U.S. BANCORP, a Delaware corporation d/b/a U.S. Bank, Plaintiff,
VIOX SERVICES, INC., an Ohio corporation, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on Defendant Viox Services, Inc.'s ("Viox") motion for summary judgment (Dkt. 16). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.
I. PROCEDURAL HISTORY
On January 30, 2013, Plaintiff U.S. Bancorp ("U.S. Bank") filed a complaint against Viox for breach of contract and breach of indemnity agreement. Dkt. 1.
On November 27, 2013, Viox filed a motion for summary judgment. Dkt. 16. On December 30, 2013, U.S. Bank responded. Dkt. 16. On January 3, 2013, Viox replied. Dkt. 21.
II. FACTUAL BACKGROUND
On January 1, 2006, the parties entered into an Independent Contractor Agreement. Dkt. 17, Declaration of Scott Schauermann ("Schauermann Dec."), Exh. 1 ("ICA"). The agreement states that U.S. Bank "hereby retains [Viox] to act as an independent contractor for purposes of performing custodial and maintenance services for the Bank...." Id., Art. I. The scope of the "custodial and maintenance services" were to be "consistent with the [Viox's] professional expertise, as required by the Bank" and such "services shall include, without limitation, the items identified in Exhibit A." Id., Art. 2, ¶ 2.1. The agreement covered U.S. Bank's locations in Ohio, Kentucky, Tennessee, Indiana, and Illinois. Id. at 1.
The parties dispute the scope of services covered by the ICA. Viox contends that the ICA "did not include preventative maintenance, repaving, filling holes, fixing structural defects in the pavement, or any other major services related to the parking lot and ATM drive through areas of the U.S. Bank locations covered by the contract." Dkt. 16 at 2. On the other hand, U.S. Bank contends that these services were required by the contract because the explicit services set forth in Exhibit A to the ICA were without limitation. Dkt. 18 at 3. Moreover, U.S. Bank contends that, "as part of [Viox's] custodial and maintenance duties since 2008, Viox performed... regular preventative maintenance inspections... for the purpose of identifying maintenance needs and/or hazards that required attention." Dkt. 18 at 3.
On October 6, 2008, the parties entered into a third amendment to the ICA. This amendment added stores in the state of Washington, including U.S. Bank's branch in Olympia, Washington ("Olympia Branch"). Schauermann Dec., Exh. 4. The amendment did not alter the scope of the services provided by Viox.
In July 2009, the parties entered into a fourth amendment to the ICA. In addition to other provisions, this amendment addressed changes to Viox's scope of work. Specifically, Viox contracted to maintain cement and blacktop pavement by agreeing to "patch or fill holes and cracks as appropriate to service levels." Schauermann Dec., Exh. 6 ("Amendment 4"), Schedule-A, §§ 184.108.40.206 & 220.127.116.11. This agreement had a "transition period" from the date of signature to January 1, 2010. Id. § B.14.
On September 24, 2009, during the "transition period, " Sirena Denbow suffered injuries when she tripped on an empty post hole situated in the Olympia Branch ATM drive-through area. Ms. Denbow required surgery on her hand as a result of her injuries. On August 14, 2012, Ms. Denbow and U.S. Bank entered into a $10, 000 settlement agreement to resolve a lawsuit that Ms. Denbow filed against U.S. Bank. U.S. Bank tendered the claim to Viox under the indemnification provision of the ICA, but Viox did not accept the claim or respond to the demand for reimbursement of the settlement amount and associated fees.
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting ...