Submitted: December 5, 2013
Upon Defendant's Motion to Dismiss Negligent Construction & Breach of Implied Warranty of Good Quality and Workmanship Claims, DENIED.
David L. Baumberger, Esquire, Chrissinger & Baumberger, Wilmington, Delaware, Attorney for Plaintiff
Joseph S. Naylor, Esquire, Swartz Campbell LLC, Wilmington, Delaware, Attorney for Defendants
OPINION AND ORDER
M. Jane Brady Superior Court Judge
This case concerns the installation of stucco on the exterior of an addition to a house in Newark, Delaware. Plaintiff, Casale Construction ("Casale") settled a claim with the owners of this house for various construction defects. Casale now seeks indemnification, contribution, indemnity, and/or restitution against the company with which it had sub-contracted to install stucco on the exterior of the house addition, Defendant, The Best Stucco ("Best Stucco").
Casale entered into a contract with the Lopes family in 2008 to construct an addition to the Lopes's residential home in Newark, Delaware. Casale hired Best Stucco to install the stucco on this house, creating a contractor-subcontractor relationship. Best Stucco was to be paid $16, 000 for performance of this contract. In 2012, the Lopes filed suit against Casale, alleging negligent performance in various aspects of the construction of the house addition, including the installed stucco, windows, a French door, and wall framing. Regarding the stucco, the Lopes alleged specifically that Casale "failed to install the stucco with required expansion gaps as well as the required weather-resistant sheathing paper." Casale settled with the Lopes in May 2013, and paid them $60, 000 in compensation.
B. Procedural History
Casale commenced this action on March 27, 2013, against Best Stucco alleging four counts against Best Stucco: (I) Breach of Contract, (II) Negligent Construction, (III) Breach of Implied Warranty of Good Quality and Workmanship, and (IV) Fraudulent Misrepresentation. Casale sought $76, 000 in damages, representing the $60, 000 paid to the Lopes in settlement, and the $16, 000 Casale had paid Best Stucco for performance of the contract. Casale amended its complaint on August 27, 2013, adding specific details to the Negligent Construction claim.
On November 1, 2013, Best Stucco filed a Motion to Dismiss Counts II-IV of Casale's amended complaint. On November 19, 2013, Casale filed a response opposing this motion. At a hearing on December 5, 2013, the Court dismissed Count IV (Fraudulent Misrepresentation) of Casale's amended complaint, reserving judgment on Counts II and III. This decision addresses these remaining counts.
C. Parties' Contentions
i. Count II: Negligent ...