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FACTS AND PROCEDURAL HISTORY

1. The Construction Project Plaintiff contracted with ATMI Design Build (ATMI) to act as the general contractor to construct a Candlewood Suites Hotel (Project). In February 2002 ATMI entered into a subcontract with Frank Garcia, doing business as Frank Garcia Plumbing (Garcia), to install the plumbing for the Project. Garcia was the president of Frank Garcia Plumbing, Inc. (Garcia Plumbing; collectively the Garcias). Garcia Plumbing allegedly performed the work under the Garcia subcontract. Plumbing defects arose during construction and continued even after Garcia Plumbing finished working in about late January 2004. In February and March 2004

1 A third insurance company, National Union Fire Insurance Company of Pittsburgh, PA was also a party to the action and prevailed. Plaintiff’s appeal as to that company was dismissed.

2 counsel for plaintiff gave written notice to the Garcias they had caused a water line to break and resulting in “two major floods” and further that toilets did not work. This caused both damage to the Project and work stoppage. In another March letter, counsel explained there were unresolved plumbing problems and advised…