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Parker v. John Moriarty & Associates

United States District Court, District of Columbia

May 23, 2016

JOHNNIE PARKER, et al., Plaintiffs,
v.
JOHN MORIARTY & ASSOCIATES, Defendant/Third Party Plaintiff,
v.
STRITTMATTER METRO, LLC, Third Party Defendant/Fourth Party Plaintiff,
v.
ENVIRONMENTAL CONSULTANTS AND CONTRACTORS, INC., Fourth Party Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge

         Plaintiffs 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, [1] the applicable authorities, and the record as a whole, the Court shall DENY Defendant and Third Party Plaintiff JMAV’s [28] Motion for Summary Judgment on Count I of its Third Party Complaint for the reasons stated herein.

         I. BACKGROUND

         This 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.

         Plaintiff 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 provides:

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.

         II. LEGAL STANDARD

         Summary 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.

         In 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).

         When 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 citations omitted).

         III. DISCUSSION

         JMAV 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.

         The District of Columbia[2] 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 ...


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