Opinion
C.A. No. PC-2015-0995
05-10-2018
PROVIDENCE CAPITAL, LLC Plaintiff, v. LUMBER LIQUIDATORS, INC. and RYAN BAKER, Defendants/Third-Party Plaintiffs, v. KEVIN MORAN, Individually and d/b/a PREMIER LAND DEVELOPMENT, INC. and FRANK'S FLOOR COVERING, LLC, Third-Party Defendants.
ATTORNEYS: For Plaintiff: Michael A. Kelly, Esq. For Defendant: Mark P. Dolan, Esq.; Timothy J. Robenhymer, Esq.; Audrey L. Bradley, Esq.; Luana Disarra Scavone, Esq.; Stephen Izzi, Esq.; Matthew W. Perkins, Esq.
DECISION SILVERSTEIN , J. Before the Court for decision are several dispositive motions filed by Defendants and Third-Party Plaintiffs Lumber Liquidators, Inc. and Ryan Baker (Baker) (collectively, Lumber Liquidators) and Third-Party Defendants Kevin Moran (Moran), Premier Land Development, Inc. (Premier), and Frank's Floor Covering, LLC (Frank's Floor Covering). Lumber Liquidators has submitted a motion for summary judgment with respect to Plaintiff's Complaint and, in the alternative, a partial motion for summary judgment on its Second Amended Third-Party Complaint (Third-Party Complaint) against Third-Party Defendants Moran and Premier. Third-Party Defendants Moran and Premier have also filed a motion for summary judgment with respect to Lumber Liquidators' Third-Party Complaint. Third-Party Defendant Frank's Floor Covering has filed a motion to dismiss Lumber Liquidators' Third-Party Complaint pursuant to Super. R. Civ. P. 14 and 12(b)(6). This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14 and Rules 12(b)(6), 14, and 56 of the R.I. Superior Court Rules of Civil Procedure.
I
Facts and Travel
Plaintiff Providence Capital, LLC (Providence Capital or Plaintiff) developed property located at 100 Dorrance Street, Providence, Rhode Island (the Property). The Property is divided into three distinct sections, referred to as (a) the Main Building; (b) the Teste Building; and (c) Garage Units. The Main Building is comprised of forty residential units. Sixteen additional residential units—along with commercial restaurant space—are contained within the other two sections.
Providence Capital is solely owned and managed by Vincent Geoffroy (Geoffroy). In connection with the development of the Property, Providence Capital hired Premier to serve as the general contractor. Moran, an employee of Premier, served as the Project Manager. As part of the project's construction phase, Geoffroy and Moran sought the assistance of Baker, Sales Manager for Lumber Liquidators, in selecting a type of flooring suitable for luxury rental apartments. Premier, per Geoffroy's instructions, purchased approximately $100,000 to $125,000 of bamboo flooring from Lumber Liquidators. The specific bamboo flooring purchased by Premier is a "floating floor" model which is neither nailed nor glued to the subfloor; rather, each board is attached to the adjacent boards and "floats" on the subfloor.
The parties cite to various depositions and affidavits of individuals associated with this action that provide figures of either $100,000 or $125,000. See, e.g., Baker Dep.; Moran Aff.
Premier retained Frank's Floor Covering as a subcontractor to install the bamboo flooring in the residential units of the Main Building. Installation instructions for the bamboo flooring recommend the use of transition molding—or T molding—in various locations, such as doorways and lengths of floor longer than twenty-seven feet. The T molding is installed perpendicular to the bamboo flooring to accommodate for expansion and contraction in the wood. Per Geoffroy's instructions, Frank's Floor Covering did not install T molding in the residential units. The flooring's installation instructions also called for the inclusion of expansion spaces along the perimeter of each room as an additional measure to accommodate expansion and contraction of the flooring. Frank's Floor Covering installed the flooring in all forty residential units in the Main Building from approximately August 2012 to April 2013. Following installation by Frank's Floor Covering, contraction of the flooring was observed, and additional flooring was inserted by Premier between the wall and the previously installed flooring to correct this issue. This corrective measure resulted in the elimination of the perimeter expansion spaces.
The bamboo "floating floor" was only installed in the Main Building. The flooring installed in the Teste Building and the Garage Units was either nailed or glued to the subfloor.
