United States District Court, W.D. Virginia, Lynchburg Division
W.C. English, Inc., Plaintiff,
Rummel, Klepper & Kahl, LLP, ET AL., Defendants.
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
case concerns a contract dispute between the construction
company W.C. English, Inc. (“English”) and two of
its inspectors: Rummel, Klepper & Kahl, LLP
(“RK&K”) and CDM Smith, Inc. (“CDM
Smith”). English won a Virginia Department of
Transportation (“VDOT”) bid to build a bridge
across I-81, near Lexington, Virginia. As part of the job, it
was required to hire inspectors to verify that the
construction of the bridge conformed to VDOT's quality
standards. It hired RK&K and CDM Smith. During the
bridge's construction, English switched the size of the
steel supports that it was using. Employees of all three
companies were aware of this change. Because of this change,
the bridge did not meet VDOT's standards. VDOT required
English to tear the bridge down and rebuild it. English sued
RK&K and CDM Smith for breaching their contracts (Counts
I and III) and for indemnification (Counts II and IV).
RK&K and CDM Smith counterclaimed for unpaid fees.
parties have now filed cross-motions for summary judgment on
all claims and counterclaims, (dkts. 43, 54, 56, 58), and
English has also filed motions to exclude the defendant's
experts. (Dkts. 50, 46). I will grant the defendants'
motions because English was fundamentally responsible for its
own damages. It, and neither of its inspectors, changed the
structure of the bridge; it cannot now hold its inspectors
liable as guarantors of its work. Relatedly, both defendants
are entitled to their unpaid fees, and so I grant their
motions for summary judgment on the counterclaims. Because I
grant the defendants summary judgment, I do not reach
English's motions to exclude the defendants' experts
from testifying at trial.
Rule of Civil Procedure 56(a) provides that a court shall
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact.”
“As to materiality . . . [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 (1986). A dispute is “genuine”
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
When considering cross-motions for summary judgment, the
court must “consider each motion separately on its own
merits to determine whether either of the parties deserves
judgment as a matter of law.” Defs. of Wildlife v.
N.C. DOT, 762 F.3d 374, 392 (4th Cir. 2014).
view the record as a whole and draw all reasonable inferences
in the light most favorable to the nonmoving party. See,
e.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986). Because I first address the defendants'
motions for summary judgment, this recitation of the facts
draws all reasonable inferences in the English's favor.
The contract formation
February 20, 2009, VDOT and English entered into a contract
for the construction of a bridge over I-81. (Dkt. 55-1 at ECF
3, 23). English was responsible to VDOT for designing and
constructing the bridge to certain specifications.
(Id. at ECF 5).
assist it with its design, English entered into a subcontract
with the engineering firm AECOM. (Dkt. 55-2). Per its
contracts with the other parties, English was required to
build the bridge in accordance with AECOM's approved
plans. (Dkt. 55-5 at ECF 20; dkt. 55-6 at ECF 16). English
was required to get any change to the bridge design approved
through written requests submitted to AECOM. (Dkt. 55-3 at
ECF 9, 12). AECOM was then responsible for making sure that
any requested revision to the design would still meet VDOT
standards. (Id. at ECF 13).
assist it with its construction, English entered into
subcontracts with two inspectors. English entered into a
“quality assurance” services contract with
RK&K on October 6, 2009. (Dkt. 55-6). RK&K's
quality assurance responsibilities involved inspecting
whether construction of the project conformed with the
contract documents and VDOT standards. (Dkt. 59-9). RK&K
was to keep written documentation of these inspections,
including the identification of any potential quality and
non-conforming work issues. (Dkt. 59-4 at ECF 5). RK&K
had the authority to advise VDOT not to pay English if the
project was not in conformity with the plans. (Dkt. 14-2 at
ECF 137; dkt. 43-16; dkt. 59-4 at ECF 3).
also entered into a subcontract with CDM Smith on March 26,
2009 for “quality control” services. (Dkt. 43-5).
CDM Smith's quality control responsibilities involved
measuring “quality characteristics” and
inspecting construction to make sure the work conformed to
the plan and regulations. (Dkt. 59-9). Taken together, these
contracts anticipate a clear hierarchy: English retained
ultimate responsibility, RK&K oversaw inspection, and CDM
Smith fell under both RK&K's and English's
The quality assurance and quality control plan
RK&K, and CDM Smith jointly developed an overall quality
assurance and quality control plan that specified the
parties' roles. (Dkt. 14-1; dkt. 14-2; dkt. 57-2; dkt.
