IN THE SUPREME COURT OF OHIO
AMERICAN MUNICIPAL POWER, INC.,
Petitioner,V.
BECHTEL POWER CORPORATION,
Respondent
))))))))
Certified Question of State Law
Case No. 2014-1847
PRELIMINARY MEMORANDUM OFRESPONDENT BECHTEL POWER CORPORATION
David John Butler (0068455)*Counsel of [email protected] Charles Fitch (0022322)[email protected] Stettinius & Hollister LLP65 East State Street, Suite 1000Columbus, OH 43215-4213(614) 221-2838
Judah [email protected], Lifschitz & Schram1742 N Street, N.W.Washington, DC 20036(202) 689-1900
Counsel for Petitioner,American Municipal Power, Inc.
Dated: November 13, 2014
William G. Porter (0017296)*Counsel of [email protected] R. Matthews (0039431)[email protected], Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-6400Facsimile: (614) 464-6350
Michael P. Subak(pro hac vice 5971-2014)[email protected] W. Foltz, Jr.(pro hac vice 5792-2014)[email protected] Hamilton LLP3000 Two Logan SquareEighteenth and Arch StreetsPhiladelphia, PA 19103=2799Telephone: (215) 981-4000Facsimile: (215) 981-4750
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TABLE OF CONTENTS
INTRODUCTION .................................................................................................. 1
II. BACKGROUND FACTS ............................................................:.......................... 2
A. By Contract, AMP Agreed To Limit Bechtel's Liability . .............................. 2
B. AMP Unilaterally Canceled The Project, Then Claimed DamagesBarred By The Contractual Limitation Of Liability ...................................... 3
C. Bechtel Complied With The Contract . ....................................................... 3
D. Judge Watson Twice Rejected AMP's Attempts To Void TheLimitation Of Liability . .... .......................... .................................................. 4
Ill. THIS COURT SHOULD DECLINE THE CERTIFICATION . ................................. 4
A. This Court Should Decline Certification Because It Is Settled OhioLaw That A Contractual Limitation Of Liability Must Be EnforcedExcept In Cases Of Willful Breach Or Wanton Misconduct . ...................... 5
1. Under Ohio Law, A Freely Negotiated Limitation Of LiabilityProvision Is Enforceable Absent A Showing Of Willful OrWanton Misconduct . ....................................................................... 5
2. The Federal Cases AMP Cited Do Not Support Its RequestTo Expand The Berjian Standard And Change Ohio Law ............... 6
3. Anderson Confirmed That "Reckless Conduct" Is A DifferentAnd Lower Standard Than The "Willful And WantonMisconduct" Required By Berjian . . ................................................. 8
B. This Court Should Decline Certification Because The Question IsNot Determinative Of The Proceeding And May Be Unnecessary. ........... 9
1. A Question That Relates Solely To The Amount Of DamagesCannot Be Determinative Of The Proceeding ............................... 10
2. Because AMP May Not Be Able To Prove That BechtelBreached, Or Caused Any Of AMP's Damages, DecidingThe Question In The Abstract Is Not Appropriate . ........................ 11
C.. This Court Should Decline Certification Because The District CourtTwice Correctly Decided The Issue Applying Settled Precedent ............. 12
1. Judge Watson Applied The Correct Standard In DecidingBechtel's Motion To Dismiss ......................................................... 13
2. Judge Watson Again Applied The Correct Standard InDeciding Bechtel's Motion For Summary Judgment . .................... 13
3. AMP Should Not Be Permitted To Forum Shop ............................ 14
IV. CONCLUSION ................................................................................................... 15
I. INTRODUCTION
Pursuant to Rule 9.01 of the Rules of Practice of the Supreme Court of
Ohio, the United States District Court for the Southern District of Ohio certified the
following question:
Does reckless conduct by the breaching party, as defined inAnderson v. Massillon, 134 Ohio St. 3d 380 (2012), render acontractual limitation of liability clause unenforceable?
This Court should decline certification for three reasons.