In May of 2013, Premier—through Moran—filed a warranty claim with Lumber Liquidators asserting that the flooring installed in at least three residential units had separated, expanded or contracted. Lumber Liquidators employed an independent inspector to verify Premier's complaint. The inspector only viewed three of the forty residential units in the Main Building. The inspection revealed that the flooring in the three units had experienced buckling, in part as a result of the lack of expansion spaces and fluctuations in the humidity levels due to the HVAC system being turned off for a period of time.
Following the independent inspector's inspection, Lumber Liquidators notified Premier that the flooring issues were "site related" and not due to a defective product. Lumber Liquidators and Premier thereafter agreed to a settlement of the complaint which consisted of $17,000 in store credit which was memorialized in a General Release (the Release). Moran testified that he executed the Release after consulting with Geoffroy; however, Geoffroy expressly denies discussing the Release with Moran prior to execution.
Specifically, the Release states: "For valuable consideration in the form of a store credit in the amount of Seventeen Thousand Dollars ($17,000.00), the sufficiency of which is hereby acknowledged, the undersigned Kevin Moran D/B/A Premier Development ("CLAIMANT"), agrees, promises, represents and warrants as follows[.]"
Approximately two years after the execution of the Release, Providence Capital filed suit against Lumber Liquidators asserting claims for, inter alia, intentional misrepresentation and breach of implied warranty of merchantability. Providence Capital's claims specifically arise from what it contends was a defective product. Lumber Liquidators subsequently filed its Third-Party Complaint against the Third-Party Defendants seeking, inter alia, contribution and tort indemnification. Frank's Floor Covering—one of the Third-Party Defendants—filed a motion to dismiss Lumber Liquidators' Third-Party Complaint, and Premier and Moran—the other Third-Party Defendants—filed a motion for summary judgment with respect to Lumber Liquidators' Third-Party Complaint. Lumber Liquidators filed a motion for partial summary judgment with respect to Providence Capital's Complaint or, alternatively, partial summary judgment on its Third-Party Complaint against Premier and Moran. Lumber Liquidators also objected to both Third-Party Defendants' motions. Both Moran and Premier and Providence Capital later filed objections to Lumber Liquidators' motion.
II
Standard of Review
"It is a fundamental principle that '[s]ummary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.'" Takian v. Rafaelian, 53 A.3d 964, 970 (R.I. 2012) (alteration in original) (quoting Emp'rs Mut. Cas. Co. v. Arbella Prot. Ins. Co., 24 A.3d 544, 553 (R.I. 2011)). In ruling on a motion for summary judgment, the Court is instructed to "review[] the evidence and draw[] all reasonable inferences in the light most favorable to the nonmoving party," id. (citation omitted) (internal quotation marks omitted), and to "'look for factual issues, not determine them.'" Steinhof v. Murphy, 991 A.2d 1028, 1032-33 (R.I. 2010) (quoting Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981)). However, summary judgment is appropriate "'if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'" Takian, 53 A.3d at 970 (quoting Classic Entm't & Sports, Inc. v. Pemberton, 988 A.2d 847, 849 (R.I. 2010) (internal citation omitted)); see Super. R. Civ. P. 56(c).
Unlike a motion for summary judgment, "'the sole function of a motion to dismiss is to test the sufficiency of the complaint[.]'" Audette v. Poulin, 127 A.3d 908, 911 (R.I. 2015) (quoting Ho-Rath v. R.I. Hosp., 115 A.3d 938, 942 (R.I. 2015)). In testing the complaint's sufficiency, the Court's "review is confined to the four corners of that pleading," id. (citation omitted), and the Court "'assumes the allegations contained in the complaint to be true and views the facts in the light most favorable to the plaintiff[].'" R.I. Emp't Sec. All., Local 401 v. State, Dep't of Emp't & Training, 788 A.2d 465, 467 (R.I. 2002) (hereinafter, R.I. Emp't) (per curiam) (quoting St. James Condo. Ass'n v. Lokey, 676 A.2d 1343, 1346 (R.I. 1996)). In other words, "'[w]hen ruling on a Rule 12(b)(6) motion, the [Court] must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor.'" Pellegrino v. R.I. Ethics Comm'n, 788 A.2d 1119, 1123 (R.I. 2002) (quoting R.I. Affiliate, ACLU v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)); see also Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008). Accordingly, a motion to dismiss "should not be granted 'unless it appears to a certainty that the plaintiff[] will not be entitled to relief under any set of facts which might be proved in support of [its] claim."' R.I. Emp't, 788 A.2d at 467 (internal alterations omitted) (quoting St. James Condo Ass'n, 676 A.2d at 1346).
