ORDER
JAMES D. WHITTEMORE, District Judge.
BEFORE THE COURT are Third Party Defendant, Geotechnical Foundation System, Inc.'s ("GFS") Motion for Full and Final Summary Judgment (Dkt. 40), Third Party Plaintiff Professional Service Industries, Inc.'s ("PSI") response (Dkt. 58), PSI's Motion for Summary Judgment on Third Party Complaint Against Geotechnical Foundation Systems, Inc. (Dkt. 172), and GFS's response (Dkt. 221). Upon consideration, GFS's Motion is GRANTED and PSI's Motion is DENIED.
I. UNDISPUTED FACTS
Plaintiff University Community Hospital d/b/a Florida Hospital Tampa ("FHT") entered into two consulting agreements with PSI, a geotechnical engineering firm, for geotechnical services and an underground fuel tank assessment for the Emergency Department Relocation Project at FHT (the "Project"). (Dkts. 40-1; 40-2). Under the agreements, PSI was to analyze the existing soil conditions at the site, develop recommendations as to the type of foundation system for the site improvements, and supervise and monitor the auger cast pile installations. (Dkts. 40-1; 40-2; 40-3). PSI issued a Geotechnical Engineering Services Final Report with its recommendations. (Dkt. 40-3). PSI recommended an auger cast pile system. (Id. ¶ 3.3.3; Dkt. 24 ¶¶ 20, 23-24). The Final Report also included information regarding potential sinkhole development. (Dkt. 40-3 ¶¶ 2.6, 3.1). Based on PSI's recommendations, the Project was designed by the Project architect and structural engineer, who utilized auger cast piles. (Dkt. 2 ¶ 11).
GFS was hired by The Robins & Morton Group, the construction manager hired by FHT, to perform the auger cast piles installation. (Dkt. 40-5; Dkt. 24 ¶¶ 14, 28). PSI supervised GFS's installation of the auger cast piles and prepared inspection reports. (Dkt. 40-6). During construction, problems arose with the installation of the auger cast piles. PSI observed ground surface collapse due to sinkholes. (Millburg Dep., Dkt. 40-7 at 213:16-214:6). The foundation of the Women's Center experienced settlement, and installation was stopped. (See Dkt. 24 ¶ 31; Millburg Dep. at 261:7-25). As a result, it became necessary to design and implement repairs to the Women's Center building and for additional stabilization to the building. (Id. at 266:8-16).
FHT sued PSI for breach of the consulting agreements and professional negligence arising out of delay in the Project caused by settlement in the foundation of the Women's Center. PSI filed a Third Party Complaint against GFS for negligence and common law indemnity. (Dkt. 24). GFS moves for summary judgment on PSI's claims. PSI has likewise moved for summary judgment on its claims.1
II. STANDARD
Summary judgment is appropriate where "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). "A genuine factual dispute exists only if a reasonable fact-finder `could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute, the motion should be denied. Kernel Records, 694 F.3d at 1300 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)).
III. DISCUSSION
Under Rule 14, Fed. R. Civ. P., "[a] defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it." In bringing GFS into the case as a Third Party Defendant, PSI essentially contends that GFS is responsible for any damages FHT suffered as a result of PSI's breach of its agreements with FHT or its professional negligence, that is, any damages recoverable by FHT from PSI.2
A. Negligence
PSI alleges that GFS is responsible to PSI for FHT's claimed damages because GFS was negligent in performing the auger pile installation. It will be assumed, as GFS suggests, for purposes of these motions, that GFS was negligent in its auger pile installation and its negligence caused the settlement and damage to the existing structure. (Dkt. 41 at 8).
GFS contends that it owed no duty to PSI, contractually or otherwise, pointing out that there was no privity between it and PSI. PSI counters that GFS's contractual duty to the general contractor to perform its work in a non-negligent manner extends to anyone who could foreseeably be injured by GFS's negligence, including PSI.3 While PSI's contention may, as a general proposition, be accurate in the context of a personal injury or property damage caused by faulty or defective work, PSI cites no authority supporting its contention in the context of its Third Party claims against GFS. Specifically, PSI cites no authority extending a subcontractor's contractual duty owed to its contractor to a supervising engineer hired by an owner, whose only damages are those claimed by the owner for professional negligence or breach of contract.
Basic tort law explains why PSI's negligence claim against GSI fails. No duty flowed from GFS to PSI. To sustain its negligence claim, PSI must demonstrate: (1) a duty, or obligation, recognized by the law, requiring GFS to conform to a certain standard of conduct, for the protection of others against unreasonable risks; (2) a failure on GFS's part to conform to the standard required a breach of the duty; (3) a reasonably close causal connection between the conduct and the resulting injury — "proximate cause"; and (4) actual loss or damage. Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1227 (Fla. 2010) (citing Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003)).
