IN THE SUPREME COURT OF OHIO

AMERICAN MUNICIPAL POWER, INC.,

Petitioner,V.

BECHTEL POWER CORPORATION,

Respondent

))))))))

Certified Question of State Law

Case No. 2014-1847

PRELIMINARY MEMORANDUM OFRESPONDENT BECHTEL POWER CORPORATION

David John Butler (0068455)*Counsel of Recorddbutier@taftiaw.comStephen Charles Fitch (0022322)sfitch@taftlaw.comTaft Stettinius & Hollister LLP65 East State Street, Suite 1000Columbus, OH 43215-4213(614) 221-2838

Judah Lifschitzlifschitz@slslaw.comShapiro, Lifschitz & Schram1742 N Street, N.W.Washington, DC 20036(202) 689-1900

Counsel for Petitioner,American Municipal Power, Inc.

Dated: November 13, 2014

William G. Porter (0017296)*Counsel of Recordwgporter@vorys.comDouglas R. Matthews (0039431)drmatthews@vorys.comVorys, Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-6400Facsimile: (614) 464-6350

Michael P. Subak(pro hac vice 5971-2014)subakm@pepperlaw.comRichard W. Foltz, Jr.(pro hac vice 5792-2014)foltzr@pepperlaw.comPepper Hamilton LLP3000 Two Logan SquareEighteenth and Arch StreetsPhiladelphia, PA 19103=2799Telephone: (215) 981-4000Facsimile: (215) 981-4750

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TABLE OF CONTENTS

INTRODUCTION .................................................................................................. 1

II. BACKGROUND FACTS ............................................................:.......................... 2

A. By Contract, AMP Agreed To Limit Bechtel's Liability . .............................. 2

B. AMP Unilaterally Canceled The Project, Then Claimed DamagesBarred By The Contractual Limitation Of Liability ...................................... 3

C. Bechtel Complied With The Contract . ....................................................... 3

D. Judge Watson Twice Rejected AMP's Attempts To Void TheLimitation Of Liability . .... .......................... .................................................. 4

Ill. THIS COURT SHOULD DECLINE THE CERTIFICATION . ................................. 4

A. This Court Should Decline Certification Because It Is Settled OhioLaw That A Contractual Limitation Of Liability Must Be EnforcedExcept In Cases Of Willful Breach Or Wanton Misconduct . ...................... 5

1. Under Ohio Law, A Freely Negotiated Limitation Of LiabilityProvision Is Enforceable Absent A Showing Of Willful OrWanton Misconduct . ....................................................................... 5

2. The Federal Cases AMP Cited Do Not Support Its RequestTo Expand The Berjian Standard And Change Ohio Law ............... 6

3. Anderson Confirmed That "Reckless Conduct" Is A DifferentAnd Lower Standard Than The "Willful And WantonMisconduct" Required By Berjian . . ................................................. 8

B. This Court Should Decline Certification Because The Question IsNot Determinative Of The Proceeding And May Be Unnecessary. ........... 9

1. A Question That Relates Solely To The Amount Of DamagesCannot Be Determinative Of The Proceeding ............................... 10

2. Because AMP May Not Be Able To Prove That BechtelBreached, Or Caused Any Of AMP's Damages, DecidingThe Question In The Abstract Is Not Appropriate . ........................ 11

C.. This Court Should Decline Certification Because The District CourtTwice Correctly Decided The Issue Applying Settled Precedent ............. 12

1. Judge Watson Applied The Correct Standard In DecidingBechtel's Motion To Dismiss ......................................................... 13

2. Judge Watson Again Applied The Correct Standard InDeciding Bechtel's Motion For Summary Judgment . .................... 13

3. AMP Should Not Be Permitted To Forum Shop ............................ 14

IV. CONCLUSION ................................................................................................... 15

I. INTRODUCTION

Pursuant to Rule 9.01 of the Rules of Practice of the Supreme Court of

Ohio, the United States District Court for the Southern District of Ohio certified the

following question:

Does reckless conduct by the breaching party, as defined inAnderson v. Massillon, 134 Ohio St. 3d 380 (2012), render acontractual limitation of liability clause unenforceable?

