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LLC v. Biothane, LLC

United States Court of Appeals, Eighth Circuit

March 25, 2015

E3 Biofuels, LLC, Plaintiff - Appellant
v.
Biothane, LLC, successor in interest and liability to Biothane Corporation; Perennial Energy, Inc., Defendants - Appellees

Submitted: November 13, 2014.

Page 973

Appeal from United States District Court for the District of Nebraska - Omaha.

For E3 Biofuels, LLC, Plaintiff - Appellant: Daniel P. Chesire, Jason W. Grams, Lamson & Dugan, Omaha, NE; Evan Douthit, Randall Rhodes, Douthit & Frets, Leawood, KS.

For Biothane, LLC, successor in interest and liability to Biothane Corporation, Defendant - Appellee: S. Jacob Sappington, Randy P. Scheer, Sanders & Warren, Springfield, MO; William Henry Selde, Sodoro & Daly, Omaha, NE.

For Perennial Energy, Inc., Defendant - Appellee: Kristina J. Kamler, Stephen G. Olson II, Engles & Ketcham, Omaha, NE.

Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.

OPINION

Page 974

GRUENDER, Circuit Judge.

After a boiler explosion, E3 Biofuels, LLC (" E3" ) sued Biothane, LLC and Perennial Energy, Inc. (" PEI" ). The district court[1] granted summary judgment to Biothane and PEI. After finding that diversity jurisdiction existed, the court held that Nebraska's two-year statute of limitations for professional negligence barred all of E3's claims. We affirm.

I.

In 2005 one of E3's predecessors in interest began construction of an ethanol plant in Mead, Nebraska. The plant was to be powered, at least in part, by methane. To generate electricity from the gas, E3's predecessor contracted with Biothane for a boiler system. The Boiler Purchase Order explained that Biothane would supply two boilers and integrate them into the plant:

Biothane will supply, start-up, and warrant the boiler system and controls as well as manage and take responsibility for integration of the boiler into the biogas handling system for a lump sum price of $1,450,000. This lump sum price includes . . . the design engineering services necessary to integrate the boiler into the overall biogas management system.

Biothane, an expert in systems integration but not in boilers specifically, subcontracted with PEI to install and integrate the boilers. Biothane retained overall responsibility. Both Biothane and PEI are engineering companies.

In February 2007, PEI engineer Ted Landers repeatedly tried and failed to light the main flame of one of the boilers. The repeated attempts caused gas to build up and eventually explode. E3 claims that the boiler never ...


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