OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, Plaintiff, vs. D’LINE LOGISTICS, INC., MATTHEW G. HUNTLEY, as Special Administrator of the Estate of Ravi Dyer, and DANIEL DYER, Defendants.

Counsel:  [*1] For Occidental Fire & Casualty Company of North Carolina, Plaintiff, Counter Defendant: Wendy N Enerson, LEAD ATTORNEY, Cozen O’Connor, Chicago, IL.

For Daniel Dyer, Defendant: Russell Marc Barnett, Esp Kreuzer Cores, LLP, Wheaton, IL; Sean Patrick Rose, PRO HAC VICE, Rose Law Office, Reno, NV.

For Matthew G Huntley, Special Administrator of the Estate of Ravi Dyer, Defendant: Brennan Richard Thomas, PRO HAC VICE, Durney & Brennan, Ltd., Reno, NV; Todd Allison Heller, Law Offices of Todd A Heller & Associates, Deerfield, IL; Scott Allen Glogovac, Glogovac & Pintar, Reno, NV.

For Matthew G Huntley, Special Administrator of the Estate of Ravi Dyer, Counter Claimant: Brennan Richard Thomas, PRO HAC VICE, Durney & Brennan, Ltd., Reno, NV; Todd A Heller, PRO HAC VICE, Law Offices of Todd A. Heller & Associates, Deerfield, IL; Scott Allen Glogovac, Glogovac & Pintar, Reno, NV.

Judges: Gary Feinerman, United States District Judge.

Opinion by: Gary Feinerman

Opinion

 

 

 

MEMORANDUM OPINION AND ORDER

Occidental Fire & Casualty Company of North Carolina seeks in this coverage suit a declaration that it has no duty to defend or indemnify D’Line Logistics, Inc. or Matthew G. Huntley, the special administrator of the Estate of Ravi Dyer [*2]  (“the Estate”), in a tort case brought by Ravi’s son, Daniel Dyer, in Nevada state court. Doc. 1. D’Line did not appear and has been defaulted. Doc. 40. Occidental has moved for summary judgment against the Estate and Daniel, and the Estate has moved for summary judgment against Occidental. Docs. 41, 45. Daniel, who as the plaintiff in the Nevada case is a necessary party in this suit, see Great W. Cas. Co. v. Mayorga, 342 F.3d 816, 817 (7th Cir. 2003); M.F.A. Mut. Ins. Co. v. Cheek, 66 Ill. 2d 492, 363 N.E.2d 809, 811, 6 Ill. Dec. 862 (Ill. 1977), has neither moved for summary judgment himself nor opposed Occidental’s motion. Occidental’s motion is granted, and the Estate’s motion is denied.

 

Background

Because the court will grant summary judgment to Occidental, the facts are set forth as favorably to the Estate and Daniel as the record and Local Rule 56.1 permit. See Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 430 (7th Cir. 2014). Neither the Estate nor Daniel filed a Local Rule 56.1(b)(3)(B) response to Occidental’s Local Rule 56.1(a)(3) statement, Doc. 46, or a Local Rule 56.1(a)(3) reply to Occidental’s Local Rule 56.1(b)(3)(C) statement, Doc. 51 at 5-6, so the factual assertions in Occidental’s statements are deemed admitted. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (“When a responding party’s statement fails to dispute the facts set forth in the moving party’s statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”). The court assumes the truth of those facts for purposes of summary [*3]  judgment, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015). All that said, the relevant facts are undisputed.

On June 10, 2013, Ravi Dyer sustained fatal injuries in a traffic accident in Nevada. Doc. 46 at ¶¶ 8, 13; Doc. 51 at pp. 1-2 ¶ 1. Ravi was hauling cargo on behalf of D’Line, a motor carrier, in a truck leased to D’Line. Doc. 46 at ¶¶ 9-12; Doc. 51 at pp. 1-2, 4-5 ¶¶ 1-3, 10. Daniel, Ravi’s son, was a passenger in the truck and injured in the accident. Doc. 46 at ¶¶ 9, 14; Doc. 51 at pp. 1-2 ¶ 1.

At the time of the accident, D’Line had a commercial auto policy with Occidental; the policy identifies D’Line as the only “named insured.” Doc. 46 at ¶ 21; Doc. 46-7 at 2; Doc. 51 at p. 2 ¶ 5, p. 5 ¶ 1. The policy provides that “[Occidental] will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ … caused by an ‘accident’ and resulting from the ownership, maintenance, or use of a covered ‘auto.'” Doc. 46 at ¶ 22. The truck that Ravi was driving was not a “covered auto” under the policy. Id. at ¶¶ 23-29. However, as required by the Motor Carriers Act, 49 U.S.C. § 13906(f), the policy includes an “MCS-90 Endorsement”; the endorsement is issued to D’Line, and it lists no other party as an [*4]  insured. Doc. 46 at ¶¶ 32-34; Doc. 46-7 at 10-11; Doc. 51 at p. 6 ¶ 2. The MCS-90 provides, in pertinent part, that Occidental “agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation … of motor vehicles subject to [certain provisions of the Motor Carrier Act] regardless of whether or not each motor vehicle is specifically described in the policy … .” Doc. 46 at ¶ 35; Doc. 51 at pp. 4-5 ¶¶ 9-10.