First, Ohio law on this point is settled and this Court should not use
the certification procedure to expand liability and undermine the freedom of
contract that is central to Ohio law. In Richard A. Berjian, D.O., Inc. v. Ohio Bell
Telephone Company, 54 Ohio St. 2d 147, 157-58 (1978), this Court declared the
standard necessary to render a contractual limitation of liability unenforceable. The
Berjian Court held that absent a showing of "willful or wanton misconduct," Ohio
enforces limitation of liability clauses. This Court should reject AMP's attempt to use the
certification procedure to overrule settled precedent and change the standard under
which a party may void a contractually agreed limitation of liability.
Second, the certified question is not determinative of the proceeding
because it only relates to the amount of damages. The amount of damages in a
case is not determinative of the proceeding, as Rule 9.01 requires. Further, because
Bechtel denies any breach of the Contract, and denies that it caused AMP's alleged
damages, this Court should reject AMP's attempt to expand Ohio law on what may be a
purely advisory basis.
Third, this Court should decline to address a question which was
only certified after plaintiff twice lost before the District Court. In May 2012,
granting Bechtel's motion to dismiss, the District Court.applied clear and settled
precedent from this Court and correctly ruled that "reckless conduct" was insufficient to
render a contractual limitation of liability clause unenforceable. Then in March of 2014,
granting Bechtel's motion for summary judgment, the District Court reached the same
conclusion, holding that the standard to abrogate a contractual limitation of liability "is,
and has always been, willful or wanton." 3/31/14 Summary Judgment Opinion and
Order (Doc. No. 106) at 10. To allow a disappointed litigant a third bite at the apple
here would only encourage forum-shopping, and does not foster the purpose of Rule
9.01 to provide guidance to a federal court when the law is unsettled.
II. BACKGROUND FACTS
This action relates to a canceled coal-fired power generating plant that
American Municipal Power, Inc. ("AMP"), a highly sophisticated generator and
wholesaler of electricity, sought to develop in Meigs County, Ohio.
A. By Contract, AMP Agreed To Limit Bechtel's Liability.
Beginning in 2006, AMP began a development process for a new coal-
fired power plant, including an assessment of the market, financial, regulatory and
environmental risks associated with a large coal project. A team of attorneys, advisors
and engineers advised AMP throughout the process. On January 1, 2009, AMP
entered into a cost-reimbursable Contract with Bechtel Power Corporation ("Bechtel")
for the design, engineering and construction of the project. 10/21/14 Certification
Opinion and Order (Doc. No. 112) at 2. Pursuant to the 1,000+ page carefully-
negotiated Contract, AMP agreed to limit Bechtel's liability to $500,000 during the early
stages of the project.
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B. AMP Unilaterally Canceled The Project, Then Claimed DamagesBarred By The Contractual Limitation Of Liability.
In November 2009, AMP elected to cancel the project, allegedly because
Bechtel's estimate was higher than expected. In February 2011, AMP sued Bechtel,
seeking to recover nearly all of AMP's development costs for the project. AMP's
Complaint amounted to a multi-faceted attempt to avoid the Contract it freely negotiated
with Bechtel. AMP injected two tort claims (breach of fiduciary duty and gross
negligence) into this contract dispute, and sought to invalidate the limitation of liability
provision of the Contract, alleging that Bechtel was reckless, grossly negligent, willful
and wanton. The case was assigned to the Honorable Michael H. Watson in the United
States District Court for the Southern District of Ohio.
C. Bechtel Complied With The Contract.
From the outset of this dispute, Bechtel insisted that the Contract alone
governs its potential liability to AMP. Judge Watson agreed, granting Bechtel's motion
to dismiss AMP's tort claims, leaving only AMP's breach of contract claim to be decided.
Bechtel contends vigorously that it did not breach the Contract, let alone
engage in misconduct. Rather, Bechtel followed the Contract concerning the
development of the estimate, informed AMP and its advisers of the issues that caused
the estimate to be higher than anticipated, and complied with the Contract as it was
written and as the parties understood it.
