United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
September 16, 2015, Plaintiffs Johnnie Parker and Starrelette
Gail Jones-Parker brought this action against Defendant John
Moriarty & Associates of Virginia, LLC
(“JMAV”). Plaintiffs alleged that JMAV, as
general contractor of a construction project, was negligent
resulting in serious injury to Mr. Parker, a construction
worker on the 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. (“ECC”). Subsequent procedural
developments included Plaintiffs' amendment of their
Complaint to add ECC as a Defendant. ECC also asserted
counterclaims against Strittmatter and cross-claims against
JMAV. JMAV in turn asserted cross-claims against ECC.
before the Court are Strittmatter's  Motion for
Summary Judgment, ECC's  Motion for Summary
Judgment, and JMAV's  Motion for Summary Judgment on
Count I and II of Its Amended Third Party Complaint. Upon
consideration of the parties' submissions,  the applicable
authorities, and the record as a whole, the Court shall
GRANT-IN-PART and DENY-IN-PART
Strittmatter's  Motion, DENY
ECC's  Motion, and DENY JMAV's
 Motion. Strittmatter's  Motion is granted only
insofar as it seeks summary judgment as to ECC's
counterclaim for contribution.
Factual Background and Procedural
case arises out of the construction work completed on the
Apollo H Street Project (“the project”), located
between 600 and 624 H Street, NE, Washington, D.C. Am.
Compl., ECF No. 87, ¶ 13. The owner of the project, H
Street NE Owner, LLC (“Owner”), hired JMAV to
serve as general contractor and ECC to provide certain
“professional environmental services.”
Id. ¶¶ 3, 6. JMAV subcontracted the
excavation and related services to Strittmatter. Id.
Parker worked on the project as an employee of Strittmatter
and alleges that on December 18, 2014, he was instructed to
excavate between 600 and 624 H Street, NE. Id.
¶¶ 12, 22. While performing this work, Mr. Parker
allegedly was injured upon exposure to toxic chemicals from
leaking underground storage tanks. See Id.
¶¶ 22-31. While Plaintiffs did not allege the
specific location onsite where Mr. Parker was injured, the
other parties generally agree that it was in the southwestern
portion. See, e.g., Strittmatter's Resp. to
Statements of Undisputed Material Facts Submitted by JMAV and
ECC, ECF No. 124-2, ¶ 37 (Resp. to Moriarity's [sic]
Statement of Undisputed Material Facts).
September 16, 2015, Mr. Parker and his wife, Starrelette Gail
Jones-Parker, filed the underlying two-count Complaint
against JMAV, claiming that 1) JMAV was liable for
negligence, and 2) JMAV's alleged willful, or reckless
and wanton, conduct entitled the Parkers to punitive damages.
See Compl., ECF No. 1, ¶¶ 16-28. On
November 6, 2015, JMAV filed a two-count Third-Party
Complaint against Strittmatter, alleging that 1) Strittmatter
was contractually obligated to indemnify JMAV, and 2)
Strittmatter had breached its subcontract with JMAV.
See Third-Party Compl., ECF No. 10, ¶¶
21-33. JMAV sought summary judgment on its contractual
indemnity claim against Strittmatter, which the Court denied
on May 23, 2016. See Mem. Op., Parker v. John
Moriarty & Assocs. (Parker I), 189
F.Supp.3d 38 (D.D.C. 2016), ECF No. 43.
12, 2016, Strittmatter filed a four-count Fourth-Party
Complaint against ECC, asserting claims of 1) negligence, 2)
indemnity and/or contribution as a joint tortfeasor, 3)
breach of contract to a third-party beneficiary, and 4)
negligent misrepresentation. See Fourth-Party
Compl., ECF No. 38, ¶¶ 40-65. ECC moved to dismiss
the Fourth-Party Complaint on the grounds that Strittmatter
failed to state claims in contract and in tort upon which
relief could be granted, which the Court denied on December
14, 2016. See Mem. Op., Parker v. John Moriarty
& Assocs. (Parker II), 224 F.Supp.3d 1
(D.D.C. 2016), ECF No. 65.
January 17, 2017, Plaintiffs requested leave to amend their
Complaint to assert a negligence claim against ECC, which the
Court granted on February 16, 2017. See Mem. Op.
& Order, Parker v. John Moriarty & Assocs.
(Parker III), 320 F.R.D. 95 (D.D.C. 2017), ECF No.