III
Discussion
A
Lumber Liquidators' Motions for Summary Judgment
1
Providence Capital
Lumber Liquidators asserts that all claims against it are barred pursuant to the Release executed by Moran. It contends that Moran, acting in his capacity as Project Manager and employee of the general contractor, Premier, was at all relevant times acting as Providence Capital's agent and therefore possessed sufficient authority to bind Plaintiff to the terms of the Release through his execution of that document. In particular, Lumber Liquidators contends that Geoffroy specifically identified Premier to Lumber Liquidators as Providence Capital's Owner's Representative and Construction Manager during the visit in which he selected the bamboo flooring. Additionally, Lumber Liquidators points to Premier's authority to purchase the flooring for the development of the Property and, following the alleged defect, Premier's handling of the complaint process on behalf of Providence Capital.
Providence Capital, however, asserts that there are genuine issues of material fact that must be left for the fact finder's ultimate determination; namely, whether Moran and Premier were, in fact, agents of Plaintiff capable of binding it to the terms of the Release. In addition to issues of material fact, Providence Capital also asserts that the Release is ambiguous, lacks adequate consideration, and is not enforceable because there was no meeting of the minds, particularly with regard to the scope of the Release.
The relevant provisions of the Release are transcribed, in full, below:
" 1. CLAIMANT, for CLAIMANT, CLAIMANT's heirs, spouses, agents, executors, administrators, representatives, predecessors, successors, and assigns, hereby forever releases, acquits, remises, quitclaims, and discharges [Lumber Liquidators] and its agents, executors, administrators, representatives, predecessors, successors, assigns, officers, directors, employees, insurers, affiliates, parents, and subsidiaries, of and from any and all claims, costs, expenses, demands, disputes, debts, losses, actions, causes of action, suits, damages, and liabilities of every kind or nature whatsoever, whether direct or indirect, known or unknown, accrued or unaccrued, and/or past, present or future, on account of, growing out of, arising from, or in any manner incidental to, or connected with the flooring and other goods purchased from [Lumber Liquidators] (the "Materials"), the installation of the Materials, and/or any claim that was asserted or that could have been asserted by Claimant against [Lumber Liquidators].Pursuant to these provisions of the Release, Lumber Liquidators contends that Providence Capital, acting through its agent, agreed to indemnify and release it from any potential claims "connected with the flooring and other goods purchased . . . (the "Materials"), the installation of the Materials, and/or any claim that was asserted or that could have been asserted . . . ." Notably, Claimant is defined at the outset of the Release as "Kevin Moran D/B/A Premier Development[.]" Neither Providence Capital nor Geoffroy is mentioned in the Release.
. . . .
" 3. CLAIMANT agrees to indemnify, release, hold harmless, and defend [Lumber Liquidators] and its agents, executors, administrators, representatives, predecessors, successors, assigns, officers, directors, employees, insurers, affiliates, parents, and subsidiaries, of and from any and all claims, demands, liens, rights, debts, damages, costs (including attorney's fees), expenses, fees, actions, and causes of action related to, regarding or stemming from any claim, action or cause of action asserted by any third-party, person or entity that relates to or arises out of the CLAIMANT's purchase of the Materials from [Lumber Liquidators] or the installation of the Materials."
The above-quoted provisions originally use the abbreviation "LLI" to refer to Lumber Liquidators, Inc. In order to improve readability, the name Lumber Liquidators has been substituted in brackets.
"It is important to bear in mind that the 'purpose of the summary judgment procedure is issue finding, not issue determination.'" Jackson v. Quincy Mut. Fire Ins. Co., 159 A.3d 610, 612-13 (R.I. 2017) (quoting Indus. Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979)). In the case at bar, there appear to be a number of facts that the parties are unwilling to reconcile. The facts at issue range from the banal and easily verified—i.e., how much flooring was purchased by Premier in connection to the development—to more complex determinations—such as whether Premier was indeed acting as Providence Capital's agent with respect to the settlement. Our Supreme Court has previously stated that "[a]n agency relationship exists when three elements coalesce: (1) the principal must manifest that the agent will act for him, (2) the agent must accept the undertaking, and (3) the parties must agree that the principal will be in control of the undertaking." Rosati v. Kuzman, 660 A.2d 263, 265 (R.I. 1995) (citing Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 867 (R.I. 1987)). Further, "[t]he essence of an agency relationship is the principal's right to control the work of the agent, whose actions must primarily benefit the principal." Id.
