United States District Court, W.D. Virginia, Big Stone Gap Division
Dan Bieger, Bristol, Tennessee, for Plaintiff.
Howard C. McElroy, McElroy, Hodges & Caldwell, Abingdon, Virginia, and Courtney J. Trimacco and Julian T. Emerson, Reminger Co., L.P.A., Cleveland, Ohio, for Defendants.
OPINION AND ORDER
James P. Jones, United States District Judge.
In this diversity case claiming damages for failure to properly design a building foundation, the individual defendant, a principal in the defendant engineering firm, has filed a Motion for Judgment on the Pleadings asking that the court dismiss the Complaint against him on the principal
grounds that it is barred by Virginia's economic loss rule and lack of privity of contract. The motion has been fully briefed and is ripe for decision. For the reasons that follow, I will grant the motion.
The following facts are taken from the plaintiff's Amended Complaint and accepted for the purposes of the pending motion.
The plaintiff Kenneth Dale McConnell hired defendant Servinsky Engineering, PLLC (" SE" ), a Michigan limited liability company, to design a post foundation for a fabric-roofed building for his farm, located in this judicial district. The defendant Mark S. Servinsky is a professional engineer licensed in Virginia and other states, and a principal of SE. McConnell and S.E. entered into a written contract in which S.E. agreed to provide the requested design services. According to the Amended Complaint, Servinsky personally performed these services for SE.
It is alleged that the designed foundation and structural posts were insufficient to handle local topography, wind, and snow loads, despite S.E. being hired to take area conditions into account. Soon after the building was constructed, the concrete piers surrounding the structural posts began to crack, and the nuts fixing the posts to the concrete loosened. The posts began to split, and two posts broke. The fabric of the roof tore. It is alleged that the building is now too unstable to be safely used for its intended purpose as a feed barn, and that four contract addendums in which S.E. designed fixes for the structural deficiencies have been insufficient to bring the building into compliance with the contract and applicable code requirements.
In Count Two of his Amended Complaint, the plaintiff asserts claims against Servinsky individually for (1) breach of professional standard of care, (2) breach of implied warranty, and (3) breach of implied contract. The plaintiff contends that Servinsky is personally liable for the damages alleged because he attached his Virginia engineer's seal to the design plans and failed to comply with the standard of care for licensed engineering professionals. The plaintiff also asserts that because Servinsky practices engineering as a member of a professional limited liability company registered in Michigan, he is personally liable under a Michigan statute for his breaches of the professional standard of care.
Servinsky has filed a Motion for Judgment on the Pleadings. He asserts that (1) the plaintiff's tort claim fails as a matter of law based upon the economic loss rule, (2) the plaintiff's claim for breach of implied warranty fails because there is no privity of contract, and (3) the plaintiff's claim for breach of implied contract fails to plead the necessary elements.
A Rule 12(c) motion for judgment on the pleadings is ...