On April 21, 2015, Daniel filed a damages action against the Estate and others in Nevada state court, Dyer v. T Quartercircle Ranch, Case No. CV15-00735 (Second Judicial District Court, State of Nevada, County of Washoe), alleging that Ravi’s negligent operation of the truck caused the accident. Doc. 46 at ¶¶ 15-17; Doc. 51 at p. 6 ¶ 3. Daniel’s action does not name D’Line as a defendant. Doc. 46 at ¶ 18; Doc. 51 at p. 6 ¶¶ 4-5. The Estate notified Occidental of the action on May 15, 2015. Doc. 46 at ¶ 19; Doc. 51 at p. 3 ¶ 6. Occidental agreed to defend the Estate, subject to a complete reservation of rights. Doc. 46 at ¶ 20; Doc. 51 at p. 3 ¶ 6. As permitted by Illinois [*5]  law, see Nationwide Agribusiness Ins. Co. v. Dugan, 810 F.3d 446, 449-50 (7th Cir. 2015), Occidental later filed this suit to seek a declaration that it need not defend or indemnify D’Line or the Estate in the Nevada action. Doc. 1.

 

Discussion

The parties agree that, but for the MCS-90 Endorsement, the policy would not provide coverage to the Estate for Daniel’s lawsuit. Doc. 42 at pp. 5-6, ¶¶ 8-9; Doc. 48 at 5-8. The only dispute concerns whether the endorsement provides that coverage. Before digging into the merits, some background regarding the federal Motor Carriers Act is in order.

“Congress enacted the [Motor Carriers Act], in part, to address [certain] abuses … , including the use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for accidents that occurred while goods were being transported in interstate commerce.” Canal Ins. Co. v. Distrib. Servs., Inc., 320 F.3d 488, 489 (4th Cir. 2003). To that end, the Act requires motor carriers like D’Line to “file[] with the Secretary [of Transportation] a bond, insurance policy, or other type of security approved by the Secretary” that covers judgments against the carrier for “negligent operation … of motor vehicles,” 49 U.S.C. § 13906(a)(1), and empowers the Secretary to “prescribe the appropriate form of endorsement” that carriers must “append[] to policies of insurance [*6]  and surety bonds” in order to comply with the Act, id. § 13906(f). Pursuant to that statutory authority, the Federal Motor Carrier Safety Administration (“FMCSA”) promulgated the MCS-90 Endorsement. As noted, the endorsement provides that the insurer “agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation … of motor vehicles subject to [certain provisions of the Motor Carrier Act] regardless of whether or not each motor vehicle is specifically described in the policy … .” 49 C.F.R. § 387.15 (emphasis added).

In arguing that the MCS-90 Endorsement does not require it to cover the Estate in Daniel’s lawsuit, Occidental focuses on the phrase “against the insured.” According to Occidental, because D’Line is the only named insured in the endorsement, the endorsement does not cover claims against any other party, including the Estate. Occidental’s position finds support in Regulatory Guidance 58065, issued by the FMCSA in 2005, which provides in relevant part:

Question: Does the term “insured,” as used on Form MCS-90, Endorsement for Motor Carrier Policies of Insurance for Public Liability, or [*7]  “Principal”, as used on Form MCS-82, Motor Carrier Liability Surety Bond, mean the motor carrier named in the endorsement or surety bond?

Guidance: Yes. Under 49 CFR 387.5, “insured and principal” is defined as “the motor carrier named in the policy of insurance, surety bond, endorsement, or notice of cancellation, and also the fiduciary of such motor carrier.” Form MCS-90 and Form MCS-82 are not intended, and do not purport, to require a motor carrier’s insurer or surety to satisfy a judgment against any party other than the carrier named in the endorsement or surety bond or its fiduciary.

Federal Motor Carrier Safety Administration, Regulatory Guidance for Forms Used to Establish Minimum Levels of Financial Responsibility for Motor Carriers, 70 Fed. Reg. 58,065, 58,066 (Oct. 5, 2005). According to the Guidance, then, the MCS-90 Endorsement in this case required Occidental to provide coverage for a (hypothetical) lawsuit by Daniel against D’Line—the motor carrier named in the policy and the endorsement—but not for a suit against any other party, including Ravi or the Estate.

