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CCB Ohio LLC v. Chemque, Inc.

United States District Court for the Southern District of Ohio, Western Division

August 12, 2009, Decided; August 12, 2009, Filed

NO. 1:07-CV-00541

Opinion

 [*759]  OPINION AND ORDER

This matter is before the Court on Defendant's Motion for Summary Judgment (doc. 46), Plaintiffs' Response in Opposition (doc. 62), and Defendant's Reply (doc. 65). Also before the Court is Plaintiffs' Motion for Partial Summary Judgment (doc. 52), Defendant's Response (doc. 59), and Plaintiffs' Reply (doc. 70); as well as Plaintiffs' Motion to Strike (doc. 69), Defendant's Response in Opposition (doc. 72), and Plaintiffs' Reply (doc. 74). The Court held a hearing on all such motions on July 16, 2009. For the reasons indicated herein, the Court GRANTS IN PART Defendant's Motion to the  [**2] extent that it DISMISSES Count 10 of Plaintiffs' Complaint, but DENIES the balance of such motion, as well as the other pending motions.

I. Background

Plaintiffs (CURRENT Group, LLC, Current Technologies, LLC, CCB Ohio LLC, and Current Communications, LLC) (hereinafter, collectively, "CCB") are in the business of enabling integrated broadband over power line, a technology that permits electric companies to monitor their grids as well as allowing for broadband communications services through existing electrical wires (doc. 26). Defendant Chemque, Inc., ("Chemque") manufactures chemical products, including "Q-Tel" gel, the product at issue in this case 1 (Id.). Plaintiffs allege that Defendant sold them Q-Tel gel for use in sealing couplers on outdoor electric lines, but that the gel failed to solidify as Defendants had indicated it would, but rather reverted to liquid, leaked out, and caused property damage (Id.).

A. History of  [**3] the Parties' Interaction

The facts as supported by the briefing are as follows. Plaintiffs' subconcontractor, Joslyn Manufacturing, Inc., ("Joslyn"), initiated contact with Defendant in 2003, seeking a product to serve to encapsulate coupler units connecting medium voltage electrical wires (doc. 62). In response, Defendant sent information stating its Q-Tel product would form "a strong moisture impermeable barrier" (Id.). According to Plaintiffs, Plaintiffs' engineer, Joe Roesch, and Defendant further communicated about the proposed use for the gel, including that the device to be sealed was going to be outdoors, in the sun, hanging on  [*760]  utility poles, and in a marine type-environment with humidity and salt (Id.). Defendant takes the position that Plaintiffs failed to share any of this information, and that its data sheet for the product indicates its use is for encapsulating buried cable splices (doc. 59). According to Plaintiffs, Defendant played an active role in the selection of and recommendation of their Q-Tel 2031 product for use in the Plaintiffs' couplers (doc. 62). Plaintiffs purchased a quantity of Q-Tel product directly from Defendant to perform initial testing, which it completed  [**4] to its satisfaction (Id.). Defendants ultimately would critique the testing Plaintiffs performed, as Joe Roesch did not replicate testing of the product beyond mixing it in styrofoam cups and putting it on his windowsill (doc. 59).

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649 F. Supp. 2d 757 *; 2009 U.S. Dist. LEXIS 70895 **

CCB OHIO LLC, et al., Plaintiffs, v. CHEMQUE, INC., Defendant.

CORE TERMS

gel, warranty, couplers, disclaimer, manufacture, privity, non-movant, abrogated, leaking, sheets, replies, encapsulation, well-taken, genuine, misrepresentation, third-party, fraudulent, proffers, punitive, Partial, subcontractors, concealment, discovery, conform, merchantability, supplier, replace, cure

Civil Procedure, Judgments, Summary Judgment, Evidentiary Considerations, Entitlement as Matter of Law, General Overview, Burdens of Proof, Nonmovant Persuasion & Proof, Movant Persuasion & Proof, Commercial Law (UCC), Contract Provisions, Warranties, Torts, Business Torts, Fraud & Misrepresentation, Products Liability, Governments, Legislation, Statute of Limitations, Time Limitations, Begins to Run, Unfair Business Practices, Negligent Misrepresentation, Elements, Remedies, Damages, Punitive Damages, Theories of Liability, Breach of Warranty