United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
Bruce Howe Hendricks United States District Judge
This matter is before the Court on Defendant Seaman Corporation’s (“Seaman”) Motion for Summary Judgment (ECF No. 31). For the reasons set forth in this Order, Defendant’s motion is granted.
This matter involves a dispute over the application of a warranty regarding a Seaman roofing membrane product installed at Plaintiff Park Place Corporation’s (“Park Place”) commercial location, 6801 Augusta Road, Greenville, South Carolina (the “Property”). Defendant moves for summary judgment on the bases that: (1) there were no leaks in the roofing membrane during the warranty period that were not repaired by Seaman pursuant to the warranty, and (2) the hail damage relied upon by Plaintiff is excluded from warranty coverage.
The loss giving rise to the warranty question occurred as a result of a hail event or events at the Property. The Property is a large commercial building with a flat roof that was constructed in 1997. The roofing system installed on the Property at that time was a Seaman product that came with a warranty, which was issued on or about May 19, 1997, and contemplated a 15-year period of protection for repair to leaks in the roofing system. (Ex. A, Def. Mot. Summ. J., ECF No. 31-1.) Park Place alleges, and the parties’ independent inspections and evaluations have established, that the roof was impacted by hail on or about March 31, 2012 and/or on or about April 3, 2012, approximately six weeks before the warranty’s expiration on May 19, 2012. (Compl., ECF No. 1 at ¶ 6; Ex. D, ECF No. 31-4 at 5; Exs. E, F, Pl. Resp. Mot. Summ. J., ECF Nos. 37-5 at 2, 37-6 at 3.)
Pursuant to the terms of the warranty, Seaman was to repair any leaks in the roofing system during the applicable period. (Ex. A, ECF No. 31-1.) Specifically, the warranty states:
SEAMAN CORPORATION warrants to the owner named above (“Owner”) of the building described herein that, subject to the Terms, Conditions, and Limitations set forth below, for a period of Fifteen (15) years commencing with the date of final inspection and acceptance, Seaman Corporation will repair any leaks in the FiberTite Roofing Systems furnished to said commercial building attributable to Roofing Membrane provided by Seaman Corporation and/or defective workmanship provided by Seaman Corporation or its authorized FiberTite Single Ply Roof Applicator.
(Id. at 2 (emphasis in original).) Under “Terms, Conditions & Limitations, ” the warranty states in relevant part: “5. Owner shall give Seaman Corporation written notice at its address set forth herein not more than thirty (30) days after discovery of any leaks in the Roofing System.” (Id.) Further, the warranty includes the following limitation: “9. This warranty shall not be applicable to nor shall Seaman Corporation be responsible for damage or loss caused in whole or in part by: natural disasters including, but not limited to lightning, hurricanes, tornadoes or earthquakes . . . .” (Id.)
Over the life of the warranty, Plaintiff contacted Defendant to report numerous potential warranty claims. These warranty claims were memorialized by Defendant in a document called “FiberTite Job Tracker.” (Ex. B, ECF No. 37-2 at 2.) Approximately thirty-two (32) warranty claims were made by Park Place, resulting in approximately twenty-eight (28) incidents of repair at Seaman’s expense. (Id.; Ralph Raulie Dep. 37, Ex. C, ECF No. 37-3.) On or about March 22, 2012, Russell Dickard, a maintenance employee of Park Place, called Seaman and reported two leaks in the showroom area of the Property; this call was documented as Service Request 12-0395 in the FiberTite Job Tracker. (Ex. D, ECF No. 37-4 at 2.) The Seaman service representative made the following notation, dated April 4, 2012, in the service request history: “per Tom Cuddy at Wilson roofing have 6 drains that the non-reinforced is cracked, will send me a quote and pictures. Russell called thinks they have hail damage, Tom check it out Thurs or Fri, his guys have been up to do temp repairs.” (Id.)
