Parker v. John Moriarty & Associates
224 F. Supp. 3d 1
| D.D.C. | 2016Background
- Plaintiff Johnnie Parker (and spouse) sued general contractor John Moriarty & Associates (JMAV) for injuries allegedly caused by exposure to petroleum VOCs during excavation at the Apollo H Street project. Parker was employed by subcontractor Strittmatter Metro, LLC.
- JMAV filed third-party claims against Strittmatter; Strittmatter later filed a fourth-party complaint against Environmental Consultants and Contractors, Inc. (ECC) asserting negligence, indemnity/contribution, breach of contract as a third-party beneficiary, and negligent misrepresentation.
- ECC had a Professional Services Agreement with the project Owner to prepare/implement a Voluntary Remediation Action Plan (VRAP) and an Environmental Health and Safety and Impacted Material Management Plan (EHASP); ECC prepared the EHASP and its Environmental Technician performed site monitoring duties described in the EHASP.
- The EHASP assigned overall site safety responsibility to the general contractor and subcontractors but also assigned ECC specific monitoring duties (daily PID air monitoring, hazard evaluations, authority to take action for imminent dangers) and included stop-work authority in certain circumstances.
- Strittmatter filed its fourth-party complaint without prior leave and sought nunc pro tunc leave; the Court granted that motion and addressed ECC’s Rule 12(b)(6) motion to dismiss.
- The Court denied ECC’s motion to dismiss, holding Strittmatter had plausibly pleaded tort and contract claims on this record and that factual development is required to resolve duty and intended-beneficiary issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ECC owed a duty of care in tort to Strittmatter (and its employees) | ECC undertook monitoring/oversight duties (EHASP/VRAP) necessary to protect subcontractors; ECC breached monitoring, warning, and safety duties | ECC argues EHASP places overall safety responsibility on JMAV and subcontractors, so ECC owed no legal duty to Strittmatter | Denied dismissal: on the pleadings, ECC may have assumed duties (per EHASP/VRAP); factual record needed to decide duty question |
| Whether Strittmatter plausibly alleged negligence/related tort claims (breach, causation) | Alleged ECC failed to continuously monitor VOCs, warn, follow professional standards, and recommended insufficient PPE (respirators) | ECC contends allegations lack specificity and fail as a matter of law | Denied dismissal: complaint gives fair notice and pleads plausible tort claims for now |
| Whether Strittmatter is an intended third-party beneficiary of the ECC–Owner contract | EHASP/VRAP were prepared to protect construction workers; Strittmatter reviewed/approved EHASP and thus reasonably expected benefit | ECC argues Strittmatter is not identified in the contract and is at most an incidental beneficiary | Denied dismissal: intent is not conclusively resolved on pleadings; issue is in equipoise and requires further factual development |
| Whether Strittmatter’s claims should be severed due to a jury-waiver in the ECC–Owner contract | Not dispositive; claims arise from the same occurrence and share common facts/questions | ECC seeks severance and separate trial to enforce contract jury-waiver | Denied severance at this time for judicial economy; waiver issue can be addressed later and bench trial options exist |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must contain factual allegations supporting plausible liability)
- Presley v. Commercial Moving & Rigging, Inc., 25 A.3d 873 (D.C. 2011) (duty analysis; court may consider contract and actual scope of consultant’s undertaking)
- Caldwell v. Bechtel, Inc., 631 F.2d 989 (D.C. Cir. 1980) (consultant may owe duty where contract, superior skill, and foreseeability create obligation to protect third parties)
- Fort Lincoln Civic Ass'n, Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055 (D.C. 2008) (third-party beneficiary doctrine; government-contract context and distinction between intended and incidental beneficiaries)