This Court should decline certification for three reasons.

First, Ohio law on this point is settled and this Court should not use

the certification procedure to expand liability and undermine the freedom of

contract that is central to Ohio law. In Richard A. Berjian, D.O., Inc. v. Ohio Bell

Telephone Company, 54 Ohio St. 2d 147, 157-58 (1978), this Court declared the

standard necessary to render a contractual limitation of liability unenforceable. The

Berjian Court held that absent a showing of "willful or wanton misconduct," Ohio

enforces limitation of liability clauses. This Court should reject AMP's attempt to use the

certification procedure to overrule settled precedent and change the standard under

which a party may void a contractually agreed limitation of liability.

Second, the certified question is not determinative of the proceeding

because it only relates to the amount of damages. The amount of damages in a

case is not determinative of the proceeding, as Rule 9.01 requires. Further, because

Bechtel denies any breach of the Contract, and denies that it caused AMP's alleged

damages, this Court should reject AMP's attempt to expand Ohio law on what may be a

purely advisory basis.

Third, this Court should decline to address a question which was

only certified after plaintiff twice lost before the District Court. In May 2012,

granting Bechtel's motion to dismiss, the District Court.applied clear and settled

precedent from this Court and correctly ruled that "reckless conduct" was insufficient to

render a contractual limitation of liability clause unenforceable. Then in March of 2014,

granting Bechtel's motion for summary judgment, the District Court reached the same

conclusion, holding that the standard to abrogate a contractual limitation of liability "is,

and has always been, willful or wanton." 3/31/14 Summary Judgment Opinion and

Order (Doc. No. 106) at 10. To allow a disappointed litigant a third bite at the apple

here would only encourage forum-shopping, and does not foster the purpose of Rule

9.01 to provide guidance to a federal court when the law is unsettled.

II. BACKGROUND FACTS

This action relates to a canceled coal-fired power generating plant that

American Municipal Power, Inc. ("AMP"), a highly sophisticated generator and

wholesaler of electricity, sought to develop in Meigs County, Ohio.

A. By Contract, AMP Agreed To Limit Bechtel's Liability.

Beginning in 2006, AMP began a development process for a new coal-

fired power plant, including an assessment of the market, financial, regulatory and

environmental risks associated with a large coal project. A team of attorneys, advisors

and engineers advised AMP throughout the process. On January 1, 2009, AMP

entered into a cost-reimbursable Contract with Bechtel Power Corporation ("Bechtel")

for the design, engineering and construction of the project. 10/21/14 Certification

Opinion and Order (Doc. No. 112) at 2. Pursuant to the 1,000+ page carefully-

negotiated Contract, AMP agreed to limit Bechtel's liability to $500,000 during the early

stages of the project.

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B. AMP Unilaterally Canceled The Project, Then Claimed DamagesBarred By The Contractual Limitation Of Liability.

In November 2009, AMP elected to cancel the project, allegedly because

Bechtel's estimate was higher than expected. In February 2011, AMP sued Bechtel,

seeking to recover nearly all of AMP's development costs for the project. AMP's

Complaint amounted to a multi-faceted attempt to avoid the Contract it freely negotiated

with Bechtel. AMP injected two tort claims (breach of fiduciary duty and gross

negligence) into this contract dispute, and sought to invalidate the limitation of liability

provision of the Contract, alleging that Bechtel was reckless, grossly negligent, willful

and wanton. The case was assigned to the Honorable Michael H. Watson in the United

States District Court for the Southern District of Ohio.

C. Bechtel Complied With The Contract.

From the outset of this dispute, Bechtel insisted that the Contract alone

governs its potential liability to AMP. Judge Watson agreed, granting Bechtel's motion

to dismiss AMP's tort claims, leaving only AMP's breach of contract claim to be decided.

Bechtel contends vigorously that it did not breach the Contract, let alone

engage in misconduct. Rather, Bechtel followed the Contract concerning the

development of the estimate, informed AMP and its advisers of the issues that caused

the estimate to be higher than anticipated, and complied with the Contract as it was

written and as the parties understood it.

