Exxonmobil Oil Corp. v. Amex Construction Co. (702 F. Supp. 2d 942, 2010)

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Plaintiff ExxonMobil Oil Corporation (“Exxon”) filed suit against Defendant Amex Construction Co., Inc. (“Amex”) alleging breach of warranty and negligence after a High Density Polyethylene (“HDPE”) pipe installed by Amex burst at an Exxon refinery. Amex later filed a Third-Party Complaint seeking contribution against ISCO Industries, LLC (“ISCO”), the supplier of the defective pipe, and Ambitech Engineering Corporation (“Ambitech”), the pipe designer. Exxon, Amex, Ambitech, and ISCO have filed eight motions for summary judgment on various claims and defenses.

For the reasons stated below, this Court grants Exxon’s Motion for Summary Judgment as to the breach of General Warranty component of Count I and as to Count II, and denies its Motion with respect to the Warranty of Competence component of Count I. The Court grants Amex’s Motion for Summary Judgment on Count I with respect to the Warranty of Competence component and its Motion for Summary Judgment on its Fifteenth Affirmative Defense with respect to negligence; the Court denies Amex’s Motions for Summary Judgment on the General Warranty component of Count I, Count II, and the breach of warranty component of its Fifteenth Affirmative Defense. The Court denies ISCO’s Motion for Summary Judgment. Finally, the Court grants Ambitech’s Motion for Summary Judgment, rendering moot its Motion for Summary Determination regarding the applicability of the Moorman Doctrine. The Court further finds that even if it had denied Ambitech’s Motion for Summary Judgment, Ambitech would be entitled to partial summary judgment on its Borrowed Servant Affirmative Defense as to its employee Elizabeth Wenzel.

STATEMENT OF UNDISPUTED FACTS

I. The HDPE Project

Exxon owns and operates a petroleum refinery in Joliet, Illinois (hereinafter “the Refinery”). (AM 56.1 Resp.. Exxon ¶ 2.) Amex is a union industrial field piping company that provides process piping fabrication and related industrial services. (AM 56.1 Resp. Exxon ¶2.) Third Party Defendant Ambitech provides professional engineering services to Exxon and other clients. (AM 56.1 Resp. Exxon ¶ 2.) Third Party Defendant ISCO provides materials, supplies, and training related to HDPE pipe, and is an authorized distributor of McElroy Manufacturing butt fusion equipment. (AM 56.1 Resp. Exxon ¶ 2.)

After a cooling water fine failed at the Refinery in February 2002, Exxon made plans to replace its underground cooling water return lines with carbon steel piping. (AM 56.1 Resp. Exxon ¶ 3.) The Refinery uses these lines to cool liquid petroleum gases back to a liquid state, and also to cool various generators and mechanical equipment. (AM 56.1 Resp. Exxon ¶ 4.) The lines continually draw water from the Des Plaines River to account for evaporation. (AM 56.1 Resp. Exxon ¶ 5.) Exxon awarded Amex the installation contract and Ambitech the engineering contract for the carbon steel replacement project (“the Carbon Steel Project”). (AM 56.1 Resp. Exxon ¶ 3.)

On March 5, 2004, in order to keep the Refinery functioning during the execution of the Carbon Steel Project, Amex submitted a proposal to Exxon for the installation of temporary, aboveground HDPE pipes to be used for water cooling (“the HDPE Project”). (EX 56.1 Resp. Count II ¶ 8(b); AM 56.1 Resp. Exxon ¶ 6.) The temporary pipes would carry water from the Refinery process units back to the cooling tower and heat exchangers until the carbon steel lines were installed. (AM 56.1 Resp. Exxon ¶ 6.) The original plan called for these temporary pipes to be in service for three to four months. (AM 56.1 Resp. Exxon ¶ 6.) On September 15, 2004, Amex submitted a breakout pricing proposal to Exxon for the HDPE Project. (EX 56.1 Resp. Count I ¶ 14.) On September 30, 2004, Exxon accepted Amex’s proposal and placed a Service Order for the installation of the HDPE pipe and related services. (EX 56.1 Resp. to Amex Count II ¶ 8(c); EX 56.1 Resp. 15th Aff. Def. ¶ 14; AM, EX 56.1 Resp. AT ¶ 12; AM, EX 56.1 Resp. AT Economic Damages ¶ 12.) The Service Order describes “[mjobilization, labor and supervision for the pipe fabrication for the cooling water return line replacement project in accordance with Amex Proposal 04-5421 dated 9/15/04.” (EX 56.1 Resp. Count I ¶ 12.)

A.. Training by ISCO

In November 2004, Amex began work on the HDPE Project at the Refinery. (EX 56.1 Resp. Count I ¶ 16; EX 56.1 Resp. to Amex Count II ¶ 8(d); EX 56.1 . Resp. 15th Aff. Def. ¶ 15; AM, EX 56.1 Resp. AT ¶ 13; EX, AM 56.1 Resp. AT Borrowed Servant ¶ 13; AM, EX 56.1 Resp. AT Economic Damages ¶ 13.) Exxon was aware that Amex operators had no experience fusing HDPE pipe, so it retained ISCO to provide training in HDPE hydraulic butt fusion. (AM 56.1 Resp. Exxon ¶¶ 9, 51; AM 56.1 Resp. Exxon Add. Facts ¶ 50.) ISCO held itself out as having knowledge, expertise, and experience in the proper heat fusion procedures for HDPE pipe and Exxon identified ISCO as having such knowledge and expertise. (AM 56.1 Resp. Exxon Add. Facts ¶¶ 52-53.) ISCO also sold Exxon the HDPE pipe, provided the bonding procedure specification and qualification for bonding operators, determined which fusion machine would be used, and rented the fusion machine to Exxon for the HDPE Project. (AM 56.1 Resp. Exxon ¶ 9; AM 56.1 Resp. Exxon Add. Facts ¶ 56; AM 56.1 Resp. Add. Facts ISCO ¶¶ 78-79, 82.) The pipe manufacturer, McElroy Manufacturing, gave ISCO copyright permission to use McElroy instruction manuals for its hydraulic butt fusion training. (AM 56.1 Resp. Exxon ¶ 8.)

Amex then chose certain of its pipefitters to attend a one-week training on HDPE fusion using a McElroy fusion machine. (AM 56.1 Resp. Exxon ¶¶ 9-10.) ISCO employee David Holman (“Holman”) performed this training. (EX, AM 56.1 Resp. ISCO ¶65.) Both ISCO and McElroy originally trained and certified Holman, who subsequently trained approximately 100 other individuals in HDPE fusion over the course of 10 years. (EX, AM 56.1 Resp. ISCO ¶¶62, 64.) Part of Holman’s initial training consisted of going through the steps set forth in the ISCO Heat Fusion Manual (“Heat Fusion Manual”). (EX, AM 56.1 Resp. ISCO ¶ 65.)

