Date: 07-07-2014

Case Style: Flintco, LLC v. Thalden Boyd Architects, d/b/a Thaldenboyd Architects, et al.

Case Number: CJ-2012-4021

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Larry Lipe, Julia Forrester-Sellers and Chris Warzecha for Flintco

Defendant's Attorney: W. Michael Hill, Edward John Main and Eric L. Clark for Thalden Boyd, LLC, Charles Chief Boyd and Barry Richard Thalen

Dan Folluo, Christopher Allen Barrow, John Edward Harper, Randall E. Long and John J. Bowling for Advantage Glass, Inc.

Phil Richards, Grett Edward Gray, Andrew Dale Nichols, Rebkah Taylor and Christopher Lind for BRC, LLC

Patrick Dennis O'Connor for Green Country Interiors, Inc.

Stephen L. Olson and Amy Steele Neathery for Finnegan Erikson Associates

Description: FLINTCO LLC, Plaintiff, v. THALDEN BOYD ARCHITECTS, DBA THALDENBOYD ARCHITECTS Defendant, and
CHARLES CHIEF BOYD, Defendant, and BARRY RICHARD THALDEN, DBA THALDEN BOYD ARCHITECTS
Defendant, and THALDEN BOYD ARCHITECTS LLC, Defendant, and THALDEN BOYD EMERY ARCHITECTS,
Defendant, and GREEN COUNTRY INTERIORS INC, Defendant, and ADVANTAGE GLASS INC, Defendant, and
BRC LLC, Defendant, and FINNEGAN ERICKSON ASSOCIATES, Defendant, and McINTOSH SERVICS INC,
Defendant.

Issue # 1.
Issue: CONTRIBUTION (OTHER)
Filed by: FLINTCO LLC
Filed Date: 07/31/2012
Party Name: Disposition Information:

Defendant: FINNEGAN ERICKSON ASSOCIATES
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Defendant: MCINTOSH SERVICES INC
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Defendant: THALDEN BOYD ARCHITECTS
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Issue # 2.
Issue: CONTRIBUTION (OTHER)
Filed by: FLINTCO LLC
Filed Date: 07/31/2012
Party Name: Disposition Information:

Defendant: GREEN COUNTRY INTERIORS INC
Disposed: DISMISSED - WITH PREJUDICE, 06/13/2014. Dismissed- Settled.

Issue # 3.
Issue: CONTRIBUTION (OTHER)
Filed by: FLINTCO LLC
Filed Date: 07/31/2012
Party Name: Disposition Information:

Defendant: ADVANTAGE GLASS INC
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Issue # 4.
Issue: BREACH OF SUBCONTRACT (CONTRACT)
Filed by: FLINTCO LLC
Filed Date: 07/31/2012
Party Name: Disposition Information:

Defendant: GREEN COUNTRY INTERIORS INC
Disposed: DISMISSED - WITH PREJUDICE, 06/13/2014. Dismissed- Settled.

Issue # 5.
Issue: BREACH OF SUBCONTRACT (CONTRACT)
Filed by: FLINTCO LLC
Filed Date: 07/31/2012
Party Name: Disposition Information:

Defendant: ADVANTAGE GLASS INC
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Issue # 6.
Issue: BREACH OF EXPRESS & IMPLIED WARRANTIES (CONTRACT)
Filed by: FLINTCO LLC
Filed Date: 07/31/2012
Party Name: Disposition Information:

Defendant: GREEN COUNTRY INTERIORS INC
Disposed: DISMISSED - WITH PREJUDICE, 06/13/2014. Dismissed- Settled.

Defendant: ADVANTAGE GLASS INC
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Issue # 7.
Issue: CONTRIBUTION (OTHER)
Filed by: FLINTCO LLC
Filed Date: 09/13/2013
Party Name: Disposition Information:

Defendant: BRC LLC
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.

Issue # 8.
Issue: COUNTERCLAIM - BREACH OF CONTRACT/INDEBTEDNESS (CONTRACT)
Filed by: ADVANTAGE GLASS INC
Filed Date: 09/07/2012
Party Name: Disposition Information:

Plaintiff: FLINTCO LLC
Disposed: DISMISSED - WITH PREJUDICE, 07/07/2014. Dismissed- Settled.


