COLLEEN KOLLAR-KOTELLY, United States District Judge.
On September 16, 2015, Plaintiffs Johnnie Parker and Starrelette Gail Jones-Parker brought this action against Defendant John Moriarty & Associates of Virginia, LLC ("JMAV"). Plaintiffs alleged that JMAV, as general contractor of a construction project, was negligent resulting in serious injury to Mr. Parker, a construction worker on the project site. Defendant JMAV subsequently filed a Third-Party Complaint against Third-Party Defendant Strittmatter Metro, LLC ("Strittmatter"), and Strittmatter, in turn, filed a Fourth-Party Complaint against Fourth-Party Defendant Environmental Consultants and Contractors, Inc. ("ECC"). Subsequent procedural developments included Plaintiffs' amendment of their Complaint to add ECC as a Defendant. ECC also asserted counterclaims against Strittmatter and
Presently before the Court are Strittmatter's [121] Motion for Summary Judgment, ECC's [122] Motion for Summary Judgment, and JMAV's [123] Motion for Summary Judgment on Count I and II of Its Amended Third Party Complaint. Upon consideration of the parties' submissions,
This case arises out of the construction work completed on the Apollo H Street Project ("the project"), located between 600 and 624 H Street, NE, Washington, D.C. Am. Compl., ECF No. 87, ¶ 13. The owner of the project, H Street NE Owner, LLC ("Owner"), hired JMAV to serve as general contractor and ECC to provide certain "professional environmental services." Id. ¶¶ 3, 6. JMAV subcontracted the excavation and related services to Strittmatter. Id. ¶ 5.
Johnnie Parker worked on the project as an employee of Strittmatter and alleges that on December 18, 2014, he was instructed to excavate between 600 and 624 H Street, NE. Id. ¶¶ 12, 22. While performing this work, Mr. Parker allegedly was injured upon exposure to toxic chemicals from leaking underground storage tanks. See id. ¶¶ 22-31. While Plaintiffs did not allege the specific location onsite where Mr. Parker was injured, the other parties generally agree that it was in the southwestern portion. See, e.g., Strittmatter's
On September 16, 2015, Mr. Parker and his wife, Starrelette Gail Jones-Parker, filed the underlying two-count Complaint against JMAV, claiming that 1) JMAV was liable for negligence, and 2) JMAV's alleged willful, or reckless and wanton, conduct entitled the Parkers to punitive damages. See Compl., ECF No. 1, ¶¶ 16-28. On November 6, 2015, JMAV filed a two-count Third-Party Complaint against Strittmatter, alleging that 1) Strittmatter was contractually obligated to indemnify JMAV, and 2) Strittmatter had breached its subcontract with JMAV. See Third-Party Compl., ECF No. 10, ¶¶ 21-33. JMAV sought summary judgment on its contractual indemnity claim against Strittmatter, which the Court denied on May 23, 2016. See Mem. Op., Parker v. John Moriarty & Assocs. (Parker I), 189 F.Supp.3d 38 (D.D.C. 2016), ECF No. 43.
On May 12, 2016, Strittmatter filed a four-count Fourth-Party Complaint against ECC, asserting claims of 1) negligence, 2) indemnity and/or contribution as a joint tortfeasor, 3) breach of contract to a third-party beneficiary, and 4) negligent misrepresentation. See Fourth-Party Compl., ECF No. 38, ¶¶ 40-65. ECC moved to dismiss the Fourth-Party Complaint on the grounds that Strittmatter failed to state claims in contract and in tort upon which relief could be granted, which the Court denied on December 14, 2016. See Mem. Op., Parker v. John Moriarty & Assocs. (Parker II), 224 F.Supp.3d 1 (D.D.C. 2016), ECF No. 65.
On January 17, 2017, Plaintiffs requested leave to amend their Complaint to assert a negligence claim against ECC, which the Court granted on February 16, 2017. See Mem. Op. & Order, Parker v. John Moriarty & Assocs. (Parker III), 320 F.R.D. 95 (D.D.C. 2017), ECF No. 86; Am. Compl., ECF No. 87.
On February 15, 2017, ECC sought the Court's permission to amend ECC's [71] Answer to assert counterclaims against Strittmatter and cross-claims against JMAV based on allegations of 1) negligence, 2) negligent misrepresentation, and 3) indemnity and contribution. On the same day, JMAV requested leave to amend its [10] Third-Party Complaint against Strittmatter to add further details and a common law indemnity claim. The Court granted ECC's and JMAV's requests on April 6, 2017. See Mem. Op. and Order, Parker v. John Moriarty & Assocs. (Parker IV), 249 F.Supp.3d 507 (D.D.C. 2017), ECF No. 97; ECC's [Am.] Answer to the Fourth-Party Compl., Countercl. Against Fourth-Party Pl. Strittmatter and Cross-Cl. Against Def. JMAV, ECF No. 98; JMAV's Am. Third Party Compl. Against Strittmatter, ECF No. 85-2.
The Court instructed JMAV and Strittmatter to respond to the new pleadings that the Court permitted to be filed against them. Parker IV, 249 F.Supp.3d at 516. As part of its response to ECC's cross-claims, JMAV asserted cross-claims against ECC for 1) negligence, 2) indemnity and/or contribution, 3) breach of contract to a third-party beneficiary, and 4) promissory estoppel. JMAV's Answer to ECC's Crosscl. and Crosscl. Against ECC, ECF No. 107. Discovery has since concluded. See Oct. 13, 2017 Order, ECF No. 118.