As part of its training, ISCO provided Amex pipefitters with the Heat Fusion Manual, along with a weather resistant instruction manual with instructions and illustrations of HDPE fusion. (AM 56.1 Resp. Exxon ¶ 10.) The portion of the Heat Fusion Manual pertaining to hydraulic butt fusion is 16 pages in length and contains multiple illustrations of the fusion process. (AM 56.1 Resp. Exxon ¶ 10.) The Heat Fusion Manual specifically instructs not to heat HDPE pipe under pressure. (AM 56.1 Resp. Exxon ¶ 10.) Indeed, one of the basic parts of HDPE fusion is not to heat the pipe under pressure. (AM 56.1 Resp. Exxon ¶ 8.) In this regard, Exxon’s expert, James Perrault (“Perrault”) of McElroy Manufacturing, explained that when HDPE pipe is heated, the molecular structure is transformed into an amorphous condition, and when fusion pressure is applied, the molecules from each pipe end mix. (AM 56.1 Resp. Exxon ¶ 7.) Once the pipe joint cools, the pipe ends become one homogeneous pipe and the joint is as strong or stronger than the original pipe itself. (AM 56.1 Resp. Exxon ¶ 7.) If an operator applies excessive pressure to HDPE pipe while it is being heated, however, this will result in cold fusion, a condition that substantially weakens the pipe by creating gasps where the two pipe ends are not fused. (AM 56.1 Resp. Exxon ¶ 8.)

After four to five days of training, Holman issued certificates of training to Amex pipefitters Tom Pumnea (“Pumnea”) and Patrick Daly Jr. (“Daly”) among others, indicating that they had demonstrated proper heat fusion principles and techniques for fusing HDPE pipe on a McElroy machine. (AM 56.1 Resp. Exxon Add. Facts ¶ 38; EX, AM 56.1 Resp. ISCO ¶¶ 47, 61.) To the best of Holman’s recollection, Pumnea and Daly each performed five to six welds with Holman watching over their shoulders. (AM 56.1 Resp. Exxon Add. Facts ¶ 42.) Holman only issued certificates of training to pipe-fitters whom he actually observed performing welds, and he felt confident that the individuals he trained understood how to perform HDPE fusion. (AM 56.1 Resp. Exxon Add. Facts ¶¶ 40-41.) He recommended Daly and Pumnea to run the McElroy machine because they showed the most interest in running it, picked up on their duties quickly, and did not deviate from the procedures he taught them when performing welds. (AM 56.1 Resp. Exxon Add. Facts ¶¶ 43-44.) Holman felt that Pumnea’s and Daly’s training with him sufficiently prepared them to perform welds, and was confident that they understood what they were doing. (AM 56.1 Resp. Exxon Add. Facts ¶ 45; EX, AM 56.1 Resp. ISCO ¶70.)

On February 10, 2005, Holman filled out ISCO Heat Fusion Evaluation Form 95 with respect to both Daly and Pumnea, which he would not have filled out if he did not believe them to have the level of understanding necessary to operate the McElroy machine. (AM 56.1 Resp. to Exxon Add. Facts ¶¶ 47-48.) The form required Holman to circle ten items, which Daly admits that he learned in his training. (EX, AM 56.1 Resp. ISCO ¶ 54.) Through this form, ISCO certified that Pumnea and Daly demonstrated the proper heat fusion principles and techniques for HDPE pipe on a McElroy machine. (AM 56.1 Resp. Exxon Add. Facts ¶ 55.) John McKinney (“McKinney”), Ambitech’s expert, later confirmed that Daly and Pumnea were qualified and competent to perform HDPE butt fusion. (AM 56.1 Resp. Exxon Add. Facts ¶ 58.)

B. Fusion of HDPE Pipe

Throughout the course of the HDPE Project, Daly and Pumnea were the two Amex employees primarily responsible for fusing the HDPE pipe. (AM 56.1 Resp. Exxon ¶ 12.) Prior to the HDPE Project, Daly had 10 years of pipefitting experience fusing primarily metal pipe, but no experience with HDPE pipe. (EX, AM 56.1 Resp. ISCO ¶¶ 45, 53) When he fused the HDPE pipe at the Refinery, Daly sat “on the heating pressure [] waiting for the bead and then heat soak[ed] it.” (AM 56.1 Resp. Exxon ¶ 12; EX 56.1 Tab H, 59: 17-59: 24.)

Daly testified that Holman trained him to heat the pipe under pressure in contravention of the Heat Fusion Manual, further explaining that heating HDPE pipe under pressure is “inconsistent with the [ISCO] manual, obviously, otherwise we wouldn’t be here.” (EX, AM 56.1 Resp. ISCO ¶ 49, 57; ISCO 56.1 Exhibit 4, p. 34.) More specifically, Daly testified that Holman instructed him to heat the pipe ends under fusion pressure until reaching a 9/16-inch bead size, and then to heat soak the pipe ends for four and a half minutes before pushing them together. (AM 56.1 Resp. Exxon Add. Facts ¶ 35.) Holman offered contradictory testimony in this regard, admitting at one point that he instructed Amex pipefitters to heat the HDPE pipe under pressure until they noticed the “first indication of a melt” and then to reduce the pressure to zero, and later stating that he trained them to heat the pipe under zero pressure until a 7/16 to 9/16-inch bead formed. (EX, AM 56.1 Resp. ISCO ¶¶ 66-67.) Holman trained the pipefitters to next remove the HDPE pipe from the heating plate, make a visual inspection to check for concavity, redo the weld if they saw a concave appearance, and then fuse the pipe under pressure until it cooled. (EX, AM 56.1 Resp. ISCO ¶¶ 60, 68-69.)

Daly read the Heat Fusion Manual during training and knew at the time he was fusing the pipe that Holman’s training deviated from the manual with respect to heating the pipe under pressure. (EX, AM 56.1 Resp. ISCO ¶¶51, 59.) Daly followed Holman’s instructions rather than the Heat Fusion Manual, however, because he decided that his trainer knew best, and because in his experience, manuals do not always apply to real world situations. (AM 56.1 Resp. to Exxon Add. Facts ¶¶ 35-36.) During a later water reclamation project following the filing of this lawsuit, Daly “went back to the book” and performed the fusion “more by the book.” (AM 56.1 Resp. Exxon ¶ 12; EX 56.1 Tab H, 58: 20-59: 21, 61:11-14.) Daly now reduces the pressure on the fusion machine to zero as soon as he “get[s] the bead started” while fusing HDPE pipe. (EX, AM 56.1 Resp. ISCO ¶ 56; ISCO 56.1 Exhibit 4, pp. 150,152.)

C. Completion of the HDPE Project

Amex pipefitters pre-fused the pipe joint that eventually failed in advance of its installation, and then transported the prefused joint to its actual location before fusing the final segments. (AM 56.1 Resp. Exxon ¶ 11.) Before Amex and Exxon placed the HDPE pipe into service, it was subject to hydrotesting, which consisted of filling the pipe with water to 1.5 times the operating pressure and testing for leaks. (AM 56.1 Resp. Exxon ¶ 14.) Exxon employees signed off on the pipe after it passed the hydrotest. (AM 56.1 Resp. Exxon ¶ 14.) On June 2, 2005, Amex completed the installation and Exxon placed the pipe into service. (AM 56.1 Resp. Exxon ¶ 14; AM, EX 56.1 Resp. to AT Economic Damages ¶ 14; AM, EX 56.1 Resp. AT ¶ 14.)