59-6 at ECF 11). This plan is part of English's contracts
with both defendants. Under this plan, English was still
“ultimately responsible for the quality of the
construction.” (Dkt. 14-2 at ECF 57). The plan
envisioned that a few individuals would oversee the project
for English. Bernard Davis was the leader of English's
team throughout the relevant time period. (Dkt. 14-1 at ECF
3). Gary Galloway became English's construction manager
in 2010. (Dkt. 70-1 at ECF 74; dkt. 59-5 at ECF 3-4). Dylan
Frazier was English's project coordinator, and he would
replace Galloway as construction manager during the course of
construction. (Dkt. 55-4 at ECF 6, 21, 46). It is unclear
when exactly this transition occurred. (Dkt. 43-6 at ECF 27).
to this contract, RK&K's primary role was “to
ensure the work conforms to the ‘approved for
construction' plans and VDOT specifications by reviewing
the QC data and performing independent sampling and testing
to verify the QC test results.” (Dkt. 14-2 at ECF 58).
RK&K had no direct control over English's
construction means or methods. (Dkt. 55-6 at ECF 16). The
plan envisioned that Richard Clarke would oversee
RK&K's team of inspectors. (Dkt. 59-5 at ECF 3).
Smith's primary role was to measure and then report
samples and inspection results to RK&K. (Dkt. 14-2 at ECF
140; dkt. 57-7 at ECF 2). CDM Smith likewise had no direct
control over English's construction means or methods.
(Dkt. 43-6 at ECF 17). Terry Oliver was CDM Smith's
manager on the project. (Dkt. 43-26 at ECF 16).
the overall plan lays out different responses that
specifically correspond to different levels of
“non-conformities.” (Dkt. 14-2 at ECF 66). For
the lowest level of non- conformity, a CDM Smith inspector
could verbally address the problem with English's foreman
and the problem could be fixed immediately. (Id.).
The CDM Smith inspector was required to record this exchange
in his project diary. (Id.). The second level of
non-conformity concerned issues that could not be addressed
immediately. (Id.). For these issues, the CDM Smith
inspector was required to notify English's foreman and
then alert RK&K about the issue. (Id.). CDM
Smith would address the issue together with RK&K, but
RK&K had final responsibility to determine that the issue
was resolved. (Id.). This is because RK&K, but
not CDM Smith, had the authority to withhold VDOT payments if
the issue was not corrected. (Dkt. 59-4 at ECF 3). The most
serious level of non-conformity occurred if English,
RK&K, and CDM Smith could not agree on a way to resolve
issues or deficiencies. (Dkt. 14-2 at ECF 66; id. at
ECF 144 (“If the issues or deficiencies cannot be
resolved, the inspector will advise [RK&K] and initiate a
Non-Conformance Report (NCR).”)). Non-conformities of
this sort involved an even more involved dispute resolution
framework. (Dkt. 14-2 at ECF 66). Finally, if work was not in
conformity, English and VDOT could still make a final
determination to accept the work as non-conforming.
(Id.). If they did so, RK&K was required to
document the basis of acceptance. (Id.).
more general language in other parts of the plan is in
tension with this specific framework for resolving
non-conformities. For example, one part of plan states that
non-conformance reports should be issued “for all
non-conforming work, ” not only that more
“serious” category of the issues that could not
be resolved. (Dkt. 14-2 at ECF 66, 142). Other parts of the
plan state that CDM Smith must report “any”
non-conformities to English's construction manager. (Dkt.
14-2 at ECF 142, 144).
The error on the bridge
regulations and the bridge's design required steel
reinforcement that would be covered by concrete. (Dkt. 57-11;
dkt. 57-12 at ECF 4). These regulations then specified how
much “cover, ” or concrete on top of the steel,
would be required. (Dkt. 57-12 at ECF 4). English started out
installing 2.5 inch “slab runners, ” the industry
name for the steel reinforcements, in the bridge
construction. (Dkt. 55-5 at ECF 6, 21). But they stopped when
they were in between one third and one half of the way
through the construction of the bridge. (Id.). At
that point, a switch was made to 1.75 inch slab runners. The
move to use the shorter slab runners caused excess concrete
cover over the top of the steel reinforcements and eventually
was the source of the non-conformity that forced English to
replace the bridge. (Dkt. 55-3 at ECF 51; dkt. 55-4 at ECF
mistake was an overcorrection to a previous mistake. On
another bridge built by English, it had not included enough
concrete cover between the steel support and the road. (Dkt.
43-6 at ECF 18; dkt. 55-4 at ECF 16). Matthew Hackney,
English's bridge superintendent, and Dylan Frazier,
English's project manager who became their construction
manager, discussed the problem with RK&K's Richard
Clarke on April 6, 2012. (Dkt. 55-11; Dkt. 55-21; dkt. 59-19
at ECF 7-8). Together, they made the decision that English
would use the shorter slab runners. (Dkt. 43-6 at ECF 18;
dkt. 55-11; dkt. 55-21; dkt. 59-19 at ECF 7-8). CDM Smith did
not play a role in this decision. (Dkt. 43-7 at ECF 17).