Bechtel also disputes AMP's damages. AMP's unilateral decision to
cancel the project in 2009 was motivated by plummeting natural gas prices (thereby
rendering coal less competitive), the deepening recession that brought reduced demand
for electricity, and President Obama's declaration of a War On Coal. Because AMP's
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losses flowed from its cancellation of the project, and the project was cancelled for
reasons unrelated to Bechtel, AMP cannot recover its alleged losses from Bechtel.
D. Judge Watson Twice Rejected AMP's Attempts To Void TheLimitation Of Liability.
Judge Watson twice correctly applied settled Ohio law that freedom of
contract permits parties to limit their liability absent a showing of a willful breach or
wanton misconduct. Initially, in ruling on Bechtel's motion to dismiss, Judge Watson
rejected AMP's contention that reckless conduct could abrogate the liability limitation,
but found that AMP pleaded facts that could support an inference of wanton conduct.
Then, in ruling on Bechtel's motion to for summary judgment, Judge Watson confirmed
his earlier rejection of AMP's contention that reckless conduct could abrogate the
liability limitation, and determined that AMP could not after discovery prove that Bechtel
exercised no care whatsoever. After losing the issue twice, AMP sought this
certification as trial approached. This Court should not allow a time-consuming detour
to the litigation as the certified question is wholly settled and already has been correctly
decided by the District Court.
Ili. THIS COURT SHOULD DECLINE THE CERTIFICATION.
Under Rule 9.01 this Court has discretion to decline to answer certified
questions. This Court has declined where, as here, the question is answered by
controlling precedent from this Court, the question will not be determinative of the
proceeding and the trial judge, at petitioner's request, has already decided the question.
See, e.g., Fireman's Fund Ins. Co. v. Hartford Accident & Indem. Co., 129 Ohio St. 3d
1486 (2011) (declining to answer question under the same circumstances).
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A. This Court Should Decline Certification Because It Is Settled OhioLaw That A Contractual Limitation Of Liability Must Be EnforcedExcept In Cases Of Willful Breach Or Wanton Misconduct.
Freedom of contract is a fundamental principle of the law of Ohio.
Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 218 (2003); Lake Ridge Acad. v.
Carney, 66 Ohio St. 3d 376, 381 (1993); Blount v. Smith, 12 Ohio St. 2d 41, 47 (1967).
Following this fundamental principle, Ohio respects the rights of contracting parties to
limit their liability. And under Ohio law, limitations of liability are to be enforced absent a
willful breach or wanton misconduct. Berjian, 54 Ohio St. 2d at 157-58.
Berjian has been settled precedent in this state for more than thirty years.
It has been relied upon by businesses and contracting parties to govern their affairs and
commercial dealings in Ohio. The change in the law AMP requests would upset
carefully crafted contracts and expose contracting parties to different and potentially
expanded liabilities.
The certification process from a federal court has no place in any attempt
to overturn settled Ohio law, which is reserved for cases subject to the normal Ohio trial
and appellate court process. Because the principle of freedom of contract and the
Berjian standard are settled under Ohio law, the Court should decline certification.
1. Under Ohio Law, A Freely Negotiated Limitation Of LiabilityProvision Is Enforceable Absent A Showing Of Willful OrWanton Misconduct.
In Berjian, this Court pronounced that a contractual limitation of liability
clause is to be enforced absent a showing of willful or wanton misconduct: "There was
no showing of willful or wanton misconduct on the part of any of the Ohio Bell
employees, and absent such showing, the limitation of liability clause is effective."
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54 Ohio St. 2d at 158 (emphasis added). This Court defined exactly what was meant by
"wanton misconduct":
Although a limitation of liability of clause for damagescaused by one's own negligence may be valid andenforceable, it is ineffective where the party to the contractseeking protection under the clause has failed to exerciseany care whatsoever toward those to whom he owes a dutyof care.
As Judge Watson has twice ruled, Berjian is the law of Ohio. Earlier this
year, the Ohio Court of Appeals followed Berjian and affirmed summary judgment when
the plaintiff failed to establish that the defendant failed to exercise any care whatsoever.
See Main St. Marathon, LLC v. Maximus Consulting, LLC, 2014-Ohio-2034, ¶ 30 (Ct.