Each court to have considered the scope of the MCS-90 Endorsement after the FMCSA issued the Guidance in 2005 has reached the same conclusion as the Guidance. See Ooida Risk Retention Grp. v. Williams, 579 F.3d 469, 477-78 (5th Cir. 2009) (following the Guidance and holding that a driver was not a named insured under the endorsement); Daniel v. Nat’l Cas. Ins. Co., 135 F. Supp. 3d 355, 366 (D. Md. 2015) (same); McComb v. Nat’l Cas. Co., 994 F. Supp. 2d 918, 923-24 (N.D. Ill. 2013) (same); [*8]  Forkwar v. Progressive N. Ins. Co., 910 F. Supp. 2d 815, 826 (D. Md. 2012) (same); Ill. Nat’l Ins. Co. v. Temian, 779 F. Supp. 2d 921, 927-28 (N.D. Ind. 2011) (same); Sentry Select Ins. Co. v. Thompson, 665 F. Supp. 2d 561, 566-69 (E.D. Va. 2009) (same); Armstrong v. U.S. Fire Ins. Co., 606 F. Supp. 2d 794, 823-26 (E.D. Tenn. 2009) (same). This court agrees with those decisions.

As an initial matter, those decisions (and the Guidance) adopt the most persuasive reading of the MCS-90 Endorsement. The endorsement, whose text is set forth in the FMCSA regulations, requires the insurer to pay “any final judgment recovered against the insured.” 49 C.F.R. § 387.15 (emphasis added). The FMCSA regulations define “insured” as “the motor carrier named in the policy of insurance … .” 49 C.F.R. § 387.5 (emphasis added). As a textual matter, it follows that the MCS-90 Endorsement covers only the motor carrier that is named in the insurance policy, which in this case indisputably is D’Line.

The Estate views things differently. It of course accepts that the endorsement requires the insurer to pay “any final judgment recovered against the insured,” 49 C.F.R. § 387.15, and that “insured” is defined as “the motor carrier named in the policy of insurance … ,” 49 C.F.R. § 387.5. But the Estate points out that the regulation’s definition of “[m]otor carrier” includes “a motor carrier’s agent, officer, or representative; an employee responsible for hiring, supervising, training, assigning, or dispatching a driver; or an employee concerned with the installation, inspection, and [*9]  maintenance of motor vehicle equipment and/or accessories,” ibid., and argues that this definition covers Ravi (and therefore the Estate) because Ravi “was acting in a representative capacity for D’Line” at the time of the accident. Doc. 53 at 6. According to the Estate, it follows that the policy, by naming D’Line, also named D’Line’s agents and representatives, including Ravi. Ibid.

The flaw with this interpretation is that it fails to account for the fact that “insured” is defined not simply as “the motor carrier,” but rather as “the motor carrier named in the policy of insurance.” That qualification is essential, for it means that the term “insured” encompasses not everybody and everything falling with the definition of “motor carrier,” but only the “motor carrier” that is “named in the policy of insurance.” In this case, that is D’Line and D’Line alone.

Moreover, the Estate’s interpretation appears to rest on the assumption that, just because a company’s agents and representatives qualify as “motor carriers” under the regulation, any reference in the policy or endorsement to the company itself automatically includes its agents and representatives. That assumption is faulty, for [*10]  even if the Estate were right that Ravi is a “motor carrier” under the regulation, it does not follow that Ravi is the same as “D’Line.” That is, regardless of how broadly the regulation defines the phrase “motor carrier,” a policy can still single out the motor carrier itself (here, D’Line) by naming it and it alone, and the regulation’s definition of “insured” honors that choice.

The Estate cites two pre-Guidance cases, John Deere Insurance Co. v. Nueva, 229 F.3d 853 (9th Cir. 2000), and Adams v. Royal Indemnity Co., 99 F.3d 964 (10th Cir. 1999), holding that drivers are covered by the MCS-90 Endorsement. Both decisions incorrectly ignore the regulatory definition of “insured,” and instead appeal to the endorsement’s purpose—”assuring that the insurer is available as a financially responsible party”—to “modify the policy’s definition of an insured.” John Deere Ins., 229 F.3d at 859; see also Adams, 99 F.3d at 970-71. The policies in both cases (like the policy here, Doc. 46-7 at p. 14 § II.A.1.a-b) included two categories of “insureds”: (1) the carrier, for any “covered auto”; and (2) the driver of any “covered auto.” John Deere Ins. Co., 229 F.3d at 855; Adams, 99 F.3d at 966. Both decisions reasoned that, just as the endorsement expands the first category by requiring insurers to cover judgments against the carrier in cases involving non-covered vehicles, it also expands the second category by requiring insurers [*11]  to cover judgments against drivers of those vehicles. See John Deere Ins., 229 F.3d at 859; Adams, 99 F.3d at 970-71. The problem with that analysis, as the Guidance made clear, is that it ignores 49 C.F.R. § 387.5, which provides that the term “insured” in the endorsement means only “the motor carrier named in the policy of insurance,” which is typically (and in this case) the carrier itself and not any of its drivers. For that reason, the Guidance expressly and correctly disavowed John Deere Ins. Co. and similar cases insofar as they read the MCS-90 Endorsement to cover drivers. See 70 Fed. Reg. 58065, 58066 n.1.