In a report dated April 25, 2012, an insurance adjuster for Capstone ISG, Inc., documented an inspection of the roof (“Capstone Report”) performed on April 24, 2012 on behalf of Plaintiff’s insurance company, Westfield Insurance. (Ex. B, ECF No. 31-2.) The report indicates that the inspection was performed in the presence of the insured (Park Place) and the insured’s roofer, Chris Cannon of Cannon Roofing. (Id. at 2.) The report further states:
Our inspection of the single-ply membrane roofing noted no significant bruising and/or fracturing that would be consistent with hail impacts. We noted signs of normal wear and tear to the dwellings [sic] roof where water sits in lower areas and some minor cracking and splitting around the fasteners and seams. No storm related damage to the membrane roofing. The insured's roofer agreed with this assessment. The insured noted that the roof storm drains were replaced right after this storm from damage in order to prevent further damages.
(Id.) In his deposition, David Orders, Executive Vice President of Administration for Park Place, indicates that he was present for at least part of the inspection on April 24, 2012 and that Mr. Cannon reported back to him after being on the roof with the insurance adjuster. (Orders Dep. 17-18, Ex. F, ECF No. 31-6.) The warranty expired on May 19, 2012, approximately three and one half weeks after this inspection was conducted.
In a report dated December 14, 2012, an insurance adjuster for Barker Claim Service, Inc. documented an inspection of the roof (“Barker Report”) performed on December 10, 2012 on behalf of Westfield Insurance. (Ex. C, ECF No. 31-3.) The report indicates that the inspection was performed in the presence of Mr. Orders and an engineer, Craig Williams of Rimkus North Carolina, PLLC (“Rimkus”). (Id. at 2-3.) In his deposition, Mr. Orders appears to be discussing this December 2012 inspection when he states:
And I do remember an event which I think was month or two later where I was on the roof, and it was such a bright day, I didn’t have sunglasses, and I couldn’t even look at the membrane because it was white, and it was so bright. Everybody else had sunglasses on, so I couldn’t even stay up there very long because of the intensity of the light. That’s all I recall.
(Orders Dep. 19, Ex. F, ECF No. 31-6.) The Barker Report states in pertinent part:
During our inspection, we found visible hail damage to the coil fins on 8 air handlers that are located on the roof. There is [sic] also some visible hail impacts on several soft metal roof vents spread out across the roof. Many of these impacts are minor and there are several roof vents with no signs of hail damage. At the time of our inspection, Mr. Orders walked a small section of the roof with us and pointed out what he felt was hail damage. We found and chalked these spiral type marks on the north, south and middle sections of the building. These areas do appear to have been caused by an impact of some type however the membranes [sic] surface does not appear to have been cracked or split as a result of the impact. Please be advised that there are countless marks like the ones in our photographs across the entire roof.
(Ex. C, ECF No. 31-3 at 3.)
Mr. Williams of Rimkus prepared an engineer’s report (“Rimkus Report”), dated January 14, 2013, for Westfield Insurance, based on his inspection of the roof on December 10, 2012. (Ex. D, ECF No. 31-4.) The report stated that Rimkus was “retained to perform a roof evaluation and determine the cause of the reported [hail] damage.” (Id. at 4.) Section II of the Rimkus Report, entitled Conclusions, states:
1. The roof was struck by hail as evidenced by the dents in the light gage metal vent caps, the dents in the fins of the HVAC equipment and the circular marks on the roofing membrane. 2. The fractures in the roofing membrane resulted in a reduction of the expected long-term service life of the roof. 3. The roofing membrane was damaged by wind.
(Id. at 5.) Mr. Orders, described as present on-site during Rimkus’ inspection, was reported as providing the following information: “The Building was constructed in 1997 and the existing roof covering was part of the original construction of the building. During the reported storm large hail stones fell on the roof for a period of approximately 30 minutes. Leaks were noted around the roof drains during the storm. These leaks were repaired.” (Id. at 6.) Notably, there is nothing in the Rimkus Report about any leaks resultant from the hail storm(s) that were not repaired. In the Analysis section, Mr. Williams defines hail damage to roofing as “‘a diminution of water ...