II. HDPE Pipe Failure

At approximately 8:20 PM on July 30, 2005, eight weeks after the installation of the HDPE pipe, a weld holding a thirty-six inch section of the pipe failed, causing the pipe to decouple. (AM 56.1 Resp. Exxon ¶ 15; AM, EX 56.1 Resp. AT ¶ 15; AM, EX 56.1 Resp. AT Economic Damages ¶ 15.) A process technician for the Refinery’s coker unit, Nick Coba (“Coba”), noticed the leak while walking by the HDPE pipe. (EX 56.1 Resp. Count II ¶ 10(d-e); AM 56.1 Resp. Exxon ¶ 15.) He alerted Night Superintendent Lonnie McCollum (“McCollum”), who had worked at the Refinery since 1979 and was in charge of the Refinery on the night of July 30, 2005. (EX 56.1 Resp. Count II ¶ 10(d-e); AM 56.1 Resp. Exxon ¶ 15.) Coba did not seem out of breath or excited when he entered the control room to speak to McCollum. (EX 56.1 Resp. Count II ¶ 10(f); EX, AM 56.1 Resp. ISCO ¶9.) McCollum then put on his hard hat and went to examine the site. (EX 56.1 Resp. Count II ¶ 10(d).)

When McCollom first arrived at the site of the leak, two to three minutes after Coba informed him of it, he observed a six to eight inch hairline-sized leak in the pipe with water spraying from it. (EX 56.1 Resp. Count II ¶ 10(g, j); EX, AM 56.1 Resp. ISCO ¶ 11.) At that point, water was “just barely spraying out,” and the leak neither alarmed him nor did he believe it to be dangerous. (EX 56.1 Resp. Count II ¶ 10(g, j); EX, AM 56.1 Resp. ISCO ¶¶ 12-14.) McCollom informed Coba that he would call maintenance to come take a look, but during this conversation, the leaking area began growing around the circumference of the pipe, after which the pipe “unzipped” and decoupled. (EX 56.1 Resp. Count II ¶ 10(h); EX, AM 56.1 Resp. ISCO ¶ 16.) McCollom was standing next to the pipe when it decoupled and testified that he does not believe that anyone was in danger of being hurt at the time. (EX 56.1 Resp. Count II ¶ 10(i); AM 56.1 Resp. ISCO ¶ 16; EX 56.1 Resp. ISCO Exhibit 1 60:1-8; 68 1-20.) Indeed, a person standing nearby when the pipe decoupled may have gotten wet but would not have been injured. (EX, AM 56.1 Resp. ISCO ¶ 24.)

Once the pipe decoupled, the water pushed its ends apart at least 2 to 3 feet and there was a significant amount of water on the ground, so McCollum radioed the general cooling tower and said “prepare for — start shutting down, emergency shutdown.” (AM 56.1 Resp. Exxon ¶ 15; EX 56.1 Exhibit N 61: 18-24; 62: 1-2; EX, AM 56.1 Resp. ISCO ¶ 17.). Exxon performed an emergency shut-down of the Refinery within the next twenty to thirty minutes. (EX, AM 56.1 Resp. ISCO ¶ 19.) McCollum ordered the shutdown to prevent unit equipment from overheating and for safety reasons because the cooling water system had become inoperative. (AM 56.1 Resp. Exxon ¶ 16.) Exxon employee Steven Penteris (“Penteris”), the mechanical engineering group leader responsible for supervising mechanical engineers, testified that without cooling water, vapor pressure rises, risking explosion or atmospheric release. (AM 56.1 Resp. Exxon ¶ 16; EX, AM 56.1 Resp. ISCO ¶ 22.) In order to prevent this type of “catastrophic failure,” the Refinery burned all of the hydrocarbon it had in production at the time. (AM 56.1 Resp. to Exxon ¶ 16.) Once Exxon shut down the water pipes, there was some residual water flowing from the pipe. (EX, AM 56.1 Resp. ISCO ¶20.) Maintenance attempted to clamp the broken section of HDPE pipe or push it together with a fork lift, but could not fix it. (EX, AM 56.1 Resp. ISCO ¶ 21.)

III. Post-Failure Analysis

The HDPE pipe that decoupled was not constructed in a manner that rendered it fit for its intended purpose. (AM 56.1 Resp. Exxon ¶ 32.) Indeed, a post-failure analysis of the pipe conducted by Perrault revealed that the “joint ha[d] very clearly been heated under pressure because of th[e] concave appearance of th[e] melt, and the fact that the two ends never actually fused together.” (AM 56.1 Resp. Exxon ¶ 13; EX 56.1 Exhibit L, 62: 9-12.) Perrault further opined that “the operator of the fusion equipment failed to properly fuse the joint.” (AM 56.1 Resp. Exxon ¶ 13; EX 56.1 Tab L, 69: 15-17.) Amex’s expert Nicolas Biery (“Biery”) confirmed that “if there were no defect in the joint ... then my opinion is it most likely would not have failed.” (AM 56.1 Resp. Exxon ¶ 13; EX 56.1 Exhibit M, 38: 7-16.) With respect to the reasons he believed the pipeline failed, Biery opined that: “there was a fusion with the defect in it,’ and there were operating stresses on that defect. And that defect was large enough that when those operating stresses operated on the defect that the defect grew until it was large enough to cause a failure in the line, a leak and a failure.” (AM, EX 56.1 Resp. AT ¶ 22.) Frank Volgstadt (“Volgstadt”), ISCO’s expert, however, testified that although Holman was wrong if he taught Daly to deviate from the ISCO Fusion Manual, using the procedure Holman taught him would not result in defective cold fusion — “no it would not, absolutely not.” (AM 56.1 Resp. to Exxon Add. Facts ¶ 60.)

Biery’s report further concluded that Ambitech’s HDPE piping design used a thinner-walled pipe than required by American Society of Mechanical Engineers B31.3 (“ASME B31.3”) standards, which applied to the work performed on the HDPE Project. (AM, EX 56.1 Resp. AT ¶ 17, 19; AT 56.1 Resp. Add. Facts AM ¶¶24, 27.) ASME B31.3 uses the design pressure, hydrostatic design stress, and outside diameter of a pipe to determine its proper wall-thickness. (AT 56.1 Resp. Add. Facts AM ¶ 26.) Neither the guidance provided by to Ambitech by ISCO regarding wall thickness and pressure capacity of the HDPE pipe nor the pipe recommended to Ambitech by ISCO satisfied the requirements of ASME B31.3. (AM 56.1 Resp. Add. Facts ISCO ¶¶ 77-80). Biery’s report also concluded that Ambitech used a lesser design temperature for HDPE pipe than for steel lines without justifying the difference. (AM, EX 56.1 Resp. AT ¶¶ 20-21.) However, Biery admitted that he did not know the actual operating conditions of the pipe at the time of failure or have any information that would lead him to believe that it was experiencing temperatures that exceeded its capacities. (AM, EX 56.1 Resp. AT ¶¶ 20-21.)