Bechtel also disputes AMP's damages. AMP's unilateral decision to

cancel the project in 2009 was motivated by plummeting natural gas prices (thereby

rendering coal less competitive), the deepening recession that brought reduced demand

for electricity, and President Obama's declaration of a War On Coal. Because AMP's

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losses flowed from its cancellation of the project, and the project was cancelled for

reasons unrelated to Bechtel, AMP cannot recover its alleged losses from Bechtel.

D. Judge Watson Twice Rejected AMP's Attempts To Void TheLimitation Of Liability.

Judge Watson twice correctly applied settled Ohio law that freedom of

contract permits parties to limit their liability absent a showing of a willful breach or

wanton misconduct. Initially, in ruling on Bechtel's motion to dismiss, Judge Watson

rejected AMP's contention that reckless conduct could abrogate the liability limitation,

but found that AMP pleaded facts that could support an inference of wanton conduct.

Then, in ruling on Bechtel's motion to for summary judgment, Judge Watson confirmed

his earlier rejection of AMP's contention that reckless conduct could abrogate the

liability limitation, and determined that AMP could not after discovery prove that Bechtel

exercised no care whatsoever. After losing the issue twice, AMP sought this

certification as trial approached. This Court should not allow a time-consuming detour

to the litigation as the certified question is wholly settled and already has been correctly

decided by the District Court.

Ili. THIS COURT SHOULD DECLINE THE CERTIFICATION.

Under Rule 9.01 this Court has discretion to decline to answer certified

questions. This Court has declined where, as here, the question is answered by

controlling precedent from this Court, the question will not be determinative of the

proceeding and the trial judge, at petitioner's request, has already decided the question.

See, e.g., Fireman's Fund Ins. Co. v. Hartford Accident & Indem. Co., 129 Ohio St. 3d

1486 (2011) (declining to answer question under the same circumstances).

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A. This Court Should Decline Certification Because It Is Settled OhioLaw That A Contractual Limitation Of Liability Must Be EnforcedExcept In Cases Of Willful Breach Or Wanton Misconduct.

Freedom of contract is a fundamental principle of the law of Ohio.

Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 218 (2003); Lake Ridge Acad. v.

Carney, 66 Ohio St. 3d 376, 381 (1993); Blount v. Smith, 12 Ohio St. 2d 41, 47 (1967).

Following this fundamental principle, Ohio respects the rights of contracting parties to

limit their liability. And under Ohio law, limitations of liability are to be enforced absent a

willful breach or wanton misconduct. Berjian, 54 Ohio St. 2d at 157-58.

Berjian has been settled precedent in this state for more than thirty years.

It has been relied upon by businesses and contracting parties to govern their affairs and

commercial dealings in Ohio. The change in the law AMP requests would upset

carefully crafted contracts and expose contracting parties to different and potentially

expanded liabilities.

The certification process from a federal court has no place in any attempt

to overturn settled Ohio law, which is reserved for cases subject to the normal Ohio trial

and appellate court process. Because the principle of freedom of contract and the

Berjian standard are settled under Ohio law, the Court should decline certification.

1. Under Ohio Law, A Freely Negotiated Limitation Of LiabilityProvision Is Enforceable Absent A Showing Of Willful OrWanton Misconduct.

In Berjian, this Court pronounced that a contractual limitation of liability

clause is to be enforced absent a showing of willful or wanton misconduct: "There was

no showing of willful or wanton misconduct on the part of any of the Ohio Bell

employees, and absent such showing, the limitation of liability clause is effective."

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54 Ohio St. 2d at 158 (emphasis added). This Court defined exactly what was meant by

"wanton misconduct":

Although a limitation of liability of clause for damagescaused by one's own negligence may be valid andenforceable, it is ineffective where the party to the contractseeking protection under the clause has failed to exerciseany care whatsoever toward those to whom he owes a dutyof care.

As Judge Watson has twice ruled, Berjian is the law of Ohio. Earlier this

year, the Ohio Court of Appeals followed Berjian and affirmed summary judgment when

the plaintiff failed to establish that the defendant failed to exercise any care whatsoever.

