Parker v. John Moriarty & Assocs. of Va., LLC

332 F.Supp.3d 220

Johnnie PARKER, et al., Plaintiffs,

v.JOHN MORIARTY & ASSOCIATES OF VIRGINIA, LLC, Defendant/Third-Party Plaintiff,

v.Strittmatter Metro, LLC, Third-Party Defendant/Fourth-Party Plaintiff,

v.Environmental Consultants and Contractors, Inc., Fourth-Party Defendant.

Civil Action No. 15-1506 (CKK)

United States District Court, District of Columbia.

Signed September 12, 2018

William P. Lightfoot, Koonz, McKenney, Johnson, Depaolis & Lightfoot, LLP, Washington, DC, for Plaintiffs.

John Peter Glaws, IV, Paul J. Maloney, Carr Maloney, P.C., Washington, DC, for Defendant/Third-Party Plaintiff.

Heather S. Deane, William H. White, Jr., Bonner Kiernan Trebach & Crociata, LLP, Washington, DC, for Third-Party Defendant/Fourth-Party Plaintiff.

Leslie Paul Machado, LeClair Ryan, Alexandria, VA, Robert P. Fletcher, LeClair Ryan, PLLC, Washington, DC, for Fourth-Party Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

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 Posture²

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...