App. 5th Dist. 2014) ("An exculpatory clause cannot bar liability for acts that are willful or
wanton."). Moreover, neither AMP nor the District Court identified anything that could
constitute the "special justification" necessary to overcome the doctrine of stare decisis
here. See Wampler v. Higgins, 93 Ohio St. 3d 111, 120 (2001).
The Berjian Court's holding answers the certified question. A breach
meeting the lower standard of "reckless conduct" but not constituting "willful or wanton
misconduct," i.e. "no care whatsoever," falls short of what Ohio law requires to void a
limitation of liability.
2. The Federal Cases AMP Cited Do Not Support Its Request ToExpand The Berjian Standard And Change Ohio Law.
In the Motion to Certify to the District Court, AMP argued that "multiple
other [federal] district courts have concluded that the reckless standard also applies
under Ohio law." 5/12/14 AMP Motion to Certify (Doc. No. 108) at 8. But in our federal
system, no district court can change or call into question Ohio law as pronounced by
this Court, and the federal opinions' dicta does not reflect correct Ohio law.
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AMP seized on an obvious mistake in Nahra v. Honeywell, 892 F. Supp.
962, 970 (N.D. Ohio 1995), where the federal court, in dicta, paraphrased Berjian and
substituted the word "reckless" for the word "wanton". In Nahra, the court stated:
While viewed critically by the courts, limitation of liabilityclauses (including exculpatory clauses) may be freelybargained for in Ohio: Berjian v. Ohio Bell Telephone Co., 54Ohio St. 2d 147, 375 N.E.2d 410 (1978); .... And "absentimportant public policy concerns, unconscionability, or vagueand ambiguous terms, [such] provisions will be upheld,"Collins, 86 Ohio App. 3d at 832, so long as the partyinvoking the provision has not committed a willful orreckless breach. Berjian, 54 Ohio St. 2d at 158.
Id. at 969-70 (Emphasis added). Even though the Nahra court cited page 158 of Berjian
to support the "reckless" standard, the Berjian opinion never found "reckless" to be
sufficient to overcome a contractual provision, on page 158 or anywhere else. Rather,
Berjian plainly defined the standard as "willful or wanton."
This error was then repeated. In each of the cases cited by AMP, the
federal court either simply cited Nahra or made the same mistake. See Purizer Corp. v.
Battelle Mem'l Inst., No. 01 C 6360, 2002 U.S. Dist. LEXIS 138, at *15 (N.D. III. Jan. 4,
2002) (incorrectly citing Berjian for the proposition that the standard is willful or
reckless); Transcon Ins. Co. v, Simplexgrinnell L.P., No. 3:05CV7012, 2006 U.S. Dist.
LEXIS 48654, at*14-15 (N.D. Ohio July 17, 2006) (on summary judgment, quoting the
Nahra court's citation to Berjian, and stating that limitations of liability would be enforced
"`so long as the party invoking the provision has not committed a willful or reckless
breach"'); Solid Gold Jewelers v. ADT Sec. Sys., 600 F. Supp. 2d 956, 960 n.2 (N.D.
Ohio 2007) (citing Nahra for the proposition that limitations of liability are enforced "as
long as the party invoking the provision has not committed a willful or reckless breach");
Superior Integrated Solutions, Inc. v. Reynolds & Reynolds Co., No. 3:09-cv-314, 2009
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U.S. Dist. LEXIS 109402, at *8 (S.D. Ohio Nov. 3, 2009) (quoting Berjian correctly but
citing Solid Gold Jewelers for the proposition that "a willful or reckless breach is
considered to be an intentional breach and is, thus, willful misconduct"). Nahra's
mistaken inclusion of the word "reckless" in citing to Berjian did not, and cannot, change
or unsettle the law of Ohio as announced by this Court.
3. Anderson Confirmed That "Reckless Conduct" Is A DifferentAnd Lower Standard Than The "Willful And WantonMisconduct" Required By Berjian.
This Court's decision in Anderson v. City of Massillon, 134 Ohio St. 3d 380
(2012) laid to rest any notion that "reckless" and "wanton" are interchangeable. The
Anderson Court made clear that the two standards have different meanings, and
"reckless conduct" is a lower standard than "willful or wanton misconduct":
Willful misconduct implies an intentional deviation from aclear duty or from a definite rule of conduct, a deliberatepurpose not to discharge some duty necessary to safety, orpurposefully doing wrongful acts with knowledge orappreciation of the likelihood of resulting injury....
Wanton misconduct is the failure to exercise any caretoward those to whom a duty of care is owed incircumstances in which there is great probability that harmwill result.. . .
Reckless conduct is characterized by the consciousdisregard of or indifference to a known or obvious risk ofharm to another that is unreasonable under thecircumstances and is substantially greater than negligentconduct. . . ..
Id. at 388 (emphasis added) (citations omitted). The Court also eliminated any
confusion caused by a footnote in Thompson v. McNeill, 53 Ohio St. 3d 102 (1990), that
"[t]he term 'reckless' is often used interchangeably with `willful' and `wanton."' /d. at 103
n.1. In Anderson, this Court specifically disapproved the footnote: "We therefore
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disavow the dicta contained in Thompson,. .. that `willfulness,' `wantonness,' and
` recklessness' are equivalent standards." 134 Ohio St. 3d at 388.
To the extent AMP relies on pre-Anderson Ohio Court of Appeals
decisions confusing the standards, such reliance is misplaced. Anderson explicitly
addressed the flawed analysis underlying a number of such decisions that mistakenly
deemed "reckless" and "wanton" as "functionally equivalent." Id. at 387 (citing Marchant
v. Gouge, 187 Ohio App.3d 551 (5th Dist. 2010); INhitfield v. Dayton, 167 Ohio App.3d
172 (2d Dist. 2006); Brockman v. Bell, 78 Ohio App.3d 508, 516, (1 st Dist. 1992);
Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App.3d 448, 454 (12th Dist. 1991);
Minnick v. Springfield Local Sch. Bd. of Edn., 81 Ohio App.3d 545, 550 (6th Dist. 1992)).
Such Court of Appeals decisions, like the Thompson footnote, are no longer good law
after Anderson.
Anderson made clear that conduct meeting only the lower "reckless
conduct" standard does not suffice to meet the "willful or wanton misconduct" standard.
As Berjian provided, that is the applicable standard to void a contractual limitation of
liability under Ohio law.
B. This Court Should Decline Certification Because The Question Is NotDeterminative Of The Proceeding And May Be Unnecessary.
Another basis on which this Court should decline certification is that the
question is not "determinative of the proceeding", as required by Rule 9.01.1 The
1 Indeed, in adopting Rule 9.01 and its predecessors, Ohio did not use thebroader language of the Uniform Act enacted in other jurisdictions, that the questionneed only be "determinative of an issue pending in the litigation." Compare Unif.Certification of Questions of Law (Act) (Rule) § 3 (amended 1995), 12 U.L.A. 82 (1996),with Ohio S. Ct. Prac. R. 9.01. The certified question here may be determinative of anissue in the proceeding; but the standard in Ohio is that the question must bedeterminative of the proceeding itself.
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question relates solely to the amount of damages and therefore cannot be determinative
of the proceeding. Moreover, absent a finding that Bechtel breached the Contract and
caused AMP damages beyond the limitation, both of which Bechtel denies, the limitation
of liability, or the standard for overcoming it, will never come into play.
1. A Question That Relates Solely To The Amount Of DamagesCannot Be Determinative Of The Proceeding.
In the context of a certified question, the District Court correctly observed
that "a question which may be determinative of a proceeding is one which would form
the basis of the Court's disposition of one or more of the plaintiff's causes of action."
10/21/14 Certification Opinion and Order (Doc. No. 112) at 8. Acknowledging this
standard, the District Court stated that "whether reckless conduct bars enforcement of
the EPC Contract's limitation of liability clause relates only to the amount of potential
damages available for AMP's breach of contract claim and is not dispositive of the
underlying merits of that claim." Id. at 8 (emphasis added). Issues relating solely to
the amount of damages are not determinative. Gen. Acquisition v. Gencorp., Inc., 23
F.3d 1022, 1032 (6th Cir. 1994).
