United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
Johnnie Parker and Starrelette Gail Jones-Parker bring this
action against Defendant/Third Party Plaintiff John Moriarty
& Associates of Virginia LLC (“JMAV”).
Plaintiffs allege that JMAV, as general contractor of a
construction project, was negligent resulting in serious
injury to Plaintiff Johnnie Parker, a construction worker on
this project site. Defendant JMAV subsequently filed a Third
Party Complaint against Third Party Defendant Strittmatter
Metro, LLC (“Strittmatter”), and Strittmatter, in
turn, filed a Fourth Party Complaint against Fourth Party
Defendant Environmental Consultants and Contractors, Inc.
Presently before the Court is Defendant and Third Party
Plaintiff JMAV’s Motion for Summary Judgment on Count I
of its Third Party Complaint against Strittmatter, seeking
summary judgment on its contractual indemnification claim
against Strittmatter. Upon consideration of the
parties’ submissions,  the applicable authorities, and
the record as a whole, the Court shall DENY Defendant and
Third Party Plaintiff JMAV’s  Motion for Summary
Judgment on Count I of its Third Party Complaint for the
reasons stated herein.
action arises out of the construction work completed on the
Apollo H Street project (“the project”), located
at 616 and 630 H Streets, NE, Washington, DC 20002.
Def.’s Stmt. of Material Facts Not in Genuine Dispute
(“Def.’s Stmt.”) ¶ 1, ECF No. [28-2].
Defendant/Third Party Plaintiff JMAV was the general
contractor on the project. Id. On August 12, 2014,
JMAV hired Third Party Defendant/Fourth Party Plaintiff
Strittmatter as a subcontractor on the project pursuant to
the terms of a written Subcontract Agreement. Id.
¶ 2. Under the terms of the Subcontract Agreement,
Strittmatter agreed to perform excavation and backfill work
on the project. Id. ¶ 3.
Johnnie Parker alleges that on December 18, 2014, while he
was employed by Strittmatter, he was instructed to excavate
between 600 and 624 H Street, NW, as part of his regular
duties of employment. Id. ¶¶ 5, 6. Mr.
Parker further alleges that he was injured by exposure to
toxic fumes while performing that excavation work.
Id. ¶ 7. On September 16, 2015, Mr. Parker and
his wife, Plaintiff Starrelette Gail Jones-Parker, filed the
underlying Complaint in the instant action with a claim of
negligence by and against JMAV, along with a claim for
punitive damages based on JMAV’s alleged willful,
reckless, and wanton conduct. Id. ¶¶ 9,
10; 3d Party Def./4th Party Pl.’s Stmt. of Undisputed
and Disputed Material Facts (“3d Party Def.’s
Stmt.”) ¶ 9, ECF No [32-1]. On November 9, 2015,
JMAV filed a Third Party Complaint against Strittmatter
alleging claims of contractual indemnification and breach of
contact. 3d Party Def.’s Stmt. ¶ 15. At issue at
the present time is the indemnity provision in the
Subcontract Agreement between JMAV and Strittmatter that
To the fullest extent permitted by the law of the District of
Columbia, the Subcontractor [Strittmatter] shall indemnify
and hold harmless the Owner, the Architect and the Contractor
[JMAV] and all of their agents and employees from and against
all claims, damages, losses and expenses, including but not
limited to attorney’s fees, caused by, arising out of,
in connection with, or resulting from the performance of the
Subcontractor’s Work under this Subcontract, where any
such claim, damage, loss or expense is attributable to bodily
injury, sickness, disease, or death, or to injury to or
destruction of tangible property including the loss of use
resulting therefrom, and is caused by or arises in whole or
in part, from any negligent or non-negligent act or omission
of the Subcontractor or any of its agents, employees,
sub-subcontractors or others . . . .
Def.’s Stmt. ¶ 4. JMAV now moves for summary
judgment on its contractual indemnification claim against
Strittmatter based on Subcontract Agreement.
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and [that
it] . . . is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The mere existence of some factual
dispute is insufficient on its own to bar summary judgment;
the dispute must pertain to a “material” fact.
Id. Accordingly, “[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 (1986). Nor may summary judgment be avoided
based on just any disagreement as to the relevant facts; the
dispute must be “genuine, ” meaning that there
must be sufficient admissible evidence for a reasonable trier
of fact to find for the non-movant. Id.
order to establish that a fact is or cannot be genuinely
disputed, a party must (a) cite to specific parts of the
record-including deposition testimony, documentary evidence,
affidavits or declarations, or other competent evidence-in
support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually
establish the absence or presence of a genuine dispute.
Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without
any factual basis in the record cannot create a genuine
dispute sufficient to survive summary judgment.
Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S.
Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly
support an assertion of fact or fails to properly address
another party’s assertion of fact, ” the district
court may “consider the fact undisputed for purposes of
the motion.” Fed.R.Civ.P. 56(e).
faced with a motion for summary judgment, the district court
may not make credibility determinations or weigh the
evidence; instead, the evidence must be analyzed in the light
most favorable to the non-movant, with all justifiable
inferences drawn in her favor. Liberty Lobby, 477
U.S. at 255. If material facts are genuinely in dispute, or
undisputed facts are susceptible to divergent yet justifiable
inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end,
the district court’s task is to determine
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Liberty Lobby, 477 U.S. at 251-52. In
this regard, the non-movant must “do more than simply
show that there is some metaphysical doubt as to the material
facts, ” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S.574, 586 (1986); “[i]f
the evidence is merely colorable, or is not sufficiently
probative, summary judgment may be granted, ”
Liberty Lobby, 477 U.S. at 249-50 (internal
contends that the indemnity clause of the Subcontract
Agreement is unambiguous as a matter of law and obligates
Strittmatter to fully indemnify JMAV as to any claims against
JMAV in this action regardless of whether Mr. Parker’s
injuries arose out of JMAV’s own negligence.
Strittmatter argues that pursuant to the Subcontract
Agreement, Strittmatter’s duty to indemnify JMAV is
only triggered for claims arising out of the contracted work
when Strittmatter’s conduct caused the damages that led
to the claim. As such, Strittmatter argues that JMAV is not
entitled to summary judgment at this stage, prior to the
completion of discovery, because there remains a genuine
dispute over a material fact, namely whether Mr.
Parker’s damages were caused by or arose out of
Strittmatter’s conduct. Accordingly, the issue before
the Court is whether the indemnity clause of the Subcontract
Agreement is unambiguous such that it obligates Strittmatter
to indemnify JMAV regardless of which party, if any, caused
Mr. Parker’s damages.
District of Columbia follows the “‘objective’
law of contracts, which generally means that ‘the
written language embodying the terms of an agreement will
govern the rights and liabilities of the parties,
[regardless] of the intent of the parties at the time they
entered into the contract, unless the written language is not
susceptible of a clear and definite undertaking, or unless
there is fraud, duress, or mutual mistake.’”
Armenian Assembly of Am., Inc. v. Cafesjian, 758
F.3d 265, 278 (D.C. Cir. 2014) (quoting DSP Venture Grp.,
Inc. v. Allen, 830 A.2d 850, 852 (D.C.2003)).
“‘The writing must be interpreted as a whole,
giving a reasonable, lawful, and effective meaning to all its
terms, ’ and ascertaining the meaning ‘in light
of all the circumstances ...