before i began i'd like to apologize for the size of the appendix we may have been able to do a better job paring down with this is a fairly documented intensive case  multiparty case the problems began when the ira great lakes sanitary sewer district determined that they had to expand the great lakes they also needed the mot bond was purchased from defendant travellers and then the project started not too long into the project however the construction company defaulted  said they didn't have the money to finish the project at that point travelers stepped in and presented what they called a takeover agreement to the great lakes an what they said intensely in the dream it was we guarantee it what it provides substance to the promises made by tr well they went from a contract guarantee actually a contract terms to essentially guaranteeing that the project would be completed in accordance to the contract documents and that the project itself would not be just the completion of the buildings and the materials but rather that the canned the project would be a functioning project because defended travelers are taking that position that all they had to do was put it together and not have any responsibility to determine whether or not the project would actually do what it was designed to do they are guaranteed the performance and payment obligations of the original contractor now when the contessa defaulted the takeover agreement was in place a new contractor was hired part of the project of course required the the placement of an ultraviolet disinfectant  it was manufactured by the predecessor to defend it evoked unfortunately it was not a system that ever functioned adequately it was constantly offline it would in fact malfunction to the point where even it was not in place and working for roughly seventy percent of the time so in part this case depends upon the court district court determination that you had to work that was done and that the parties were bound by the engineers decision and precedent we have cited one of which is the piercy which case states that if you agree that a third person can make that decision then you're bound by that third person's judgment only on the condition that that judgment is reasonable and is consistent with his with and the other contention was that evoke was breached its warranty with respect to the ultraviolet disinfecting equipment which would require can evoke what i'm sorry substantially out of the picture the the bond states this and says we will provide coverage under our bond for the duration of the project start to finish and then for two more years is why i say that ok during that construction phase we're putting this project together not until it's actually finished are substantially complete we turned it on and we said ok is completion includes testing including successful satisfactory testing for the if we're talking all survive equipment it worked for a brief period of time contract who's  what when substantial completion includes a testing to the owner satisfaction how long it includes includes that but like i say the equipment had multiple well the engineer is the one who who was involved in the testing process they got the equipment to work for said they got the equipment to work for sixty days then they took it out of service for the weather which is what they do put it back into service in the spring it caught on fire it was taken back to the factory certification or whatever it is improvement documents that were that are part of a contract but what gives the engineer the authority to declare it defective in perpetuity that again is part of the perpetuity i mean this was i'm sorry this was some nine hundred plus days after the declaration of acceptance again it provides for a two year guarantee and maintenance period from november of repair the equipment what they did was a read zan of the equipment of oakwood head and said to them well it's going to cost seventy five thousand dollars to repair and it's equipment but we're not going to do that we want you to pay half of that and the owner said we've already paid one hundred thirty two thousand dollars for equipment that's spent most of its time in the box and nonfunctioning so my point is that the two year period period during which the product was malfunctioning and that the engineer then extended to the to the manufacturer and the travelers additional time to repair it and then they wouldn't do it without charging the district an additional thirty five thousand and then the engineer says sorry we've tried to work with you you simply will not return to repair this equipment we've asked you multiple times to insurance company i see this as a case involving two issues oh really got one question for you and then yes or no others and that is what does travel or if what is travelers position as to what the two year provision means and what what function it serves in this relationship or you're speaking about the two year warranty provision the two years the two year provision  guarantee beyond the substantial completion date we travellers undertook certain obligations and spawn and that's takeover prima in your practice practically example since you well you don't want to talk about it in your brief and write all of them all at iowa state want to talk about and it to me it is it sort of muddies what would otherwise appear to be a fine point of departure between the contract fortune of the relationship and guaranteed by your client bond and the warranty obligations of the equipment supplier after after the project is completed travel's had the obligation to bring the project to completion in other words to get this was stanch of completion and then to final completion the warranty period kicked in at the time of substantial completion and according to the contract that's when the warranties that were provided by evoke was transferred to the owner  d but the bond also contains a two year an obligation to cover that two year warranty period and so if you vocal while had breached its warranty then the traveller's obligation during that warranty period would kick in but the record reflects and it's admittedly deemed an mid by the district court that vocal was responsive and did not breach its warranty during that two year thought it wasn't the construction contractors obligation during the one year following substantial completion i thought that might have been what you say it was limited to but you rightly evoke was warranty was with respect to the u v equipment that it manufactured and supply and i believe that's the only issue in this case is the one operability or the the problems with district could not present expert witness testimony because they did not disclose any experts to testify ok so that's not as we'll so in that regard if  contract i think said that if their engine ear believes it to be defective why why isn't that sufficient if the engineer i mean haven't you just granted discretion to the engineer during the construction of the project but not some three years after substantial completion of the project and then after the expiration of the warranty period ok so what supports that there is some limitation on the time period provision they give the engineer that authority you're supposedly gives him the authority to reject defective work that specifically refers to a rejecting work to lead to a warranty yes it if they're talking about the project while the project design or construction and and we acknowledge that that's reasonable that they can do that but for him to say that he can maintain them authority three years after substantial completion and and six months after the warranty period has expired that's misreading the contract misapplying