This matter concerns a complex construction lawsuit arising from the allegedly defective design and construction of townhomes located on the Ventnor City boardwalk. Plaintiff homeowners filed a lawsuit, suing, among other defendants, Universal Supply Co., the supplier of the windows and doors for the various townhome units at issue. Thereafter, Universal filed an Answer and a Third-Party Complaint against Viwinco, the manufacturer of the pre-assembled windows and doors. Universal successfully filed a motion for summary judgment and obtained a dismissal of all direct and third-party claims asserted against it. The issue in the recently released decision in Bendesky v. Waves, LP, 2023 N.J. Super. Unpub. LEXIS 3638 (Law. Div. Dec. 8, 2023) was whether the dismissal of Universal also resulted in the dismissal of all claims against the manufacturer, Viwinco.
Based upon the facts of this case, Universal ordered from Viwinco preassembled windows and patio doors. Neither Universal nor Viwinco installed the windows or doors in the townhomes. The plaintiffs’ expert witnesses opined that the windows and doors were defective and a source of water infiltration which caused the property damage to plaintiffs’ townhomes. They also opined that the windows and doors were not properly installed. Defendant Sto Corp’s expert also opined that the Viwinco windows and doors and their installations were both found to be sources for water penetration and resulting damage. Universal supplied an expert report which refuted these opinions, finding no evidence that any Viwinco window or door caused or contributed to the water infiltration experienced by the plaintiff homeowners.
Universal moved for summary judgment dismissal of all claims against it, as the supplier of the Ocean View windows and doors. The trial court granted that motion and dismissed with prejudice all direct, cross, and counterclaims against Universal.
The basis of the court’s decision was that Universal did not manufacture, assemble, or install any of the windows or doors. Thus, the court found that no reasonable factfinder could conclude that Universal had or breached a duty to the plaintiff homeowners. The court also found that Universal did not supply a warranty for the windows or doors. Rather, Viwinco, the manufacturer, had its own warranty.
After Universal was dismissed from the lawsuit, Viwinco claimed that there were no active claims against it, and it should similarly be dismissed. It argued that no party had asserted or pursued claims against Viwinco beyond Universal and it was too late in the litigation for any defendant to attempt to do so. Viwinco appeared to rely on the expert opinions proffered by Universal which conflicted with the expert opinions provided by the plaintiffs’ experts.
In response, defendants Sto Corp and The Waves claimed that their responsive pleadings did effectively preserve their cross-claims for contribution and indemnification against Viwinco, regardless of Universal’s dismissal from the matter. Further, they contended that the conflicting expert opinions precluded the entry of a summary judgment.
The trial court agreed with the arguments of Sto Corp and The Waves. The judge found that Sto Corp and The Waves defendants should not be estopped from proceeding with their cross-claims against Viwinco because Universal was no longer a party. Their theory against Universal and Viwinco were essentially the same, i.e. that the windows and doors were a source of water infiltration in the townhomes. It was undisputed that Viwinco did manufacture them.
Therefore, the court found that the declination of any party to contest Universal’s apparent lack of duty or warranty as to the windows did not estop that party from pursuing cross-claims for indemnification and contribution from Viwinco as the manufacturer of the windows and doors. The trial judge pointed out that there were currently pending independent third-party claims against Viwinco and that defendants were entitled to pursue them.
Further, Viwinco’s motion failed because there was conflicting evidence in the expert reports regarding the windows and doors and the water infiltration suffered by the plaintiff homeowners. It would be up to the finder of fact at trial to assess the credibility and weight of these opinions based upon the expert witnesses’ sworn testimony at trial. Hence, the trial court judge found that summary judgment as to Viwinco was not appropriate and denied the motion.