The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
On January 25, 2003, a tee fitting froze and burst in the dry sprinkler system at the Kellogg Conference Center on the campus of Gallaudet University ("Gallaudet") in Washington, D.C., causing significant water damage. This case is about who is legally responsible for the damage. Plaintiff St. Paul Mercury Insurance Company ("St. Paul") was Gallaudet's property insurer, and has been subrogated for Gallaudet in this litigation. St. Paul filed suit against Defendant Capitol Sprinkler Inspection, Inc. ("Capitol Sprinkler"), the company that was contracted to perform semi-annual inspections of the sprinkler system. Capitol Sprinkler, in turn, filed suit against third-party Defendant Guest Services, Inc. ("Guest Services"), the building management company at the conference center. Currently pending before the Court are four summary judgment motions: (1) St Paul's  Motion for Partial Summary Judgment against Capitol Sprinkler; (2) Capitol Sprinkler's  Motion for Summary Judgment against St. Paul; (3) Capitol Sprinkler's  Motion for Summary Judgment against Guest Services; and (4) Guest Service's  Motion for Summary Judgment against Capitol Sprinkler. In addition, there are two motions pending before the Court that relate to the parties' summary judgment briefing: Guest Services's  Motion for an Extension of Time to File an Opposition to Capitol Sprinkler's Motion for Summary Judgment (which is actually a motion for leave to file out of time), and Capitol Sprinkler's  Motion to Strike Guest Services's Reply filed in support of Guest Services's Motion for Summary Judgment against Capitol Sprinkler.
After thoroughly reviewing all of the parties' pleadings and attachments thereto, applicable case law, statutory authority, and the entire record herein, the Court finds that there are genuine issues of material fact as to whether Capitol Sprinkler was escorted by a Guest Services employee during its January 9, 2003 inspection at the conference center, whether and to what extent Guest Services operated as an agent of Gallaudet, and whether and to what extent National Fire Protection Association standards were incorporated into the Inspection Agreement between Capitol Sprinkler and Guest Services. The Court also finds that Capitol Sprinkler's claims based on frustration of purpose and modification of contract are not cognizable, but it shall order supplemental briefing as to whether Capitol Sprinkler's breach of contract and negligence-based claims are cognizable without Capitol Sprinkler's having provided an expert report or any expert opinion testimony. The Court shall also order supplemental briefing as to whether the escort who accompanied Capitol Sprinkler's inspectors during the January 9, 2003 inspection made statements that constitute inadmissible hearsay.
Accordingly, the Court shall HOLD-IN-ABEYANCE St. Paul's  Motion for Partial Summary Judgment, HOLD-IN-ABEYANCE Guest Services's  Motion for Summary Judgment against Capitol Sprinkler, and shall HOLD-IN-ABEYANCE-IN-PART Capitol Sprinkler's  Motion for Summary Judgment against St. Paul to the extent that it claims Gallaudet was negligent based on its own actions (as opposed to those of Guest Services), pending the parties' supplemental briefing. The Court shall also DENY Capitol Sprinkler's  Motion for Summary Judgment against St. Paul in all other respects and DENY Capitol Sprinkler's  Motion for Summary Judgment against Guest Services. Finally, the Court shall DENY Guest Services's  Motion for Leave for an Extension of Time to file an Opposition to Capitol Sprinkler's Motion for Summary Judgment, and shall DENY Capitol Sprinkler's  Motion to Strike Guest Services's Reply in support of its Motion for Summary Judgment, for the reasons that follow.
Gallaudet is the owner of the Kellogg Conference Center (the "Conference Center") in Washington, D.C.*fn1 Pl.'s Stmt. ¶ 1. The Conference Center is a five-story building that houses meeting rooms, 93 guest rooms, and other areas. Def.'s Stmt. ¶¶ 3, 4. The building has a sprinkler system that was installed by Capitol Sprinkler either during its construction between 1996-1998 or thereafter. Id. ¶ 2. Portions of the building are restricted (such as the guest rooms) and are accessible only by using specific key cards. Id. ¶ 9.
