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Parker v. John Moriarty & Associates of Virginia, LLC

United States District Court, District of Columbia

September 12, 2018

JOHNNIE PARKER, et al., Plaintiffs,



         On 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.

         Presently before the Court are Strittmatter's [121] Motion for Summary Judgment, ECC's [122] Motion for Summary Judgment, and JMAV's [123] Motion for Summary Judgment on Count I and II of Its Amended Third Party Complaint. Upon consideration of the parties' submissions, [1] the applicable authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Strittmatter's [121] Motion, DENY ECC's [122] Motion, and DENY JMAV's [123] Motion. Strittmatter's [121] Motion is granted only insofar as it seeks summary judgment as to ECC's counterclaim for contribution.

         I. BACKGROUND

         A. Factual Background and Procedural Posture[2]

         This 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. ¶ 5.

         Johnnie 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).

         On 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.

         On May 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.

         On 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.

         On February 15, 2017, ECC sought the Court's permission to amend ECC's [71] 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 [10] 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.

         The 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.

         Pursuant to the Court's [120] 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.

         B. Relevant Reports, Agreements, and Safety Plans

         The 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 claims below.

         Taken 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”).[3] 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 LLC).

         Several 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.

         The 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, ”[4] 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).”[5] 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.

         JMAV's 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).

         In 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.

         As 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.[6]

         The 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).[7]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.

         Under 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.

         JMAV 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.[8] “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.

         To name 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.

         Last in 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. A).[9]


         Summary 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.

         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. 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).

         When 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.


         Whether 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.

         The 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.

         A. ECC's Motion for Summary Judgment

         ECC 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.

         1. Negligence and Negligent Misrepresentation Claims

         ECC 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 JMAV.

         In the District of Columbia, [10] “[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 ...

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