Even if the interpretative question were close, the Auer doctrine would require that the dispute be resolved in the Guidance’s, and thus in Occidental’s, favor. Under the Auer doctrine, because the endorsement is “a creature of the [FMCSA’s] own regulations, [the FMCSA Guidance’s] interpretation of [the endorsement] is … controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997) (internal quotation marks omitted). For the reasons given above, it simply cannot be said that the Guidance’s interpretation of the MCS-90 Endorsement is plainly erroneous or inconsistent with the above-cited regulations.

In so holding, the court acknowledges that the validity of [*12]  the Auer doctrine has been questioned in recent years. See United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, 195 L. Ed. 2d 241 (2016) (Thomas, J., dissenting from denial of certiorari); Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1210-11, 191 L. Ed. 2d 186 (2015) (Alito, J., concurring in part and concurring in the judgment); id. at 1211-13 (Scalia, J., concurring in the judgment); id. at 1213-25 (Thomas, J., concurring in the judgment). But Auer remains good law, see Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654, 690 (7th Cir. 2016) (applying Auer deference), and therefore the court is obligated to apply it. See Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (“In a hierarchical system, decisions of a superior court are authoritative on inferior courts. Just as the court of appeals must follow decisions of the Supreme Court whether or not we agree with them, so district judges must follow the decisions of this court whether or not they agree.”) (citations omitted); A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002) (“[O]nly an express overruling relieves an inferior court of the duty to follow decisions on the books.”). In any event, even putting aside Auer and applying traditional interpretive tools, the Guidance still articulates the most persuasive reading of the MCS-90 Endorsement.

 

Conclusion

For the foregoing reasons, the Estate’s summary judgment motion is denied and Occidental’s summary judgment motion is granted. The court declares that Occidental has no duty under its policy with D’Line to defend or indemnify the Estate [*13]  in Dyer v. T Quartercircle Ranch, Case No. CV15-00735 (Second Judicial District Court, State of Nevada, County of Washoe).

December 19, 2017

/s/ Gary Feinerman

United States District Judge

United States District Court,

M.D. Pennsylvania.

NEW PRIME, INC., Plaintiff,

v.

BRANDON BALCHUNE CONSTRUCTION, INC., POCONO TRANSCRETE, INC., PATRICK MCLAINE, P.E., CIVIL DESIGN PARTNERS, INC., JERRY RANIELI, SAMUEL J. MARRANCA, SAMUEL J. MARRANCA GENERAL CONTRACTING CO., MIDLANTIC ENGINEERING, INC. Defendants.

3:14-CR-2410

|

Filed 12/15/2017

 

 

MEMORANDUM OPINION

Robert D. Mariani United States District Judge

 

1. INTRODUCTION

*1 This case concerns the construction of a defective concrete parking lot, for which plaintiff has brought claims against seven defendants, all of whom were contractors or subcontractors for the construction project. Plaintiff has alleged eleven counts for breaches of contract, breaches of implied warranties, and negligence relating to the construction. Presently before the Court are five motions for summary judgment brought by defendants against plaintiff. For sake of clarity, the Court will address each of the five motions in a separate opinion, though the underlying facts of the case remain substantively the same.

 

This opinion concerns Defendants Patrick McLaine and Civil Design Partners Inc. (the “McLaine Defendants”)’s motion for summary judgment as to plaintiff’s breach of contract and breach of warranty claims against them. Doc. 219.

 

 

1. STATEMENT OF UNDISPUTED FACTS

The McLaine Defendants have submitted a Statement of Material Facts as to which they argue there is no genuine issue or dispute for trial. Doc. 221. Plaintiff submitted an opposition to the motion and an answer to the Statement of Facts. Docs. 283, 284. The following facts are not reasonably in dispute except as noted.

 

Plaintiff, New Prime, is a corporation that hired various entities to construct a new parking lot (the “Drop Lot”). Doc. 221 ¶¶ 1, 10-15. New Prime hired the McLaine Defendants to create several documents in the process of obtaining governmental permits for the Drop Lot. Id. ¶ 18. In particular, the McLaine Defendants were hired to “generate and submit a land development plan for the purpose of complying with the ordinances and permit requirements” of local authorities. Id. ¶ 15. The Land Development Plan was to contain “sufficient information to obtain those governmental permits and approvals.” Id. ¶ 16. It is undisputed that the Plan did not contain any “references to concrete” except the specification that the construction was to use “Class A concrete for the curbing [of the Drop Lot construction], and eight inch thick concrete slabs upon a ten inch sub-base, and a compacted sub-grade.” Id. ¶ 17.