Plaintiff alleged:

1. FLINTCO, L,L.C. is an Oklahoma corporation, having its principal place of business in Tulsa County, Oklahoma, and duly qualified to do business in the State of Oklahoma. FLINTCO, L.L.C. is formerly known as Flintco, Inc. and is the successor-in-interest to Flintco, Inc. Flintco, Inc. was the Construction Manager for the construction and expansion of the Hard Rock Hotel and Casino (the “Project”). FLINTCO, L.L.C. and Flintco, Inc. are hereinafter referred to as “Flintco.”
2. THALDEN BOYD ARCHITECTS, based on information and belief, is a partnership in which BARRY RICHARD THAIJDEN and CHARLES CHIEF BOYD are partners, and contracted with Cherokee Nation Enterprises, LLC, now known as Cherokee Nation Entertainment, LLC (hereinafter referred to as “CNE”) to provide architectural and design services for the Project (the “CNE/Thalden Boyd Contract”). The CNE!Thalden Boyd Contract identifies the contracting party as THALDEN BOYD ARCHITECTS and was signed by CHARLES CHIEF BOYD as Managing Member.
3. CHARLES CHIEF BOYD and BARRY RICHARD THALDEN were the principal architects involved in providing professional services and supervising the work of other professionals and subcontractors to THALDEN BOYD ARCHITECTS in connection with the CNE/Thalden Boyd Contract.
4. THALDEN-BOYD ARCHITECTS, L.L.C. is a Missouri Limited Liability Company doing business in Tulsa County, Oklahoma, and upon information and belief, may have been a party or had a role in providing services under the CNE/Thalden-Boyd Contract.
5. THALDEN BOYD EMERY ARCHITECTS, is a fictitious name registered in Missouri and, upon information and belief, was formerly known as or is the successor-in-interest
to THALDEN-BOYD ARCHITECTS, L.L.C.
6. All the previously described parties including BARRY RICHARD THALDEN and CHARLES CHIEF BOYD are collectively referred to in the remainder of this Petition as “Thalden Boyd.”
7. Plaintiff alleges that GREEN COUNTRY INTERIORS, INC. (“Green Country”) is an Oklahoma corporation, doing business in Tulsa County, Oklahoma.
8. Plaintiff alleges that ADVANTAGE GLASS INC. (“Advantage Glass”) is an Oklahoma corporation, doing business in Tulsa County, Oklahoma.
9. The contracts, actions and inaction that form the basis of the claims set forth below were executed, occurred, or were to be undertaken, in part, in Tulsa County, Oklahoma, Further, pursuant to 12 Okl.St.Ann. § 134 and 135, the Defendants, Thalden Boyd, Green Country, and Advantage Glass all maintain offices and are located in Tulsa County, Oklahoma.
10. On or about February 7, 2008, Flintco entered into a subcontract with Green Country (the “Flintco/Green Country Subcontract”) under which Green Country was to provide and install the Exterior Insulating Finishing System (“EIFS”) on the exterior of the Project as well as drywall and other interior finishes for the Project.
11. On or about April 10, 2008, Flintco entered into a subcontract with Advantage Glass (the “Flintco/Advantage Glass Subcontract”) under which Advantage Glass was to provide and install the windows for the Project.
12. On or about September 16, 2011, Flintco entered into a Settlement Agreement and Release of Claims (“Release”). In the Settlement Agreement and Release, Flintco obtained a release of CNE’s claims against Green Country, Thalden Boyd, and Advantage Glass,
13. Flintco has resolved claims of CNE related to the Project, has undertaken and paid for the total cost of the repair and remediation to the Project, and has received a Release of all claims by CNE of Green Country, Thalden Boyd, Advantage Glass and other potentially responsible parties.
14. The Release allows Flintco to pursue contribution claims under 12 O.S. § 832, the Uniform Contribution Amongst Tortfeasors Act, against Green Country, Thalden Boyd, Advantage Glass, and any other responsible third parties.
FIRST CAUSE OF ACTION
(Fliutco’s Claim for Contribution against Thalden-Boyd)
15. Flintco adopts and incorporates by reference the allegations set forth in paragraphs 1 through 14 above.
16. Thalden Boyd failed to exercise ordinary care, diligence, and judgment in the performance of the professional services that it undertook as the architect for the Project.
17. The negligence of Thalden Boyd was a cause of the required remediation to repair the damage and deficiencies. Flintco has incurred damages due to Thalden Boyd’s failure to exercise ordinary care as architect and designer on the Project. See Affidavit prepared pursuant to the requirements of 12 O.S. § 19, attached as Exhibit A.
18. Flintco has incurred damages due to Thalden Boyd’s failure to exercise ordinary care as architect and designer on the Project.
19. Flintco has paid all for all of the repair and remediation expenses incurred related to the remedial work and damage to the Project due to acts and omissions of professional negligence caused by Thalden Boyd.
20. To date, the expenses incurred by Flintco to repair, remediate and reconstruct portions of the work on the Project are in excess of $75,000.
21. Flintco seeks reimbursement from Thalden Boyd for the repair, remediation and reconstruction expenses incurred by Flintco that were caused by the negligence of Thalden Boyd.
WHEREFORE, premises considered, Flintco prays for judgment against Thalden Boyd, in excess of $75,000, together with interest thereon, all costs of this action, including the reasonable attorney’s fees incurred by Flintco in connection herewith, and such other and ifirther relief as the Court may deem just and equitable.
SECOND CAUSE OF ACTION
(Flintco’s Claim for Contribution against Green Country)
22. Flintco adopts and incorporate by reference the allegations set forth in paragraphs 1 through 21 above.
23. Green Country failed to exercise ordinary care, diligence and proper workmanship in connection with the work required under the Flintco/Green Country Subcontract and the General Contract.
24. Flintco has paid all for all of the repair, remediation, and reconstruction expenses incurred related to the remedial work and damage to the Project caused by the negligence of Green Country.
25. To date, the repair expenses incurred by Flintco to repair damage and deficiencies to the Project are in excess of $75,000.