On February 11, 2002, Gallaudet contracted with Guest Services to provide operational and management services for the Conference Center. Id. ¶ 13. The agreement (hereinafter, the "Management Agreement") authorized Guest Services to contract with third-parties to perform services related to the maintenance of the property:
Negotiate and enter into service contracts necessary or desirable in the ordinary course of business in operating the Property, including without limitations, contracts for provision of telephone and other utility services, cleaning services, vermin extermination, trash removal, elevator and boiler maintenance, air conditioning maintenance . . . and other services deem[ed] advisable.
Def.'s Mot., Ex. A § 3.1(e) (2/11/00 Management Agreement). Pursuant to that authority, Guest Services contracted with Capitol Sprinkler on April 22, 2002, to perform semi-annual inspections of the sprinkler systems at the Conference Center. Pl.'s Stmt. ¶ 2.
The agreement between Guest Services and Capitol Sprinkler (hereinafter, the "Inspection Agreement") obligated Capitol Sprinkler to "open condensation drains on drum drip connections and drain low points during fall and winter inspection[s]." Id. ¶ 3. Vernon Vane, Capitol Sprinkler's supervisor of inspections, confirmed that Capitol Sprinkler's inspectors were supposed to drain "drum drips" during inspections in accordance with this provision:
Q: . . . And under that it says "[o]pen compensation drains on drum [drip] connections and drain low points during fall and winter inspection." That right?
Q: That is the work that's supposed to be done by Capitol Sprinkler's people when they are at the job site. Is that correct?
Pl.'s Mot., Ex. D at 49:11 - 49:18 (Depo. Tr. of V. Vane); Pl.'s Stmt. ¶ 6 (same).
On January 9, 2003, Capitol Sprinkler employees Michael Bowlin and Tom Scott inspected the sprinkler system at the Conference Center. Pl.'s Stmt. ¶¶ 7, 8. Because they needed access to certain areas of the building that were restricted, the inspectors were accompanied by an escort who could provide them with such access. Def.'s Stmt. ¶¶ 16; 21. During the inspection, Mr. Bowlin and Mr. Scott drained all of the drum drips except for the one that was located above the building's conference room 5200. Pl.'s Mot., Ex. F at 50:10 - 50:15 (Depo. Tr. of M. Bowlin)
("Q: Now did you drain, you and Mr. Scott, drain all of the drain points during the January 9, 2003 inspection?
A: All but the one in that room.
Q: The one above conference room 5200?
The drum drip above conference room 5200 was the last one that needed to be drained during the January 9, 2003 inspection. Def.'s Stmt. ¶ 28. Mr. Bowlin testified that he and Scott were supposed to drain that drum drip. Id. at 50:21 - 50:22
("Q: Were you supposed to drain that drain?
According to Mr. Bowlin's deposition testimony, and not refuted by contradictory evidence in the record, Mr. Bowlin and Mr. Scott did not drain the drum drip above conference room 5200 because their escort did not have immediate possession of the key card necessary to give them access to the room: "We were going to the room and when we got to the room he [the escort] says, 'I don't have a card. I have to go down stairs and get the card for the access.'" Pl.'s Opp'n, Ex. 7 at 51:22 - 52:3 (Depo Tr. of M. Bowlin). Mr. Bowlin's testimony is internally inconsistent as to whether he asked the escort to retrieve the key card. Compare id. at 54:18 -54:21
("Q: . . . did you ask him to go get the card?
A: No, I didn't ask him to go get the card") with id. at 56:6 - 56:14
("Q: Why didn't you ask him to go get the card so you could have access to drain the last drain you had left?
A: I asked him to get the card but I don't remember him going to get the card.
Q: So you don't remember him saying, 'I refuse to get the card' or anything like that?
