By Michael C. Loulakis and Ashley P. Cullinan
People who are not in the construction industry often think that construction operates on a close-enough-is-good-enough philosophy. But when you are in the industry, you know that this philosophy is not the way things work: Every sixteenth of an inch (and sometimes every thirty-second of an inch) matters, and if a party fails to meet a required tolerance or dimension, the consequences can be substantial.
A recent Indiana case, Seawin Global LLC v. CPM Construction Planning and Management Inc., provides a vivid example of this. A supplier that furnished shower glass panels less than an inch off from specifications was initially held liable not only for the cost of new panels but also for consequential damages and attorneys’ fees that were more than seven times the purchase order price for the entire shower glass assembly.
The case
CPM was the general contractor for the construction of a hotel. Part of its work was to install in each of the 102 hotel rooms a “fixed-glass shower door system consisting of a glass panel, U-channels to hold the glass, and other associated hardware,” per court documents. CPM issued a written purchase order to Seawin for the project’s shower door system for the price of approximately $24,000.
Seawin’s manufacturer’s representative and one of CPM’s superintendents exchanged numerous emails about the dimensions of the glass panels, as the purchase order itself did not contain dimensions for the panels. CPM’s superintendent noted in these emails that the shower height openings in the rooms varied from 86 1/4 in. to 86 7/8 in., but that he thought it best to make all the panels the same measurement to avoid any issues.
After several more exchanges, CPM’s superintendent emailed Seawin’s representative that the panel glass height was to be 85 7/8 in. to compensate for out-of-plumb openings in the rooms. Three days later, the representative emailed CPM’s project engineer that per conversations with CPM’s superintendent, “We’ve adjusted the heights of the glass panels.” Three days after this, the Seawin representative emailed revised shop drawings for the glass shower panels, stating that the drawings had been prepared per the instructions of CPM’s superintendent. CPM signed and approved the shop drawings that same day.
Unfortunately, the glass panels delivered to the site measured only 85 in. Seawin refused to replace the glass panels, arguing that the height of 85 7/8 inches in the approved shop drawings was a measurement “from the base to the ceiling” and that, by approving those drawings, CPM had agreed to a height opening of 85 7/8 in., not glass panels of that height. This prompted CPM to buy 102 glass panels with a height measurement of 85 7/8 in. from another supplier.
CPM sued Seawin in an Indiana state court on multiple grounds, asserting that Seawin’s glass panels were nonconforming, unusable, and violated Indiana’s Uniform Commercial Code. CPM also argued that it was entitled to recover consequential damages and attorneys’ fees because Seawin had committed fraud.
After a three-day bench trial, the judge wrote a 46-page decision finding in favor of CPM. The judge concluded that CPM was entitled to not only $18,150 for the cost of the new glass panels but also $14,530 in consequential damages and $142,581 in attorneys’ fees. Seawin appealed to the Indiana Court of Appeals. The court affirmed the trial court’s damages amounts, but it reversed the award of attorneys’ fees.
The ruling
Seawin argued that its contract consisted of only the purchase order and the approved shop drawings, and as a result, the parties had agreed to a glass shower door (i.e., the fixed pane of glass along with U-channels) that would be 85 7/8 inches in height. The appellate court rejected this argument and agreed with the trial court that CPM had contracted for glass panels with a height of 85 7/8 in. — not for glass shower doors of that height.
The decision cited the string of emails between the parties that focused specifically on the exact height measurement for the glass panel. The appellate court was also influenced by Seawin’s wrongful representation that the shop drawings were consistent with those discussions and conformed to what CPM’s superintendent had required.
As for damages, the appellate court noted that the UCC allowed CPM to “cover” Seawin’s breach by making a reasonable purchase of new glass panels. Seawin argued that there was evidence that as many as half the glass shower doors could have been installed in spite of the dimension issue and that it should not have been charged for all new glass panels. The appellate court rejected this, citing other evidence that regardless of whether shims were used, all the panels were at risk for not being safely secured.
Seawin also challenged the award of $14,530 for CPM’s internal costs to resolve the glass dimension error. The damages awarded were CPM’s estimated number of hours spent by each CPM employee in fixing the error. The appellate court upheld the trial court’s decision, finding that these were allowable incidental and consequential damages under the UCC. Even though the hours were based on estimates, the appellate court found that the trial court’s decision was not unreasonable based on the evidence.
As to the attorneys’ fees, the trial court based its decision on the grounds that Seawin had engaged in material misrepresentation or fraud by, among other things, “inducing CPM to sign the revised shop drawings that ... showed shower doors, not just glass panels, with a height of 85 7/8 inches,” according to court documents.
The appellate court overturned this on several grounds, including that no witnesses testified to the elements of fraud or misrepresentation. The appellate court found that because this was “a ‘quintessential contract case,’ (and) not a fraud case,” attorneys’ fees could not be awarded under the Indiana UCC.
The analysis
This case was worth reporting on for several reasons. First, it reinforces the concept that tolerances and measurements really matter. The emails between the parties dealt with eighths of an inch, and there is no question that the glass panels were the subject of those emails. However, imagine this same discussion taking place verbally, or with less precision, over whether the dimensions were for the glass panels or overall shower doors. This might have changed the outcome substantially.
We found interesting the way the trial court treated the shop drawing approval. The trial judge (who disliked Seawin’s overall position) was not influenced by the fact that CPM approved the drawings. But another judge might have looked at this differently. While it is understandable that CPM signed these drawings, CPM put itself at risk by not carefully reviewing the drawings to see exactly what the drawings said about the glass panel dimensions.
Finally, many construction disputes involve damages for internal employee costs that are based on estimates. More often than not, these costs are not awarded on the grounds that they have not been sufficiently proven. However, readers should remember that a trier of fact (judge, jury, or arbitrator) has broad discretion to decide whether estimates are sufficient. The answer to this is often based on the trier of fact’s view of who is the “good guy” and who is the “bad guy.” If you are perceived to be the bad guy, watch out.
Michael C. Loulakis is the president and CEO of Capital Project Strategies LLC in Reston, Virginia. Ashley P. Cullinan is an associate with Smith Currie Oles LLP in Tysons, Virginia.
This article first appeared in the May/June 2025 issue of Civil Engineering as “In a ‘Game of Inches,’ Shower Door Supplier Suffers Big-Time Loss.”