26. Flintco has incurred damages in the form of payment of repair costs to repair, remediate and reconstruct portions of the work performed by Green Country on the Project.
27. Flintco is entitled to contribution from Green Country the extent of the negligence resulting in damages for work performed by Green Country on the Project
WHEREFORE, premises considered, Flintco prays for judgment against Green Country, in excess of $75,000, together with interest thereon, all costs of this action, including the reasonable attorney’s fees incurred by Flintco in connection herewith, and such other and further relief as the Court may deem just and equitable.
THIRD CAUSE OF ACTION
(Flintco’s Claim for Contribution against Advantage Glass)
28. Flintco adopts and incorporate by reference the allegations set forth in paragraphs 1 through 27 above.
29. Advantage Glass failed to exercise ordinary care, diligence and proper workmanship in connection with the work required under the Flintco/Advantage Glass Subcontract and General Contract.
30. Flintco has paid all for all of the repair, remediation, and reconstruction expenses incurred related to the remedial work and damage to the Project due to the negligence of Advantage Glass.
31. To date, the repair expenses incurred by Flintco to repair damage and deficiencies to the Project in excess of $75,000.
32. Flintco has incurred damages in the form of payment of repair costs to repair, remediate and reconstruct portions of the work performed by Advantage Glass on the Project.
33. Flintco is entitled to contribution from Advantage Glass to the extent of the negligence resulting in damages for work performed by Advantage Glass on the Project.
WHEREFORE, premises considered, Flintco prays for judgment against Advantage Glass, in excess of $75,000, together with interest thereon, all costs of this action, including the reasonable attorney’s fees incurred by Flintco in connection herewith, and such other and further relief as the Court may deem just and equitable.
FOURTH CAUSE OF ACTION
(Breach of Fliutco/Green Country Subcontract)
34. Flintco adopts and incorporates by reference the allegations set forth in paragraphs 1 through 33 above.
35. Green Country breached the Flintco/Green Country Subcontract by failing to perform its work in accordance with the terms, conditions and specifications of the Flintco/Green Country Subcontract.
36. Pursuant to the Flintco/Green Country Subcontract, Green Country is contractually obligated to indemnify Flintco for defense and indemnity costs incurred by Flintco for remediation and repair to the Project arising out of or in connection with the work covered by the Flintco/Green Country Subcontract.
37. As a direct and proximate result of that breach, Flintco has suffered damages including, but not limited to costs incurred for repairs to the work by Green Country on the Project.
WHEREFORE, premises considered, Flintco prays for judgment against Green Country, in excess of $75,000, together with interest thereon, all costs of this action, including the reasonable attorney’ s fees incurred by Flintco in connection herewith, and such other and further relief as the Court may deem just and equitable.
FIFTH CAUSE OF ACTION
(Breach of Flintco/Advantage Glass Subcontract)
38. Flintco adopts and incorporates by reference the allegations set forth in paragraphs 1 through 37 above.
39. Advantage Glass breached the Flintco/Advantage Glass Subcontract by failing to perform in accordance with the terms, conditions and specifications of the Flintco!Advantage Glass Subcontract.
40. Pursuant to the Flintco/Advantage Glass Subcontract, Advantage Glass is contractually obligated to indemnify Flintco for defense and indemnity costs incurred by Flintco for damage to property at the Project arising out of or in connection with the work covered by the Flintco/Advantage Glass Subcontract.
41. As a direct and proximate result of that breach, Flinteo has suffered damages including, but not limited to, costs incurred for repairs to the work performed by Advantage Glass.
WHEREFORE, premises considered, Flintco prays for judgment against Advantage Glass, in excess of $75,000, together with interest thereon, all costs of this action, including the reasonable attorney’s fees incurred by Flintco in connection herewith, and such other and further relief as the Court may deem just and equitable.
SIXTH CAUSE OF ACTION
(Breach of Express and Implied Warranties
of Green Country and Advantage Glass)
42. Flintco adopts and incorporates by reference the allegations set forth in paragraphs 1 through 41 above.
43. Green Country and Advantage Glass made express and implied warranties through their representations to Flintco in the Flintco/Green Country Subcontract and the Flinteo/Advantage Glass Subcontract that they would perform the work under their subcontracts with Flintco in compliance with the General Contract and free from defects in materials and workmanship. Green Country and Advantage Glass also contractually committed in their subcontracts with Flintco that they would “remain liable for the defects in the Work for the same period that Flintco remains liable to the Owner under the General Contract.”
44. Green Country and Advantage Glass breachcd express and implied warranties to Flintco when they failed to perform the work under the Project in a workmanlike manner and the work failed to meet the specifications required by the General Contract and in the Flintco/Green Country Subcontract, the Flintco/Advantage Glass Subcontract, and the CNE/Thalden Boyd Contract.
45. As a result of the breaches of Green Country and Advantage Glass, Flintco suffered damages, including, but not limited to the costs and expenses associated with the repair, remediation and reconstruction of the building.
WHEREFORE, premised considered, Flintco prays for judgment against Green Country and Advantage Glass, all in excess of $75,000, together with interest thereon, all costs of this action, all with the reasonable attorney’s fees incurred by Flintco in connection herewith, and such other and further relief as the Court may deem just and equitable.

