DEBORAH K. CHASANOW, District Judge.
Two motions to dismiss are pending and ready for resolution in this breach of contract case. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant Hillier's motion to dismiss will be granted in part and denied in part and Defendant Tolk's motion to dismiss will be granted.
This case involves the planning and construction of a new building at the National Labor College in Silver Spring, Maryland. Plaintiff, the National Labor College, hired Defendant Hillier Group Architecture New Jersey, Inc. and RMJM, Inc. (collectively "Hillier") to create initial architectural and engineering designs and secure permits for a new building. Defendant TOLK, Inc. ("Tolk") served as a sub-consultant. Plaintiff alleges in its complaint that Defendants breached their contracts and did
Plaintiff and Hillier entered into a written contract ("Agreement" at Paper 1, Attach. 1) on August 30, 2003. (Paper 1 ¶ 8). The Agreement concerned a new building to be known as the Lane Kirkland Center ("LKC"), which was to be a two-story multipurpose building. It would contain classroom facilities, kitchen and dining facilities, conference rooms, and retail areas for use by the faculty, students and public. (Id. ¶ 6).
The Agreement is an American Institute of Architects Form B141 Standard Owner-Architect Agreement (1987 Edition) with several modifications, including a heightened standard of care. (Id. ¶ 9). In addition to specifying the applicable standard of care, the Agreement required Hillier to assume a number of duties. Hillier and Plaintiff agreed that the budget for the completed building would be $13,000,000.00. (Id. ¶ 10).
Also in 2003, Hillier contracted with Tolk for the mechanical, electrical, and plumbing ("MEP") design of the LKC. (Id. ¶ 14). As Hillier's sub-consultant, Tolk was required to provide the MEP drawings and specifications that would be included in the architecture and engineering documents ("A/E Documents"). (Id. ¶ 15).
In January 2004, Hillier delivered a "permit set" of documents to Montgomery County for permit approvals. (Paper 1 ¶ 17). A month later, Plaintiff submitted the plans for a "peer review" by other architectural firms in the D.C. area; the reviewers found a number of problems with the Hillier design and Tolk's MEP design. (Id. ¶ 18). Comments by the reviewers were given to Hillier and Tolk, who made changes to the plans to address some of the concerns. (Id. ¶ 19). In mid-April 2004, Hillier informed Plaintiff that it had adequately responded to the peer comments, that the A/E documents were ready for prospective contractors to scope and bid on, and that a four-week bidding period would be adequate. (Id. ¶ 20). Hillier also told Plaintiff that bidding and award could be completed by the beginning of June, which would allow the LKC to be finished by Labor Day 2005 (15 months later). (Id.). Relying on Defendant Hillier's assertions, Plaintiff submitted the A/E Documents for bidding by general contractors over the objections of the construction manager for the LKC project. (Id. ¶ 21). Plaintiff received initial bids in late May 2004, but all bids significantly exceeded Plaintiff's target budget of $13 million. (Id. ¶ 22).
Because the bids all exceeded the target budget, Plaintiff entered into negotiations during the summer with several contractors. (Id. ¶ 23). Ultimately, Plaintiff awarded the contract to build the LKC to Grunley Walsh U.S., LLC ("Grunley Walsh") for a base contract price of $17.4 million. (Id.). According to the terms of that contract, the LKC was to be substantially complete within 450 days of the Notice to Proceed with construction, which was issued on September 14, 2004. (Id. ¶¶ 24-25). Thus, under the contract's schedule, Grunley Walsh should have completed the LKC no later than December 8, 2005. (Id. ¶ 25).
Unfortunately, "numerous delays" and "inefficiencies" ensued after Plaintiff told Grunley Walsh to proceed. In the end, Grunley Walsh did not complete the project until October 2006, about ten months after the date by which it was supposed to be "substantially complete." (Id. ¶¶ 26, 32).
The A/E Documents also failed to comply with all government codes, delaying the issuance of necessary building permits. (Id. ¶ 30-31). Local inspection authorities required substantial corrective work to the A/E Documents and additional work by contractors before they would issue permits to the LKC. (Id. ¶ 35). Because of various deficiencies discovered during construction, Hillier's design team needed to issue over 300 additional sketches. (Id. ¶ 45).