Pursuant to the Court's [120] Scheduling and Procedures Order, three of the four parties have moved for summary judgment as to at least some claims. ECC seeks summary judgment as to each claim against it, specifically Plaintiffs' claim of negligence, JMAV's claims of negligence, indemnity and/or contribution, breach of
The Court shall summarize the reports, agreements, and safety plans that are pertinent to the resolution of the pending motions. This is not the first time that the Court has needed to consider the intersections of documents at issue in this case. See, e.g., Parker II, 224 F.Supp.3d at 4-6. But, in light of the post-discovery posture, this look will be the most extensive. Notwithstanding that extent, however, the Court's review here shall not decide whether the parties have a dispute of material fact as to such documents, except where the Court expressly indicates that it so decides. The Court shall reserve further analysis of each of these documents for the discussion of the individual claims below.
Taken chronologically, the first key document is ECC's Phase I Environmental Site Assessment, dated March 20, 2014. ECC's Mot., Ex. F, ECF No. 122-6 ("2014 Report").
Several agreements follow in close cluster and suggest by their chronological ordering that they were negotiated concurrently. Both these general contractor and excavation subcontractor agreements incorporate ECC's 2014 Report.
The Owner entered into an agreement with JMAV, as general contractor, on September 2, 2014. JMAV's Opp'n to ECC's Mot., Ex. 5, ECF No. 129-6 ("Owner/JMAV Agreement"). JMAV's obligations under the agreement include "design/build responsibility" for "support of excavation." Id. at 53. The "Qualifications, Clarifications, and Assumptions" exhibit to the Owner/JMAV Agreement expressly excludes "soil contamination monitoring" and "[s]oil testing," and states that "[c]ontaminated [s]oils are by Owner." Id. at 57 (Ex. B). The Owner/JMAV Agreement lists the 2014 Report among "Contract Documents,"
JMAV's subcontract signed shortly beforehand also incorporates the 2014 Report. JMAV subcontracted with Strittmatter on August 12, 2014, to cover JMAV's (then-forthcoming) obligations to the Owner for excavation services. See JMAV's Mot., Ex. 8, ECF No. 123-10 ("JMAV/Strittmatter Agreement"), at 2-3, 6. Like the Owner/JMAV Agreement, the "Scope of Work" exhibit to the JMAV/Strittmatter Agreement carves out "[s]oil and [m]aterial [t]esting (by Owner)" and "[c]ontaminated soils" from the scope of Strittmatter's responsibility. Id. at 28 (Ex. B). The "Contract Document List" exhibit to the JMAV/Strittmatter Agreement lists the 2014 Report. Id. at 30 (Ex. C). The Court recognizes Strittmatter's acknowledgement that JMAV provided Strittmatter with a copy of the 2014 Report "[p]rior to December 2014." Strittmatter's Resp. to Statements of Undisputed Material Facts Submitted by JMAV and ECC, ECF No. 124-2, ¶ 23 (Resp. to
In between the conclusion of the JMAV/Strittmatter Agreement on August 12, 2014, and the Owner/JMAV Agreement on September 2, 2014, ECC produced its Voluntary Remediation Action Plan ("VRAP") on August 22, 2014. ECC's Mot., Ex. N, ECF No. 122-14 ("VRAP"). The cover page indicates that the VRAP was "[p]repared for" the Owner and "[s]ubmitted to" several District of Columbia officials. Id. at 1. The document further explains that ECC prepared the VRAP "to address documented petroleum hydrocarbon contamination at two sites currently enrolled in" a remediation program run by the local government. Id. at 5. Among the purposes of the "voluntary remediation actions described in this Plan" is to "ensure the health and safety of future residents, construction workers, and area residents during construction." Id. at 5-6. The VRAP draws on the 2014 Report among its sources of data. Id. at 6. "The remediation actions proposed [in the VRAP] include... [p]reparation of a site specific Environmental Health and Safety Plan (EHASP) for all excavation ... activities. This will include on-site air monitoring for construction workers...." Id. at 18.
As contemplated by the VRAP, ECC's Environmental Health and Safety and Impacted Material Management Plan ("EHASP") also appears in the record, as a revised version dated September 8, 2014. ECC's Mot., Ex. M, ECF No. 122-13 ("EHASP"). The EHASP likewise indicates that it was prepared for the Owner and submitted to District of Columbia officials, and that it draws on the 2014 Report. Id. at 1, 6-7. A "Review and Approval" page indicates that the EHASP "has been reviewed by the undersigned representatives of the Owner, Environmental Consultant and companies performing earthwork, excavation, [and other] activities" on site. Id. at 3. This copy of the EHASP has been signed only by an ECC representative.
The EHASP sets forth in some detail the safety responsibilities of parties at the project site, including ECC, the general contractor (i.e., JMAV), and subcontractors (e.g., Strittmatter).
Under the EHASP, JMAV's obligations as general contractor entail "overall responsibility for monitoring and enforcing all aspects of site safety, including construction safety and all other safety, health, and OSHA related requirements." Id. at 7. JMAV's Site Safety Officer "is responsible for monitoring excavations and worker entries into excavations for safe conditions in compliance with the General Contractor Health and Safety Plan for the site. Upon request of the Site Safety Officer, the Environmental Technician will monitor excavations with a combustible gas/oxygen meter." Id. at 19. The EHASP accords "stop-work authority" to the Site Safety Officer in keeping with that officer's duty to ensure compliance with "environmental, health, and safety guidance and regulations at the site." Id. at 20; see also id. at 23.
JMAV and Strittmatter have obligations as "contractors [and] subcontractors" to "read this EHASP in its entirety and `sign-off' to acknowledge their understanding of site conditions and hazards, and safety protocol prior to entry to the exclusion zone." Id. at 20.
To name a few more cross-cutting obligations under the EHASP, "[t]he Site Safety Officer and the Environmental Technician will monitor soil excavation activities." Id. at 20. "Care should be taken by all site personnel during excavation operations to avoid possible chemical and physical hazards." Id. at 23.