 

In August 2012, New Prime hired Brandon Balchune Construction, Inc. (“Balchune”), a construction company, as the general contractor for the Drop Lot. Doc. 221 ¶ 11; Doc. 221-6. Balchune in turn hired Defendant Jerry Ranieli to serve as the site superintendent. Id. ¶ 14. Defendant Pocono Transcrete, Inc. (“Pocono”) supplied the concrete for the construction, while Defendant Midlantic Engineering, Inc. (“Midlantic”) provided quality control and inspection services for the construction. Id. ¶¶ 12-13.1

 

*2 The McLaine Defendants did not enter into a formal contract with New Prime, but rather, agreed to proceed based upon an email exchange, which the parties treated as the contract between them. Id. ¶¶ 15, 18; Doc. 221-1. However, neither the McLaine Defendants nor New Prime attached the entire email thread to their motion papers, but rather, only included the first page of the email. Docs. 221-1, 284-3. At the bottom of the first page, the remaining text of an April 26, 2012 email sent from Patrick McLaine to Johnnie Madison (a New Prime employee) is cut off. Id. The latter part of the April 26, 2017 email, or any emails preceding it, is not included in the record.

 

In accordance with the email that served as a contract between them, the McLaine Defendants prepared the following documents: the Land Development Plan, “an erosion and sediment plan for the Luzerne Conservation District, a general NPDES permit for the Luzerne Conservation District and DEP, and a PP&L encroachment application.” Doc. 221 ¶ 18. The McLaine Defendants submitted their plans to Ron Slone, New Prime’s architect, and Johnnie Madison, the New Prime employee in charge of overseeing the project. Id. ¶ 20. Neither communicated any deficiencies in the plans to the McLaine Defendants. Id. Citing deposition testimony of Richard Yarborough, the McLaine Defendants contend that Johnnie Madison and a firm called Killian Construction were responsible for developing the general bid specifications for the Drop Lot project, and that the specifications were not provided to the McLaine Defendants. Id. ¶ 21. The McLaine Defendants further aver that Mr. Madison and Killian Construction later changed the “sub-base” specification without the knowledge of the McLaine Defendants. Id. ¶ 22. New Prime, however, disputes these statements, stating that the deposition testimony of Richard Yarborough was mischaracterized. Rather, Yarborough only testified that he “is not sure who developed the blueprints [or bid specifications].” Doc. 284 ¶ 21. New Prime also disputes that the “sub-base” specifications were changed without the knowledge of the McLaine Defendants, but cites nothing in the record or provides any explanation in support of this denial. Id. ¶ 22. Furthermore, both parties have failed to inform the Court who Mr. Yarborough is and what role he played in the construction of the Drop Lot. But the Court was able to glean from its own review of the record that he is a “terminal manager” for New Prime who would be familiar with the Drop Lot project, and that he testified that he has no knowledge of who prepared the bid specifications. Doc. 284-2, at 9:18-11; Doc. 221-4, at 2.

 

The McLaine Defendants also contend that they “were never asked to generate, and never agreed to provide, construction specifications.” Doc. 221 ¶ 24. This, again, is disputed by New Prime, who avers that “Civil Design failed to specify the required quality of concrete…and required methods of quality control” in the Land Development Plan. Doc. 284, ¶ 24. This denial, however, does not resolve the fundamental question: which is whether the McLaine Defendants were asked to generate or provide such specifications. As discussed above, the actual contract between New Prime and McLaine Defendants consists of a single email thread, of which the Court only has the first page. Docs. 221-1, 284-3. The bottom email of the first page is from Patrick McLaine, listing a partial list of draft terms for a “proposal for the permitting and approvals of the trailer parking area.” Id. There is no indication whether this “proposal” refers to the Land Development Plan or another document. Furthermore, the response from New Prime to McLaine’s email merely states “Patrick[,] go ahead on the project.” Id. McLaine then responded to New Prime, in relevant part: “We started. Similar to the topographic survey and the NPDES Major Modification, hopefully we can come in under budget.” Id.

 

 

III. PROCEDURAL HISTORY

*3 On December 22, 2014, New Prime filed its original complaint naming Balchune and Pocono as defendants. Doc. 1. On August 10, 2015, New Prime filed an Amended Complaint adding the McLaine Defendants, Jerry Ranieli, Samuel J. Marranca, and Samuel J. Marranca General Contracting Company as defendants. Doc. 36.2 On July 13, 2016, New Prime filed the Second Amended Complaint (which is the operative complaint for this motion), adding Midlantic as a defendant. Doc. 156.