MOTION OF THE DEFENDANTS THALDEN-BOYD ARCHITECTS,
L.L.C., CHARLES CHIEF BOYD, AND BARRY RICHARD
THALDEN FOR SUMMARY JUDGMENT

COME NOW the Defendants, Thalden-Boyd Architects, L.L.C., Charles Chief Boyd, and
Barry Richard Thalden (hereinafter, on occasion and collectively, the “Thalden-Boyd
Defendants”), and move the Court to enter judgment in their favor as a matter of law pursuant to
12 O.S. 2011 §2056 and Rule 13, Rules for the District Courts of Oklahoma, 12 O.S. 2011, Ch.
2,App.
Thalden-Boyd Architects, L.L.C., entered into an Architect Agreement with Cherokee Nation Enterprises, L.L.C. (later known as “Cherokee Nation Entertainment”), relating to the construction of an addition to the Hard Rock Casino in Catoosa, east of Tulsa. Thalden-Boyd Architects, L.L.C., provided design and architectural services for the Project, but the Architect Agreement explicitly stated that it would not be responsible for construction means, methods, techniques, sequences, or procedures, which would be exclusively the responsibility of the Construction Manager under a separate contract.
Plaintiff, Flintco, Inc., separately entered into a Construction Management Agreement with Cherokee Nation Enterprises, and assumed complete responsibility for construction of the addition to the Hard Rock Casino Project. There was no direct contractual relation between Flintco and Thalden-Boyd Architects, E.E.C., or any of the Thalden-Boyd Defendants.
Following the completion of construction, Flintco and Cherokee Nation Enterprises entered into a Release and Settlement Agreement calling for Flintco to repair and remediate certain defects and deficiencies identified in that Agreement. In the Release and Settlement Agreement, and in an Amendment to it, Cherokee Nation Enterprises released all claims against the Thalden-Boyd Defendants.
Flintco commenced the present action against the Thalden-Boyd Defendants, and others, seeking to recover the costs incurred by reason of its settlement with Cherokee Nation Enterprises. The nature of the remediation undertaken by Flintco establishes that it settled claims within the scope of its contract with Cherokee Nation Enterprises. Therefore, Flintco is not a tortfeasor and may not pursue a claim for contribution under 12 O.S. 2011 §832. The terms of the Architect Agreement and the Construction Management Agreement prohibit Flintco from pursuing a claim sounding in contract against the Thalden-Boyd Defendants. Although Flintco has belatedly sought to assert warranty claims, they were explicitly released by Cherokee Nation Entertainment and no longer existed to be assigned to anyone.
Additionally, Flintco also named as Defendants Thalden-Boyd Architects and ThaldenBoyd Emery Architects, but these do not identify entities separate from the Defendant, ThaldenBoyd Architects, L.L.C.
In further support of their Motion for Summary Judgment, the Thalden-Boyd Defendants refer the Court to their Brief in Support and Exhibits, filed contemporaneously herewith, under seal, pursuant to the Stipulated Protective Order entered of record May 24, 2013.
WHEREFORE, premises considered, the Defendants Thalden-Boyd Architects, L.L.C., Charles Chief Boyd, and Barry Richard Thalden, pray the Court to grant their motion and to enter judgment in their favor as a matter of law pursuant to 12 0.S. 2011 §2056 and Rule 13, Rules for the District Courts of Oklahoma, 0.S. 2011, Ch. 2, App.