Last in time among the key documents is the agreement between the Owner and ECC entered into on November 1, 2014.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record — including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence — in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where "a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may "consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not assess credibility or weigh evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with "all justifiable inferences ... drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "Furthermore, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Footbridge Ltd. Tr. v. Zhang, 584 F.Supp.2d 150, 158 (D.D.C. 2008) (Kollar-Kotelly, J.) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975) (per curiam); Long v. Gaines, 167 F.Supp.2d 75, 85 (D.D.C. 2001)). "If material facts are at issue, or though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal quotation marks omitted). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as
Whether grounded in common law or contract, the causes of action at issue in these motions generally turn on an assessment of the parties' respective duties regarding worker safety on the project site. Those duties arise, if at all, from the intricate web of reports, agreements, and safety standards that involved the parties. Viewing the record evidence in the light most favorable to the non-movants, the Court finds genuine disputes of material fact as to the precise application of duties that these documents appear to create. The parties' divergent interpretations of these documents, coupled with differing accounts of the parties' practices at the project site, preclude the entry of summary judgment with respect to each claim except for ECC's counterclaim against Strittmatter for contribution. The Court shall grant summary judgment to Strittmatter on that counterclaim.
The Court shall discuss further as to each motion in turn, beginning with ECC's motion and continuing with Strittmatter's and then JMAV's. Because the Court is not the finder of fact as to at least some of the claims, the Court shall not touch on all of the parties' various relevant duties, nor shall it belabor its several explanations of genuine disputes of material fact.
ECC seeks summary judgment on all claims against it, namely negligence (alleged by Plaintiffs, JMAV, and Strittmatter), negligent misrepresentation (Strittmatter), breach of contract (JMAV and Strittmatter), promissory estoppel (JMAV), and common law indemnity and contribution (JMAV and Strittmatter). The Court shall explain why summary judgment is not available to ECC as to any of these claims.
ECC argues that it did not owe any duties under tort law that could sustain a negligence claim by the Plaintiffs, JMAV, or Strittmatter, or a negligent misrepresentation claim by Strittmatter. ECC's Mot. at 17, 22 n.2. Previously, the Court denied ECC's motion to dismiss because, as to Strittmatter's negligence and negligent misrepresentation claims, the Court could not "conclusively find that no such duty exists," in light of the Owner/ECC Agreement, the VRAP, and the EHASP, as well as applicable law. See Parker II, 224 F.Supp.3d at 10-11. The Court now finds that ECC has not carried its burden at this stage either, whether as to Strittmatter or to Plaintiffs and JMAV.
In the District of Columbia,
Id. at 889 (quoting Restatement (Second) of Torts § 324A (Am. Law Inst. 1965)). While the District of Columbia Court of Appeals has not "formally adopted" the Second Restatement, that court has found that the "particular concept" embodied by Section 324A is among those that are "well known and [have] been readily applied, where appropriate." Haynesworth, 645 A.2d at 1097 (citing Long v. District of Columbia, 820 F.2d 409, 419 (D.C. Cir. 1987)).
In Presley, the District of Columbia Court of Appeals found that a consultant need not have foreseen that its services were necessary for the protection of a worker injured on a construction site. See 25 A.3d at 889-90. Among other reasons, the "contract compliance consultant" was required to perform only "non-exhaustive and occasional inspections"; was not contractually obligated to be at the project site each day; and was not expected under its contract with the project's principal "to supplant the obligations of ... [the] general contractor, and the other contractors that had operational charge of construction," although the consultant did have limited stop-work authority. Id. at 879, 889-91. In contrast, the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") has found that a consultant's "superior skills and position" and "resultant ability to foresee the harm that might reasonably be expected to befall" a worker at a construction site created a duty of care to that worker where the consultant had contractual safety obligations, was aware of health hazards, and had some stop-work authority. Caldwell v. Bechtel, Inc., 631 F.2d 989, 996-97, 1000-02 (D.C. Cir. 1980); see also Parker II, 224 F.Supp.3d at 11 (citing Caldwell, 631 F.2d at 997, 1002-03).
Viewing the record evidence in the light most favorable to the non-movants, the Court cannot conclude that ECC lacked a duty of care to the other parties at the project site. The finder of fact could determine, based on the Owner/ECC Agreement, that ECC was hired for an implementation role. See Owner/ECC Agreement at 11. ECC was required to implement two documents — namely the VRAP and the EHASP — that ECC itself had developed for the site based on its
The finder of fact could conclude that ECC should have foreseen the necessity of its services for the protection of others, at the least because ECC's failure to exercise reasonable care in its monitoring could increase the risk of harm to construction workers like Mr. Parker, and JMAV and Strittmatter might have relied on ECC for adequate air monitoring while Mr. Parker excavated. ECC has not discharged its burden to establish that there is no dispute of material fact, and that it is entitled to judgment as a matter of law, based on its assertion that it had no duty of care to the other parties at the job site.
ECC's effort to dispose of Strittmatter's negligent misrepresentation claim fails for the same reason.
Regan v. Spicer HB, LLC, 134 F.Supp.3d 21, 37-38 (D.D.C. 2015) (Kollar-Kotelly, J.) (citing Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1131 (D.C. 2015)). ECC's argument on this issue is limited to a footnote in which ECC asserts that this claim — like Strittmatter's negligence claim — founders for lack of a duty "regarding the safety of Strittmatter's own workers." ECC's Mot. at 22 n.2. But, as the Court determined above, ECC is unable to persuade the Court that it lacked a duty of care to Strittmatter. Accordingly, ECC has not discharged its burden to prove that it is entitled to summary judgment as to this claim either.