The parties took several additional depositions in this ease of witnesses who opined as to the credibility of the pipe’s mode of failure and as to whether the damages incurred by the pipe failure were of the type reasonably expected. Clifton Hene (“Hene”), Exxon’s Optimization Supervisory at the Refinery, testified that all damages incurred by Exxon were the damages one would reasonably expect as a consequence of the loss of the Refinery’s cooling water return line. (EX 56.1 Resp. Count II ¶ 12.) Penteris interpreted the sentence in a welding quality control form, “the catastrophic failure mechanism of the high density polyethylene, HDPE, pipe was not sufficiently understood or anticipated” to mean that “this pipe can be fused enough to pass a hydro but the creep properties after being in service for a couple of months allowed it then to fail at a later date.” (EX 56.1 Resp. Count II Exhibit 2 199: 16-200: 3; AM 56.1 Resp. Add. Facts Count II ¶ 2.) Penteris then affirmed that this creep was “one of the root causes of the failure.” (EX 56.1 Resp. Count II Exhibit 2 200: 2-3; AM 56.1 Resp. Add. Facts Count II ¶ 2.) Exxon employee Raphael Bojarczuk (“Bojarczuk”) similarly testified that he does not “believe that having a pipe fail catastrophically by failing entirely through the joint is a credible mode of failure if properly installed.” (EX 56.1 Resp. Count II Exhibit 4 105: 6-10; AM 56.1 Resp. Add. Facts Count II ¶ 2.) Bojarczuk further interprets the sentence “the catastrophic failure mechanism of the high density polyethylene pipe was not sufficiently understood or anticipated” to mean that “no one imagined that the joint could fail catastrophically like that, if properly assembled.” (EX 56.1 Resp. Count II Exhibit 4 117: 1-20; AM 56.1 Resp. Add. Facts Count II ¶ 2.)

IV. The Continuing Services Agreement between Exxon and Amex

On May 29, 2003, Exxon entered into a Continuing Services Agreement (“CSA”) with Amex. (AM 56.1 Resp. to Exxon ¶¶ 28-29; EX 56.1 Resp. Count I ¶ 11; AM, EX 56.1 Resp. AT Economic Damages ¶ 11; AM, EX 56.1 Resp. AT ¶ 11.) The CSA governed all work performed by Amex for Exxon at the Refinery, including the work at issue in this case. (EX 56.1 Resp. 15th Aff. Def. ¶ 13; EX 56.1 Resp. Count I ¶ 12.) Throughout the CSA, Amex is identified as “Contractor” and Exxon as “User.” (EX 56.1 Resp. 15th Aff. Def. ¶ 16; EX 56.1 Resp. Count I ¶ 17.)

The CSA allowed the Refinery to issue work orders to Amex on a pre-approved and ongoing contractual basis. (AM 56.1 Resp. Exxon ¶ 28.) A work order

means the document or documents issued by User incorporating the terms of this Agreement and specifying the Services to be performed using the form set out in Exhibit B or any other form User may provide whether labeled as a Work Order or by other labels including, but not limited to, ‘release,’ ‘work release,’ ‘letter of special agreement,’ ‘work order agreement,’ ‘work authorization’ or ‘letter of authorization’ provided that such form is executed and accepted as provided in this Agreement. A Work Order may take the form of an oral request by User.

(AM 56.1 Resp. Exxon ¶29; EX 56.1 Tab V, Ex. A, Art. 1, No. 15; EX 56.1 Resp. Count I ¶ 22.) Article 4 of the CSA provides that: “[e]aeh accepted Work Order shall constitute a legal contract between User and Contractor separate and distinct from either any other Work Order or this Agreement. Each Work Order shall, nonetheless, be deemed to incorporate the provisions of this Agreement.” (AM 56.1 Resp. Exxon ¶ 30.)

The Service Order placed with Amex on September 30, 2004 for the HDPE Project functioned as a Work Order pursuant to the CSA. (EX 56.1 Resp. Count I ¶¶ 24-25.) Some of the services identified in this Service Order for “[mjobilization, labor and supervision for the pipe fabrication for the cooling water return line replacement project in accordance with Amex Proposal 04-5421 dated 9/15/04” were not completed or accepted as of July 30, 2005 when the HDPE pipe decoupled. (EX 56.1 Resp. Count I ¶¶ 28-29.) More specifically, the following services delineated in Amex Proposal 04-5421 were not completed or accepted on or before July 30, 2005:(1) installation of the 48" underground carbon steel E/W run; (2) installation of the new 48742 N/S carbon steel header to units including branch piping; (3) energizing the new U/G carbon steel piping and demo of the temporary HDPE piping and supports. (EX 56.1 Resp. Count I ¶ 30-35.)

A. Warranty Provisions in the Continuing Services Agreement

Article 10 of the CSA contains descriptions of several warranties, including Section 10.1’s “Contractor’s Representations and Warranties” providing that Contractor: “(a) has the Competence to perform the Services; ... (c) shall maintain and use all tools and equipment in accordance with manufacturer’s specifications and recommendations and good engineering and operational practices; ...(f) shall perform all Services in good faith, promptly, with due diligence and Competence; (g) fully comprehends the requirements and contingencies prior to performing services.” (AM 56.1 Resp. Exxon ¶ 30, AM 56.1 Resp. Add. Facts 15th Aff. Def. ¶ 1.) The CSA defines “Competence” as having “the expertise, experience, capability and specialized knowledge to perform Services in a good and workmanlike manner and within all accepted standards for the industry.” (AM 56.1 Resp. Exxon ¶ 30; AM 56.1 Resp. Add. Facts 15th Aff. Def. ¶ 1.)

Section 10.3 goes on to provide a general Contractor’s Warranty (the “General Warranty”):

Without limiting the rights that User may otherwise have at law or equity and in addition to the other warranties granted, Contractor guarantees and warrants that all Services performed and any materials and equipment provided in connection with the Services shall be free from defect or deficiency for one (1) year from the date of completion or acceptance of the Services, whichever occurs last .... ” (AM 56.1 Resp. Exxon ¶ 30; AM 56.1 Resp. Add. Facts 15th Aff. Def. ¶ 1.)

The CSA defines “Services” as “the services described in Exhibit A and each applicable work order.” (AM 56.1 Resp. Exxon ¶ 30; EX 56.1 Resp. Count I ¶ 20.) Exhibit A is not specific to the HDPE Project; rather, Exhibit A describes the general kind of piping work to be performed by Amex at the Refinery. (EX 56.1 Resp. Count I ¶ 21.)

B. Damage Cap Provisions in the Continuing Services Agreement and the Service Order

The CSA also contains a provision addressing the damages available to Exxon under certain circumstances. Article 12.1 of the CSA states, in relevant part:

Contractor shall compensate User for loss or damage to User’s existing property which is in reasonable proximity to the Work Site which results from the negligence of the Contractor and/or for any resulting consequential, special or indirect damages, or loss of anticipate profits sustained by User; however, Contractor’s responsibility shall not exceed the amount recoverable by Contractor or its Subcontractors under the valid and collectible insurance carried by the Contractor or Subcontractors, or the amount which would have been recoverable under that insurance if all conditions, requirements and warranties imposed on the insured by the insurer are being or had been met. User shall release Contractor and hold Contractor free and harmless from liability to User for such loss or damage and/or for any resulting consequential, special or indirect damages, or loss of anticipated profits sustained by User exceeding amounts so recovered, even if the loss or damage results from Contractor’s negligence; however, Contractor’s responsibility shall include the value of any deductible or self-insured retention applicable under that instance. (EX 56.1 Resp. 15th Aff. Def. ¶ 17; AM 56.1 Resp. Exxon ¶ 31.)