However, the District Court went on:
[R]esolution of the issue implicates the difference between$97 million and $500,000 in potential damages. Thus, whilethe issue at hand will not terminate the proceeding,reasonable jurists could conclude that given the uniquecircumstances of this case, the question of whether recklessconduct bars enforcement of a limitation of liability clause istantamount to determinative of this particular proceeding.
10/21/14 Certification Opinion and Order (Doc. No. 112) at 9. This Court should not
depart from the "determinative" standard set forth in Rule 9.01 where the District Court
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found only that "reasonable jurists could conclude" the issue is "tantamount" to
determinative.
While the District Court focused its attention on the unique circumstances
alleged in this case, peculiar or particular circumstances are not sufficient reason to set
aside the requirements of the Rule. Indeed, the validity of a limitation on damages does
not depend on the disparity between the amount of alleged damages and the agreed
cap, unlike the determination of whether a liquidated damage provision is an
unenforceable penalty. See, e.g., Samson Sales, Inc., v. Honeywell, Inc., 12 Ohio St.
3d 27, 28-29 (1984). This Court sets precedent for all parties and all cases in Ohio, and
should hesitate to craft broad exceptions to its rules because of the unique
circumstances of one case.
2. Because AMP May Not Be Able To Prove That BechtelBreached, Or Caused Any Of AMP's Damages, Deciding TheQuestion In The Abstract Is Not Appropriate.
This Court has exercised restraint to decline certified questions of law that
are not necessarily presented by the parties' claims. In Arbino v. Johnson & Johnson,
116 Ohio St. 3d 468, 485 (2007), this Court accepted a certified question, only later
discovering that the plaintiff in the pending case could not prove facts that would
actually implicate one of the certified questions. The plaintiff nonetheless urged this
Court to decide the issue for future cases. This Court observed:
Every court must "refrain from giving opinions on abstractpropositions and * * * avoid the imposition by judgment ofpremature declarations or advice upon potentialcontroversies." .... It is well-settled law that this court willnot issue such advisory opinions.... We therefore decline toanswer the second certified question.
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Bechtel strongly contends that it did not breach the Contract. Bechtel
further contends AMP's asserted damages are speculative and were not caused by
anything Bechtel did or failed to do. For these reasons, the certified question is not
determinative of the proceeding, and this Court should decline to accept certification.
C. This Court Should Decline Certification Because The District CourtTwice Correctly Decided The Issue Applying Settled Precedent.
This Court should decline certification because the question has already
been correctly decided. AMP's request for certification enlists Rule 9.01 not for its
intended purpose - to resolve genuine matters of unsettled Ohio law - but to seek a
third bite at the apple, asking this Court to expand liability under Ohio law after two
unfavorable rulings on the very question it seeks to certify.
This Court and federal courts alike reject this type of gamesmanship
regarding Rule 9.01. See Broadview Sav. & Loan Co, v. Riestenberg, 49 Ohio St. 3d
133, 134 (1990) (denying certification of question already decided by the Sixth Circuit);
City of Columbus v. Hotels.com, L.P., 693 F.3d 642, 654 (6th Cir. 2012) ( citations
omitted) ("[C]ertification is disfavored where a plaintiff files in federal court and then,
after an unfavorable judgment, 'seek[s] refuge' in a state forum."). Rather, "[t]he
appropriate time to seek certification of a state-law issue is before a District Court
resolves the issue, not after receiving an unfavorable ruling." Geronimo v. Caterpillar,
Inc., 440 Fed. App'x 442, 449 (6th Cir. 2011) (citation omitted). Here, the District Court,
relying on the clear and settled law in Berjian, twice rejected AMP's attempt to lower the
standard in Ohio to invalidate a limitation of liability provision.
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1. Judge Watson Applied The Correct Standard In DecidingBechtel's Motion To Dismiss.