As it did in opposing Strittmatter's motion to dismiss, ECC again argues that Strittmatter, and now JMAV as well, are only incidental third-party beneficiaries of the Owner/ECC Agreement, rather than intended third-party beneficiaries who could pursue damages for breach thereof. See ECC's Mot. at 22. The Court denied ECC's motion to dismiss because the evidence at that stage was "in equipoise"
"Generally, a stranger to a contract may not bring a claim on the contract." Fort Lincoln Civic Ass'n, Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1064 (D.C. 2008). However, courts in this jurisdiction have recognized that a party may be entitled to sue as a third-party beneficiary even though the party is not in direct privity of contract. Silberberg, No. 16-cv-624, 191 A.3d at 332, 2018 WL 3908667, at *4 (citing Fort Lincoln Civic Ass'n, Inc., 944 A.2d at 1064). "Third-party beneficiary status requires that the contracting parties had an express or implied intention to benefit directly the party claiming such status." Id. (quoting Fort Lincoln Civic Ass'n, Inc., 944 A.2d at 1064) (internal quotation marks omitted). The D.C. Court of Appeals has adopted the approach from the Restatement (Second) of Contracts and recognized the distinction between an intended beneficiary, one who has rights to recover under a contract claim, and an incidental beneficiary, one who does not have such rights. Fort Lincoln Civic Ass'n, Inc., 944 A.2d at 1064.
Id. at 1064 (quoting Restatement (Second) of Contracts § 302(1)) (internal quotation marks omitted). Recently, the D.C. Court of Appeals put the standard more pointedly: "To be intended, a beneficiary need not be named in the contract, as long as he or she is ascertainable from the contract and the circumstances of the contract." Silberberg, No. 16-cv-624, 191 A.3d at 332, 2018 WL 3908667, at *4 (quoting Hossain v. JMU Props., LLC, 147 A.3d 816, 820 (D.C. 2016)) (emphasis added) (internal quotation marks omitted). An intended beneficiary has a right to enforce the duties of the promisor to the promisee under the contract. See Fort Lincoln Civic Ass'n, Inc., 944 A.2d at 1064 (citing Restatement (Second) of Contracts § 304).
Instead of focusing on this District of Columbia authority,
As articulated above, on-point authority is available in this jurisdiction. ECC does cite to one controlling authority that, at least superficially, runs in its favor. See ECC's Reply at 9-10 n.6 (citing Presley, 25 A.3d at 888 n.14). In a footnote in Presley, the D.C. Court of Appeals determined that a general contractor and subcontractors were not third-party beneficiaries to an agreement between the principal and a contract compliance consultant at a project site. 25 A.3d at 888 n.14. The court recognized that they were not named as third-party beneficiaries in the relevant contract. Id. And the Court suggested that they had only "an indirect interest in the performance of the undertakings." Id. (quoting Fort Lincoln Civic Ass'n, Inc., 944 A.2d at 1064) (internal quotation marks and alteration omitted). But for the following reasons, this Court shall find that the fact that JMAV and Strittmatter are not expressly named as third-party beneficiaries in the Owner/ECC Agreement does not preclude them from breach of contract claims where the finder of fact could determine that they had a substantial interest in the performance of the undertakings and might otherwise meet the standards in this jurisdiction for intended third-party beneficiaries.
As the Court previously has recognized, the Owner/ECC Agreement does not refer to Strittmatter by name, but the Court has found other factors that could indicate the contracting parties' intent to benefit Strittmatter. Parker II, 224 F.Supp.3d at 15 (referring, for example, to ECC's obligations under Agreement to provide environmental oversight, VRAP's stated intention of protecting construction workers, and EHASP's provision for ECC
Viewed in the light most favorable to JMAV and Strittmatter, the Owner/ECC Agreement recognizes that any party receiving the Owner's prior written consent is entitled to rely on information originally generated by ECC, and accordingly the Owner, as promisee, "intends to give [that] beneficiary the benefit of [ECC's] promised performance." Fort Lincoln Civic Ass'n, Inc., 944 A.2d at 1064 (quoting Restatement (Second) of Contracts § 302(1)(b)) (internal quotation marks omitted). The finder of fact could determine that the Owner/JMAV Agreement is one such instance of the Owner's prior written consent to rely on information that ECC generated for the project. The Owner/JMAV Agreement expressly incorporates ECC's 2014 Report — upon which ECC expressly allowed one of the member entities of Owner to rely — and permits JMAV to rely on any environmental reports and other information that the Owner furnishes. Owner/JMAV Agreement at 37 (Ex. A), 80; see also 2014 Report at 10 (permitting reliance by Insight Apollo LLC). ECC admits that it provided its daily reports to JMAV when the Owner so requested; whether that request was in writing is not clear from the record. See ECC's Mot. at 4 (Statement of Undisputed Material Facts ¶ 9); Dep. of John Diehl at 70:7-19, ECC's Ex. C, ECF No. 122-3. The JMAV/Strittmatter Agreement also references the 2014 Report. JMAV/Strittmatter Agreement at 30 (Ex. C). The 2014 Report calls for "[c]ontinuous observation, field screening, and air monitoring by an environmental professional to identify petroleum-contaminated soil during excavation." 2014 Report at 20. The finder of fact could determine that JMAV and Strittmatter expected ECC, as the environmental professional on site, to engage in the continuous air monitoring that it had contemplated. That expectation would be all the more reasonable because the Owner/JMAV and, in turn, JMAV/Strittmatter agreements expressly carve out relevant environmental obligations. See Owner/JMAV Agreement at 57 (Ex. B) (e.g., "soil contamination monitoring"); JMAV Strittmatter Agreement at 28 (Ex. B) (e.g., "[s]oil and [m]aterial [t]esting (by Owner)"). It is up to the finder of fact to determine whether those carve outs include monitoring air near soil for VOCs, but the contractual language could support that inference.