Article 11(c) of the Service Order for the HDPE pipe installation contains identical language, merely substituting the word “Supplier” for “Contractor” and the word “Purchaser” for “User.” (EX 56.1 Resp. 15th Aff. Def. ¶¶ 18-19; EX 56.1 Resp. Count I ¶ 18.)

Article 12 explains that “[t]he term ‘negligence’ in this Agreement shall include active or passive negligence.” (AM 56.1 Resp. Exxon ¶ 31.) Article 12 goes on to clarify that each party shall bear full responsibility for any “Gross Negligence or Willful Misconduct attributable to its managerial and senior supervisory personnel,” and to define gross negligence and willful misconduct. (AM 56.1 Resp. Add. Facts 15th Aff. Def. ¶¶ 2, 3.)

V. Damages

Exxon claims a total of $14,913,656 in losses due to its emergency shut-down and costs associated with start-up. (AM 56.1 Resp. Exxon ¶ 17.) Specifically, Exxon alleges: (1) $10,390,000 in lost margin due to its inability to process 233,700 barrels of crude oil for two days at a loss of $26.08 per barrel; (2) $650,000 in flare loss when the refinery burned its hydrocarbon to prevent catastrophic failure; (3) $28,000 for four broken seal pumps resulting from the failure; (4) $8,740 for cooling water chemicals placed into the system to prevent equipment fouling; (5) $1,959,516 in lost product capability due to fouled heat exchangers; (6) $18,000 for the loss of ten tons of catalyst, a sand-like material used to refíne oil that is lost during an emergency shut-down; (7) $122,000 in additional fuel costs to meet the Refinery’s needs during shut-down; (8) $1,400,000 in distressed crude sales, where Exxon sold crude at a discount because the Refinery had limited storage capacity; and (9) $1,037,400 in distressed gas and diesel purchases to meet Exxon’s contractual obligations during shut-down. (AM 56.1 Resp. to Exxon ¶ 17, 19-27.) Exxon assigned two days worth of lost margin to the shutdown because the Refinery did not start back on-line until August 7, 2005, with repairs taking a half of a day and start-up taking a day and a half. (AM 56.1 Resp. Exxon ¶ 18.) Exxon’s total non-economic damages amount to $928,000. (AM, EX 56.1 Resp. AT Economic Damages ¶¶ 17-18.)

VI. Ambitech Employees Bernard Gunn and Elizabeth Wenzel

Bernard Gunn (“Gunn”) served as a Project Manager for Ambitech during and after the HDPE pipe failure. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 17.) In 2002, Gunn began working full-time at the Refinery, where he had a permanent office and worked almost exclusively for Exxon until December 17, 2008. (EX, AM 56.1 Resp. AT Borrowed Servant ¶¶ 18-20.) Pursuant to a proposal for Gunn’s services accepted by Exxon, Gunn was classified as a Category II Employee working under Exxon’s supervision. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 27.) According to the Labor Billing Rules for Category II Employees, “Ambitech will bear no liability for work performed under Exxon’s direct supervision and control.” (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 28.) Unless he was on an Exxon-related business trip, Gunn would go directly to his office at the Refinery in the morning and depart from there at the end of the day. (EX, AM 56.1 Resp. AT Borrowed Servant ¶23.) During his time at the Refinery, Gunn was assigned an Exxon email address, and was required to follow the rules, policies, and procedures of Exxon. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 25.)

Gunn first became involved in the HDPE Project in late 2003 or early 2004. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 19.) He reported directly to Exxon employee Ernie Rossi (“Rossi”) with any questions or instructions relating to the HDPE Project, and Rossi had full power to direct and control the details of Gunn’s work. (EX, AM 56.1 Resp. AT Borrowed Servant ¶¶ 21, 24.) Gunn never reported to the Ambitech offices and rarely reported to any Ambitech employee during the course of the HDPE Project. (EX, AM 56.1 Resp. AT Borrowed Servant ¶22.) Ambitech Project Manager Gary Bell (“Bell”) testified that Gunn did, however, report to him at the time of the HDPE project. (AT Resp. to AM Borrowed Servant ¶¶ 41-43; AM 56.1 Resp. Borrowed Servant Ex. 1, p. 14.)

Ambitech hired Elizabeth Wenzel (“Wenzel”) in 1989. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 29.) In October 2000, Wenzel began working full-time at the Refinery, where she has since maintained a permanent office. (EX, AM 56.1 Resp. AT Borrowed Servant ¶¶ 31-32.) At the time of the pipe failure, Wenzel was the process design engineer for the HDPE Project. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 30.) Like Gunn, Wenzel reported directly to Rossi with any questions or instructions relating to the HDPE Project, and would not seek such information from an Ambitech employee. (EX, AM 56.1 Resp. AT Borrowed Servant ¶¶ 34, 36.) Although Bell confirmed that Wenzel reported directly to Rossi, he also testified that Welzel reported to him at the time of the HDPE project. (AT Resp. to AM Borrowed Servant ¶¶ 41-43; AM 56.1 Resp. Borrowed Servant Ex. 1, p. 14.)

Wenzel was required to abide by Exxon’s rules, policies, and procedures while working at the Refinery, and was assigned an Exxon email address. (EX, AM 56.1 Resp. AT Borrowed Servant ¶¶ 37-38.) Similarly to Gunn, she was classified as a Category II employee working under Exxon’s supervisions pursuant to two proposals accepted by Exxon. (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 39.) As such, the Labor Billing Rules provided that Ambitech would bear no liability for her work performed under Exxon’s “direct supervision and control.” (EX, AM 56.1 Resp. AT Borrowed Servant ¶ 3 1.) Except between October and December 2005 when Wenzel worked at the Ambitech office four days per week, she rarely reported to the Ambitech offices, instead reporting directly to the Refinery in the morning and leaving from there at the end of the day. (EX, AM 56.1 Resp. AT Borrowed Servant ¶¶ 34-35.)

Although Exxon did not directly pay for either Gunn’s or Wenzel’s services, Exxon indirectly paid the salary of Wenzel at the time of the HDPE Project via Ambitech’s “billing of her services” to Exxon. (AT 56.1 Resp. AM Borrowed Servant ¶¶ 44-45; AM 56.1 Resp. Borrowed Servant, Ex. 1, p. 104.) During the HDPE Project, Ambitech could terminate Gunn and Wenzel from Ambitech, and Exxon could also terminate Wenzel’s services through Ambitech. (AT 56.1 Resp. AM Borrowed Servant ¶¶ 46-47; AM 56.1 Resp. Borrowed Servant, Ex. 1, p. 104.)