Plaintiff alleges that Hillier and Tolk made matters worse by their failure to address design issues as they arose in an adequate and timely fashion. According to Plaintiff, Hillier and Tolk were both "tardy in responding to RFIs submitted by the [Defendants] inadequately addressed issues that arose." (Id. ¶ 37). Hillier also closed its D.C. office during the construction, and two of the "Project Architects" left the firm. (Id. ¶¶ 39 & 40). The new Project Architect was based in New Jersey and was not a licensed architect in Maryland. (Id. ¶ 41).
Plaintiff filed its complaint on July 27, 2009. (Paper 1). It alleges five counts: (I) negligence against Hillier; (II) negligence against Tolk; (III) breach of contract against Hillier; (IV) breach of contract against Tolk (under a third party beneficiary theory); and (V) common law indemnification against Hillier. After the court granted them an extension of time, both Defendants submitted separate motions to dismiss on September 8, 2009. (Papers 13 & 14). The motions are now fully briefed.
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Nevertheless, "Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal citations omitted).
At this stage, the court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the
Plaintiff has brought separate claims against Hillier for negligence and breach of contract, although the basis for each is substantially the same. As long ago as 1969, courts have recognized the significant overlap between the causes of action in professional malpractice cases:
Mumford v. Staton, Whaley and Price, 254 Md. 697, 714, 255 A.2d 359 (1969). Twenty years later, the Maryland Court of Special Appeals explained:
Miller v. Schaefer, 80 Md.App. 60, 74-75, 559 A.2d 813 (1989) (citations omitted).
In count I, Plaintiff alleges that Defendant had a duty to produce documents and specifications that would meet the ordinary standard of care for architects and engineers. (Paper 1 ¶ 49). Plaintiff contends that Hillier did not possess or use the
Hillier cites several cases decided by the Court of Appeals of Maryland, as well as this court, to argue that Plaintiff has only suffered "economic loss" and cannot collect for negligence. Hillier contends that Plaintiff's alleged damages are economic losses that are not recoverable in tort, such as delay damages, costs to correct deficient design, costs to correct mechanical systems, etc. Furthermore, Hillier argues that Plaintiff's claim does not fit into the exception created by the Court of Appeals that allows plaintiffs to recover "in tort to correct construction defects [that] created a serious risk of injury." (Paper 14, at 7 (quoting A.J. Decoster v. Westinghouse Elec. Corp., 333 Md. 245, 251, 634 A.2d 1330 (1994))).
Plaintiff responds with three main arguments. (Papers 15 & 16). First, Plaintiff argues that the invocation of the economic loss rule is misplaced because there is "no question of privity between Hillier and the College." (Id.). Plaintiff observes that "when the failure to exercise due care creates a risk of economic loss only, and not the risk of personal injury," Maryland courts "have required an `intimate nexus' between the parties as a condition to the imposition of tort liability." (Paper 15, at 5 (quoting Swinson v. Lords Landing Village Condominium, 360 Md. 462, 477, 758 A.2d 1008 (2000))). Second, Plaintiff argues that the complaint alleges more than economic damages; it also alleges that Hillier's design created hazardous conditions that posed threats to life and safety and required correction. (Paper 15, at 5; Paper 16, at 6-8). Plaintiff cites in support a number of deficiencies, errors, and omissions in documents that Hillier and Tolk prepared that led local safety inspection authorities to reject completed work. (Id.). Finally, Plaintiff argues that the Agreement imposes tort liability on Hillier in addition to contractual liability.
To prove negligence under Maryland law, a plaintiff must prove that: (1) the defendant was under a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered actual injury or loss; and (4) the loss or injury proximately resulted from the defendant's breach of the duty. Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947 (1999).
In Maryland, the existence of a legal duty is a question of law to be decided by the court. Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 414, 879 A.2d 1088 (2005). In the absence of a duty of care, there can be no liability in negligence. Walpert, Smullian & Blumenthal, P.A. v. Katz, et al., 361 Md. 645, 655, 762 A.2d 582 (2000). "[I]f the risk created by negligent conduct is no greater than one of economic loss, generally no tort duty will be found absent a showing of privity or its equivalent." Jacques v. First Nat'l Bank, 307 Md. 527, 537, 515 A.2d 756 (1986).