In 2011, citing Berjian, Bechtel asked the District Court to dismiss AMP's
breach of contract claim to the extent AMP sought damages barred by the limitation-of-
liability provision in the Contract because AMP did not plead facts to support a finding of
"willful or wanton" conduct. 4/12/11 Bechtel Motion to Dismiss (Doc. No. 9) at 1. In its
opposition, AMP argued that a showing of "recklessness" was sufficient to invalidate the
agreed-upon limitation of liability. The District Court specifically rejected AMP's attempt
to disregard Berjian and change the standard to "reckless", and held that "the controlling
standard to enforce a limitation of liability remains whether the party that breached the
contract did so intentionally or failed to exercise any care whatsoever." 5/8/12
Motion to Dismiss Opinion and Order (Doc. No. 63) at 7 (emphasis added). To prevail,
AMP would have to establish that Bechtel "acted with no care whatsoever", i.e.
wantonly. Id. at 13.
2. Judge Watson Again Applied The Correct Standard InDeciding Bechtel's Motion For Summary Judgment.
In 2013, Bechtel moved for summary judgment, asserting in part that after
discovery AMP could not prove that Bechtel had acted with "no care whatsoever," and
that the District Court should therefore enforce the contractual limit of liability negotiated
and agreed by the parties. Bechtel Motion for Summary Judgment (Doc. No. 86) at 3.
For its part, AMP renewed its request that Judge Watson disregard Ber,jian and apply a
lower standard, this time arguing that this Court's Anderson decision changed the law,
making recklessness newly sufficient to invalidate a limitation of liability. 2/8/13 AMP
Opposition to Motion for Summary Judgment (Doc. No. 93) at 28.
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The District Court rejected AMP's argument that this Court's decision in
Anderson lowered the standard from "wanton" to °reckless", holding that "the standard
for overcoming a limitation of liability is, and has always been, willful or wanton."
3/31/14 Summary Judgment Opinion and Order (Doc. No. 106) at 10, citing Berjian, 54
Ohio St. 2d at 157-58 (emphasis added). The District Court granted Bechtel's motion
for summary judgment on the limitation of liability issue, holding that the undisputed
evidence precluded a finding that Bechtel exercised no care whatsoever and that the
limit of liability to which AMP had agreed when it entered into the Contract with Bechtel
would be enforced.
3. AMP Should Not Be Permitted To Forum Shop.
This Court should decline AMP's invitation to revisit the question already
twice correctly decided by the District Court. AMP does not seek an answer on an
unsettled question, but instead seeks to change settled Ohio law on the standard to set
aside a contractual limit of liability. AMP waited until the District Court decided the
certified question twice, nearly three years after its first attempt to lower the standard, to
seek certification to this Court.
Rule 9.01 is not a last resort for a disappointed party. This Court should
not accept the certified question. See Broadview Sav. & Loan Co., 49 Ohio St. 3d at
134 (denying certification of question already decided by the Sixth Circuit).
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IV. CONCLUSION
For the foregoing reasons, this Court should decline to answer the
certified question.
RespectFully s bm' t d,
Wi liani G. P®rter (0017296) (Trial Attorney)[email protected] R. Matthews (0039431)[email protected], Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-6400Facsimile: (614) 464-6350
Michael P. Subak(pro hac vice 5971- 2014)[email protected] W. Foltz, Jr.(pro hac vice 5792 - 2014)[email protected] Hamilton LLP3000 Two Logan SquareEighteenth and Arch StreetsPhiladelphia, PA 19103-2799Telephone: (215) 981-4000Facsimile: (215) 981-4750
Counsel for RespondentBechtel Power Corporation
Dated: November 13, 2014
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing was served
upon the following, by regular U.S. mail pursuant to Civ. R. 5(B)(2)(c), this 13th day of
November 2014:
David John ButlerStephen Charles FitchTaft Stettinius & Hollister LLP65 East State Street, Suite 1000Columbus, OH 43215-4213
Judah LifschitzShapiro, Lifschitz & Schram1742 N Street NWWashington, DC 20036
0
V1/ilfiam G. Porter
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