After this decision was made by English and RK&K, a CDM
Smith inspector, Khairy Wahba, let a foreman know that his
installation of the taller slab runners did not conform to
the changed plan. (Dkt. 62-3 at ECF 6-7; dkt. 62-4 at ECF
1-2). English ordered shorter slab runners for the bridge
deck, and began using them to finish the bridge. (Dkt. 55-3
at ECF 21; dkt. 55-4 at ECF 17; dkt. 55-13).
The error goes uncorrected
Niagro, a CDM Smith inspector, provided written notification
to English of the problem with the spacing above the steel
reinforcement on April 21, 2012. (Dkt. 43-25; Dkt. 62-5 at
ECF 6, 11-12, 19; dkt. 57-10 at ECF 6-9, 11-13). He also
discussed the problem with English's Foreman, Matthew
Hackney. (Dkt. 43-25). On the day of the pour, April 24,
2012, Khairy Wahba of CDM Smith verbally told English and
RK&K that the concrete cover was greater than the
tolerance approved in the AECOM drawings. (Dkt. 57-9 at ECF
11-13, 20-25). Wahba also recorded the nonconforming
measurements and showed them to Hackney, of English, and
Clarke, of RK&K. (Id.). Clarke reviewed CDM
Smith's measurements and raised similar concerns about
the spacing of the slab runners with English. (Dkt. 55-4 at
ECF 33; dkt. 59-10 at ECF 17-20). RK&K did not file a
written report of any non-conformance. (Dkt. 59-11 at ECF
20-21; dkt. 59-23).
and CDM Smith both believed English had cured their concerns
before the concrete pour. (Dkt. 55-9 at ECF 11-12; dkt.
57-17; dkt. 59-24). English moved forward and poured concrete
over the steel reinforcement.
VDOT discovers the error
the bridge was largely finished, VDOT conducted an inspection
that noted concerns about the excessive concrete cover
(caused by the decrease in slab runner size), and asked for
calculations to determine whether it would affect deck
structural capacity. (Dkt. 43-18 at ECF 1). After finishing
its investigation, VDOT rejected the bridge as non-conforming
and asked English to tear down and rebuild the bridge. (Dkt.
57-19; dkt. 57-20; dkt. 57-21). English eventually rebuilt
the bridge under protest, denying that there were any
structural problems. (Dkt. 43-35). English and VDOT settled,
with English receiving a reduction in the amount of
liquidated damages assessed by VDOT. (Dkt. 55-19).
Discussion of RK&K's Motion for Summary
alleges that RK&K breached its contract with English.
Under Virginia law, a plaintiff must establish three elements
to demonstrate breach of contract: “(1) a legally
enforceable obligation of a defendant to a plaintiff; (2) the
defendant's violation or breach of that obligation; and
(3) injury or damage to the plaintiff caused by the breach of
obligation.” Navar, Inc. v. Fed. Bus. Council,
291 Va. 338, 344 (2016). Count II alleges that English has a
contractual right to be indemnified for the damages it
incurred in tearing down and rebuilding the bridge.
RK&K's counterclaim alleges that English did not
finish paying for the services rendered by RK&K, and asks
for that payment.
treats English's two separate claims together, arguing:
(1) the third element of the breach of contract claim has not
been satisfied because the terms of the contract absolve
RK&K of liability if English was negligent; and (2)
English has no right to indemnity because, again, the terms
of the contract exempt RK&K from liability if English was
negligent. Thus, its argument boils down to that one point:
English is entitled to no damages because the terms of its
contract demonstrate that RK&K is exempt from liability
if English was negligent. Viewing the evidence in
English's favor, I grant RK&K's motion for
summary judgment on English's claims. Additionally, the
parties do not dispute that English never paid RK&K for
its final invoices. RK&K is also entitled to summary
judgment on its counterclaim for those fees.
The Court's previous opinion
Court issued an opinion in this case denying RK&K's
motion to dismiss. (Dkt. 36).The opinion's central holding
was that “there is ambiguity in the subcontract-the
resolution of which is an issue of fact that cannot be
settled at [the motion to dismiss] stage.”
(Id. at 1). This ambiguity arose because the two
terms sheets contain clauses that contradict each other.
English's terms sheet envisions at least some
circumstances where RK&K would be required to indemnify
English; RK&K's does not. Compare dkt. 21-1
at ECF 20 (“Subcontractor shall indemnify and save
harmless Contractor . . .”) with Id. at ECF 16
(“RK&K is not responsible for the Contractor[s]
failure to perform the construction work in accordance with
the Construction documents.”). Under Virginia law,
which of these terms control is a factual question. Dkt. 36
at 8 (citing Martin Marietta Corp. v. Int'l
Telecommunications Satellite Org., 991 F.2d 94, 97 (4th
Cir. 1992)); see also Nehi Bottling Co. v. All-Am.
Bottling Corp., 8 F.3d 157, 161-62 (4th Cir. 1993)