B&B Contrs. & Developers, Inc. v. Olsavsky Jaminet Architects, Inc.
2012 Ohio 5981
Ohio Ct. App.2012Background
- B&B contracted to build an ice rink for Gilmour Academy; B&B was general trades contractor, not responsible for mechanical trades.
- B&B hired OJA to provide architectural design and coordination with other disciplines; mold controversy arose from a design defect.
- Gilmour/arbitration awarded $700,902 (reduced to $595,000 by settlement), which B&B paid to Gilmour after arbitration.
- B&B sued OJA for breach of contract, professional negligence, and indemnification, seeking damages equal to what it paid in arbitration.
- Trial court granted partial judgment on pleadings, barring evidence of Gilmour’s attorney fees as damages; later trial proceeded with a jury verdict in B&B’s favor for $395,095.75.
- OJA cross-appealed challenging jury instructions, damages method (restoration costs vs. diminution in value), and implied indemnification; the court affirmed these cross-appeal points as meritless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages for attorney fees paid to Gilmour | B&B argues indemnification/damages approach treats fees as damages, not attorney fees. | OJA argues American Rule applies; no contractual fee shifting; fees are not recoverable. | Merits: fees are part of damages, not attorney fees; remand for damages component. |
| Whether breach of contract claim could coexist with professional negligence | B&B contends contract claim is distinct for coordination duties; should not be subsumed. | OJA argues duties merge with professional negligence; contract claim should be barred. | Withdrawn/not decided; court leaves judgment precluding contract claim intact. |
| OJA's cross-appeal: non-party negligence testing | OJA sought multiple interrogatories to test non-party negligence. | Interrogatories should test third-party negligence and allocation of fault. | Interrogatory substitution was proper; not reversible error. |
| Implied indemnification and active negligence | B&B contends indemnity available; no admission of active negligence by B&B. | OJA claims active negligence bars indemnity. | Indemnification issue overruled; no bar found; cross-appeal lacks merit. |
Key Cases Cited
- Krasny-Kaplan Corp. v. Flo-Tork, Inc., 66 Ohio St.3d 75 (Ohio 1993) (indemnification exceptions to the American rule)
- Martin v. Design Constr. Servs., Inc., 121 Ohio St.3d 66 (Ohio 2009) (restoration costs vs. diminution in value; no strict diminution requirement for damages)
- Ohio Collieries Co. v. Cocke, 107 Ohio St. 238 (1923) (damages for temporary injury governed by reasonable-cost-of-restoration; market value rule for permanent injury)