W. C. ENGLISH, INC., Plaintiff - Appellant,
RUMMEL, KLEPPER & KAHL, LLP; CDM SMITH, INC., Defendants - Appellees.
Argued: May 8, 2019
from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:17-cv-00018-NKM-RSB)
M. Paul, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for
N. Smith, SEYFARTH SHAW, LLP, Washington, D.C., for Appellee
CDM Smith, Inc.
William D. Bayliss, WILLIAMS MULLEN, Richmond, Virginia, for
Appellee Rummel, Klepper & Kahl.
R. Harvey, III, Norfolk, Virginia, Andrew P. Selman,
VANDEVENTER BLACK, LLP, Richmond, Virginia, for Appellant.
Anthony J. LaPlaca, SEYFARTH SHAW, LLP, Washington, D.C., for
Appellee CDM Smith, Inc.
Brendan D. O'Toole, Joseph R. Pope, WILLIAMS MULLEN,
Richmond, Virginia, for Appellee Rummel, Klepper & Kahl.
NIEMEYER and HARRIS, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.
NIEMEYER, CIRCUIT JUDGE.
Virginia Department of Transportation awarded W.C. English,
Inc., the contract to construct a bridge over Interstate 81
near Lexington, Virginia. English in turn retained Rummel,
Klepper & Kahl, LLP ("RK&K") to provide
"quality assurance" services and CDM Smith, Inc.,
to provide "quality control" services.
the construction of the bridge, after much of the
bridge's concrete deck had been poured, it was discovered
that there was an incorrect depth of concrete over the
deck's rebars, which resulted from the rebars'
improper placement. Because the deficiency affected the
structural capacity of the deck, the Virginia Department of
Transportation required English to tear down the bridge and
rebuild it. English did so at a cost of over $3.1 million.
then commenced this diversity action against RK&K and CDM
Smith for breach of contract and indemnification. The
district court granted summary judgment to RK&K and CDM
Smith with a 29-page opinion, which construed contractual
provisions and determined some of the facts relating to the
conduct of the parties during construction. In doing so, the
court construed ambiguous contractual language and resolved
factual disputes, which, we conclude, violated the
established principles of summary judgment. Accordingly, we
vacate the district court's judgment and remand for
contract between the Virginia Department of Transportation
("VDOT") and English for construction of the bridge
over Interstate 81 required an 8.5-inch concrete deck
reinforced by two separate mats of crisscrossed rebars placed
so as to end up with a 1.5-inch concrete cover underneath the
mats and a 2.75-inch concrete cover over the top of the mats.
To achieve the specified cover dimensions, the mats had to be
2.5 inches apart. English concluded that 2.5-inch spacers,
known as "chairs" or "slab runners,"
needed to be installed between the mats to maintain the
2.5-inch space required between them.
the course of construction, however, a decision was made by
certain English and RK&K personnel to insert 1.75-inch
slab runners between the reinforcement mats, which resulted
in an incorrect concrete cover and thus the bridge's
failure to satisfy VDOT's specifications. Instead of
having a 2.75-inch cover, as specified, the cover as
constructed was 3.75 inches and more. After VDOT conducted an
analysis of the performance of the deck as constructed, it
concluded that it could not satisfy the structural capacity
required and demanded that English tear down and rebuild the
bridge. English did so at a cost of over $3.1 million.
commenced this action against RK&K and CDM Smith,
asserting claims for breach of contract and indemnification
arising from the construction deficiency and seeking as
damages the cost of reconstructing the bridge. It alleged
that RK&K failed to provide "quality assurance"
("QA") services as required by its subcontract and
that CDM Smith failed to provide ...