86; Am. Compl., ECF No. 87.
February 15, 2017, ECC sought the Court's permission to
amend ECC's  Answer to assert counterclaims against
Strittmatter and cross-claims against JMAV based on
allegations of 1) negligence, 2) negligent misrepresentation,
and 3) indemnity and contribution. On the same day, JMAV
requested leave to amend its  Third-Party Complaint
against Strittmatter to add further details and a common law
indemnity claim. The Court granted ECC's and JMAV's
requests on April 6, 2017. See Mem. Op. and Order,
Parker v. John Moriarty & Assocs. (Parker
IV), 249 F.Supp.3d 507 (D.D.C. 2017), ECF No. 97;
ECC's [Am.] Answer to the Fourth-Party Compl., Countercl.
Against Fourth-Party Pl. Strittmatter and Cross-Cl. Against
Def. JMAV, ECF No. 98; JMAV's Am. Third Party Compl.
Against Strittmatter, ECF No. 85-2.
Court instructed JMAV and Strittmatter to respond to the new
pleadings that the Court permitted to be filed against them.
Parker IV, 249 F.Supp.3d at 516. As part of its
response to ECC's cross-claims, JMAV asserted
cross-claims against ECC for 1) negligence, 2) indemnity
and/or contribution, 3) breach of contract to a third-party
beneficiary, and 4) promissory estoppel. JMAV's Answer to
ECC's Crosscl. and Crosscl. Against ECC, ECF No. 107.
Discovery has since concluded. See Oct. 13, 2017
Order, ECF No. 118.
to the Court's  Scheduling and Procedures Order,
three of the four parties have moved for summary judgment as
to at least some claims. ECC seeks summary judgment as to
each claim against it, specifically Plaintiffs' claim of
negligence, JMAV's claims of negligence, indemnity and/or
contribution, breach of contract to a third-party
beneficiary, and promissory estoppel, and Strittmatter's
claims of negligence, indemnity and/or contribution, breach
of contract to a third-party beneficiary, and negligent
misrepresentation. ECC's Mot. Strittmatter's motion
likewise challenges all claims against it, namely JMAV's
claims of contractual indemnity, breach of contract, and
common law indemnity, and ECC's claims of negligence,
negligent misrepresentation, and indemnity and contribution.
Strittmatter's Mot. Of the three movants, JMAV seeks the
narrowest ruling, asking only for summary judgment on its
contractual indemnity and breach of contract claims against
Strittmatter. JMAV's Mot. Upon conclusion of briefing,
all three motions are ripe for resolution.
Relevant Reports, Agreements, and Safety Plans
Court shall summarize the reports, agreements, and safety
plans that are pertinent to the resolution of the pending
motions. This is not the first time that the Court has needed
to consider the intersections of documents at issue in this
case. See, e.g., Parker II, 224 F.Supp.3d
at 4-6. But, in light of the post-discovery posture, this
look will be the most extensive. Notwithstanding that extent,
however, the Court's review here shall not decide whether
the parties have a dispute of material fact as to such
documents, except where the Court expressly indicates that it
so decides. The Court shall reserve further analysis of each
of these documents for the discussion of the individual
chronologically, the first key document is ECC's Phase I
Environmental Site Assessment, dated March 20, 2014.
ECC's Mot., Ex. F, ECF No. 122-6 (“2014
Report”). ECC had previously completed other
environmental assessments of portions of the same site.
See, e.g., 2014 Report at 19-20 (Phase I assessments
in 2011 and 2013); id. at 49 (2011 Phase II).
Recommendations generated previously included
“[c]ontinuous observation, field screening, and air
monitoring by an environmental professional to identify
petroleum-contaminated soil during excavation.”
Id. at 20. The 2014 Report summarizes results of,
inter alia, ECC's 2014 and prior assessments in
both Phases I and II. See Id. at 19-20, 49, 51. As
ECC had reported beforehand, its 2014 Report again identifies
certain signs of contaminated soil on site. The 2014 findings
include “moderate- to high-level petroleum
contamination in soil” in “the vicinity of the
former gasoline service station on the southwestern
portion” of the project site. Id. at 59. ECC
bases this conclusion in part on “[m]oderate to
high” measurements of volatile organic compound
(“VOC”) vapors in soil samples from this
southwestern portion of the site. See Id. at 51. ECC
attempts to limit the entities which may rely upon the 2014
Report to an expressly defined set of entities- among which
JMAV and Strittmatter do not appear-as well as any others for
which ECC provides written authorization. Id. at 10.