Here, disputed assertions between the parties create issues of fact regarding whether Providence Capital—as principal—had control over Premier—its alleged agent—with regard to the execution of the Release and whether the Release was executed to the primary benefit of Providence Capital or Premier. See Calenda v. Allstate Ins. Co., 518 A.2d 624, 628 (R.I. 1986) ("'The existence and scope of an agency relationship is essentially a factual determination.'") (quoting Petrone v. Davis, 118 R.I. 261, 266, 373 A.2d 485, 487 (1977)) (internal brackets omitted). "Summary judgment is appropriate only when the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Jackson, 159 A.3d at 613 (quoting Sola v. Leighton, 45 A.3d 502, 506 (R.I. 2012)) (internal brackets omitted). As stated above, questions regarding issues of material fact regarding the alleged agency relationship between Providence Capital and its general contractor, Premier, and Project Manager, Moran, remain to be determined. See Calenda, 518 A.2d at 628. Accordingly, Lumber Liquidators' motion for summary judgment with respect to Providence Capital is denied.
2
Premier
Alternatively, Lumber Liquidators asserts that it is entitled to partial summary judgment on its claims for a defense and indemnification from Premier. Premier asserts that the Release was executed with respect to the three units which comprised the warranty claim and which were inspected by the independent inspector. Lumber Liquidators argues that similar issues with the flooring had been discovered in multiple units exceeding the three inspected and that the $17,000 of store credits exceeded the installation costs associated with merely these three units. Lumber Liquidators further contends, however, that if the Release is found to cover only the inspected units, then Premier at a minimum ought to be obligated to defend and indemnify Lumber Liquidators with respect to those three units.
In addition to its objection regarding the scope of the Release, Premier further contends that the terms of the Release are ambiguous and, therefore, unenforceable. Moreover, Premier asserts that there are genuine issues of material fact regarding whether Lumber Liquidators acted in good faith regarding the scope of the Release and whether enforcement of the Release is unconscionable.
"Whether a contract's terms are ambiguous is a question of law." Nat'l Refrigeration, Inc. v. Standen Contracting Co., Inc., 942 A.2d 968, 971-72 (R.I. 2008) (citing Dubis v. E. Greenwich Fire Dist., 754 A.2d 98, 100 (R.I. 2000)). A contract may only be considered ambiguous "if 'it is reasonably and clearly susceptible of more than one interpretation.'" Id. at 972 (quoting Rotelli v. Catanzaro, 686 A.2d 91, 94 (R.I. 1996)). "'Contract interpretation is a question of law; it is only when the contract terms are ambiguous that construction of terms becomes a question of fact.'" Dubis, 754 A.2d at 100 (quoting Clark-Fitzpatrick, Inc. v. Gill, 652 A.2d 440, 443 (R.I. 1994)). It is well settled, however, that "[i]n determining whether or not a particular contract is ambiguous, the court should read the contract 'in its entirety, giving words their plain, ordinary, and usual meaning.'" Haviland v. Simmons, 45 A.3d 1246, 1258 (R.I. 2012) (quoting Young v. Warwick Rollermagic Skating Ctr., Inc., 973 A.2d 553, 558 (R.I. 2009)). Moreover, "a reviewing court should not seek out ambiguity where there is none." Roadepot, LLC v. Home Depot, U.S.A., Inc., 163 A.3d 513, 519 (R.I. 2017) (citing Botelho v. City of Pawtucket Sch. Dep't, 130 A.3d 172, 177 (R.I. 2016)). If ambiguity in a release is found, however, the ambiguity should be resolved against the drafting party. See La Belle v. Di Stefano, 85 R.I. 359, 363, 131 A.2d 814, 816 (1957).
In the instant matter, each party has put forth a different interpretation of the scope of the Release. Providence Capital has asserted that there is a question as to whether the Release pertains to (1) all flooring ever purchased from Lumber Liquidators by Premier and Moran; (2) all flooring products purchased in connection to the development of the Property; (3) all flooring products installed in the Main Building; or (4) only the flooring installed in the three units that were the subject of Moran's warranty claim. Moran and Premier, in essence, echo Providence Capital's assertion of ambiguity, but more vigorously assert that the only rational reading of the Release limits the scope to the three units contained in Moran's warranty claim. As supporting evidence, they further cite to an e-mail received from Lumber Liquidators describing the Release as the "full and final resolution to the complaint filed[.]" Conversely, Lumber Liquidators argues that the Release can only rationally relate to the flooring product installed in the forty units of the Main Building. It contends that all flooring in the Main Building was installed at the time of the complaint and that, at the time of the execution of the Release, only the installation of the flooring in the Main Building had occurred.