the contract and unreasonable also they didn't not identify their engineer as an expert witness to testify at trial so they had no one including their engineer necessarily have to do that if all he has to do is say i believe it to be defective but you recall mr hamilton's when he said that is subject to number one has to be reasonable and number two it has to be within those authority and for it to be proven reasonable they would have to provide some basis for that rejection and they can't do that without expert testimony and they didn't identify him or anyone else that was going to testify that that equipment was defective in the reason is that there could have been other reasons why it wasn't working beyond construction and material the way it was made yes the record is is explicit it extra contains concerns about the way the point was maintained the way it was stored every every fall they had to take the equipment out and store it and then put it back in there was concerns about how that was done and there was concern about how it was operated and whether it was operated properly and without the whole concept of you would be disinfection is a complicated scientific  matter and without an expert to point to a specific problem or a specific defect they couldn't meet their burden of proof to demonstrate a breach of the warranty b breach of the contract by travelers let me ask you you say that the engineers authority to reject stops at the time of the certification that it was complete but that isn't section nine point zero six a little broader than that does it have such a limitation in other words where do you get that limitation that that authority and at the time he deems it satisfactory well that entire paragraph is talking about work that leads up to the completion and acceptance of the project if it doesn't talk about this authority being unlimited not only beyond the acceptance of the project but also beyond the warranty period and i did for night i'm about just into the warranty period is it extended into the warranty period or not i don't believe it does i don't i believe that why is that because the warranty is a separate section and there's no mention of the engineer being able to reject in that provision yes because the project is accepted at that point subject only to the provisions of the warranty their rights under made please the court counsel my name is michael thrall i represent the aptly of local water technologies l l c there are two separate basis on which the ruling of district court judge leonard strand from the court correctly determined that the plaintiff could not prove breach of expressed warranty claim without expert testimony secondly even if there were genuine issues of material fact as a related to  defect or breach of the warranty the undisputed facts of the record established that of boca evoke wa complied with that warning in terms of its repair and replacement  as to the first point we're dealing as has been discussed already here this morning ultraviolet equipment certainly the nature of the technology the nature of the equipment  is complex sophisticated technology that's beyond the common knowledge and experience of the average lay person expert testimony was required to establish the defect the water  great lake sanitary district did not have expert testimony as a result they could not establish the defect and as a result of the court correctly determined that  plaintiff's claim as relates to the express warranty failed and granted summary judgment on that basis the second ground deals with the warranty itself to prevail the plaintiff had to establish  the statement of undisputed facts submitted by a vocal in that regard was not responded to by the water district sanitary district in this case the just record determined under the local addressed the warranty claims that had been submitted and what few warranty claims remain towards the end of it that the district refused to allow the lot of oil to address and repair and replace those particular parts as a result on the basis of the undisputed facts we certainly believe that the district court's ruling could be sustained on the substantial completion issued that the engineer no longer had any so or easy to reject that equipment's if i can cite join appendix five twenty four section thirteen  sites that contract to show correct all defective work whether or not fabricated installed or completed or if the work has been rejected by the engineer remov from the reply project replace it with work that is not defective it was essentially make no sense to even have a performance and mates and thence guarantee agreement for two years if the engineer could do nothing about it's during that two years so i respectfully disagree even if there's a difference between saying the engineer couldn't do anything about it and based soley on his belief he can reject completely and demand a complete refund i'm not aware what the edges are could do i suppose the approach the contractor and say i don't like what's happening make a claim under the warranty well except that the warranty is a  separate process whereby the owner could claim as we did that there was a breach award but there's nothing in the contract or in the law that i'm aware of that relieves the bonding company from a separate responsibility to the owner as well so actually the owner could process both claims which we attempted to do here and i'm not aware that the warranty then relieves the contractor and the bonding company from their own responsibility i don't think that's the argument so i think the argument is that the engineer doesn't have the authority upon his belief beyond the date of acceptance and once he accepts then you're in the land of just making the warranty claim at least free but i give up but i don't see anywhere in the contract worth says that he is precluded from making those judgments after the the issue the substantial completion and in fact the contract resized specifically appendix five thirty one section seven you know for all representations and then it's occasions warranties and guarantees required by the contract documents will survive final pa payment completion and acceptance of the work or terminations or completion of the agreement all of the language in the contract disputes the arguments of mr hammer and then one substantial completion has been reached there is no more remedy available and the engineer cannot reject the equipment because i didn't find nothing in the contract to support that and then one of the statement he made was well how can the engineer establish what is reasonable unless there's been some kind of designation that he is travelers is limited by the warranty remedies a contractor also and travelers have a separate responsibility because under six point one nine of joint appendix five thirteen it resized the contractor warrants and guarantees the owner and generic engineers consultants that all work will be in accordance with the contract documents and will not be defacto there's no limitation on that guarantee but the contract is basically done with completion a substantial rejection is a remedy that exists beyond the two years but the engineer made it clear that he was unsatisfied with their work for at least the last two or three years of the project so the defect obligations missed there are memorandums all through the appendix there's even siemens is only part and says basically they know they haven't done that they didn't show up to the last year of this project  thank you also for counsel for apple lee's court is grateful for your presence in the argument which you provided to the court i will do our best wrestling with the issues and render decision in due course