Hathaway Dinwiddie Construction Co. v. United Air Lines, Inc.

MEMORANDUM *

Hathaway Dinwiddie Constructon Company (“Dinwiddie”) appeals the district court’s summary judgment in favor of United Airlines (“United”) in Dinwiddie’s diversity action for breach of contract, fraud, and equitable relief. United also counterclaimed for indemnity against Dinwiddie, and now cross-appeals the district court’s ruling granting summary judgment in favor of Dinwiddie on this counterclaim.

We have jurisdiction under 28 U.S.C. §§ 1291 and 1332. We affirm in part, reverse in part, and remand for further proceedings. Because the parties are familiar with the facts, we will refer to them only as necessary to explain our disposition.

I.

A. BREACH OF CONTRACT CLAIM AND DERIVATIVE CLAIMS

1. BREACH OF CONTRACT CLAIM (FIRST CLAIM FOR RELIEF)

We reverse the grant of summary judgment on Dinwiddie’s breach of contract claims and remand because there are genuine, material triable issues of fact regarding the formation of the contract at issue here. There is at least a triable issue of fact whether the No Damages for Delay Provisions originally proffered by United initially became a part of the contract between the parties because Dinwiddie explicitly reserved…