 

The Second Amended Complaint contains eleven counts as follows: Count I (Breach of Contract as against Balchune); Count II (Breach of Warranty as against Balchune); Count III (Breach of Warranty as against Pocono); Count IV (Breach of Contract as against Patrick McLaine and Civil Design Partners); Count V (Breach of Warranty as against Patrick McLaine and Civil Design Partners); Count VI (Breach of Contract as against Jerry Ranieli); Count VII (Negligence as against Jerry Ranieli); Count VIII (Breach of Contract as against the Marranca Defendants; Count IX (Negligence as against the Marranca Defendants); Count X (Breach of Contract as against Midlantic); and Count XI (Negligence as against Midlantic). Id. After the parties engaged in discovery, all defendants except Ranieli have filed motions for summary judgment. In total, there are five pending motions for summary judgment before the Court—brought by Pocono (Doc. 215), the McLaine Defendants (Doc. 219), Balchune (Doc. 217), the Marranca Defendants (Doc. 202), and Midlantic (Doc. 210).

 

To make matters more complicated, all defendants (with the exception of Jerry Ranieli) have filed crossclaims against other defendants in this case. See Docs. 161 (Pocono’s Answer and Crossclaims), 200 (Midlantic’s Answer and Crossclaim), 201 (Marranca Defendants’ Answer and Crossclaims), 212 (Balchune’s Answer and Crossclaims), 224 (McLaine Defendants’ Answer and Crossclaims). However, since the filing of their answer, the McLaine Defendants have dropped their crossclaims. See e.g. Doc. 265 at 1(stating that “[a]fter analysis, CDP and McLaine do not believe they have valid crossclaims against any defendant, and hereby withdraw them”).

 

None of the crossclaims allege specifically allege any acts or omissions that could support of a finding of breach of contractual duties, breach of other legal obligations, or breach of any duties sounding in tort. See e.g. Doc. 200, at 16-17 (Midlantic’s crossclaim alleging only that if Plaintiff sustained damages, then all other defendants “are primarily liable” and “are liable to Midlantic [ ] by way of contribution and/or indemnity.”); Doc. 201, ¶¶ 130, 132 (Marranca Defendants’ crossclaim alleging that “to the extent that there are defects or deficiencies in the concrete at the Drop Lot, such were caused by the acts and omission of one or all of the other Defendants…” and that they are “entitled to contribution” from other defendants); Doc. 212, at 11-12 (Balchune’s crossclaim alleging that to the extent New Prime suffered damages, “said damages were not caused by any act or omission of Balchune and, instead, were caused by [other defendants],” who are liable to Balchune “for contribution and/or indemnity”); Doc. 161, at 16-17 (Pocono’s crossclaim alleging that “to the extent there are defects or deficiencies in the concrete at the Drop Lot, such defects or deficiencies were caused by the actions of one or all of the other Defendants,” and that “Pocono is entitled to contribution from [all other Defendants] for any damages assessed against Pocono”).

 

*4 The present opinion concerns the McLaine Defendants’ motion for summary judgment, which argues that there is no evidence that their contractual obligations to New Prime included the obligation to provide concrete construction specifications. Doc. 219. For reasons stated below, the Court will deny the McLaine Defendants’ motion for summary judgment.

 

 

III. STANDARDS OF REVIEW

Through summary adjudication, the court may dispose of those claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record … or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

 

“Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993). However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

*5 Id. (internal quotations, citations, and alterations omitted).

 

 

1. ANALYSIS
2. Breach of Contract Claim Against the McLaine Defendants

New Prime has brought two claims against the McLaine Defendants—breach of contract and breach of warranty. Doc. 156, Counts IV, V. Specifically, New Prime alleges that the McLaine Defendants were contractually obligated to provide specifications “for the design and construction of the Drop Lot, including the materials used therein,” and breached a warranty of its product (the plans and documents created by the McLaine Defendants) by providing “inadequate construction and design specifications and standards for the Drop Lot.” Doc. 156 ¶¶ 64, 73. The McLaine Defendants counter that they “were never asked to generate, and never agreed to provide, construction specifications.” Doc. 221 ¶ 24. In other words, the parties do not dispute that they entered into a contract to “generate and submit a land development plan.” Doc. 221 ¶ 15. Rather, they dispute whether the land development plan was to include construction specifications for “the required quality of concrete (i.e. concrete type and target slump and strength) and required methods of quality control, testing, constriction, and curing of concrete as required by civil engineers for projects of this magnitude.” Doc. 284 ¶ 24.

 

In Pennsylvania, a breach of contract claim requires “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003) (citing CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999)). When interpreting the terms of a contract, a court should “ascertain and give effect to the intent of the contracting parties.” Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d 229, 243 (3d Cir. 2008) (citing Murphy v. Duquesne University, 777 A.2d 418, 429 (2001)). “Only where a contract’s language is ambiguous may extrinsic or parol evidence be considered to determine the intent of the parties. A contract contains an ambiguity if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Id.

