United States District Court, E.D. Virginia, Alexandria Division
THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, as Subrogee of the Penrose Group,
LESSARD DESIGN, INC., Defendant.
ELLIS, III UNITED STATES DISTRICT JUDGE.
issue on a motion for judgment on the pleadings in this
breach of contract and quantum meruit case is whether the
contractual indemnification provision on which
plaintiff's claim is based is invalid pursuant to
Virginia Code § 11-4.1. Plaintiff, an insurance company,
as subrogee, seeks recovery from defendant of litigation
costs in connection with defendant's alleged contractual
obligation to indemnify plaintiff's insured. Defendant
argues, inter alia, that the contractual provision
upon which plaintiff relies for its breach of contract claim
is void under Virginia law, and that plaintiff has failed to
allege a claim on a quantum meruit theory.
matter has been fully briefed and argued, and is now ripe for
Travelers Indemnity Company of Connecticut (Travelers), is an
insurance company organized and existing under the laws of
Connecticut with its principal place of business in Hartford,
Connecticut and corporate offices in St. Paul, Minnesota.
Lessard Design, Inc. (Lessard), is a corporation organized
under the laws of Virginia, with its principal place of
business in Vienna, Virginia. Lessard provides architectural
services, including design plans and construction supervision
and consulting services.
Builders LLC (PDT Builders) is a Virginia limited liability
company with its principal place of business in Vienna,
Virginia. PDT Builders and several other companies do
business in an association called the Penrose Group.
case stems from a previous now-concluded lawsuit in this
district in which Humphreys & Partners Architects, LP
(Humphreys), another architectural firm, sued Lessard, PDT
Builders, and other entities associated with the Penrose
Group for copyright infringement. See Humphreys &
Partners Architects LP v. Lessard Design, Inc., No.
1:13-cv-433 (E.D. Va. 2013) (hereafter “Humphreys
Litigation”). Humphreys argued that Lessard
Design's architectural plans infringed on Humphreys'
copyrighted design for a condominium building located in
Minneapolis, Minnesota. Pursuant to an agreement between
Lessard and PDT Builders, PDT Builders tendered its defense
to Lessard. After Lessard declined to defend PDT Builders
absent conditions, PDT Builders and the other Penrose Group
entities tendered their defense to Travelers Indemnity
Company of Connecticut, pursuant to the Penrose Group's
own Commercial General Liability policy under Policy number
Y-630-0454R469-TIL-10. Travelers accepted PDT's tender of
defense, and paid the attorneys' fees and costs
associated with defense of PDT and related entities in the
Humphreys Litigation. By virtue of this, Travelers is
subrogated to the rights of its insureds - PDT and the other
thorough discovery, defendants filed a motion for summary
judgment, which was granted. See Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 43 F.Supp.3d
644 (E.D. Va. 2014). Humphreys thereafter appealed this
decision to the Court of Appeals for the Fourth Circuit,
which affirmed. See Humphreys & Partners Architects,
L.P. v. Lessard Design, Inc., 790 F.3d 532 (4th Cir.
the Fourth Circuit's affirmance, the prevailing parties
sought attorneys' fees in the amount of $990, 995.
Following full briefing, the district court awarded
attorneys' fees in the amount of $792, 796. Humphreys
& Partners Architects, L.P. v. Lessard Design, Inc.,
152 F.Supp.3d 503 (E.D. Va. 2015). To avoid further
litigation over the fee award, the parties elected to settle
the fee dispute for $745, 000. This concluded the Humphreys
the conclusion of the Humphreys Litigation, Travelers, as
subrogee for the other Humphreys Litigation defendants,
requested that Lessard indemnify Travelers for the
outstanding attorneys' fees and costs related to the
Humphreys Litigation. This request was based on a January 25,
2011 Architect's Agreement (the Agreement). Specifically
§ 2.7 of that Agreement provides that Lessard shall:
[i]ndemnify, defend and hold the Owner, Owner's
Developer, and Owner's and Owner's Developer's
wholly owned affiliates and the agents, employees and
officers of any of them harmless from and against any and all
losses, liabilities, expenses, claims, fines and penalties,
costs and expenses, including, but not limited to reasonable
attorneys' fees and court costs relating to the services
performed by the Architect hereunder . . .
declined Travelers requests for indemnification. Thereafter,
Travelers filed the instant complaint alleging: (i) breach of
contract, and (ii) quantum meruit. Lessard filed a motion for
judgment on the pleadings pursuant to Rule 12(c),