FINNEGAN ERICKSON ASSOCIATES MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIMITED LIABILTIY

COMES NOW, Defendant Finnegan Erickson Associates (hereinafter “FEA”),
and moves the Court for Partial Summary Judgment in its favor on the limited liability clause contained in its contract. In support of its Motion, FEA shows the Court as follows:
FACTUAL OVERVIEW
This case arises out of the construction and remediation of the Hard Rock Hotel and Casino in Catoosa, Oklahoma. Flintco was the construction manager, and contracted with Cherokee National Entertainment, LLC (“CNE”) for the building’s construction. Defendants Thalden Boyd Architects and Thalden-Boyd Architects, LLC
(“Thalden Boyd”) contracted with CNE to provide architectural services for the project. Thalden Boyd then hired subcontractors and consultants for the performance of the architectural services. FEA was one of the subcontractors, who was retained to provide mechanical and electrical engineering services for the project.
The Thalden Boyd-FEA contract was signed on March 22, 2006 by FEA and
Thalden Boyd Principals. The Contract, p. 3, references “Attachment (Terms and
Conditions)”. The Attachment is titled “FEA TERMS AND CONDITIONS OF PROPOSAL FOR:
Cherokee Hotel & Casino — Catoosa, OK’. The fourth paragraph provides:
LIMITATION OF LIABILITY:
The Client agrees to limit our liability for damages to the sum of $50,000.00 or the total amount of our design fee, whichever is less. This limitation shall apply regardless of the cause of action or legal theory pled or asserted.
Flintco initially filed this action against Thalden Boyd, and others, on July 31, 2012. On March 24, 2014, Flintco amended its Petition adding FEA as a party. While FEA denies that it is liable for any of its work on the project, if FEA is found liable, then its contract limits its liability to no more than $50,000.
STATEMENT OF UNDISPUTED FACTS
The following facts may be taken as true for purposes of this Motion only.
1. On March 22, 2006 FEA and Thalden Boyd entered into a contract for services. Ex. 1, Contract.
2. The contract, incorporates by references “Attachment (Terms and Conditions)”. Ex. 1, p. 3.
3. The Attachment is titled “FEA TERMS AND CONDITIONS OF PROPOSAL FOR:
Cherokee Hotel & Casino — Catoosa, OK’. The fourth paragraph provides:
LIMITATION OF LIABILITY:
The Client agrees to limit our liability for damages to the sum of $50,000.00 or the total amount of our design fee, whichever is less. This limitation shall apply regardless of the cause of action or legal theory pled or asserted.
Ex. 1, p. 4.
4. CNE initially complained to Flintco about poor workmanship that required substantial remediation to the building. Ex. 2, Petition, p. 3, ¶ 13.
5. Flintco settled those claims and now seeks to recover money it paid from the defendants in this case. Ex. 2, p. 3, ¶ 14.
ARGUMENT AND AUTHORITIES
A. SUMMARY JUDGMENT STANDARD
When there is no substantial controversy as to the material fact and one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party. Rule 13 of the Rules for District Courts. The purpose of summary judgment is to avoid unnecessary trials by allowing the trial court to look beyond the pleadings to various evidentiary materials to determine whether there is an issue of fact to be submitted to the jury. Copeland v. Tela Corp., 1999 OK 81, 996 P.2d 931, 932-33. Rule 13 is intended to permit a party to pierce the allegations of the pleadings to show that the facts are other than as alleged. Weeks v. Wedgewood Village, Inc., 1976 OK 72, 554 P.2d 780, 784-85.
The mere contention that facts exist or might exist is not sufficient to create a substantial controversy when the party moving for summary judgment has produced evidence showing the existence of facts that preclude recovery by the party against whom the motion is made. Mengel v. Rosen, 1987 OK 23, 735 P.2d 560, 563. A bare
assertion in a pleading, when attacked by a motion for summary judgment supported by proof of specific facts, such as affidavits, depositions or other competent evidence, places an obligation on the pleader to present something that will show that when the date of trial arises, he will have proof to support the allegations in the pleadings. Weeks v. Wedgewood Viii., Inc., 1976 OK 72, 554 P.2d 780, 784.
The interpretation of a contract is a matter of law for the Court to determine and resolve. Osprey L.L. C. v. Kelly-Moore Paint Co. inc., 1999 OK 50, 984 P.2d 194, 198. Generally, the terms of the parties’ contract, if unambiguous, clear, and consistent, are accepted in their plain and ordinary sense and the contract will be enforced to carry out the intention of the parties as it existed at the time the contract was negotiated. Title 15 O.S. 1991 § 152; 15 0.S. 1991 § 154; Mercury mv. Co. v. F. W. Woolworth, Co., see note 6, supra atf 9; Prudential Ins. Co. of America v. Glass, 19980K 52, 19, 959 P.2d 586, 594; Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372, 376. Thus, it is for this Court to determine the applicability of the liability limitation clause to this litigation.