See Main St. Marathon, LLC v. Maximus Consulting, LLC, 2014-Ohio-2034, ¶ 30 (Ct.

App. 5th Dist. 2014) ("An exculpatory clause cannot bar liability for acts that are willful or

wanton."). Moreover, neither AMP nor the District Court identified anything that could

constitute the "special justification" necessary to overcome the doctrine of stare decisis

here. See Wampler v. Higgins, 93 Ohio St. 3d 111, 120 (2001).

The Berjian Court's holding answers the certified question. A breach

meeting the lower standard of "reckless conduct" but not constituting "willful or wanton

misconduct," i.e. "no care whatsoever," falls short of what Ohio law requires to void a

limitation of liability.

2. The Federal Cases AMP Cited Do Not Support Its Request ToExpand The Berjian Standard And Change Ohio Law.

In the Motion to Certify to the District Court, AMP argued that "multiple

other [federal] district courts have concluded that the reckless standard also applies

under Ohio law." 5/12/14 AMP Motion to Certify (Doc. No. 108) at 8. But in our federal

system, no district court can change or call into question Ohio law as pronounced by

this Court, and the federal opinions' dicta does not reflect correct Ohio law.

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AMP seized on an obvious mistake in Nahra v. Honeywell, 892 F. Supp.

962, 970 (N.D. Ohio 1995), where the federal court, in dicta, paraphrased Berjian and

substituted the word "reckless" for the word "wanton". In Nahra, the court stated:

While viewed critically by the courts, limitation of liabilityclauses (including exculpatory clauses) may be freelybargained for in Ohio: Berjian v. Ohio Bell Telephone Co., 54Ohio St. 2d 147, 375 N.E.2d 410 (1978); .... And "absentimportant public policy concerns, unconscionability, or vagueand ambiguous terms, [such] provisions will be upheld,"Collins, 86 Ohio App. 3d at 832, so long as the partyinvoking the provision has not committed a willful orreckless breach. Berjian, 54 Ohio St. 2d at 158.

Id. at 969-70 (Emphasis added). Even though the Nahra court cited page 158 of Berjian

to support the "reckless" standard, the Berjian opinion never found "reckless" to be

sufficient to overcome a contractual provision, on page 158 or anywhere else. Rather,

Berjian plainly defined the standard as "willful or wanton."

This error was then repeated. In each of the cases cited by AMP, the

federal court either simply cited Nahra or made the same mistake. See Purizer Corp. v.

Battelle Mem'l Inst., No. 01 C 6360, 2002 U.S. Dist. LEXIS 138, at *15 (N.D. III. Jan. 4,

2002) (incorrectly citing Berjian for the proposition that the standard is willful or

reckless); Transcon Ins. Co. v, Simplexgrinnell L.P., No. 3:05CV7012, 2006 U.S. Dist.

LEXIS 48654, at*14-15 (N.D. Ohio July 17, 2006) (on summary judgment, quoting the

Nahra court's citation to Berjian, and stating that limitations of liability would be enforced

"`so long as the party invoking the provision has not committed a willful or reckless

breach"'); Solid Gold Jewelers v. ADT Sec. Sys., 600 F. Supp. 2d 956, 960 n.2 (N.D.

Ohio 2007) (citing Nahra for the proposition that limitations of liability are enforced "as

long as the party invoking the provision has not committed a willful or reckless breach");

Superior Integrated Solutions, Inc. v. Reynolds & Reynolds Co., No. 3:09-cv-314, 2009

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U.S. Dist. LEXIS 109402, at *8 (S.D. Ohio Nov. 3, 2009) (quoting Berjian correctly but

citing Solid Gold Jewelers for the proposition that "a willful or reckless breach is

considered to be an intentional breach and is, thus, willful misconduct"). Nahra's

mistaken inclusion of the word "reckless" in citing to Berjian did not, and cannot, change

or unsettle the law of Ohio as announced by this Court.

3. Anderson Confirmed That "Reckless Conduct" Is A DifferentAnd Lower Standard Than The "Willful And WantonMisconduct" Required By Berjian.