There is sufficient evidence in the record to create, at the least, a genuine dispute of material fact as to whether JMAV and Strittmatter were intended beneficiaries of the Owner/ECC Agreement. The finder of
ECC also challenges JMAV's promissory estoppel claim. "In order to find a party liable on a theory of promissory estoppel, there must be evidence of a promise, the promise must reasonably induce reliance upon it, and the promise must be relied upon to the detriment of the promisee." Plesha, 725 F.Supp.2d at 111-12 (quoting Simard v. Resolution Trust Corp., 639 A.2d 540, 552 (D.C. 1994)) (internal quotation marks omitted). "District of Columbia courts generally prohibit litigants from asserting [promissory estoppel] when there is an express contract that governs the parties' conduct." Id. at 112 (citing Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 279 (D.C. Cir. 2009); Bloomgarden v. Coyer, 479 F.2d 201, 210 (D.C. Cir. 1973)). When there is no such express contract, the court considers whether there is a "definite" promise, "as reliance on an indefinite promise is not reasonable." Greggs v. Autism Speaks, Inc., 987 F.Supp.2d 51, 55 (D.D.C. 2014) (citing Granfield v. Catholic Univ. of Am., 530 F.2d 1035, 1040 (D.C. Cir. 1976)).
At the threshold, the Court rejects ECC's attempt to argue that promissory estoppel is unavailable based on language in the Owner/JMAV Agreement and EHASP. See ECC's Reply at 14 (citing D.C. Oil, Inc. v. ExxonMobil Oil Corp., 746 F.Supp.2d 152 (D.D.C. 2010)). D.C. Oil does not support that argument. In that case, the court granted dismissal of a promissory estoppel claim where the parties' relationship was governed by a contract between those litigants. See D.C. Oil, Inc., 746 F.Supp.2d at 158-59. The appropriate consideration in this case is accordingly whether there is a contract between JMAV and ECC. It is undisputed that there is no such contract. The Court shall proceed to consider whether ECC has made a promise that reasonably induced JMAV's reliance, to its detriment. See Plesha, 725 F.Supp.2d at 111-12.
ECC argues that JMAV's promissory estoppel claim fails because ECC did not make any promises to JMAV. ECC's Mot. at 28. ECC amplifies the argument in its Reply by asserting that only a "direct" promise from ECC to JMAV counts. ECC Reply at 12. But ECC has evidently manufactured that notion, as it cites no case law in support (or in opposition). In the Court's view, both parties miss key language, among the thicket of documents, that could be construed as a promise to JMAV, whether or not that promise is "direct." The "Review and Approval" page of the EHASP provides that "[t]he undersigned," which includes at least ECC, "agree to abide by the safety and health requirements and procedures outlined in this document." EHASP at 3. Those requirements and procedures would seem to include ECC's commitment to monitor air using a PID "as [excavation] work progresses."
The Court need not reach the questions of whether any promise by ECC reasonably induced reliance, and whether JMAV so relied, to its detriment. Genuine disputes of material fact remain as to the evidence of a promise that preclude a ruling at this stage in ECC's favor.
ECC also moves for summary judgment as to JMAV's and Strittmatter's claims for "common-law contribution and indemnification,"
Strittmatter seeks a favorable ruling on other parties' claims of negligence and negligent misrepresentation (alleged by ECC), breach of contract (JMAV), common law indemnity (ECC and JMAV), contribution (ECC), and contractual indemnity (JMAV). With the exception of ECC's counterclaim for contribution, Strittmatter has not carried its burden as to any of these claims.
At the threshold, the Court shall address Strittmatter's argument that certain claims against it are prohibited under the District of Columbia Worker Compensation Act, D.C. Code §§ 32-1501, et seq. (hereinafter, the "WCA"). See Strittmatter's Mot. at 2.
Previously, the Court rejected Strittmatter's argument that it necessarily would be futile, under the WCA, for ECC to bring its negligence, negligent misrepresentation, and common law indemnity and contribution claims against Strittmatter. See Parker IV, 249 F.Supp.3d at 512-13. In permitting ECC to amend its answer to add these counterclaims against Strittmatter, the Court recognized that, as a general matter, the WCA sharply curtails third-party efforts to recover from the employer of the plaintiff-employee:
Id. at 512 (quoting D.C. Code § 32-1504(a)) (alteration in original). Focusing on the viability of the common law indemnity claim, the Court recognized that the D.C. Court of Appeals has made some exceptions to the plain language prohibition in the WCA, permitting implied indemnity "when the indemnity claim rests on an independent duty the employer owes to the third party arising out of a `special relationship' between them, but not a relationship arising merely `on account of' the employee's accident." Id. at 513 (quoting Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116, 123-24 (D.C. 1992)); see also Myco, Inc. v. Super Concrete Co., Inc., 565 A.2d 293, 299 (D.C. 1989). ECC's allegations that Strittmatter (and JMAV) had certain duties to ECC on the project site — independent of the incident in which Mr. Parker was injured — were sufficient to permit amendment of the answer under the liberal standard in that posture. See Parker IV, 249 F.Supp.3d at 513 (citing Howard Univ., 608 A.2d at 124); id. at 512 (discussing liberal standard for amendment).
The Court likewise dealt with the WCA hurdle when it granted JMAV's motion to file an amended third-party complaint, which added, inter alia, JMAV's common law indemnity claim against Strittmatter. See id. at 513-14. JMAV too had alleged that Strittmatter had duties independent of Mr. Parker's incident that could support a finding of "special and ongoing relationship," here between the general contractor and subcontractor. Id. at 514-15 (citing Howard Univ., 608 A.2d at 123-24).
The Court shall deal further below with whether Strittmatter has carried its burden, at the summary judgment stage, as to ECC's and JMAV's common law indemnity claims. It suffices here to recognize that the WCA's exclusivity provision is not a per se bar to those claims. Rather, the Court shall need to evaluate whether Strittmatter has a special relationship with ECC and JMAV that could bring their
In its prior discussion of the WCA, this Court did not directly and expressly address the effect of the WCA on ECC's claims for contribution and for negligence and negligent misrepresentation, or on JMAV's claims for breach of contract and contractual indemnity. It is important at this stage, however, to distinguish between third parties' efforts to recover from an employer under a common law indemnity theory and those efforts to do so under other theories. The case law in this jurisdiction that permits recovery against an employer — otherwise protected under the WCA — when the parties have a "special relationship," appears to have been developed primarily for situations in which a party seeks indemnity from the employer at common law. See generally, e.g., Howard Univ., 608 A.2d 116; Myco, Inc., 565 A.2d 293. But the WCA case law does indicate how to handle a couple of the other claims that ECC and JMAV bring against Strittmatter.
