BIOMASS ONE, L.P. v. S-P CONSTRUCTION

87-1724-J-2, 87-1766-J-2, 86-1146-J-2, 86-1567-J-2, 86-2621-J-2, & 87-1986-J-2 (Consolidated); CA A68622.

852 P.2d 847 (1993)

120 Or. App. 194

BIOMASS ONE, L.P., a Delaware limited partnership, Biomass-One Operating Company, an Oregon corporation, Lee S. Weisell, D. Sam Scheele, and Marc D. Rappaport, Plaintiffs, v. S-P CONSTRUCTION, a joint venture between Pacific Architects & Engineers, Incorporated, and Sheldon L. Pollack Corporation, Pacific Architects and Engineers Incorporated, a California corporation, Sheldon L. Pollack Corporation, a California corporation, Norbert W. Pieper, A.I.A., Inc., a California corporation, and Pacific Architects and Engineers Incorporated, a California corporation, a joint venture, Pieper A.I.A., Inc., a California corporation, Pacific Architects and Engineers International, a California corporation, Edward A. Shay, an individual, Sheldon L. Pollack an individual, E.R. McCollum, an individual, Norbert W. Pieper, an individual, and Aetna Ins. Co., Defendants, UNDERWRITERS OF INTEREST, consisting of Walbrook Insurance Company Limited, Dart & Kraft Insurance Company Limited, El Paso Insurance Company Limited, Louisville Insurance Company Limited, Ludgate Insurance Company Limited, Mutual Reinsurance Company Limited, Compagnie Europeene D'Assurances Industrielles S.A., Lexington Insurance Company, St. Katherine Insurance Company PLC, Assicurazioni Generali S.P.A., Andrew Beazley Syndicate # 623, Charles Henry Allenskey, Representative For: R.A. Edwards Syndicate at Lloyd's # 219; R.A. Edwards Syndicate at Lloyd's # 219, (Reference: Oregon), Appellants, and S-P Construction, a joint venture between Pacific Architects & Engineers, Incorporated, and Sheldon L. Pollack Corporation, and Aetna Ins. Co., Third-Party Plaintiffs, v. DETROIT STOKER CO., a subsidiary of United Industrial Corporation, Respondent, and Deltak Corporation, S.M. Gilbert Co., Inc., Continental Insurance Company, Corrosion Controllers, Inc., Fireman's Fund Insurance Company, Mid-Continent Industrial Services, Inc., Employers Insurance Company of Wausau, Andersen 2000, Inc., Hartford Insurance Group, Beaumont Birch Company, American Ins. Co., Duncan Richardson Engineering Company, Inc., aka DCR Engineers, Inc., Bulk Handling Systems, Inc., Industrial Indemnity Company, David Hartzell, individually and dba International Trade Management & Associates, Aqua-Con-Permutit, Protech Consulting Services, Inc., Clay Morrison Constructors, Inc., Ausland Construction, Inc., Beckman Industrial Corporation, Northwest Controls, Inc., North American Pneumatics, Inc., BBC Brown Boveri, Inc., Insurance Co. of North America and Rosemount, Inc., Third-Party Defendants.

Court of Appeals of Oregon.

Decided May 12, 1993.


Attorney(s) appearing for the Case

John Folawn, Portland, argued the cause for appellants. With him on the briefs were Martin W. Jaqua and Holmes & Folawn, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. On the brief were M. Elizabeth Duncan, W.A. Jerry North and Schwabe, Williamson & Wyatt, Portland.

Before ROSSMAN, P.J., and De MUNIZ and LANDAU, JJ.


LANDAU, Judge.

Third-party plaintiffs Underwriters of Interest (Underwriters) appeal from a summary judgment in favor of third-party defendant Detroit Stoker. We reverse and remand.

S-P Construction (S-P) contracted to design and construct for Biomass One, L.P. (Biomass), a completed cogeneration power plant. S-P subcontracted with Detroit Stoker to provide "stokers," which are pieces of equipment in which wood waste...

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