 

The “contract” in this case is a single email exchange from a New Prime employee (Johnny Madison) and Patrick McLaine. Only the first page of the email thread is produced to the Court, and it contains no language imposing or exempting the McLaine Defendants from the obligation to provide construction specifications. Perhaps recognizing their error in only submitting the first page of the “contract” at issue, the McLaine Defendants purported to include the entire contents of the email thread in the “Facts” section of its reply brief. However, the inclusion is unsupported by the Statement of Facts, exhibits to the motion papers, or any other portion of the record. The Court will not deem the purported email contents in the reply brief to be admitted facts, since they are not supported by the record. Furthermore, even if the Court were to rely on what is represented in the McLaine reply brief, the contents do not provide any clarity on the McLaine Defendants’ obligations to provide construction specifications. Instead, the additional portion of the email thread only includes McLaine’s original email to New Prime, stating: “We have started the design and preparation of the permit documents.” There is no indication whether such “permit documents” should have included construction specifications. In other words, the woefully deficient email “contract” failed to include almost all key terms to the parties’ agreement, including price, duration, or the exact scope of the McLaine Defendants’ obligations. Instead, the email merely referred to a proposal “for the permitting and approvals of the trailer parking area [Drop Lot].” Doc. 221-1, at 1.

 

*6 In order to buttress their own interpretation of the “contract,” both parties point to extrinsic evidence in order to clarify the scope of contractual obligations. New Prime points out that the Land Development Plan generated by the McLaine Defendants includes a provision stating “All work shall be performed in accordance with these plans, specifications, referenced documents and the requirements and standards of the local authority.” Doc. 284, at 9 (citing Doc. 221-2, at 4). New Prime argues that this provision suggests that the Plan itself purports to include all plans and specifications for the Drop Lot’s contractors. It also points out that the Plan specified that Class A Concrete should be used for “Plain Concrete Curbing,” which New Prime interprets to mean that the McLaine Defendants undertook the obligation to specify the type of concrete for the entire Drop Lot project. Id. (citing Doc. 221-2, at 6). Finally, New Prime points to the testimony of Jonnie Madison, the New Prime employee who was in contact with the McLaine Defendants regarding the Drop Lot project. Madison testified that he understood that the McLaine Defendants were obligated “to see the project out,” by which he meant “to visit the project and make sure it was going right.” Doc. 284-5, at 61:3-17. He agreed that their responsibilities included “making sure the concrete was, in fact, the concrete that New Prime wanted on this job.” He further testified that it was up to the “civil engineer, Pat McLaine…to tell the contractor what concrete to use.” Id. at 40:5-7. These extrinsic pieces of evidence, which only show that (1) the Plan provided a concrete type specification for the Drop Lot’s curbing, and (2) Mr. Madison had a personal view of McLaine’s contractual obligations, do not conclusively answer the question of what the parties intended when they entered into the contract in the first place.

 

The McLaine Defendants, on the other hand, argue that they were only hired to produce documents necessary to obtain local permits, and that New Prime did not communicate any deficiencies in the Land Development Plan to the McLaine Defendants after it was created. Doc. 232, at 10-11. But the fact that New Prime did not communicate any dissatisfaction with McLaine Defendants’ services (until the time of this lawsuit) does not necessarily mean that McLaine Defendants performed all of their contractual obligations. The McLaine Defendants also rely on the testimony of Joseph Durkin, an expert retained by another defendant, Midlantic. Durkin testified that in his “experience,” he would not “expect to see in land development plans detailed specifications as it relates to the installation of a 250,000 square foot parking lot.” Doc. 232, at 10. This testimony is, at best, evidence of what is generally true in an industry expert’s “experience.” Durkin did not testify that he has reviewed the contractual terms between New Prime and the McLaine Defendants, or is aware of any communications between the two parties. Thus, the selected portion of Durkin’s testimony does not resolve the terms of the contract, since the parties could have bargained for terms that deviate from the industry norm.

 

“While this Court may determine the existence of an ambiguity as a matter of law, [ ] the resolution of conflicting parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact.” Windows v. Erie Ins. Exch., 161 A.3d 953, 958 (Pa. Super. Ct. 2017) (citing Walton v. Philadelphia Nat’l Bank, 545 A.2d 1383, 1389 (Pa. Super. Ct. 1988)). There is ambiguity in the email contract as to what the documentation for the local permits required, and whether such requirements should have included the construction specifications that New Prime alleges were missing, such as “concrete type and target slump and strength” or “methods of quality control, testing, constriction, and curing of concrete.” Doc. 284 ¶ 24. Because the contract does not expressly impose or preclude liability for the failure to provide construction specifications, and because there is conflicting parol evidence on the matter, the issue is best left to the trier of fact. The Court will deny summary judgment on the breach of contract claim.

 

 

Breach of Warranty

Next, the McLaine Defendants argue that the breach of warranty claim against them should be dismissed as a matter of law, because “in the context of construction plans and specification there can be no claim for breach of implied warranty under Pennsylvania law.” Doc. 232 at 12 (citing Alstom Power, Inc. v. RMF Indus. Contracting, Inc., 418 F.Supp.2d 766, 778 (W.D. Pa. 2006)). Alstom, however, only stated that “in the context of construction plans, specifications and/or request for quotation, the Court has found no authority to support such a claim for breach of implied warranty under Pennsylvania law. Therefore, the Court predicts that the Pennsylvania Supreme Court would decline to recognize a claim for breach of implied warranty based on construction plans, specifications, or request for quotation.” Id. (emphasis added).