It appears to the Court that the parties here are attempting to redefine the term "Materials" contained in the Release. As quoted above, the Release is plain and unambiguous in defining the Materials as "the flooring and other goods purchased from [Lumber Liquidators]." There are no references contained in the Release to limit the terms of the agreement to materials purchased in conjunction with this project or the development of the Main Building. Nor is there language that limits the terms of the Release to the units referred to in Moran's warranty claim. Our Supreme Court, in analyzing the language of a release in an employment context, has previously stated that, "[w]hen . . . [the Court is] confronted with unambiguous contractual words, what is claimed to have been the subjective intent of the parties is of no moment." Young, 973 A.2d at 560; see also Vincent Co. v. First Nat'l Supermarkets, Inc., 683 A.2d 361, 363 (R.I. 1996) ("When a contract is unambiguous, . . . the intent of the parties becomes irrelevant."). Moreover, despite Moran and Premier's reliance on the e-mail received from Lumber Liquidators, "'in situations in which the language of a contractual agreement is plain and unambiguous, its meaning should be determined without reference to extrinsic facts or aids.'" Botelho, 130 A.3d at 176-77 (quoting JPL Livery Servs. v. R.I. Dep't of Admin., 88 A.3d 1134, 1142 (R.I. 2014)).
In giving the "words their plain, ordinary, and usual meaning[,]" the Court must determine that the Release, as written, relates to the flooring and materials purchased from Lumber Liquidators by Moran and Premier. Haviland, 45 A.3d at 1258. Thus, by signing the Release, Moran and Premier agreed "to indemnify, release, hold harmless, and defend [Lumber Liquidators] . . . from any claim, action or cause of action asserted by any third-party . . . that relates to or arises out of [their] purchase of [the flooring and materials purchased from Lumber Liquidators.]" See Release (emphasis added). Accordingly, Lumber Liquidators' motion for partial summary judgment on its claim for a defense and indemnification pursuant to the Release, or Count I of its Third-Party Complaint, is granted.
B
Moran and Premier's Motion for Summary Judgment
Moran and Premier assert that the indemnification provision included in the Release is not enforceable as a matter of law. Specifically, they contend that there is no specific language obligating them to indemnify Lumber Liquidators for its own negligence, there was inadequate consideration, and that Moran's not being represented by counsel prior to the execution of the Release results in an unenforceable agreement. With regard to the alleged negligence on the part of Lumber Liquidators, Moran and Premier contend that Providence Capital's Complaint is predicated on Lumber Liquidators' sale of defective product. Similarly, Moran and Premier assert that Lumber Liquidators' claims for contribution and tort indemnification must fail as a matter of law because the underlying Complaint alleges damages caused by a defective product, not an improper installation. Additionally, they argue that Lumber Liquidators' claim of negligent misrepresentation must also fail because it did not suffer harm as a result of the alleged misrepresentation.
Conversely, Lumber Liquidators asserts that the indemnification provision contained in the Release is enforceable because it is not seeking to indemnify itself for its own negligence. Rather, Lumber Liquidators maintains that the indemnification provision is intended to protect it with respect to further claims resulting from alleged defects regarding the same flooring that was the focus of the agreed upon settlement. Moreover, Lumber Liquidators argues that Moran was a sophisticated business person with years of experience in the industry and access to counsel; therefore, the fact that Moran did not seek the advice of counsel in this instance is irrelevant. With regard to the alleged insufficient consideration, Lumber Liquidators contends that the form of consideration is immaterial. Finally, Lumber Liquidators defends its third-party claims for contribution and tort indemnification because it is an issue of fact whether the damage suffered by Plaintiff was the result of a defective product, improper installation, or a combination of both.