The Court finds that ECC's effort to obtain contribution at common law fails as a matter of law. "Contribution is based on the principle that a party who discharges a liability shared with another should not bear the sole obligation for payment." Hinton, 105 F.Supp.3d at 23 (quoting George Washington Univ. v. Bier, 946 A.2d 372, 375 (D.C. 2008)) (internal quotation marks omitted). "The right of contribution does not arise without a finding that the party seeking contribution is a joint tortfeasor along with the party from whom contribution is sought." Id. (quoting Paul v. Bier, 758 A.2d 40, 46 (D.C. 2000)) (internal quotation marks omitted). The D.C. Court of Appeals has recognized that "the exclusivity provision of the workers' compensation statute bars an action for contribution" against the employer. Myco, Inc., 565 A.2d at 297 & n.12; see also Hinton, 105 F.Supp.3d at 24 (drawing same conclusion). Contribution claims are not subject to the same limited exceptions to the WCA bar that are available for indemnity claims. Myco, Inc., 565 A.2d at 297. Accordingly, the Court shall grant summary judgment to Strittmatter as to ECC's contribution claim.
On the other hand, JMAV's claim for contractual indemnity against Strittmatter is not barred by the exclusivity provision. Strittmatter does not allege that the exclusivity provision so operates, but the Court addresses it here in the interest of completeness. In Myco, the D.C. Court of Appeals recognized that a contractual indemnity claim falls outside the scope of claims prohibited under the WCA because, in the event of a contractual indemnity provision:
Id. (referring to this instance as "express indemnity"). Below the Court shall consider the merits of the contractual indemnity claim.
The Court is left to determine the effects of the WCA's exclusivity provision on ECC's negligence and negligent
The Court now turns to the merits of claims against Strittmatter that are not barred by the WCA.
Strittmatter argues that ECC's negligence and negligent misrepresentation claims alike fail for one reason: Strittmatter lacked "any duty" to ECC. Strittmatter's Mot. at 19. But Strittmatter is unable to carry its burden as to either claim.
As with ECC's motion, the Court shall again apply the Second Restatement's standard for third-party liability on a negligence claim. The Court considers whether Strittmatter "under[took], gratuitously or for consideration, to render services to another which [it] should [have] recognize[d] as necessary for the protection of a third person or his things." Presley, 25 A.3d at 889 (quoting Restatement (Second) of Torts § 324A). Strittmatter may have committed to perform certain services at the job site under its agreement with JMAV that bear on whether Strittmatter is liable to third party ECC for a "failure to exercise reasonable care" with respect to those services. Id. (quoting Restatement (Second) of Torts § 324A). And indeed the record contains evidence that could support such a finding.
As ECC observes, the JMAV/Strittmatter Agreement deems Strittmatter's "coordination and cooperation" with third parties on site to be an "essential term" under that agreement:
Strittmatter's efforts to defend against ECC's negligent misrepresentation claim also fail. In arguing that it has no duty to ECC, Strittmatter evidently attempts to prove that the second prong of the negligent misrepresentation test cannot be satisfied. See Regan, 134 F.Supp.3d at 37-38 ("the [false] statement or omission was in violation of a duty to exercise reasonable care" (emphasis added)). The Court already has found that Strittmatter did not discharge its burden to show that undisputed material facts clear Strittmatter of any duty to ECC. Because the finder of fact could determine that Strittmatter did have certain duties, the breach of which could result in tort liability to ECC, the Court does not proceed further in its analysis of ECC's negligent misrepresentation claim. Strittmatter is unable at this time to prevail in its attempt to obtain summary judgment as to that negligent misrepresentation claim.
Strittmatter challenges JMAV's breach of contract claim as nothing more than a re-styled indemnity claim, and accordingly defends only on that basis. See Strittmatter's Mot. at 7. But Strittmatter cites no authority for this position. JMAV, in turn, responds to Strittmatter's motion by discussing only indemnity issues. See generally JMAV's Opp'n to Strittmatter's Mot. Yet, the Court is unpersuaded that JMAV's breach of contract claim should
In order to prove that it did not breach its contract with JMAV, Strittmatter's defense should include a showing that it lacked relevant contractual obligations to JMAV, or, if it concedes such obligations, that Strittmatter did not breach them. Cf. Winston & Strawn LLP v. Law Firm of John Arthur Eaves, 47 F.Supp.3d 68, 75 (D.D.C. 2014) (quoting Window Specialists, Inc. v. Forney Enter., Inc., 26 F.Supp.3d 52, 57-58 (D.D.C. 2014) (indicating that a plausible breach of contract claim "allege[s] that a contract existed, that [the complainant] performed his contractual obligations, that the other party breached the contract, and that [the complainant] suffered damages due to the breach")). Under the Court's foregoing analysis, the finder of fact could determine that Strittmatter did have relevant obligations to JMAV under the JMAV/Strittmatter Agreement. A breach of Strittmatter's safety obligations under the Site-Specific Plan could support JMAV's breach of contract claim. Because Strittmatter has not proven that it lacks duties to JMAV under their contract, the Court shall not proceed at this time to consider whether Strittmatter breached those duties. The Court consequently cannot conclude that Strittmatter is entitled to summary judgment as a matter of law on JMAV's breach of contract claim based on undisputed material facts.
The Court returns to the issue of whether Strittmatter can prevail as to JMAV's and ECC's common law indemnity claims, notwithstanding the Court's finding above that they are not barred per se by the WCA.