 

*7 Yet, contrary to what the Alstom court found, there exists Pennsylvania case law that would impose breach of warranty liability on a contractor for deficient design specifications. See e.g. City of Allentown v. O’Brien & Gere Engineers, Inc., 1997 WL 256050, at *22 (E.D. Pa. May 8, 1997) (“Pennsylvania law likewise provides a cause of action for breach of implied warranty of fitness for a particular purpose in commercial construction contracts… We further conclude, as did the other courts, that such implied warranties are also applicable to the design of the structure.”) (internal citations omitted); Hartford Fire Ins. Co. v. Associated Const. & Mgmt. Corp., 2000 WL 424273, at *11 (E.D. Pa. Apr. 19, 2000) (“Pennsylvania law provides, however, a cause of action for breach of implied warranties of fitness for a particular purpose in commercial construction contracts….and such implied warranties are also applicable to the design of the structure.”) (collecting cases) (internal quotation marks omitted); Bloomsburg Mills, Inc. v. Sordoni Const. Co., 164 A.2d 201, 203 (Pa. 1960) (“While an architect is not an absolute insurer of perfect plans, he is called upon to prepare plans and specifications which will give the structure so designed reasonable fitness for its intended purpose, and he impliedly warrants their sufficiency for that purpose”); Universal Mach. Co. v. Rickburn Enterprises, Inc., 1992 WL 180128, at *3 (E.D. Pa. July 23, 1992) (“If a customer does not inform the design engineer/custom machine company about the specifics of its production process, the design engineer/custom machine company should independently and affirmatively act to discover those specifications.”).

 

For reasons stated in the breach of contract section above, there is insufficient evidence to conclude that the McLaine Defendants’ specifications were in fact deficient. The McLaine Defendants have failed to come forward with any facts showing that their plans were not meant to encompass construction specifications for the entire Drop Lot project. The most they have done is provide evidence on what is generally expected in the industry, via the expert testimony of Durkin, who testified that in his experience, he would not “expect to see in land development plans detailed specifications.” Doc. 232, at 10. On the other hand, New Prime’s expert, Rajabipour, found the opposite is true of industry norms. He found the fact that the McLaine Defendants “did not specify the required quality of concrete (such as concrete type and target strength and slump) and required methods for quality control (QC) testing, construction, and curing of concrete” to be a “contribution factor[ ] that, in my opinion, resulted in the premature deterioration…of the concrete at the Prime Drop Lot.” Doc. 284-8, at 21. In light of the conflicting expert opinions and the woefully deficient email “contract” that contained almost no key terms to the parties’ agreement, summary judgment would be premature at this stage.3

 

 

1. CONCLUSION

For the reasons outlined above, the McLaine Defendants’ motion for summary judgment (Doc. 219) will be denied. A separate Order will follow.

 

All Citations

Slip Copy, 2017 WL 6411574

 

 

Footnotes

1

While New Prime disputes the assertion that “Defendant Midlantic is the testing company” for the Drop Lot project, doc. 284 ¶ 13, it is unclear why it raises the dispute. In its denial, New Prime pointed the Court to the Revised Proposal between Midlantic and Balchune, which states it will provide “Construction Inspection and Materials Testing Services” for the “Prime, Inc. Trucking” project. Doc. 284-7, at 1. Furthermore, New Prime does not dispute that Midlantic is a company that provides “testing, quality control, and analysis of the strength, durability and workability of concrete in connection with concrete-related construction and installations for projects like the Trailer Drop lot at issue in this case.” Doc. 221 ¶ 9. There is therefore no dispute over the fact that Midlantic provided testing services for the Drop Lot. In any event, the exact role of Midlantic is irrelevant for the purposes of this motion.

2

On the same day, Balchune filed a “Joinder Complaint” against Midlantic. Doc. 37. The Joinder Complaint was dismissed on May 5, 2017 following New Prime’s addition of Midlantic as a named defendant.

3

The Court notes that the instant motion also requests judgment in their favor against “cross-claimants Balchune, Pocono, Marranca, Marranca Contracting, and Midlantic.” ¶ Id. ¶ 22. However, the motion does not address these crossclaims in any substantive manner. Instead, the brief solely focuses on New Prime’s breach of contract and breach of warranty claims. It is well established that in the Third Circuit, “[a]n issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.” Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-03 (3d Cir. 2004). See also John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n. 6 (3d Cir. 1997) (“arguments raised in passing…but not squarely argued, are considered waived”). Thus, the Court will not address the other defendants’ crossclaims against the McLaine Defendants.