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Window Specialists, Inc. v. Forney Enterprises, Inc.

United States District Court, D. Columbia.

March 18, 2014

WINDOW SPECIALISTS, INC., Plaintiff,
v.
FORNEY ENTERPRISES, INC., et al., Defendants

Page 53

For WINDOW SPECIALISTS, INC., UNITED STATES OF AMERICA for the use and benefit of, Plaintiff, Counter Defendant: Shawn C. Whittaker, LEAD ATTORNEY, WHITTAKER & ASSOCIATES, PC, Rockville, MD.

For FORNEY ENTERPRISES, INC., HANOVER INSURANCE COMPANY, Defendants: Robert Dixon Windus, LEAD ATTORNEY, Brian F. Wilbourn, PRO HAC VICE, Jason Constantine, MOORE & LEE, LLP, McLean, VA.

For FORNEY ENTERPRISES, INC., Counter Claimant: Robert Dixon Windus, LEAD ATTORNEY, Brian F. Wilbourn, PRO HAC VICE, MOORE & LEE, LLP, McLean, VA.

OPINION

Page 54

ROSEMARY M. COLLYER, United States District Judge.

Plaintiff, sub-subcontractor Window Specialists, Inc., brought suit for breach of contract against Forney Enterprises, Inc., alleging that Window Specialists was wrongfully terminated and it is owed monies for labor and materials. Forney Enterprises countersued for breach of contract and indemnification, contending that the work done by Window Specialists was substandard. Plaintiff now moves for partial summary judgment. As explained below, the motion will be granted in part.

I. FACTS

The contract at issue here arose from a U.S. Army project to improve property at Fort McNair in Washington, D.C. General contractor, IIU Consulting Institute, Inc. (IIU), entered into a contract with the Army for the McNair improvements, and Hanover Insurance executed a performance bond on the contract. See Compl. [Dkt. 1], Ex. 1 (Performance Bond and Army/IIU Contract).[1] In December of 2010, IIU subcontracted with Forney Enterprises, Inc. (Forney), and Forney in turn subcontracted with Window Specialists, Inc. (WSI) for labor and material for the supply and installation of over 680 windows and over 60 doors at Fort McNair. Compl. ¶ 11; id., Ex. 2 (Forney/WSI Contract). The Army found various deficiencies in the work on the project and on May 25, 2011, the Government's contracting officer sent IIU a 10-day cure notice. Id., Ex. 3 (Cure Notice). The Cure Notice stated:

Work performed thus far by contractor has been substandard and poorly executed. Means and methods used for all aspects of work show lack of professional experience and unqualified technicians onsite performing the work. Demolition has been performed recklessly and restoration of openings cannot be done properly because the substrate has been butchered to the point that [it] inhibits the proper application of follow-on material, i.e., trim, stop, storm windows, etc.
Additionally, new window units were installed but left unfinished for days allowing drafts and insects to enter despite attempts at sealing surrounds with insulation. Windows and storm windows were not measured and verified for proper sizing prior to demolition creating situations where ill-fitting windows and storm windows were installed regardless. . . . Poor joinery of trim had resulted in open joints filled with caulk to compensate for the poor cuts. Finish caulking was not tooled properly nor wiped down to achieve a finished appearance. . . .
Some windows would be considerably square where as some would have a 2" space from the sill to bottom of the glazing stop on one side and have a 2 3/4" space on the other side. The fact that the holes for our balances to go into were unsquare was a huge issue in this situation. . . .
Window manufacturer claims that many windows were not measured correctly and will not function correctly in their current state. Contractor has made negative comments onsite to me . . . about the quality of windows and that this product is not the correct application

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for the job. If this is so, why wasn't an alternative product that meets historical requirements and is a better fit offered prior to ordering 600 units that may not work?

Id. ; see also Opp'n [Dkt. 43], Ex. 1 (Ukoh Aff.)[2] ¶ 8.

Forney claims that the majority of the issues in the Cure Notice had to do with WSI's poor workmanship. See Opp'n at 4. WSI hotly contests this, alleging that the deficiencies were all within IIU's scope of work because IIU did not properly supervise, prepare the window and door openings, or perform the trim work after installation. Mot. for Partial Summ. J. [Dkt. 41-1] at 2-4. Under the Forney/WSI contract, WSI's scope of work excluded demolition and interior trim. See Forney/WSI Contract.

The window deficiencies were not corrected, and on June 29, 2011, IIU sent a notice of termination to Forney. Compl., Ex. 9 (Notice of Termination). On September 20, 2011, Forney formally terminated WSI. According to IIU, all window installation done by WSI was demolished, and all windows were reordered and reinstalled. Ukoh Aff. ¶ 20. IIU also asserts that none of the doors purchased by WSI could be used, and all of the doors were reordered. Id. ¶ 21. Because IIU claimed that WSI's work was deficient, it did not pay WSI's second, third, and fourth payment applications, totaling $936,967.00.[3]

WSI disputes that its work was in any way deficient and seeks payment on its contract with Forney. On September 7, 2011, WSI filed a Complaint against Forney, Hanover, IIU, ...


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