Branch River Plastics Inc. of Smithfield, R.I., will ask for a new trial in a case where a jury awarded $1 million to a family-owned business in a dispute involving Branch River's structural insulated panels (SIPs).
The SIPs in question were installed on the roof of a new facility for dairy company Kate's Homemade Butter Inc. in Arudel, Maine.
Martica Douglas, lawyer for the plastics company, said she will file a motion requesting Maine Superior Court Judge Mark Horton throw out the June 23 verdict against her client for two counts of breach of warranty and order a new trial.
“The jury bought into a mythology that was created,” Douglas said in a telephone interview. “This was a homegrown Maine company that everybody knows — Kate's Butter — against a Rhode Island company and I think that's part of the explanation. They had the hometown advantage.”
Douglas said she will seek a new trial on grounds related to legal errors and evidentiary rulings. She expects to file the motion in about two weeks.
“The big picture is the case against Branch River had no merit at all,” she said, adding it involves a clerical error related to a product named on an invoice that her client never saw. “It was one of these jury verdicts that you do not quite comprehend how it could have possibly happened. There were mistakes made, we think, during the course of the trial, and I'm actually confident we can get it tossed out or overturned on appeal.”
Extolled by news outlets and food critics as the “cream of the crop,” the “artisanal” Kate's Homemade Butter has been produced since 1981 by the Patry family, which has been in the Maine dairy business going back to the early 1900s.
In 2010, the family needed to move the butter operation out of the garage and basement of its home to a commercial site to meet increased demand. They decided to construct a pre-engineered building with a steel skeleton wrapped in SIPs made with expanded polystyrene for the walls and roof.
The family created Arundel Valley LLC to be owner and developer of the new home for Kate's Homemade Butter. But before the facility was completed those two business entities ended up suing the parties involved with the construction.
Everyone settled out of court — the architectural firm, building company, and green building material distributor — except for Branch River Plastics and its owner, Robert Mayo, who eventually was dismissed from personal liability.
Branch River Plastics isn't on the line for the whole $1 million award. Douglas said the amount will be reduced as a result of the prior settlements, which are sealed, if the verdict stands.
After the jury's decision, Dan Patry, who is co-owner of Kate's and Arundel Valley, said in a news release that he is grateful for the legal win.
“This award will help us start to make up for what it cost us to repair the roof panels and help us move our business forward,” Patry said. “We are happy this has been made right so we can get back to focusing on what we love to do — making butter and buttermilk.”
On the defense
Douglas said Branch River, which has been making EPS building products since 1978, is focused on defending the quality of its SIPs.
Made of EPS laminated with adhesives between sheets of oriented strand board (OSB), SIPs offer great insulating properties, structural strength and are cost-effective compared to other building materials.
Branch River makes two kinds of SIPs although Douglas said the difference between them is negligible. There are the R-Control SIPs and a vented SIP called Air-Flo.
R-Control is a registered trademark of AFM Corp., which is based in Lakeville, Minn., and licenses manufacturers like Branch River to make its products. Douglas said the Air-Flo SIPS are a proprietary product with just one variation from the R-Control panels.
“They use the same foam, same OSB, same equipment, same people, same assembly line, same process, same everything. That's undisputed,” she said. ‘The only difference is one has air channels carved into one side of the panel. These vents and that panel aren't under the umbrella of the R-Control brand. This is a panel that the previous owner of Branch River invented in the 1980s. Back in those days everyone in Maine had to have a cold roof with a vented system on it before you put the shingle. That's so the roof doesn't get hot because when it snows it forms ice dams and problems.”
The architect and builder hired by the Patry family contacted a representative of Branch River about buying R-Control SIPs. However, at some point the lawsuit says the builders got approval to use “R-Control Airflo SIPs” — combining the names of the two products.
“Somebody wrote that on an invoice,” Douglas said. “It was a clerical mistake on an invoice and our position was they [Branch River] never saw the invoice and they certainly didn't rely on it.”
The plastics company points to initial project drawings that call for a roof with vented SIPs, which would be the Air-Flo SIPS and not R-Control brand as Arundel had supposedly expected. Then, there's Branch River's proposal, or cost estimate, which was accepted by a contractor for the builders; it didn't indicate that the SIPS would be the R-Control brand.
Branch River provided $111,010 of vented Air-Flo SIPs and they were installed.
Hitting the roof
When the Patry family and the Arundel code enforcement officer found out, they asked Branch River for proof that the roof panels met the structural load capacity required by the town.
“After Kate's Butter raised this issue we thought the goal was to keep the roof on the building,” Douglas said. “We didn't realize they had a hidden agenda so we spent $50,000 and had all the testing done by a lab in Boston under the supervision of a very reputable engineering firm and it demonstrated that the Air-Flo panels are essentially the same as the R-Control panels in terms of their load capacity and they were three times what the code requires. So they tested out perfectly.”
Still, the Patrys wanted the roof panels removed, noting the panels tested were not the ones on their roof.
Part of the structural concerns had to do with wind and snow loads for dormers and a cupola on the roof and “nothing at all to do with the panels,” Douglas said.
“This whole R-Control thing was an after-the-fact excuse,” she said.
Not so, according to the Patrys in court documents. They contacted a registered professional engineer who found installation and manufacturing deficiencies in the Branch River SIPs that could diminish the useful life of the roof. As a result, Dan Patry had the roof removed and replaced with SIPs made by Foard Panel Inc. of West Chesterfield, N.H.
Before the trial, Branch River Plastics and its owner moved for a summary judgment on the seven counts against them. Judge Horton granted the motion for all counts related to personal liability for Mayo and all but two against the plastics company.
Last month the case went to trial. After the jury's decision was announced, Timothy Bryant, a lawyer who represented Arundel Valley and Kate's Homemade Butter, said in a news release, “We believe this a fair and just outcome. The Patrys were not provided what they were promised and what they were provided was defective.”
Douglas's response: “There really never was any proof of any product defect and that was the glaring hole in the plaintiff's case.”