B. THALDEN BOYD IS BOUND BY THE LIABILITY LIMITATION CLAUSE.
Under Oklahoma law, limitation of liability clauses are valid and enforceable. Manning v. Brannon, 1998 OK CIV APP 17, 956 P.2d 156; Elsken v. Network MultiFamily Sec. Corp., 1992 OK 136, 838 P.2d 1007. This is particularly true when the contract containing the clause is executed by both parties and was negotiated at arm’s length. Id.
Here, the subject contract was signed by principals of both companies. Further, the contract was negotiated at arm’s length, as evidenced by Thalden Boyd’s interlineation on page 3.
The plain language of the contract provides, “The Client agrees to limit our liability for damages to the sum of $50,000.. .regardless of the cause of action or legal theory pled or asserted.” Ex. 1, p. 4. Flintco and Thalden Boyd will likely argue that Thalden Boyd did not assert any claims against FEA to trigger the clause. However, the liability limitation clause contains two key phrases that make it applicable, even if the claims are not asserted by Thalden Boyd.
First, the clause applies “regardless of the cause of action or legal theory pled or asserted.” Statement of Fact No. 3. This broad language of the clause does not limit applicability only to cases where Thalden Boyd is asserting a claim.
Second, the liability limitation provision states, “The client agrees to limit our liability for damages. . .“ Statement of Fact No. 3. Again, the broad language does not restrict when Thalden Boyd might be called upon to limit FEA’s liability for damages. If the clause stated, “to limit our liability to client for damages”, there would be such a restriction. Instead, the clause is purposefully written in broad terms.
Noting the unrestricted language of the clause, the Court should find that the parties intended for it to be broadly applied and interpreted. At the time the parties negotiated the contract, they intended any of FEA’s liability to be limited to $50,000. Thus, if there is a finding the FEA’s liability (which it disclaims) for damages exceeds $50,000, then Thalden Boyd has agreed to limit the liability to that amount and would responsible for any amount over $50,000.
C. FLINTCO IS BOUND BY THE LIABILITY LIMITATIONS CLAUSE.
FEA admits that Flintco is not a direct party to the Thalden Boyd-FEA contract. However, Flintco, by its payment of CNE’s damages, is a third-party beneficiary to the
contract and thus bound by its terms.
A party becomes a third-party beneficiary to the contract when, even though not named in the contract, the contract was for his benefit. Keel v. Titan Const Corp., 1981 OK 148, 639 P.2d 1228, 1231. In the construction context, the property owner is generally deemed to be the third party beneficiary. Id. Here, the third-party beneficiary and property,owner is ONE.
CNE initially complained to Flintco about poor workmanship that required substantial remediation to the building. Statement of Fact No. 4. Flintco settled those claims and now seeks to recover money it paid from the defendants in this case. Statement of Fact No. 5. Flintco brings this case in contribution. Ex. 2, Petition. As such, it steps into CNE’s shoes and becomes the contract’s third-party beneficiary.
In Fretwell v. Prot. Alarm Co., 1988 OK 84, 764 P.2d 149, 151, the Oklahoma Supreme Court found that third-party beneficiaries were bound by the limitation of liability clause in an alarm company contract. Similarly, Courts have found that third- party beneficiaries can be bound by arbitration clauses, which are akin to liability limitation clauses because they both relate to available remedies of the parties and third-party beneficiaries. See, e.g., Cinocca v. Orcrist, Inc., 2002 OK CIV APP 123, 60 P.3d 1072, 1074 (Citing, MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir. 1999)) (third party beneficiaries may be bound by arbitration clauses); Iritermountain Res., L.L.C. v. Honea, 68 F. App’x 937, 938 (10th Cir. 2003) (holding that a third-party beneficiary was bound by the arbitration clause of a contract).
Here, the Court should enforce the liability limitation clause against Flintco. Flintco, stepping into ONE’s place, is a third party beneficiary, and limitation liability clauses are enforceable against third party beneficiaries.
WHEREFORE, Defendant, Finnegan Erickson Associates prays that the Court find that if there is any liability against it, that liability is limited to $50,000. Thalden Boyd is liable for any amount in excess of $50,000 and, as a third party beneficiary, Flintco is bound by the liability limiting language.

