United States District Court, W.D. Washington, Tacoma
STEPHEN J. OBERTO, et al., Plaintiffs,
PLATYPUS MARINE, INC., Defendant.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY
B. Leighton, United States District Judge
MATTER is before the Court on Plaintiff Oberto's Motion
for Partial Summary Judgment [Dkt. #]. In early 2014,
Oberto hired Defendant Platypus Marine to
paint his 1998, 68 foot LeClerq yacht,
“Maximo.” The existing coating was unknown, but
was in poor condition. Platypus claims it told Oberto that in
order to give Maximo a “perfect” glossy finish,
all of the existing paint would have to be removed, which
would cost an additional $200, 000. Instead, Platypus and
Oberto agreed that Maximo would get a “commercial,
” rather than a “show, ” finish, in which
the new, two part paint-Awlgrip-would be painted over the
bid included the promise that “all coatings will be
applied according to Manufacturer's specifications and
procedures.” Awlgrip's manufacturer is AkzoNobel.
April, 2014 Platypus informed Oberto that the yacht was
finished but that there were “issues” with the
paint: cosmetic defects appeared below, and “bled,
” or telegraphed, through the topcoat.
claims that it applied the Awlgrip consistent with the
manufacturer's specifications, including applying a
coating (a primer) containing T0006 solvent-which it claims
confirmed that the Awlgrip was compatible with the
underlying, unknown topcoat(s).
the paint issues were arose, Platypus contacted Ray Tucker at
AkzoNobel to discuss their cause, and the remedy. Tucker did
his own test, using not T0006 solvent but MEK, which Platypus
claims is not the approved manufacturer's method for
determining Awlgrip's compatibility with unknown
substrate coatings. Tucker found that the paints were not
claims that Platypus did not do the compatibility
test that AkzoNobel required.
event, the parties agreed that the boat would have to be
re-painted, and that Oberto could withhold $25, 000 of the
contract price and take the yacht so he could use it that
summer. That agreement was memorialized in a letter.
was returned to Platypus in October 2014, and a dispute arose
about what went wrong and how it should be remedied. Platypus
proposed “scuffing and shooting” the hull with
Awlgrip again. Oberto was not convinced that this was the
appropriate remedy given the prior compatibility issues, and
demanded that Platypus take core samples and have them
analyzed at AkzoNobel. Those samples were taken and analyzed,
and Oberto claims they confirmed that at least one of the
existing coatings was not compatible with Awlgrip. He also
claims that AkzoNobel criticized Platypus for not confirming
the compatibility prior to painting the first time. AkzoNobel
would not warranty the Awlgrip coating if the underlying
coating was not removed prior to re-painting; the two part
Awlgrip is not compatible with the one part underlying paint.
parties could not agree on a path forward, and in 2016 Oberto
sued. He asserts claims for breach of contract and breach of
warranty, seeking damages and attorneys' fees. Oberto now
seeks partial summary judgment on his contract and warranty
claims, arguing that Platypus breached its agreement to apply
the Awlgrip in accordance with AkzoNobel's
specifications- specifically, it did not ensure compatibility
prior to painting the hull. He apparently seeks the cost of
removing the new paint and the old paint, and re-painting
with Awlgrip-essentially the “show” paint job
that he declined to commission in 2014.
claims that it agreed in April 2014 only to “scuff and
shoot” the then-existing coating-including the new,
defective, Awlgrip-on portions of the hull, at its cost,
which it claims is the commercially reasonable remedy. It
claims AkzoNobel agrees.
also claims that the bulk of the 2014 paint issues have since
resolved, and that the remaining issues are related not to
the paint job but to the fact that a darker hull gets warmer
than a light one, and that Maximo has suffered from
“post cure print through”-the fiberglass and
resin structure of the hull continued to cure when it got
warmer, and the fiberglass is visible under the Awlgrip.
argues that Oberto is not entitled to a finding as a matter
of law that the remedy it proposes is unreasonable as a
matter of law, and argues that Oberto essentially seeks a
windfall. Finally, Platypus offers expert testimony that
while there are cosmetic issues with the paint finish, the
Awlgrip paint is not incompatible with the
underlying, existing coatings. It argues there are material
issues of fact surrounding the entire controversy that
preclude even partial summary judgment.