Those entities entitled to rely on the 2014 Report expressly
include Insight Apollo LLC, which ECC asserts-and no party
disputes-is a member of the Owner. See, e.g.,
id.; ECC's Mot. at 5 (identifying Insight Apollo
agreements follow in close cluster and suggest by their
chronological ordering that they were negotiated
concurrently. Both these general contractor and excavation
subcontractor agreements incorporate ECC's 2014 Report.
Owner entered into an agreement with JMAV, as general
contractor, on September 2, 2014. JMAV's Opp'n to
ECC's Mot., Ex. 5, ECF No. 129-6 (“Owner/JMAV
Agreement”). JMAV's obligations under the agreement
include “design/build responsibility” for
“support of excavation.” Id. at 53. The
“Qualifications, Clarifications, and Assumptions”
exhibit to the Owner/JMAV Agreement expressly excludes
“soil contamination monitoring” and “[s]oil
testing, ” and states that “[c]ontaminated
[s]oils are by Owner.” Id. at 57 (Ex. B). The
Owner/JMAV Agreement lists the 2014 Report among
“Contract Documents, ” and states that JMAV is
“entitled to rely upon[ ] the written reports and other
information provided by the Owner to the Contractor (e.g.,
the . . . environmental report provided by Owner to the
Contractor with respect to the Project).” Id. at
37 (Ex. A), 80. Assuming that the Owner provided JMAV with a
copy of the 2014 Report listed as a Contract Document, JMAV
would be entitled under the Owner/JMAV Agreement to rely upon
it, as well as any other ECC safety standards and reports
provided by the Owner to JMAV.
subcontract signed shortly beforehand also incorporates the
2014 Report. JMAV subcontracted with Strittmatter on August
12, 2014, to cover JMAV's (then-forthcoming) obligations
to the Owner for excavation services. See JMAV's
Mot., Ex. 8, ECF No. 123-10 (“JMAV/Strittmatter
Agreement”), at 2-3, 6. Like the Owner/JMAV Agreement,
the “Scope of Work” exhibit to the
JMAV/Strittmatter Agreement carves out “[s]oil and
[m]aterial [t]esting (by Owner)” and
“[c]ontaminated soils” from the scope of
Strittmatter's responsibility. Id. at 28 (Ex.
B). The “Contract Document List” exhibit to the
JMAV/Strittmatter Agreement lists the 2014 Report.
Id. at 30 (Ex. C). The Court recognizes
Strittmatter's acknowledgement that JMAV provided
Strittmatter with a copy of the 2014 Report “[p]rior to
December 2014.” Strittmatter's Resp. to Statements
of Undisputed Material Facts Submitted by JMAV and ECC, ECF
No. 124-2, ¶ 23 (Resp. to Moriarity's [sic]
Statement of Undisputed Material Facts). The
JMAV/Strittmatter Agreement elaborates Strittmatter's
safety obligations in an exhibit containing JMAV's
Site-Specific Safety and Health Plan (“Site-Specific
Plan”). JMAV/Strittmatter Agreement at 45 (Ex. D).
While much of the Site-Specific Plan covers project site
activities that are not at issue in this case, some of it is
dedicated to excavation activities or sets forth generally
applicable safety protocol. See, e.g., id.
at 98-99 (specific to excavation and trenching).
between the conclusion of the JMAV/Strittmatter Agreement on
August 12, 2014, and the Owner/JMAV Agreement on September 2,
2014, ECC produced its Voluntary Remediation Action Plan
(“VRAP”) on August 22, 2014. ECC's Mot., Ex.
N, ECF No. 122-14 (“VRAP”). The cover page
indicates that the VRAP was “[p]repared for” the
Owner and “[s]ubmitted to” several District of
Columbia officials. Id. at 1. The document further
explains that ECC prepared the VRAP “to address
documented petroleum hydrocarbon contamination at two sites
currently enrolled in” a remediation program run by the
local government. Id. at 5. Among the purposes of
the “voluntary remediation actions described in this
Plan” is to “ensure the health and safety of
future residents, construction workers, and area residents
during construction.” Id. at 5-6. The VRAP
draws on the 2014 Report among its sources of data.
