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W. C. English, Inc. v. Rummel, Klepper & Kahl, LLP

United States Court of Appeals, Fourth Circuit

August 14, 2019

W. C. ENGLISH, INC., Plaintiff - Appellant,
v.
RUMMEL, KLEPPER & KAHL, LLP; CDM SMITH, INC., Defendants - Appellees.

          Argued: May 8, 2019

          Appeal 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)

         ARGUED:

          Dustin M. Paul, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Appellant.

          Jason 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.

         ON BRIEF:

          James 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.

          Before NIEMEYER and HARRIS, Circuit Judges, and Ellen L. HOLLANDER, United States District Judge for the District of Maryland, sitting by designation.

          NIEMEYER, CIRCUIT JUDGE.

         The 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.

         During 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.

         English 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 further proceedings.

         I

         The 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.

         During 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.

         English 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 ...


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