The parties have focused narrowly on the economic loss rule and the discussion of privity in that context. What they overlook is that "[a] contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis." Mesmer v. Md. Auto. Ins. Fund, 353 Md. 241, 253, 725 A.2d 1053 (1999). Thus, the real question here is whether Hillier was bound by any duty independent of the contract. The complaint alleges
In count III, Plaintiff alleges, among other things, that Hillier breached Article 12.2, which defines Hillier's indemnity obligations. (Paper 1 ¶ 70). Hillier argues that Plaintiff has failed to allege facts that would trigger the indemnity provisions. Accordingly, Hillier maintains that the costs and expenses paid by Plaintiff in connection with certain underlying contractor claims are not recoverable under Article 12.2. (Paper 14, at 14).
Under Maryland law, an express indemnity agreement "must be construed in accordance with the traditional rules of contract interpretation." Thomas v. Capital Med. Mgmt. Assocs., LLC 189 Md.App. 439, 468, 985 A.2d 51 (2009) (quoting Ulico Cas. Co. v. Atl. Contracting & Material Co., Inc., 150 Md.App. 676, 692, 822 A.2d 1257 (2003)). Courts determine the meaning of contract language by "adhering to the principle of the objective interpretation of contracts." ACE Am. Ins. Co. v. Ascend One Corp., 570 F.Supp.2d 789, 794 (D.Md.2008) (citing ABC Imaging of Wash., Inc. v. The Travelers Indem. Co. of Am., 150 Md.App. 390, 396, 820 A.2d 628 (2003)). Under the objective theory of contracts,
Mathis v. Hargrove, 166 Md.App. 286, 318-19, 888 A.2d 377 (2005). A court "construing an agreement under [the objective theory] must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated." Dennis v. Fire & Police Employees' Ret. Sys., 390 Md. 639, 656, 890 A.2d 737 (2006) (quoting Gen. Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306 (1985)).
Hillier argues that the Agreement includes express terms, namely sections 12.2(b) and 12.2(c),
Plaintiff disagrees with Hillier's interpretation of the provisions of the Agreement,
Paragraph 12.2(b) discusses the implications of any court-imposed liabilities on Plaintiff. It says that:
A reasonable person would understand this paragraph to mean that Plaintiff may recover the costs of defending a claim if Hillier commits a negligent act or omission and a court imposes a liability upon Plaintiff because of that negligence. See, e.g., State-Planters' Bank & Trust Co. v. First Nat'l Bank, 76 F.2d 527, 532 (4th Cir.1935) ("Where the contract is not a mere contract to indemnify and save harmless, but a contract to save from a legal liability or claim, the legal liability incurred and not the actual damage sustained is the measure of damage."). Here, there has been no final judgment imposed against Plaintiff relating to the project at issue, although there has been extensive litigation. Therefore, there is no valid claim for indemnity under Article 12.2(b).
Plaintiff's opposition lists, for the first time, certain mechanic's lien claims brought by the general contractor and certain subcontractors. (Paper 15, at 14). These factual allegations are not properly considered, as a memorandum of law opposing a motion to dismiss is not the proper means to supplement the complaint. Even if Plaintiff had properly alleged these facts, however, they would not save Plaintiff's claims, as even Plaintiff concedes that all of the underlying cases were eventually settled. (Id. at 14). Despite the fact that courts generally encourage parties to settle, this Article by its terms applies only when a court has imposed a liability. Therefore, Plaintiff cannot take advantage of its promises. See Pulte Home Corp. v. Parex, Inc., 403 Md. 367, 382, 942 A.2d 722 (2008) ("The nature of the indemnity will determine ... when a right of action accrues.").
Paragraph 12.2(c) provides Plaintiff with a broader form of indemnification with respect to any claims for personal injury, property damages, or loss of use of property. The relevant language in that section reads:
Plaintiff argues that it has defended claims brought by general contractors and subcontractors concerning delays and other damages resulting from Hillier's negligent acts and omissions, and that these costs—including attorney's fees fall within the indemnification provisions of 12.2(c). The complaint generally explains that Plaintiff was forced to "defend various contractor and subcontractor claims." (Paper 1, at 10). It also references a lawsuit filed by Grunley Walsh that it alleges triggered the indemnity provisions. (Id. at 15). Yet Plaintiff fails to plead the nature of these underlying lawsuits, and contrary to Plaintiff's contentions, Article 12.2(c) does not apply to all forms of liability. That approach is overbroad in that it ignores the subsequent qualifying clause beginning with "because of." As the court is unable to discern from the face of the complaint whether the lawsuits pertain to any types of recoverable injury, these lawsuits do not implicate Article 12.2(c).