Id. at 6. “The remediation actions proposed
[in the VRAP] include . . . [p]reparation of a site specific
Environmental Health and Safety Plan (EHASP) for all
excavation . . . activities. This will include on-site air
monitoring for construction workers . . . .”
Id. at 18.
contemplated by the VRAP, ECC's Environmental Health and
Safety and Impacted Material Management Plan
(“EHASP”) also appears in the record, as a
revised version dated September 8, 2014. ECC's Mot., Ex.
M, ECF No. 122-13 (“EHASP”). The EHASP likewise
indicates that it was prepared for the Owner and submitted to
District of Columbia officials, and that it draws on the 2014
Report. Id. at 1, 6-7. A “Review and
Approval” page indicates that the EHASP “has been
reviewed by the undersigned representatives of the Owner,
Environmental Consultant and companies performing earthwork,
excavation, [and other] activities” on site.
Id. at 3. This copy of the EHASP has been signed
only by an ECC representative.
EHASP sets forth in some detail the safety responsibilities
of parties at the project site, including ECC, the general
contractor (i.e., JMAV), and subcontractors (e.g.,
Strittmatter).Among its obligations, “ECC [was]
responsible for monitoring site conditions in regard to
chemical hazards during earthwork activities, notifying the
General Contractor and subcontractors regarding potential
chemical health hazards, and appropriate control measures to
be used by personnel at the site.” Id. at 7.
ECC undertook more specifically that, “[o]n a daily
basis, ECC will monitor soil excavation and site work for
airborne VOC contamination using a Photoionization Detector
(PID) . . . . An Environmental Technician will use a portable
PID to monitor air near excavated soil as work
progresses.” Id. at 19. ECC's other roles
included evaluation of hazards and the authority to
“stop[ ] work temporarily, if deemed necessary in the
judgment of the Environmental Technician, ” pending
appropriate contact with the general contractor's Site
Safety Officer. Id. at 20-21; see also Id.
at 6 (defining Site Safety Officer). ECC also developed the
initial recommendation for personal protective equipment and
indicated that it would “reevaluate the potential
hazard” “[i]f contaminated soil . . . is
encountered.” Id. at 22, 24. That reevaluation
could trigger a recommendation that workers use a certain
type of respirator. Id. at 24.
the EHASP, JMAV's obligations as general contractor
entail “overall responsibility for monitoring and
enforcing all aspects of site safety, including construction
safety and all other safety, health, and OSHA related
requirements.” Id. at 7. JMAV's Site
Safety Officer “is responsible for monitoring
excavations and worker entries into excavations for safe
conditions in compliance with the General Contractor Health
and Safety Plan for the site. Upon request of the Site Safety
Officer, the Environmental Technician will monitor
excavations with a combustible gas/oxygen meter.”
Id. at 19. The EHASP accords “stop-work
authority” to the Site Safety Officer in keeping with
that officer's duty to ensure compliance with
“environmental, health, and safety guidance and
regulations at the site.” Id. at 20; see
also Id. at 23.
and Strittmatter have obligations as “contractors [and]
subcontractors” to “read this EHASP in its
entirety and ‘sign-off' to acknowledge their
understanding of site conditions and hazards, and safety
protocol prior to entry to the exclusion zone.”
Id. at 20. “It is the responsibility of the
General Contractor and individual subcontractors to make
provisions for health and safety training, material safety
data sheets, health and safety operating procedures, personal
protective equipment, and safety equipment and medical
surveillance for their employees at this site.”
Id. at 22. “[I]ndividual contractors [also
must] . . . provide the necessary training and review for
personnel who may be exposed to hazardous material prior to
initiation of field activities.” Id.
a few more cross-cutting obligations under the EHASP,
“[t]he Site Safety Officer and the Environmental
Technician will monitor soil excavation activities.”
Id. at 20. “Care should be taken by all site
personnel during excavation operations to avoid possible
chemical and physical hazards.” Id. at 23.
time among the key documents is the agreement between the
Owner and ECC entered into on November 1, 2014. ECC's
Mot., Ex. B, ECF No. 122-2 (“Owner/ECC
Agreement”). ECC commits in the “Scope of
Services” exhibit to “implement the [V]RAP for
the Project” and “provide Environmental Oversight
services as detailed in [ECC's EHASP] for the Project,
dated August 22, 2014, ” “includ[ing]
implementation of EHASP.” Id. at 11 (Ex.