A: He didn't refuse to get the card"). Nevertheless, Bowlin testified that he asked the escort to drain the drum drip himself instead of retrieving the key card:
he just kind of looked at us like, you know, he really didn't want to [get the key card] -- he would take care of it. He said he would take care of the drum drip, and I asked him, I said 'Are you going to take care of this' -- I said, 'You know what? I can't get in the room. Are you going to take care of this drum [drip]?
Id. at 54:11 - 54:17. See also id. at 56:16 - 56:22
("Q: . . . Did you ask him, since you don't have a card, 'Will you take care of the drum drip?'
A: I asked him if he would take care of the drum drip.
Q: So you made a request?
Mr. Bowlin indicated that it would have taken between five to ten minutes to retrieve the key card, or "[h]owever long it takes  to get to the elevator, go downstairs to the front desk, or however fast the elevator runs." Def.'s Opp'n to Pl.'s Mot., Ex. E at 52:11 - 52:21 (Depo Tr. of M. Bowlin). Mr. Bowlin and Mr. Scott left the building and completed an inspection report, indicating that all of the "dry valves [were] protected from freezing" and "all areas and valves [were] protected from freezing." Third-Party Def.'s Stmt. ¶¶ 10, 11; Def.'s Resp. Third-Party Stmt. ¶ 10. No "deficiencies" were noted on the report, and the report does not indicate that a drum drip had not been drained or that the inspectors had requested that an escort drain a drum drip. See Third-Party Def.'s Mot., Ex. 5 at 2 (7/9/03 Inspection Report).
The drum drip above conference room 5200 was never drained. Pl.'s Stmt. ¶ 13; Def.'s Resp. Stmt. ¶ 13. On January 25, 2003, a tee fitting in the sprinkler system froze and burst, allowing water to discharge. Pl.'s Stmt. ¶ 11. It is undisputed that the tee fitting froze and burst because the drum drip had not been drained during the January 9, 2003 inspection.*fn3 Pl.'s Stmt. ¶ 13.
Before continuing forward, the Court pauses to address one of the central disputes in this litigation -- the identity of the escort who allegedly agreed to drain the drum drip for Capitol Sprinkler's inspectors. Mr. Bowlin testified that the escort was the same individual who accompanied him during an inspection in July 2002, but whose name he could not recall. Pl.'s Opp'n, Ex. 7 at 34:1 - 34:18; 41:18 - 42:6 (Depo. Tr. of M. Bowlin). Mr. Bowlin described the escort as a "colored gentleman" who was 5' 10" tall, and approximately 30 years old. Id. at 34:1 - 34:14. Mr. Bowlin conceded that he did not know anything about this individual when he allegedly asked him to drain the drum drip above conference room 5200:
Q: . . . did you know at that time anything about his background, experience, reliability, competency to do the work that you were requesting that he do?
Q: Did you ask him for any information that would allow you to [assess] . . . whether he was competent, qualified, trained in order to do this job?
Q: Did you have any reason to believe, did you have any facts that told you that this guy could do what needed to be done with this drum drip?
A: He was assigned to us by the maintenance, so I assume that he was going -- he was able to do that.
Id. at 57:2 - 57:20. Mr. Vane, who attended the 2002 inspection but not the 2003 inspection at the Conference Center, testified that he was unaware of the escort's identity but recalled his description from 2002. See Pl.'s Opp'n, Ex. 2 at 40:14 - 40:17, 41:1 - 41:3 (Depo. Tr. of V. Vane)
("Q: Why did you need somebody from Guest Services to accompany you?
A: For access, keys, things of that nature . . .
Q: . . . And do you know who . . . [was] assigned to you to do that?
A: No."). Mr. Vane recalled the 2002 escort as being a "tall, slender black man" in his thirties, and confirmed that he knew nothing about this individual:
A: . . . He just assisted us, I mean, walked with us and unlocked things. That's all he did.
Q: Did you know anything about the history or competency or reliability of the person that accompanied you in July of 2002?
Q: From your recollection, do you recall if this person did anything to indicate to you that he knew something about sprinkler systems and how to test them and inspect them and do ...