This Court's decision in Anderson v. City of Massillon, 134 Ohio St. 3d 380

(2012) laid to rest any notion that "reckless" and "wanton" are interchangeable. The

Anderson Court made clear that the two standards have different meanings, and

"reckless conduct" is a lower standard than "willful or wanton misconduct":

Willful misconduct implies an intentional deviation from aclear duty or from a definite rule of conduct, a deliberatepurpose not to discharge some duty necessary to safety, orpurposefully doing wrongful acts with knowledge orappreciation of the likelihood of resulting injury....

Wanton misconduct is the failure to exercise any caretoward those to whom a duty of care is owed incircumstances in which there is great probability that harmwill result.. . .

Reckless conduct is characterized by the consciousdisregard of or indifference to a known or obvious risk ofharm to another that is unreasonable under thecircumstances and is substantially greater than negligentconduct. . . ..

Id. at 388 (emphasis added) (citations omitted). The Court also eliminated any

confusion caused by a footnote in Thompson v. McNeill, 53 Ohio St. 3d 102 (1990), that

"[t]he term 'reckless' is often used interchangeably with `willful' and `wanton."' /d. at 103

n.1. In Anderson, this Court specifically disapproved the footnote: "We therefore

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disavow the dicta contained in Thompson,. .. that `willfulness,' `wantonness,' and

` recklessness' are equivalent standards." 134 Ohio St. 3d at 388.

To the extent AMP relies on pre-Anderson Ohio Court of Appeals

decisions confusing the standards, such reliance is misplaced. Anderson explicitly

addressed the flawed analysis underlying a number of such decisions that mistakenly

deemed "reckless" and "wanton" as "functionally equivalent." Id. at 387 (citing Marchant

v. Gouge, 187 Ohio App.3d 551 (5th Dist. 2010); INhitfield v. Dayton, 167 Ohio App.3d

172 (2d Dist. 2006); Brockman v. Bell, 78 Ohio App.3d 508, 516, (1 st Dist. 1992);

Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App.3d 448, 454 (12th Dist. 1991);

Minnick v. Springfield Local Sch. Bd. of Edn., 81 Ohio App.3d 545, 550 (6th Dist. 1992)).

Such Court of Appeals decisions, like the Thompson footnote, are no longer good law

after Anderson.

Anderson made clear that conduct meeting only the lower "reckless

conduct" standard does not suffice to meet the "willful or wanton misconduct" standard.

As Berjian provided, that is the applicable standard to void a contractual limitation of

liability under Ohio law.

B. This Court Should Decline Certification Because The Question Is NotDeterminative Of The Proceeding And May Be Unnecessary.

Another basis on which this Court should decline certification is that the

question is not "determinative of the proceeding", as required by Rule 9.01.1 The

1 Indeed, in adopting Rule 9.01 and its predecessors, Ohio did not use thebroader language of the Uniform Act enacted in other jurisdictions, that the questionneed only be "determinative of an issue pending in the litigation." Compare Unif.Certification of Questions of Law (Act) (Rule) § 3 (amended 1995), 12 U.L.A. 82 (1996),with Ohio S. Ct. Prac. R. 9.01. The certified question here may be determinative of anissue in the proceeding; but the standard in Ohio is that the question must bedeterminative of the proceeding itself.

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question relates solely to the amount of damages and therefore cannot be determinative

of the proceeding. Moreover, absent a finding that Bechtel breached the Contract and

caused AMP damages beyond the limitation, both of which Bechtel denies, the limitation

of liability, or the standard for overcoming it, will never come into play.

1. A Question That Relates Solely To The Amount Of DamagesCannot Be Determinative Of The Proceeding.

In the context of a certified question, the District Court correctly observed

that "a question which may be determinative of a proceeding is one which would form

the basis of the Court's disposition of one or more of the plaintiff's causes of action."

10/21/14 Certification Opinion and Order (Doc. No. 112) at 8. Acknowledging this

standard, the District Court stated that "whether reckless conduct bars enforcement of

the EPC Contract's limitation of liability clause relates only to the amount of potential

damages available for AMP's breach of contract claim and is not dispositive of the

underlying merits of that claim." Id. at 8 (emphasis added). Issues relating solely to

the amount of damages are not determinative. Gen. Acquisition v. Gencorp., Inc., 23

F.3d 1022, 1032 (6th Cir. 1994).