"Indemnity is a common law remedy which shifts a monetary loss from one compelled to pay it to another whom equity dictates should bear it instead." Myco, Inc., 565 A.2d at 297. "A right to indemnity may either be express, arising out of a written agreement, or implied, arising out of a relationship between the parties." Id. "Where there is no express contract provision, an obligation to indemnify may be implied in fact on an implied contract theory or implied in law in order to achieve equitable results." Quadrangle Dev. Corp. v. Otis Elevator Co., 748 A.2d 432, 435 (D.C. 2000) (citing E. Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1127 n. 20 (D.C. 1990)). "In `implied in law,' or `equitable' indemnity, `the obligation is based on variations in the relative degrees of fault of joint tortfeasors, and the assumption that when the parties are not in pari delicto, the traditional view that no wrongdoer may recover from another may compel inequitable and harsh results.'" Id. (quoting E. Penn Mfg. Co., 578 A.2d at 1127 n. 20). "A duty to indemnify may also be implied `out of a relationship between the parties,' to prevent a result `which is regarded as unjust or unsatisfactory.'" Id. (quoting Myco, Inc., 565 A.2d at 297). The latter theory of implied indemnity, termed implied-in-fact or implied contractual indemnity, "is based on the well-established theory that if one breaches a duty owed to another and the breach causes injury, the former should compensate the latter." Myco, Inc., 565 A.2d at 298. To establish a right to implied-in-fact indemnity, "`the obligation must arise out of a specific duty of defined nature — separate from the injury to the [plaintiff] — owed to the third party....,' and there must also be a special legal relationship between the tortfeasors." Quadrangle Dev. Corp., 748 A.2d at 435 (quoting Myco, Inc., 565 A.2d at 299) (alteration in original). The Court considers these three bases for indemnity —
At the threshold, Strittmatter argues that the presence of a contractual indemnity provision between JMAV and Strittmatter bars JMAV from recovering on a common law indemnity claim. Strittmatter's Mot. at 8-9. But, as JMAV points out, this construction would seem to ignore contractual language that expressly contemplates permitting common law indemnity claims to proceed. See JMAV's Opp'n to Strittmatter's Mot. at 14-15; JMAV/Strittmatter Agreement at 10 ("Such obligation [of contractual indemnity] shall not be construed to negate, or abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph 11.11."). Strittmatter does not respond to this citation of pertinent contractual language. Absent a reason to do so, this Court shall not adopt a construction of contractual language, agreed upon by the parties, that would seem to "render the provision meaningless." Princemont Constr. Corp. v. Baltimore & Ohio R.R. Co., 131 A.2d 877, 878 (D.C. 1957). The Court shall consider the contractual indemnity language further when the Court specifically addresses JMAV's contractual indemnity claim below. In the meantime, JMAV's common law indemnity claim shall not be barred on this basis.
As third parties to the employer-employee relationship, JMAV and ECC can recover on their common law indemnity claims against Strittmatter only if their claims fit within an exception to the WCA. The Court agrees with Strittmatter and ECC — JMAV does not comment — that the District of Columbia does not employ the active/passive theory of implied-in-law indemnity. See Hinton, 105 F.Supp.3d at 27 (citing Quadrangle Dev. Corp., 748 A.2d at 436 n.5); Strittmatter's Mot. at 10-11; ECC's Opp'n to Strittmatter's Mot. at 7 n.4. This Court has observed on another occasion that it is "unclear what remains of implied-in-law indemnity under D.C. law." Hinton, 105 F.Supp.3d at 27 (citing Myco, Inc., 565 A.2d at 297-98). It remains unnecessary to consider implied-in-law indemnity any further, however, as Strittmatter challenges JMAV's and ECC's implied indemnity claims on purely implied-in-fact grounds. See Strittmatter's Mot. at 9-10. It is only if Strittmatter owed "a specific duty of defined nature" to JMAV and to ECC, independent of the incident giving rise to this case, and had a "special legal relationship" with each of them, that JMAV and ECC, respectively, would be able to prevail against Strittmatter on an implied-in-fact theory of indemnity. Quadrangle Dev. Corp., 748 A.2d at 435 (quoting Myco, Inc., 565 A.2d at 299). The Court accordingly considers whether Strittmatter has carried its burden to prove that it had no such duty, and no such relationship, with either JMAV or ECC.
Strittmatter argues that it lacked an independent duty to JMAV and ECC that could give rise to implied-in-fact indemnity. Strittmatter's Mot. at 9-10. But based on the JMAV/Strittmatter Agreement and the parties' daily conversations at the project site, the Court has already determined above that the finder of fact could discern that Strittmatter had a duty to inform ECC as to where excavation would be occurring each day. The finder of fact likewise could determine that the same contractual language and on-site conversations support a duty to inform JMAV. The "coordination and cooperation" clause in the JMAV/Strittmatter Agreement expressly applied to Strittmatter's interaction with JMAV, defined as the "Contractor," just as it also expressly applied to third parties on site such as ECC. See
Because the finder of fact could discern that Strittmatter owed duties to JMAV and ECC, independent of the incident involving Mr. Parker, the Court need not reach the issue of Strittmatter's special relationship with JMAV and ECC. The Court finds that genuine disputes of material fact regarding Strittmatter's duties preclude Strittmatter from obtaining summary judgment as to JMAV's and ECC's common law indemnity claims.