The Engineering Services Agreement between Exxon and Ambitech provides:

Contractor will at all times act as an independent contractor, and nothing stated or implied in this Agreement shall be construed to make Contractor, nor shall Contractor in any way represent Contractor to be, an employee or agent of User, Exxon Oil Corporation, or any affiliated company of Exxon Oil Corporation. While Contractor’s Services shall meet with User’s approval, User is interested in the results to be achieved and, accordingly, the detail, manner, and method of performing Services shall be the responsibility of and under the supervision and control of Contractor.

(AT 56.1 Resp. EX Borrowed Servant ¶ 25.)

STANDARD OF REVIEW

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.P 56(c). When determining if a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir.2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the Court will “limit its analysis of. the facts on summary judgment to evidence that is properly identified and supported in the parties’ [Local Rule 56.1] statement.” Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Al biero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998) (“‘Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.’ ”). On cross-motions for summary judgment, each movant must satisfy Federal Rule of Civil Procedure 56’s requirements. See Cont'l Cas. Co. v. Northwestern Nat'l Ins. Co., 427 F.3d 1038, 1041 (7th Cir.2005).

DISCUSSION

As an initial matter, none of the parties “contends that Illinois’s choice of law rules require us to apply the substantive law of another state.” See Southern Ill. Riverboat Casino Cruises, Inc. v. Triangle Insulation & Sheet Metal Co., 302 F.3d 667, 672 (7th Cir.2002) (internal citations omitted). Because the installation of the HDPE pipe and its subsequent failure occurred in Illinois, “there is a reasonable relation between the dispute and the forum whose law has been selected” such that it is appropriate to “apply Illinois law in this case.” See id. More specifically, the Court will “apply the law that [it] believe[s] the Supreme Court of Illinois would apply if the case were before that tribunal rather than before this court.” See, e.g., Help at Home, Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 753 (7th Cir.2001).

I. Exxon’s and Amex’s Cross-Motions for Summary Judgment on Count I

Exxon and Amex have filed Cross-Motions for Summary Judgment on Count I, which alleges breach of warranty under the CSA. “To succeed on a claim for breach of contract, a plaintiff must plead and prove (1) the existence of a contract, (2) the performance of its conditions by the plaintiff, (3) a breach by the defendant, and (4) damages as a result of the breach.” Roberts v. Adkins, 397 Ill.App.3d 858, 866-67, 336 Ill.Dec. 946, 921 N.E.2d 802, 2010 WL 114967 (2010). Neither Amex nor Exxon disputes that the CSA formed a binding contract between them and that Exxon performed the CSA’s conditions. Thus, the remaining issues for the Court are whether Amex breached the CSA and whether Exxon suffered damages proximately caused by that breach. Exxon argues that undisputed facts show that Amex breached both the CSA’s General Warranty and its Warranty of Competence. Amex counters that the General Warranty was not in effect at the time of the pipe burst on July 30, 2005 and that Exxon failed to adequately plead a breach of the Warranty of Competence pursuant to Federal Rule of Civil Procedure 8(a)(2).

A. General Warranty

The General Warranty provision of the CSA guarantees that “all Services performed and any materials and equipment provided in connection with the Services shall be free from defect or deficiency for one (1) year from the date of completion or acceptance of the Services, whichever occurs last.” It is undisputed that the installation of the HDPE pipe constituted a “Service” within .the meaning of this General Warranty. It is also undisputed that some of the “Services” identified in the parties’ September 30, 2004 Service Order and Amex’s corresponding Proposal 04-5421 were not completed or accepted before the pipe burst on July 30, 2005.

Exxon’s and Amex’s differing interpretations of the General Warranty hinge on their understandings of the phrase “the Services.” Exxon contends that “the Services” means each and every service, such that each service covered by the CSA is entitled to its own warranty period beginning on the latter of the completion or acceptance of that service. Amex, on the other hand, interprets “the Services” to mean all services, such that every service included within the larger Carbon Steel Project had to be completed or accepted before the General Warranty began to run.

The Court’s primary objective in construing a contract is to give effect to the parties’ intent. See Arrow Master, Inc. v. Unique Forming Ltd., 12 F.3d 709, 713 (7th Cir.1993). “Under Illinois’s ‘four corners’ rule, if a written agreement is unambiguous, then the scope of the parties’ obligations must be determined from the contract language without reference to extrinsic evidence.” SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 372 (7th Cir.2009); see also Carnico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 993 (7th Cir.2007). “[interpretation of the terms of an unambiguous contract is traditionally a question of law and is particularly suited to disposition on summary judgment.” Kallman v. Radioshack Corp., 315 F.3d 731, 735 (7th Cir.2002). If, however, a contract’s language “is susceptible to more than one interpretation,” SMS Demag Aktiengesellschaft, 565 F.3d at 372, then it is deemed ambiguous and “its construction is a question of fact,” where “parol evidence is admissible to explain and ascertain what the parties intended.” Curia v. Nelson, 587 F.3d 824, 829 (7th Cir.2009) (internal citation omitted).

Here, the language “all Services performed ... shall be free from defect or deficiency,” viewed in insolation, is somewhat ambiguous. It could either be interpreted to demonstrate the parties’ intent that the General Warranty apply to all services separately, or to indicate that “the Services” refers to a bundle of “all Services” collectively. Looking to the CSA as a whole, however, supports Exxon’s position that the parties intended each service to be separately covered under the General Warranty. See Gallagher v. Lenart, 226 Ill.2d 208, 314 Ill.Dec. 133, 874 N.E.2d 43, 58 (2007) (“[B]ecause words derive their meaning from the context in which they are used, a contract must be construed as a whole, viewing each part in light of the others. The intent of the parties is not to be gathered from detached portions of a contract or from any clause or provision standing by itself.”). As its name indicates, the “Continuing Services Agreement” functioned as an agreement for multiple “services” in connection with a phased industrial construction project. In light of the fact that “great weight is to be given to the principal, apparent purpose and intention of the parties at the time that they entered into the contract,” Schwinder v. Austin Bank of Chicago, 348 Ill.App.3d 461, 284 Ill.Dec. 58, 809 N.E.2d 180, 193 (2004), it seems unlikely that the parties intended Exxon to wait until Amex provided all of or a group of the “continuing services” before a defect or deficiency warranty was activated. Indeed, if interpreted as Amex advocates, many short-term services provided by Amex would not be covered until the completion or acceptance of a larger contract many years later, or perhaps (in the case of temporary services like the installation of the HDPE pipe) until they were taken down and replaced with permanent equipment. Such a result seems inconsistent with the language in the General Warranty that “all Services” and the materials and equipment provided in connection with them will be free of defect or deficiency for one year.

Moreover, Amex’s interpretation that all services within the larger Carbon Steel Project contract needed to be completed before the General Warranty began running adds terms to the CSA that are not provided or implied on its face. “There is a strong presumption against provisions that easily could have been included in the contract but were not.” Wright v. Chicago Title Ins. Co., 196 Ill.App.3d 920, 143 Ill.Dec. 576, 554 N.E.2d 511, 514 (1990). Nowhere does the CSA purport to bundle some “services” based on specific project contracts or require that groups of services be completed or accepted as a unit. See Intersport, Inc. v. Nat. Collegiate Athletic Ass’n, 381 Ill.App.3d 312, 319 Ill.Dec. 261, 885 N.E.2d 532, 543 (2008) (rejecting an interpretation that “would essentially amount to adding [certain] terms ... to the contract”). Indeed, the provision in the CSA explaining that “Services means the services described in Exhibit A and each applicable Work Order” demonstrates that there are multiple “services” within each work order. It makes no suggestion that these services should be grouped according to the larger contract they are a part of for purposes of the CSA’s warranty provisions. See IN-EOS Polymers Inc. v. BASF Catalysts, 553 F.3d 491, 500 (7th Cir.2009) (courts should interpret contracts to give “meaning and effect to every part of the contract including all its terms and provisions”).