However, the District Court went on:

[R]esolution of the issue implicates the difference between$97 million and $500,000 in potential damages. Thus, whilethe issue at hand will not terminate the proceeding,reasonable jurists could conclude that given the uniquecircumstances of this case, the question of whether recklessconduct bars enforcement of a limitation of liability clause istantamount to determinative of this particular proceeding.

10/21/14 Certification Opinion and Order (Doc. No. 112) at 9. This Court should not

depart from the "determinative" standard set forth in Rule 9.01 where the District Court

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found only that "reasonable jurists could conclude" the issue is "tantamount" to

determinative.

While the District Court focused its attention on the unique circumstances

alleged in this case, peculiar or particular circumstances are not sufficient reason to set

aside the requirements of the Rule. Indeed, the validity of a limitation on damages does

not depend on the disparity between the amount of alleged damages and the agreed

cap, unlike the determination of whether a liquidated damage provision is an

unenforceable penalty. See, e.g., Samson Sales, Inc., v. Honeywell, Inc., 12 Ohio St.

3d 27, 28-29 (1984). This Court sets precedent for all parties and all cases in Ohio, and

should hesitate to craft broad exceptions to its rules because of the unique

circumstances of one case.

2. Because AMP May Not Be Able To Prove That BechtelBreached, Or Caused Any Of AMP's Damages, Deciding TheQuestion In The Abstract Is Not Appropriate.

This Court has exercised restraint to decline certified questions of law that

are not necessarily presented by the parties' claims. In Arbino v. Johnson & Johnson,

116 Ohio St. 3d 468, 485 (2007), this Court accepted a certified question, only later

discovering that the plaintiff in the pending case could not prove facts that would

actually implicate one of the certified questions. The plaintiff nonetheless urged this

Court to decide the issue for future cases. This Court observed:

Every court must "refrain from giving opinions on abstractpropositions and * * * avoid the imposition by judgment ofpremature declarations or advice upon potentialcontroversies." .... It is well-settled law that this court willnot issue such advisory opinions.... We therefore decline toanswer the second certified question.

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Bechtel strongly contends that it did not breach the Contract. Bechtel

further contends AMP's asserted damages are speculative and were not caused by

anything Bechtel did or failed to do. For these reasons, the certified question is not

determinative of the proceeding, and this Court should decline to accept certification.

C. This Court Should Decline Certification Because The District CourtTwice Correctly Decided The Issue Applying Settled Precedent.

This Court should decline certification because the question has already

been correctly decided. AMP's request for certification enlists Rule 9.01 not for its

intended purpose - to resolve genuine matters of unsettled Ohio law - but to seek a

third bite at the apple, asking this Court to expand liability under Ohio law after two

unfavorable rulings on the very question it seeks to certify.

This Court and federal courts alike reject this type of gamesmanship

regarding Rule 9.01. See Broadview Sav. & Loan Co, v. Riestenberg, 49 Ohio St. 3d

133, 134 (1990) (denying certification of question already decided by the Sixth Circuit);

City of Columbus v. Hotels.com, L.P., 693 F.3d 642, 654 (6th Cir. 2012) ( citations

omitted) ("[C]ertification is disfavored where a plaintiff files in federal court and then,

after an unfavorable judgment, 'seek[s] refuge' in a state forum."). Rather, "[t]he

appropriate time to seek certification of a state-law issue is before a District Court

resolves the issue, not after receiving an unfavorable ruling." Geronimo v. Caterpillar,

Inc., 440 Fed. App'x 442, 449 (6th Cir. 2011) (citation omitted). Here, the District Court,

relying on the clear and settled law in Berjian, twice rejected AMP's attempt to lower the

standard in Ohio to invalidate a limitation of liability provision.

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1. Judge Watson Applied The Correct Standard In DecidingBechtel's Motion To Dismiss.