Strittmatter also seeks summary judgment as to JMAV's contractual indemnity claim, which the Court determined above is not barred by the WCA's exclusivity provision. JMAV's claim is based on the following language in the JMAV/Strittmatter Agreement:
JMAV/Strittmatter Agreement at 10 (Art. 11.11.1). In the Court's decision denying JMAV's first motion for partial summary judgment, which the Court expressly incorporates herein, the Court determined whether the contract was ambiguous as a matter of law such that discovery would be necessary to fill the gap. See Parker I, 189 F.Supp.3d at 42-44. Under District of Columbia law,
Now in Strittmatter's motion for summary judgment on JMAV's claim, Strittmatter argues that the Court's first ruling precludes a finding that Strittmatter is contractually obligated to indemnify JMAV. See Strittmatter's Mot. at 5-8. Strittmatter's interpretation is incorrect. The issue is instead whether discovery has cleared up the ambiguity in the contractual language. Strittmatter has not cited any evidence in the record to resolve that ambiguity. Accordingly, the Court finds that Strittmatter has not carried its burden to prove that it is entitled to judgment as a matter of law on JMAV's contractual indemnity claim based on undisputed material facts.
As the Court has discussed, JMAV previously sought partial summary judgment as to the contractual indemnity claim in Count I of its Third-Party Complaint against Strittmatter, which the Court denied. Parker I, 189 F.Supp.3d at 40. Now that discovery has closed, JMAV again seeks partial summary judgment, this time as to both its contractual indemnity claim and its breach of contract claim in Counts I and II, respectively, of its Amended Third-Party Complaint against Strittmatter. JMAV's Mot. at 7-8. JMAV does not move as to its claim for common law indemnity. See id.
At the threshold, the Court reiterates its finding above that neither JMAV's contractual indemnity claim nor its breach of contract claim is barred by the WCA's exclusivity provision. But, for the reasons that follow, JMAV is unable to carry its burden as to either its contractual indemnity claim or its breach of contract claim.
The Court found above that Strittmatter did not discharge its burden to show that ambiguity in the JMAV/Strittmatter Agreement's indemnity provision could be resolved in its favor based on facts presently in the record. The Court now finds that JMAV similarly has failed to cite any evidence that was not before the Court in Parker I to show that JMAV and Strittmatter intended the indemnity provision to cover JMAV's own negligence, if any. JMAV attempts instead to basically re-open the entirety of the Court's Parker I decision, urging again that the law supports its reading of the contractual language, as well as arguing that Strittmatter's and Mr. Parker's alleged negligence require Strittmatter to indemnify JMAV. See generally JMAV's Mot. (focusing on Strittmatter's and Mr. Parker's actions); JMAV's Reply (focusing on contractual interpretation and Strittmatter's actions). JMAV did not seek reconsideration of the
JMAV's various arguments do not answer the question that remains, namely whether any evidence from outside of the contract can clarify whether the parties intended that JMAV could recover regardless of its negligence.
JMAV also seeks to recover for the alleged breach of Strittmatter's obligations under the JMAV/Strittmatter Agreement. JMAV's Mot. at 18-19. Strittmatter's opposition is limited to arguing that JMAV's breach of contract claim is effectively a recycled contractual indemnity claim. See Strittmatter's Opp'n to JMAV's and ECC's Mots. at 13. The Court has elsewhere rejected Strittmatter's attempt to lump ECC's negligence and negligent misrepresentation claims into its common law indemnity claim, in part for lack of authority supporting that notion. Here again, Strittmatter offers no authority for its assertion — in essence — that JMAV cannot separately pursue both contractual indemnity and breach of contract claims against Strittmatter springing from the injury to Mr. Parker.
In evaluating Strittmatter's motion for summary judgment as to JMAV's breach of contract claim, the Court found that Strittmatter failed to establish that it lacked contractual obligations to JMAV, and accordingly the Court declined to reach the issue of whether Strittmatter breached any such duties. Now that JMAV has the burden, the Court agrees that the record could support a finding that Strittmatter had certain safety obligations under the JMAV/Strittmatter Agreement. See JMAV's Mot. at 18-19 (arguing that those obligations included training employees). For example, "Subcontractor Foremen" were required to "train their employees to perform their work in a safe manner and to recognize and correct potential and actual hazards and unsafe acts." JMAV/Strittmatter Agreement at 52 (Ex. D). Accordingly, the Court proceeds to consider whether Strittmatter breached those obligations.
JMAV argues that Strittmatter "failed to provide [Mr. Parker with] any information about the existence, safe handling, or excavation of contaminated soil on
Upon examination of JMAV's evidence for its so-called undisputed facts, however, the Court is not persuaded that summary judgment is warranted. JMAV refers to the deposition testimony of Mr. Parker and of Strittmatter's corporate designee. JMAV's Statement ¶ 31 (citing Dep. of J. Parker at 160:14-16, JMAV's Ex. 11, ECF No. 123-15; Dep. of C.R. Strittmatter at 49:3-52:9, JMAV's Ex. 10B, ECF No. 123-13). In particular, JMAV cites the following exchange in a deposition of Mr. Parker:
Dep. of J. Parker at 160:14-16, JMAV's Ex. 11, ECF No. 123-15. The cited deposition testimony of Strittmatter's designee is longer and covers several topics, but it likewise involves questioning as to "what specifically ... Mr. Parker [was told] when he first got to this jobsite." Dep. of C.R. Strittmatter at 49:3-52:9, JMAV's Ex. 10B, ECF No. 123-13. That designee indicates that Mr. Parker was told about "the potential of underground tanks." Id. at 52:2-5. The Court is not permitted in this posture to assess the credibility of this testimony or weigh the evidence. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. But analyzing that evidence in the light most favorable to non-movant Strittmatter, the Court finds that it is "susceptible to divergent inferences," and accordingly that it cannot support a finding that material facts are not in dispute. Moore, 571 F.3d at 66 (quoting Kuo-Yun Tao v. Freeh, 27 F.3d at 638) (internal quotation marks omitted); see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505. JMAV has not discharged its burden to prove that it is entitled to summary judgment against Strittmatter as to JMAV's breach of contract claim based on undisputed material facts.
For the foregoing reasons, the Court shall
Strittmatter's [121] Motion is granted only insofar as it seeks summary judgment as to ECC's counterclaim for contribution. ECC's counterclaim against Strittmatter for contribution is accordingly