"[T]he question of whether a duty is owed is linked to the concept of foreseeability. [The Florida Supreme Court has] held that duties may arise from four general sources: (1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of a case." Id. (emphasis added). This last category "encompasses class of cases in which the duty arises because of a foreseeable zone of risk arising from the acts of the defendant." Id.; McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla. 1992) ("Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others.").
In sum, it was not foreseeable that PSI, an engineering firm hired as a consultant by the owner, could be damaged economically by GFS's negligent performance as a subcontractor. There was no privity between the two, and GFS had no economic, supervisory, or other control over PSI.4 Moreover, there is no nexus between the alleged cause of PSI's injury (GFS's negligent installation of the auger cast piles), and PSI's economic loss resulting from being sued by the owner for professional negligence and/or contractual breach.5 See McElvy, Jennewein, Stefany, Howard, Inc. v. Arlington Elec., Inc., 582 So.2d 47, 50 (Fla. 2d DCA 1991).
Finally, as GFS points out, to the extent PSI contends that GFS caused or contributed to FHT's damages, the proper vehicle to apportion fault would have been for PSI to assert a Fabre defense. See Fabre v. Martin, 623 So.2d 1182 (Fla. 1993).
Since GFS did not owe a duty to PSI, summary judgment in favor of GFS on this claim is due to be granted.
B. Common Law Indemnity
In its claim for common law indemnity, PSI alleges that it is without fault, GFS's negligence is the sole cause of FHT's damages, and therefore GFS is responsible for any damages awarded FHT against PSI. (Dkt. 24 ¶ 60). GFS counters that PSI cannot be liable to FHT vicariously, constructively, derivatively, or technically for GFS's negligence, and therefore PSI has no cause of action for common law indemnity. GFS is correct.
"Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other, and is allowable only where the whole fault is in the one against whom the indemnity is sought." Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 492 (Fla.1979). "It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter's wrongdoing for which the former is held liable." Id. (quoting Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA 1969)).
PSI's common law indemnity claim fails because (1) PSI did not discharge a duty owed to FHT which should have been discharged by GFS, and (2) there was no special relationship between PSI and GFS giving rise to vicarious, constructive or derivative liability on PSI for GFS's negligence.
To establish a claim for indemnity, (1) the party seeking indemnity must be without fault and its liability must be vicarious; (2) the party against whom indemnity is sought must be at fault; and (3) there must be a special relationship between the parties. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 642 (Fla. 1999). "Importantly, the right to indemnification as common law derives from a special relationship between the parties which has obligated one party to pay because of its vicarious, constructive, derivative, or technical liability for the wrongful acts of the other." Dominion of Canada v. State Farm Fire and Cas. Co., 754 So.2d 852, 855 (Fla. 2d DCA 2000).
In its suit against PSI, FHT alleges that PSI breached the two consulting agreements and was professionally negligent in its initial ground analysis and recommendations regarding the auger cast piles, and by failing to perform certain actions with respect to the auger cast pile installation, including failing to report GFS's negligence and to recommend that GFS's work be stopped.6 If it prevails, FHT will have demonstrated that PSI was at fault. PSI cannot expect indemnification for its own negligence or breach of contract.
Nor does PSI explain how it would be vicariously liable for GFS's negligence. There is no evidence of a special relationship between the two that would make PSI vicariously, constructively, derivatively, or technically liable for GFS's negligence. Absent a special relationship between PSI and GFS which would make PSI vicariously, constructively, derivatively, or technically liable for GFS's negligence, PSI has no right of indemnification. Houdaille, 374 So.2d at 492.
Accordingly, PSI is unable, as a matter of law, to establish the elements of its indemnification claim against GFS (the party seeking indemnity must be without fault and its liability must be vicarious). Summary judgment is therefore due to be granted in favor of GFS on PSI's common law indemnification claim.
Accordingly,
1. Third Party Defendant, Geotechnical Foundation System, Inc.'s ("GFS") Motion for Full and Final Summary Judgment (Dkt. 40) is GRANTED. PSI's Motion for Summary Judgment on Third Party Complaint Against Geotechnical Foundation Systems, Inc. (Dkt. 172) is DENIED.
2. The Clerk is directed to ENTER FINAL JUDGMENT in favor of Geotechnical Foundation System, Inc. and against Professional Service Industries, Inc.
3. GFS's Motion to Exclude Professional Services, Inc.'s Expert Witness Opinion (Dkt. 41) and Daubert Motion and Motion to Strike Regarding the Testimony of Defendant/Third Party Plaintiff Professional Services, Inc.'s Expert Dennis Murphy (Dkt. 204) are DENIED as moot.