Although Amex argues that from a practical standpoint the parties could not have intended multiple warranty periods for each individual service because these periods would be difficult for courts to untangle, most litigation implicating the General Warranty would likely, as in this case, involve only one service or a small number of services provided by Amex that ended up having a defect or deficiency. Thus, the Court finds that according to the unambiguous terms of the CSA, each “Service” performed by Amex was subject to the one-year General Warranty from the date of its completion or acceptance, whichever was later. Because Amex admits that the construction of the HDPE pipe was a “service” within the meaning of the CSA, does not dispute that the HDPE pipe was completed and accepted before its failure on July 30, 2005, and does not dispute that this failure occurred within one year of its completion and acceptance, the Court finds that the HDPE pipe was covered by the General Warranty at the time of its failure.

The question then becomes whether there was a “defect or deficiency” in the HDPE pipe so as to violate the terms of this General Warranty, and if so, whether any damages caused by that defect or deficiency are rightly attributed to Amex so as to satisfy the element of proximate causation. According to the undisputed testimony of both Exxon’s expert Perrault and Amex’s expert Biery, there was a defect in the joint of the HDPE pipe that decoupled. Perrault opined that “the operator of the fusion equipment failed to properly fuse the joint.” Biery confirmed that “if there were no defect in the joint ... then my opinion is it most likely would not have failed.” Neither party disputes that Amex pipefitters fused the pipe that eventually failed. Moreover, Amex admitted that the HDPE pipe at issue was not constructed in a manner that rendered it fit for its intended purpose. These facts conclusively establish that there was a defect in the HDPE pipe, which constitutes a breach of the terms of the General Warranty.

With respect to causation, “[t]he term ‘proximate cause’ [under Illinois law] encompasses two distinct requirements: cause in fact and legal cause.” City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 290 Ill.Dec. 525, 821 N.E.2d 1099, 1127 (2004). In determining whether a plaintiff has established cause in fact, the Court asks “whether the injury would have occurred absent the defendant’s conduct.” Id. “The second requirement, legal cause, is established only if the defendant’s conduct is so closely tied to the plaintiffs injury that he should be held legally responsible for it.” Id. (internal citation omitted). Here, Perrault testified that the “joint ha[d] very clearly been heated under pressure” and that “the operator of the fusion equipment failed to properly fuse the joint.” Amex admits that two of its pipefitters performed the fusion of the HDPE pipe for the temporary line, and that one of those pipefitters, Daly, fused the pipe under pressure. Amex further admits that if an operator applies excessive pressure to HDPE pipe while it is being heated, this will result in cold fusion, a condition that substantially weakens the pipe by creating gasps where the two pipe ends are not fused. These facts sufficiently demonstrate both that the failure of the HDPE pipe would not have occurred but for Amex’s employees’ actions in heating the pipe under pressure, and that heating under pressure caused a defect (cold fusion) that was closely tied to the pipe’s eventual decoupling. See id.

Although Amex contests that Exxon has adequately shown proximate causation, Amex fails to set forth any alternative theory of causation or point to expert testimony positing a different causal theory. See Fed.R.Civ.P. 56(e) (once the moving party meets its burden of production, the nonmoving party must “set forth specific facts showing there is a genuine issue [of material fact] for trial”); see also Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir.2006) (the nonmoving party “must come forward with specific facts showing that there is a genuine issue for trial”). Furthermore, in light of its admission that heating HDPE pipe under pressure will result in cold fusion, Amex cannot rely on ISCO expert Volkstadt’s testimony in response to a hypothetical question that heating the pipe under pressure would not result in cold fusion to defeat summary judgment — especially without offering an alternative causal theory. See, e.g., Blommer Chocolate Co. v. Bongard’s Creameries, Inc., 635 F.Supp. 919, 925 (N.D.Ill. 1986) (“Without some alternative theory which could explain where the salmonella came from and some evidence to support it ... there was simply no triable issue of fact on the question” of caution); Beatty v. LaFountaine, — Ind.App. -, 896 N.E.2d 16, 20 (2008) (“mere speculation cannot create questions of fact” and “[o]pinions expressing a mere possibility with regard to a hypothetical situation are insufficient to establish a genuine issue of material fact”).

Finally, “damages are an essential element of a breach of warranty claim.” Shoop v. DaimlerChrysler Corp., 371 Ill.App.3d 1058, 309 Ill.Dec. 544, 864 N.E.2d 785, 788 (2007). Exxon has sufficiently alleged damages caused by Amex’s breach of warranty in the amount of $14,913,656. See TAS Distrib. Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 631 (7th Cir.2007) (when moving for summary judgment on a breach of contract claim “under Illinois law, it is necessary to show damages — not the specific amount, but rather that the plaintiff did, in fact, suffer some damages”); see also Valenti v. Mitsubishi Motor Sales of Am., Inc., 332 Ill.App.3d 969, 266 Ill.Dec. 129, 773 N.E.2d 1199, 1202-03 (2002) (stating that plaintiff was “only required to allege that she suffered damages with enough specificity to survive a motion for summary judgment” of her breach of warranty claim). Thus, the Court grants Exxon’s Motion for Summary Judgment and denies Amex’s Motion for Summary Judgment with respect to the General Warranty component of Count I.

B. Warranty of Competence

Exxon’s Motion for Summary Judgment also argues that Amex breached the Warranty of Competence contained in the CSA through its failure to properly fuse the HDPE pipe. Amex disputes, however, that Exxon adequately pled a breach of the CSA’s Warranty of Competence. Count I of Exxon’s Second Amended Complaint alleges that the CSA contained “certain warranties, representations and guarantees,” “including, but not limited to, the following, viz:” and then quotes the General Warranty. Because “viz” is a synonym for “namely,” this language indicates that although the CSA contains many warranties, Count I intends specifically to implicate the General Warranty. Such an inference is further supported by the fact that the Second Amended Complaint quotes the General Warranty in its entirety, but does not quote any part of any other warranty.