In the instant action, the Court has determined that the Release signed by Moran represents an agreement to indemnify Lumber Liquidators from any claims arising from his, or Premier's, purchase of flooring or other materials. Moreover, the Court has also determined that there are genuine issues of material fact with regard to the agency relationship between Providence Capital and Moran and Premier. With regard to Moran and Premier's motion, there seemingly exists an issue of fact with regard to whether Moran consulted with Geoffroy prior to executing the Release. This consultation between Moran and Geoffroy is of particular importance because "'[t]he validity of a release must be determined in light of three factors: (1) the existence of consideration for the release, (2) the experience of the person executing the release, and (3) the question of whether the person executing the release was represented by counsel.'" Takian, 53 A.3d at 974 (quoting Guglielmi v. R.I. Hosp. Trust Fin. Corp., 573 A.2d 687, 689 (R.I. 1990)). If the Court finds "'satisfactory answers to these questions, the court will find a release to be valid and binding unless it has been procured through fraud, misrepresentation, overreaching, or a material mistake on the part of either party.'" Id (quoting Guglielmi, 573 A.2d at 689).
Here, consideration for the Release was provided in the form of $17,000 of store credit, and Moran possessed an adequate amount of relevant experience in light of his employment and status as Providence Capital's Project Manager for the development of the Property. Accordingly, the Court is satisfied that the first and second prongs of the aforementioned test have been satisfied. Nonetheless, with regard to the third prong, there is no evidence that Moran was represented by counsel prior to signing the Release. Indeed, Lumber Liquidators asserts that Providence Capital was represented by legal counsel at all relevant times, but does not contend in its memorandum that Moran or Premier was also adequately represented. Rather, Lumber Liquidators seemingly relies on the alleged agency relationship between Providence Capital and Moran and Premier to assert that legal counsel was present prior to Moran's execution of the Release. Accordingly, the Court finds that genuine issues of material fact remain—specifically with regard to the existence of an agency relationship and whether Geoffroy was aware of the Release—before a final determination of Premier's motion may occur. Accordingly, Premier's motion for summary judgment is denied.
C
Frank's Floor Covering's Motion to Dismiss
Frank's Floor Covering argues that Lumber Liquidators, through its Third-Party Complaint, seeks to impose an independent liability between it and Providence Capital. Based upon the facts provided in the original Complaint, Frank's Floor Covering argues that it cannot be liable because the claims contained within the Complaint arise from contractual and product warranty liabilities. Lumber Liquidators opposes this motion under an essentially identical theory presented above; namely, that its claims are proper because a finder of fact may find that the product was defective, installed improperly, or some combination of the two. Therefore, Lumber Liquidators contends that its claims of contribution and tort indemnification are appropriate.
As discussed above, our Supreme Court has stated that "[a] defendant may not file such a complaint based solely on a third-party defendant's liability to the original plaintiff." Iorio v. Chin, 446 A.2d 1021, 1023 (R.I. 1982). Rather, "[a] defendant may file a third-party complaint only if the third-party defendant is or may be liable to the original defendant." Id. Here, Lumber Liquidators' argument is seemingly based upon a theory that the claim brought by Providence Capital is improper because the flooring was incorrectly installed—that is, without the proper accommodations for the expansion and contraction of the wood. The Third-Party claims for contribution and tort indemnification brought against Frank's Floor Covering, therefore, are inappropriate because they amount to a contention that it—as opposed to Lumber Liquidators—is directly liable for Plaintiff's damages. See Iorio, 446 A.2d at 1023; see also, Robert B. Kent et al., Rhode Island Civil and Appellate Procedure § 14:1 at 161 (2017); 6 Wright & Miller, Federal Practice and Procedure; Civil 3d § 1446. Accordingly, Frank's Floor Covering's motion to dismiss is granted.
IV
Conclusion
For the reasons stated herein, the Court denies Defendant and Third-Party Plaintiff Lumber Liquidators' motion for summary judgment and grants its partial motion for summary judgment with regard to Count I of its Third-Party Complaint. The Court further denies Third-Party Defendants Moran and Premier's motion for summary judgment. Finally, the Court grants Third-Party Defendant Frank's Floor Covering's motion to dismiss.
Counsel for the parties are directed to confer and present an agreed upon order consistent with the decisions herein.
ATTORNEYS:
For Plaintiff:
Michael A. Kelly, Esq.
For Defendant:
Mark P. Dolan, Esq.; Timothy J. Robenhymer, Esq.; Audrey L. Bradley, Esq.; Luana Disarra Scavone, Esq.; Stephen Izzi, Esq.; Matthew W. Perkins, Esq.