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant 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. See
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 assess credibility or weigh evidence; instead, the
evidence must be analyzed in the light most favorable to the
non-movant, with “all justifiable inferences . . .
drawn in his favor.” Anderson, 477 U.S. at
255. “Furthermore, in ruling on cross-motions for
summary judgment, the court shall grant summary judgment only
if one of the moving parties is entitled to judgment as a
matter of law upon material facts that are not genuinely
disputed.” Footbridge Ltd. Tr. v. Zhang, 584
F.Supp.2d 150, 158 (D.D.C. 2008) (Kollar-Kotelly, J.) (citing
Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)
(per curiam); Long v. Gaines, 167 F.Supp.2d 75, 85
(D.D.C. 2001)). “If material facts are at issue, or
though undisputed, are susceptible to divergent inferences,
summary judgment is not available.” Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting
Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994)) (internal quotation marks omitted). 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.”
Anderson, 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). “If the evidence
is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson,
477 U.S. at 249-50.
grounded in common law or contract, the causes of action at
issue in these motions generally turn on an assessment of the
parties' respective duties regarding worker safety on the
project site. Those duties arise, if at all, from the
intricate web of reports, agreements, and safety standards
that involved the parties. Viewing the record evidence in the
light most favorable to the non-movants, the Court finds
genuine disputes of material fact as to the precise
application of duties that these documents appear to create.
The parties' divergent interpretations of these
documents, coupled with differing accounts of the
parties' practices at the project site, preclude the
entry of summary judgment with respect to each claim except
for ECC's counterclaim against Strittmatter for
contribution. The Court shall grant summary judgment to
Strittmatter on that counterclaim.
Court shall discuss further as to each motion in turn,
beginning with ECC's motion and continuing with
Strittmatter's and then JMAV's. Because the Court is
not the finder of fact as to at least some of the claims, the
Court shall not touch on all of the parties' various
relevant duties, nor shall it belabor its several
explanations of genuine disputes of material fact.
ECC's Motion for Summary Judgment
seeks summary judgment on all claims against it, namely
negligence (alleged by Plaintiffs, JMAV, and Strittmatter),
negligent misrepresentation (Strittmatter), breach of
contract (JMAV and Strittmatter), promissory estoppel (JMAV),
and common law indemnity and contribution (JMAV and
Strittmatter). The Court shall explain why summary judgment
is not available to ECC as to any of these claims.
Negligence and Negligent Misrepresentation Claims
argues that it did not owe any duties under tort law that
could sustain a negligence claim by the Plaintiffs, JMAV, or
Strittmatter, or a negligent misrepresentation claim by
Strittmatter. ECC's Mot. at 17, 22 n.2. Previously, the
Court denied ECC's motion to dismiss because, as to
Strittmatter's negligence and negligent misrepresentation
claims, the Court could not “conclusively find that no
such duty exists, ” in light of the Owner/ECC
Agreement, the VRAP, and the EHASP, as well as applicable
law. See Parker II, 224 F.Supp.3d at 10-11. The
Court now finds that ECC has not carried its burden at this
stage either, whether as to Strittmatter or to Plaintiffs and
District of Columbia,  “[i]t is a familiar principle
that a person is liable to another in negligence only if it
can be shown that (1) the defendant owed a duty of care to
the plaintiff, (2) the defendant breached that duty, and (3)
the breach of duty proximately caused damage to the
plaintiff.” Haynesworth v. D.H. Stevens Co.,
645 A.2d 1095, 1097-98 (D.C. 1994); see also Parker
II, 224 F.Supp.3d at 8 (citing Presley v.
Commercial Moving & Rigging, Inc., 25 A.3d 873, 880
(D.C. 2011)). A legal duty to a third party lacking
contractual privity “arises when a party undertakes to
‘render services to another which he should recognize
as necessary for the protection of a third person or his
things.'” Presley, 25 A.3d at 888-89
(quoting Haynesworth, 645 A.2d at 1097) (alterations
omitted). Under a standard developed by the Restatement
(Second) of Torts,
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his things,
is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to
protect his undertaking, if
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or
the third person upon the undertaking.
Id. at 889 (quoting Restatement (Second) of Torts
§ 324A (Am. Law Inst. 1965)). While the District of
Columbia Court of Appeals has not “formally
adopted” the Second Restatement, that court has found
that the “particular concept” embodied by Section
324A is among those that are “well known and [have]
been readily applied, where appropriate.”
Haynesworth, 645 ...