Outcome: 06-13-2014 DISPCVDMWP 2 GREEN COUNTRY INTERIORS INC 90365786 Jun 16 2014 7:42:54:810AM - $ 0.00
DISMISSAL WITH PREJUDICE
06-13-2014 DISPCVDMWP 4 GREEN COUNTRY INTERIORS INC 90365787 Jul 7 2014 4:43:27:210PM - $ 0.00
DISMISSAL WITH PREJUDICE
06-13-2014 DISPCVDMWP 6 GREEN COUNTRY INTERIORS INC 90365788 Jun 16 2014 7:42:55:110AM - $ 0.00
DISMISSAL WITH PREJUDICE

07-07-2014 DISPCVDMWP 1 FINNEGAN ERICKSON ASSOCIATES 90597675 Jul 7 2014 4:43:26:950PM - $ 0.00
DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 1 MCINTOSH SERVICES INC 90597676 Jul 7 2014 4:43:27:080PM - $ 0.00
DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 1 THALDEN BOYD ARCHITECTS 90597677 Jul 7 2014 4:43:27:140PM - $ 0.00
MUTUAL DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 3 ADVANTAGE GLASS INC 90597678 Jul 7 2014 4:43:27:170PM - $ 0.00
MUTUAL DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 5 ADVANTAGE GLASS INC 90597679 Jul 7 2014 4:43:27:260PM - $ 0.00
MUTUAL DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 6 ADVANTAGE GLASS INC 90597680 Jul 7 2014 4:43:27:290PM - $ 0.00
MUTAL DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 7 BRC LLC 90597681 Jul 7 2014 4:43:27:310PM - $ 0.00
MUTUAL DISMISSAL WITH PREJUDICE
07-07-2014 DISPCVDMWP 8 FLINTCO LLC 90597682 Jul 7 2014 4:43:27:360PM - $ 0.00
MUTUAL DISMISSAL WITH PREJUDICE

Plaintiff's Experts:

Defendant's Experts:

Comments: