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Oberto v. Platypus Marine, Inc.

United States District Court, W.D. Washington, Tacoma

August 31, 2017

STEPHEN J. OBERTO, et al., Plaintiffs,


          Ronald B. Leighton, United States District Judge

         THIS MATTER is before the Court on Plaintiff Oberto's Motion for Partial Summary Judgment [Dkt. #]. In early 2014, Oberto[1] hired Defendant Platypus Marine to paint[2] 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 existing coating(s).

         Platypus's bid included the promise that “all coatings will be applied according to Manufacturer's specifications and procedures.” Awlgrip's manufacturer is AkzoNobel.

         In 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.

         Platypus 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).

         When 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[3] with unknown substrate coatings. Tucker found that the paints were not compatible.

         Oberto claims that Platypus did not do the compatibility test that AkzoNobel required.

         In any 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.

         Maximo 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.

         The 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.

         Platypus 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.

         Platypus 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.

         Platypus 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.

         Summary ...

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