Although the Second Amended Complaint states that the “failure of HDPE pipe weld after installation ... constitutes a breach of the warranties, terms and conditions,” plural, of the CSA, nowhere does Count I state the word “Competence.” No part of the Second Amended Complaint put Amex on notice that Exxon was claiming a breach of that particular warranty. Exxon’s Second Amended Complaint thus fails to meet the notice pleading standard set forth in Federal Rule of Civil Procedure 8(a)(2) with respect to a breach of the Warranty of Competence. See Fed.R.Civ.P. 8(a)(2) (a pleading must contain “a short and plain statement of the claims showing that the pleader is entitled to relief’); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a complaint must provide “fair notice of what the plaintiff’s claim is and the grounds upon which it rests”); see also, e.g., Sawmill Prods. Inc. v. Cicero, 477 F.Supp. 636, 641 (N.D.Ill.1979) (plaintiff must provide a “clear, concise statement sufficient to notify the defendant of the legal theory underlying plaintiffs claims and groups which support them”). Because a plaintiff may not amend its complaint through arguments in a summary judgment brief, see Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir.1998), Exxon may not now add a claim for breach of the Warranty of Competence when that warranty was not adequately pled in its Second Amended Complaint. For that reason, the Court denies Exxon’s Motion for Summary Judgment and grants Amex’s Motion for Summary Judgment with respect to the Warranty of Competence component of Count I.

II. Exxon’s and Amex’s Cross-Motions for Summary Judgment on Count II

Exxon and Amex have also filed Cross-Motions for Summary Judgment on the issue of Amex’s negligence alleged in Count II of Exxon’s Second Amended Complaint. “To establish a valid claim for negligence in the state of Illinois, a party must demonstrate that the defendant owed him a duty, that the defendant breached this duty, and that he suffered an injury that was proximately caused by the defendant’s breach.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.2009); see also Sobczak v. General Motors Corp., 373 Ill.App.3d 910, 312 Ill.Dec. 682, 871 N.E.2d 82, 94 (2007) (in a product liability case involving an allegation of negligence, a plaintiff must establish the existence of a duty owed to the plaintiff by the defendant, a breach of that duty, an injury proximately and actually caused by that breach, and damages). Both the defendant’s fault and the product’s condition are relevant to this inquiry. Sobczak, 312 Ill.Dec. 682, 871 N.E.2d at 94. Exxon claims that the undisputed facts show that Amex was negligent in welding the HDPE pipe, while Amex argues that the question of its negligence is irrelevant because any recovery by Exxon is barred by the Illinois Supreme Court’s decision in Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443, 449 (1982) (“the Moorman Doctrine”). Alternatively, Amex argues that genuine issues of material fact preclude a finding of summary judgment in favor of Exxon on this Count.

A. Applicability of the Moorman Doctrine

As an initial matter, although Amex claims in its Motion for Summary Judgment as to Count II that the Moor-man Doctrine completely bars Exxon’s recovery for its negligence claim, in actuality that doctrine would only serve to limit Exxon’s recovery for negligence if the Court found it applicable here. Under the Moorman Doctrine, plaintiffs cannot recover “economic loss,” or “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits without any claim of personal injury or damage to other property,” under the tort theories of strict liability, negligence, or innocent misrepresentation. See Moorman, 61 Ill.Dec. 746, 435 N.E.2d at 449, 453. It is undisputed among Exxon, Amex, and Ambitech that Exxon suffered $928,000 in non-economic damages. Thus, even if the Court found the Moorman Doctrine applicable here, its only effect would be to limit Exxon’s potential recovery for negligence to that amount.

Exxon first argues that Amex waived any right that it had to invoke the Moor-man Doctrine when it contracted for limited negligence damages in the CSA. Article 12 of the CSA provides that Amex “shall compensate” Exxon “for loss or damage to [Exxon’s] existing property which is in reasonable proximity to the work site which results from the negligence of [Amex] and/or for any resulting consequential, special or indirect damages, or loss of anticipated profits sustained by [Exxon],” but that such recovery will be limited to Amex’s “valid and collectible” insurance. On its face, this provision seems intended to allow Exxon to recover limited economic damages (like lost profits) resulting from Amex’s negligence. Nowhere, however, does the CSA provide an explicit waiver of the Moorman Doctrine. Moreover, Exxon cites no case-law for the proposition that a party may waive its right to invoke the Moorman Doctrine. Indeed, aside from the instances where exceptions to it apply, the Moorman Doctrine purports to limit the recovery of economic damages precisely in cases like this, where the parties have “allocate[d] their risks” for damages arising from disappointed commercial expectations through agreements like the CSA. See, e.g., Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill.App.3d 346, 261 Ill.Dec. 458, 763 N.E.2d 428, 434 (2002) (the Moorman Doctrine is founded on the premise that “parties to a contract may allocate their risks by agreement and do not need the special protections of tort law to recover damages caused by a breach of contract”); Mutual Service Cas. Ins. Co. v. Elizabeth State Bank, 265 F.3d 601, 615, 618 (7th Cir.2001) (noting that “Moorman held that recovery for a loss that is solely economic in nature must be had in contract rather than tort”); Moorman, 61 Ill.Dec. 746, 435 N.E.2d at 450 (“Tort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence.... The remedy for economic loss, loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or non-accidental cause, on the other hand, lies in contract.”). Thus, the Court cannot conclude as a matter of law that Amex waived its right to invoke the Moorman Doctrine.

There are, however, three exceptions to the Moorman Doctrine: “(1) where the plaintiff sustained damage, i.e. personal injury or property damage, resulting from a sudden or dangerous occurrence; (2) where the plaintiffs damages are proximately caused by a defendant’s intentional, false representation, i.e. fraud; and (3) where the plaintiffs damages are proximately caused by a negligent misrepresentation by a defendant in the business of supplying information for the guidance of others in their business transactions.” In re Chicago Flood Litigation, 176 Ill.2d 179, 223 Ill.Dec. 532, 680 N.E.2d 265, 275 (1997). Because Exxon does not allege false or negligent representations by Amex, only the first exception for property damage resulting from a sudden or dangerous occurrence arguably applies here.

The Court will consider in turn the two elements of the sudden and dangerous occurrence exception to the economic loss rule: (1) that the event at issue constituted a sudden and dangerous occurrence; and (2) that the damage sustained constituted “property damage.” See Mars, 261 Ill.Dec. 458, 763 N.E.2d at 435 (describing the inquiry into the sudden and dangerous occurrence exception to economic loss rule as “necessarily bipartite”). A sudden and dangerous occurrence has somewhat circularly been defined as an occurrence that is “highly dangerous and presents the likelihood of personal injury or injury to other property.” Id. (internal citation omitted). “[The Moorman ] court had in mind fires, explosions, or other calamitous occurrences due to the product and the resulting risk of harm to persons or property.” Loman v. Freeman, 229 Ill.2d 104, 321 Ill.Dec. 724, 890 N.E.2d 446, 452 (2008). Amex argues that the evidence establishes as a matter of law that the decoupling of the HDPE pipe was not a sudden and dangerous occurrence so as to fall within this exception.

With respect to dangerousness, Amex relies heavily on the testimony of Exxon’s night superintendent McCollom. McCollom testified that when Coba first observed the leak, he reported it to McCollom but did not seem out of breath or excited. He further explains that at the time the pipe unzipped and decoupled, he did not believe anyone was in danger of being hurt by the water flowing from the pipe. Although these facts show that McCollom did not think that the pipe failure posed a risk to any persons standing nearby, once the pipe decoupled, McCollom radioed the general cooling tower and said “prepare for — start shutting down, emergency shutdown” in order to prevent unit equipment from overheating for safety reasons. In other words, McCollom was concerned about d