In 2011, citing Berjian, Bechtel asked the District Court to dismiss AMP's

breach of contract claim to the extent AMP sought damages barred by the limitation-of-

liability provision in the Contract because AMP did not plead facts to support a finding of

"willful or wanton" conduct. 4/12/11 Bechtel Motion to Dismiss (Doc. No. 9) at 1. In its

opposition, AMP argued that a showing of "recklessness" was sufficient to invalidate the

agreed-upon limitation of liability. The District Court specifically rejected AMP's attempt

to disregard Berjian and change the standard to "reckless", and held that "the controlling

standard to enforce a limitation of liability remains whether the party that breached the

contract did so intentionally or failed to exercise any care whatsoever." 5/8/12

Motion to Dismiss Opinion and Order (Doc. No. 63) at 7 (emphasis added). To prevail,

AMP would have to establish that Bechtel "acted with no care whatsoever", i.e.

wantonly. Id. at 13.

2. Judge Watson Again Applied The Correct Standard InDeciding Bechtel's Motion For Summary Judgment.

In 2013, Bechtel moved for summary judgment, asserting in part that after

discovery AMP could not prove that Bechtel had acted with "no care whatsoever," and

that the District Court should therefore enforce the contractual limit of liability negotiated

and agreed by the parties. Bechtel Motion for Summary Judgment (Doc. No. 86) at 3.

For its part, AMP renewed its request that Judge Watson disregard Ber,jian and apply a

lower standard, this time arguing that this Court's Anderson decision changed the law,

making recklessness newly sufficient to invalidate a limitation of liability. 2/8/13 AMP

Opposition to Motion for Summary Judgment (Doc. No. 93) at 28.

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The District Court rejected AMP's argument that this Court's decision in

Anderson lowered the standard from "wanton" to °reckless", holding that "the standard

for overcoming a limitation of liability is, and has always been, willful or wanton."

3/31/14 Summary Judgment Opinion and Order (Doc. No. 106) at 10, citing Berjian, 54

Ohio St. 2d at 157-58 (emphasis added). The District Court granted Bechtel's motion

for summary judgment on the limitation of liability issue, holding that the undisputed

evidence precluded a finding that Bechtel exercised no care whatsoever and that the

limit of liability to which AMP had agreed when it entered into the Contract with Bechtel

would be enforced.

3. AMP Should Not Be Permitted To Forum Shop.

This Court should decline AMP's invitation to revisit the question already

twice correctly decided by the District Court. AMP does not seek an answer on an

unsettled question, but instead seeks to change settled Ohio law on the standard to set

aside a contractual limit of liability. AMP waited until the District Court decided the

certified question twice, nearly three years after its first attempt to lower the standard, to

seek certification to this Court.

Rule 9.01 is not a last resort for a disappointed party. This Court should

not accept the certified question. See Broadview Sav. & Loan Co., 49 Ohio St. 3d at

134 (denying certification of question already decided by the Sixth Circuit).

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IV. CONCLUSION

For the foregoing reasons, this Court should decline to answer the

certified question.

RespectFully s bm' t d,

Wi liani G. P®rter (0017296) (Trial Attorney)wgporter@vorys.comDouglas R. Matthews (0039431)drmatthews@vorys.comVorys, Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-6400Facsimile: (614) 464-6350

Michael P. Subak(pro hac vice 5971- 2014)subakm@pepperlaw.comRichard W. Foltz, Jr.(pro hac vice 5792 - 2014)foltzr@pepperlaw.comPepper Hamilton LLP3000 Two Logan SquareEighteenth and Arch StreetsPhiladelphia, PA 19103-2799Telephone: (215) 981-4000Facsimile: (215) 981-4750

Counsel for RespondentBechtel Power Corporation

Dated: November 13, 2014

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing was served

upon the following, by regular U.S. mail pursuant to Civ. R. 5(B)(2)(c), this 13th day of

November 2014:

David John ButlerStephen Charles FitchTaft Stettinius & Hollister LLP65 East State Street, Suite 1000Columbus, OH 43215-4213

Judah LifschitzShapiro, Lifschitz & Schram1742 N Street NWWashington, DC 20036

0

V1/ilfiam G. Porter