Plaintiff also cannot rely on its own loss of use to invoke Article 12.2(c). The provision applies to third party, not first party, claims. Cf. Levin v. Septodont, Inc., 34 Fed.Appx. 65, 76 (4th Cir.2002) (observing, under Maryland law, that "garden variety indemnification clause" could not be reasonably read to cover expenses of first party litigation). Thus, the motion to dismiss Plaintiff's contractual indemnity claims must be granted.
Plaintiff alleges that the Agreement expressly states that Hillier will be liable for its own negligence or willful misconduct or the negligence or willful misconduct of its consultants. Plaintiff therefore argues that Hillier has a common law duty to indemnify and hold it harmless for any damages, claims, liabilities, costs and expenses, including attorney's fees, arising out of Hillier's work on the project.
Hillier responds that the express indemnity provisions in the Agreement preempt Plaintiff's claim for common law indemnity (count V). Hillier argues that "under Maryland law [], resort to implied indemnity principles is improper when an express indemnification contract exists." (Paper 14, at 10). Because the Agreement contains many sections delineating when Hillier must indemnify Plaintiff, Plaintiff cannot bring a claim for common-law indemnity. Hillier cites cases from this circuit and around the country to support its contention that express indemnity terms of a written contract supersede any common law right to indemnity. (Paper 14, at 12).
Plaintiff argues that the Agreement does not preempt its common law indemnity claim and that the claim is permissible as an alternative ground of relief the Agreement preserves it. (Paper 15, at 16). Specifically, Plaintiff contends that the Agreement "makes very plain" that the
As the court has already observed, traditional rules of contract interpretation apply in this context. Ulico, 150 Md.App. at 692, 822 A.2d 1257. Among these rules is the notion that "implied terms of a contract are utilized only in order to supply the place of a missing express term; therefore, where an express term exits, it negatives an implied inconsistent term relating to the same aspect of the contract." Myers v. Kayhoe, 391 Md. 188, 199, 892 A.2d 520 (2006); see also Ulico, 150 Md.App. at 691, 822 A.2d 1257 ("When the surety and the principal have entered into an express indemnity agreement governing their rights, however, courts should not resort to implied indemnity principles to determine those rights."). Similarly, quasi-contractual remedies such as implied indemnification are generally unavailable when a contract exists covering the same subject matter. See Cnty. Comm'rs of Caroline Cnty. v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 96-98 & n. 8, 747 A.2d 600 (2000) (discussing rule that quasi-contractual remedies are unavailable in the face of an express contract); Franklin v. Morrison, 350 Md. 144, 154, 711 A.2d 177 (1998) (stating that implied indemnification is a quasi-contractual remedy). Defendant has a clear contractual duty to indemnify Plaintiff for specifically enumerated circumstances in the contract. Any implied common law indemnification scheme would either contradict or add to these clearly defined circumstances in the contract. Therefore, because a claim for common law indemnity would be incongruent with the express provisions, the court must dismiss this claim.
Neither the last sentence of Article 12.2(c) nor Article 12.5 affects the court's analysis. Indeed, it is unclear what relevance these provisions have in this context. For example, the sentence from Article 12.2(c) that Plaintiff cites serves only to preserve the substance of Article 12.2 to the extent possible, should one part of it be determined unenforceable. Likewise, Article 12.5 does not speak to indemnity, but only clarifies that the contract does not affect Hillier's potential liability for negligence. In short, Plaintiff cannot refashion irrelevant contractual provisions to avoid clearly established common law principles related to implied terms and quasi-contractual remedies.
Plaintiff also brings a claim for negligence against Tolk. It alleges that Tolk produced design documents that contained numerous errors and omissions, failed to satisfy code requirements, and were inadequate for securing approval by permitting agencies. (Paper 1 ¶ 60). According to Plaintiff, the deficiencies included failures to design plumbing in accordance with code requirements, coordinate the MEP drawings with other portions of the work, coordinate security elements and electrical requirements, and thoroughly review shop drawings for accuracy. Plaintiff maintains that it has been damaged and has incurred additional costs associated with addressing ongoing design problems related to the HVAC system.
