934 F.3d 398
4th Cir.2019Background
- VDOT contracted with W.C. English to build a bridge; English subcontracted QA to RK&K and QC to CDM Smith.
- Contract required specific rebar spacing and concrete cover; contractors used 1.75-inch "slab runners" instead of required 2.5-inch, producing an incorrect cover and a structurally deficient deck.
- VDOT required demolition and reconstruction; English rebuilt the deck at a cost of over $3.1 million.
- English sued RK&K and CDM Smith for breach of contract and indemnification, seeking reconstruction costs.
- District court granted summary judgment for RK&K and CDM Smith, interpreting contract terms to bar recovery based on English’s contributory negligence and finding CDM Smith satisfied its duties.
- Fourth Circuit vacated and remanded, holding the district court improperly resolved contractual ambiguities and disputed facts on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of RK&K indemnity/damage clauses — whether language creates comparative-liability or bars recovery for indemnitee negligence | Contract language supports a comparative ("to the extent") indemnity; clause ambiguous; factual issues for jury | Contract read as a whole bars liability if English was negligent (contributory-style bar); court may decide as matter of law | Vacated: clause is at least ambiguous; summary judgment inappropriate; factfinder must decide interpretation and effect of English’s conduct |
| Whether CDM Smith’s obligations were governed exclusively by the QA Level framework (Level 1/2/3) or by explicit QC Plan duties | QC Plan’s express duties (immediate notice to construction manager; report deficiencies; initiate NCR if unresolved) applied; questions of fact exist whether CDM complied | Level framework governed; slab runners only Level 2 and CDM Smith satisfied obligations as matter of law | Vacated: genuine disputes of material fact about which scheme governed, the level of nonconformity, and whether CDM met its duties; remand for factfinder |
| Whether the slab-runner defect constituted a Level 3 nonconformity (requiring NCR and higher-level input) | Argued defect could be Level 3; English consistently advanced that position in filings | District court treated an in-court remark as concession that defect was not Level 3 | Vacated: factual question for jury; no clear judicial concession in record to dispose of the issue at summary judgment |
| Causation and allocation of fault among English, RK&K, and CDM Smith | English alleges CDM-directed use of incorrect runners and that RK&K/QC/QA failures contributed; seeks damages tied to others’ breaches | Defendants assert English’s own decisions and negligence caused the loss, absolving defendants | Vacated: competing evidence and witness testimony create genuine disputes of fact; jury to determine causation and comparative fault |
Key Cases Cited
- Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886 (4th Cir. 2015) (standard of review for summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment requires resolving factual disputes in favor of nonmoving party)
- Am. Fidelity & Cas. Co. v. London & Edinburgh Ins. Co., 354 F.2d 214 (4th Cir. 1965) (ambiguous contract terms create issues of fact precluding summary judgment)
- World-Wide Rights Ltd. P’ship v. Combe Inc., 955 F.2d 242 (4th Cir. 1992) (only unambiguous writings justify summary judgment on contract interpretation)
- Estate of Moses ex rel. Moses v. Sw. Virginia Transit Mgmt. Co., 273 Va. 672 (Va. 2007) (equating "direct" and proximate causation in tort context)
- Rascher v. Friend, 279 Va. 370 (Va. 2010) (discussion of negligence and proximate causation)
- Safeway, Inc. v. DPI Midatlantic, Inc., 619 S.E.2d 76 (Va. 2005) (express indemnity agreements govern allocation of loss agreed by parties)
- Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969) (distinguishing implied indemnity from express contractual indemnity)