, 256 Md. 627 , 261 A. 2d 472 (1970); Liberto v. Holfeldt, 221 Md. 62 , 155 A. 2d 698 (1959). “Causation in fact is concerned with the more fundamental (and some have thought metaphysical) inquiry of whether defendant’s conduct actually produced an injury.” The expert testimony regarding causation came from Goslee’s witness, Robert M. Stafford. Due to its importance we quote from it at length: “Q. Did you make any observations and come to any conclusions with respect to the two ply membrane in terms of its strength or ability to resist the stresses to which it was subjected under the thermal expansion you have just described?

A. Well, obviously it couldn’t resist the stresses that were applied by the movement of the sub-straight in this instance because it failed, therefore the strength was exceeded. A two ply membrane is a relatively week membrane insofar as built up roofing membrane is concerned. The strength actually is probably something less than 50%, and I am speaking of tensile strength, is probably something less than 50% of that of a four ⁴⁶⁵ ply roof. There has been a great deal of research and thought and experimentation in the area of how much strength a built up roof needs, and while I really can’t say there has been definitive answers reached in this matter, it is pretty generally the opinion of those people who have worked in this area that a built up roof should have a strength of somewhere in the neighborhood of 110 to 120 pounds per inch.

The two ply roof runs somewhere in the neighborhood of 50-58 pounds per inch of tensile strength so, based upon the studies, as well as experience over the years, it is my opinion that the two ply roof doesn’t have the strength that is normally required to withstand normal stresses in any built up roof membrane. The Court: That’s 110 to 120 pounds per inch? A. Yes, sir, that’s per lineal inch actually. This is probably the explanation for the early failure, relatively early failure in this roof.

It is my opinion that at some time under these same conditions, if a four ply roof had been applied, that four ply roof would have ruptured also. However, I don’t believe it would have been that early. Normally it would have taken several years for this to occur. Q. Mr. Stafford, to guard against the possibility that there can be any misunderstanding or misinterpretation of your opinion, I would ask you again if you would summarize for us now your opinion as to the primary cause of the failure of this roof?

A. The primary cause of failure was the movement of the insulation which resulted in rupturing of the roof membrane. The roof membrane fractured earlier in its life than would normally have been expected because of the relatively inherent weakness of the membrane. * * * * Q. Now we spoke earlier of this opinion which ⁴⁶⁶ you gave us as to the primary cause of the failure of this roof. Were there, in your judgment, any secondary causes and, if so, what were they? A. I really don’t know of any causes that we could classify as a secondary cause.

Of course, the primary cause is rather broad and you might say what effect brought on the primary cause and consider it a secondary cause. I would not consider it that way. The single cause of the failure was the movement of the insulation. Now, so far as I know, there was no other factor involved in the failure except for contributing factors.

Q. Well, I used the word secondary intending it to mean synonymous with contributing. Were there any other contributing factors that operated as a proximate cause of this failure? Mr. Sharpe: I object to proximate cause. That’s legal question for Your Honor to decide.

Mr. Wood: There is no showing the witness knows what the word proximate cause means. Mr. Goldsborough: You understand what proximate cause means? A. I thought I did until this conversation, and now I am not so sure. Maybe you better enlighten me.

Q. Well, proximate cause simply means a cause which directly leads to the consequences under consideration. A. Thank you. Q. Were there any other contributing causes to this roof failure in your judgment and opinion? A. No. In my opinion there were not.

Again I must add that this is possibly an arguable answer but because of the opinion that someone might place upon significance of cause, but it is my opinion that there was no other significant cause and, well, that’s it. The Court: I had understood you to say that the ⁴⁶⁷ lack of tensile strength of the membrane was a cause. A. This was a cause of the timing of the failure. I do not think that it was an actual cause of the failure.

In other words, if there had been a stronger roof on here, a conventional four ply roof, for instance. The Court: You said it would only last three or four years and this roof was built to last twenty? A. That’s correct, so from that point of view perhaps it could be interpreted as a contributing cause. I think it is a question of what I feel is contributing and what is time.

Q. Let’s try it this way, Your Honor, if we may, Mr. Stafford. Assume that the plans and specifications and the general conditions of this contract supplied the roofer, Goslee Roofing, to furnish a water tight built up roof that would qualify for a twenty year bond, now would the physical properties of the membrane in this instance of Certain-Teed Dual 80 contribute as a cause to the failure of this roof to survive as a water tight entity for twenty years? * * * % A. Yes. Q. In what respect and to what extent? A. In the respect that if there had not been the movement in the insulation which we have noted or, in other words, if the insulation in the sub-straight had been stable, it is my opinion that the Certain-Teed Dual 80 would not have lasted trouble free for a period of twenty years.

Q. Why? A. Because it is not a suitable membrane for a twenty year built up roof. Q. By