Tolk echoes Hillier's argument that the economic loss rule precludes Plaintiff from recovering on a tort claim. (Paper 13, at 1 & 7). Tolk argues that no claim exists
Economic damages, in contrast to damages for personal injury or physical harm to tangible things, are "`intangible economic loss[es] resulting from the inferior quality or unfitness of the product to serve adequately the purpose for which it was purchased.'" Lloyd v. General Motors Corp., 397 Md. 108, 122, 916 A.2d 257 (2007) (quoting A.J. Decoster Co. v. Westinghouse, 333 Md. 245, 249-50, 634 A.2d 1330 (1994)).
Lloyd, 397 Md. at 122, 916 A.2d 257. Under the economic loss rule, courts generally will not permit negligence claims that allege only economic loss. This court has previously explained the reasoning behind the economic loss rule as follows:
Americas Premiere Corp. v. Schwarz, No. DKC 2008-3304, 2009 WL 2477521, at *4 (D.Md. Aug. 11, 2009).
When analyzing whether a plaintiff's tort claim can advance, the relationship between a plaintiff and a defendant matters. Indeed, the relationship between a plaintiff and a defendant can sometimes define whether and what type of duty the parties owed to one another. The Fourth Circuit has stated that:
Merrick v. Mercantile-Safe Deposit & Trust Co., 855 F.2d 1095, 1099-1100 (4th
Jacques v. First Nat'l Bank of Md., 307 Md. 527, 534, 515 A.2d 756 (1986).
Tolk argues correctly that no privity exists between it and Plaintiff. Therefore, Plaintiff must satisfy the test delineated in Council of Co-Owners of Atlantis Condo., Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 517 A.2d 336 (1986), wherein the Court of Appeals of Maryland created a limited exception to the economic loss rule. That case concerned builders and architects who had no contractual privity with the suing party. The court held that:
308 Md. at 22, 517 A.2d 336. To determine whether a party meets the test for a dangerous condition, a court should look to "both the nature of the damage threatened and the probability of damage occurring to determine whether the two, viewed together, exhibit a clear, serious, and unreasonable risk of death or personal injury." Lloyd, 397 Md. at 128, 916 A.2d 257.
In this case, Plaintiff's complaint does not allege facts demonstrating any unreasonable risk. In Whiting-Turner, the developer "negligently obtained an occupancy permit" and people resided in the building when the danger was discovered. 308 Md. at 22-23, 517 A.2d 336. In other cases applying the Whiting-Turner exception, identifiable classes of individuals were similarly subjected to an actual risk of harm. See, e.g., Lloyd, 397 Md. at 130-31, 916 A.2d 257 (allowing tort claim to proceed against car manufacturers, where car drivers had already suffered injuries and deaths); U.S. Gypsum v. Mayor & City Council of Baltimore, 336 Md. 145, 157-58, 647 A.2d 405 (Md.1994) (permitting a tort claim for the cost of asbestos removal to end risk of harm to building occupants); Milton Co. v. Council of Unit Owners of Bentley Place Condo., 121 Md.App. 100, 115-16 & n. 3, 708 A.2d 1047 (1998) (allowing tort claims where building defects, discovered after residents moved in, subjected residents to risk harm). In contrast, the building in the present case was unoccupied while it was in its allegedly dangerous condition. Although Plaintiff alleges that the authorities found the completed work to be "unsafe as designed," no danger existed that occupants or users would be harmed because Plaintiff remedied the problems before opening the building. (Paper 1 ¶¶ 32, 35). There was therefore
In count IV, Plaintiff asserts a breach of contract claim based on a third party beneficiary theory. It alleges that Defendants entered into the Tolk Contract ("Tolk Contract") for the direct benefit of Plaintiff, and that Tolk was aware and intended that Plaintiff would be the direct beneficiary of Tolk's design services. (Paper 1 ¶ 76).
Because of its position as a sub-contractor, Tolk's arguments to dismiss are based on its claimed lack of privity. (Paper 13, at 10-12). It argues that Plaintiff's claim that Plaintiff is a third-party beneficiary fails as a matter of law.
Plaintiff argues that the Tolk Contract was definitely intended to confer a direct benefit on the college, and it must be analyzed as a whole. (Id. at 13). It argues that the entire contract is not yet before the court, although a portion of it has been attached to Tolk's motion to dismiss. Plaintiff also notes that a Tolk official signed several drawings that were presented to government permitting authorities on behalf of Plaintiff. (Id. at 16).
Virginia law governs the right to sue as a third party beneficiary at Section 55-22 of its state code:
Va. Code Ann. § 55-22. Under Virginia law, third-party beneficiaries must be intended beneficiaries of a contract; mere incidental beneficiaries have no right to enforce a contract. Food Lion, Inc. v. S.L. Nusbaum Ins. Agency, Inc., 202 F.3d 223, 229 (4th Cir.2000). "The third party beneficiary doctrine is subject to the limitation that the third party must show that the parties to the contract clearly and definitely intended it to confer a benefit upon him." Id. (citing Professional Realty
The question in the instant action is whether Plaintiff was an incidental or intended beneficiary, as only the latter has standing to sue. The contract in question in this case is not the Agreement between Hillier and Plaintiff, but the contract between Hillier and Tolk. Tolk has appended a document to its motion to dismiss that it claims is the entire contract ("Tolk Proposal"). (Paper 13, Attach. 2). This document consists of a proposal to Hillier regarding the "Lane Kirkland Center Project" and contains a "Basic Scope of Work" description, as well as many "Terms and Conditions." (Paper 13, Attach. 2). Tolk says that this Proposal constitutes the entire contract between the two Defendants. On the other hand, Plaintiff claims that the "TOLK-Hillier contract, as a whole, is not before the court." (Paper 16, at 13).
Both parties cite to Valley Landscape Co. v. Rolland, 218 Va. 257, 237 S.E.2d 120 (1977), to support their opposing views. In that case, a university ("ODU") sued a landscaping contractor ("Valley") to recover for breach of contract. Id. at 258, 237 S.E.2d 120. After Valley terminated its contract, ODU sued to recover damages. Valley then sued Rolland, the landscape architect, as a third-party defendant, based on the theory that it was a third-party beneficiary of the contract between Rolland and ODU. Id.
The Supreme Court of Virginia held that a "clear intent to benefit the third person must appear to enable him to sue on the contract; incidental beneficiaries cannot maintain an action thereon" and that under the test Valley did not qualify as a third party beneficiary. Id. at 260, 237 S.E.2d 120. The Court found that it was "not sufficient that Valley would be incidentally benefited by a proper performance of duties on the part of [Rolland]." Id. at 262, 237 S.E.2d 120. The facts of the instant case are clearly distinguishable from Valley. Valley presented a case where a contractor sought to make itself a party to the contract between the owner and the architect. In this case, the owner (Plaintiff) is seeking to prove that it is an intended beneficiary to a contract between a contractor and subcontractor. The case is instructive, however, regarding the high bar that Virginia courts impose on parties to prove their status as third party beneficiaries.
Plaintiff points mainly to behavior outside of the contract to show that it was the intended beneficiary. For instance, it notes that Tolk was designated as a designer on MEP drawings that were issued to bidders. (Paper 16, at 16; Paper 16, Attach. 1). Virginia courts have, however, indicated that the "four corners of a contract evidence whether contracting parties clearly and definitely intended to directly benefit a third party." Radosevic v. Va. Intermont Coll., 651 F.Supp. 1037, 1039 (W.D.Va.1987).
As Plaintiff points out, the Tolk Proposal explicitly mentions the "Owner" and that it will coordinate with the Owner's other consultants. (Id. at 5(g)(1)). This reference, however, is only in regard to noting that Tolk will be working with other contractors on the project ("Owner's specialty consultants such as lighting, acoustical," etc.). Other than the above example, the "Owner" (Plaintiff) is not mentioned in the Tolk Proposal. The Tolk Proposal also contains a provision limiting the liability of Tolk "in the aggregate of the amount of fees paid by Client to TOLK." (Paper 13, Attach. 2 ¶ 7(i)). And, whenever the Contract references the "Client," it clearly means Hillier.
Given the lack of reference to Plaintiff in the Tolk Proposal, it appears that Plaintiff was only an incidental beneficiary of Tolk's work, and that Tolk's client
For the foregoing reasons, Defendant Hillier's motion to dismiss will be granted in part and denied in part and Defendant Tolk's motion will be granted. A separate Order will follow.
