United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT GROUND SUPPORT'S MOTION
FOR SUMMARY JUDGMENT
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Ground
Support's motion for summary judgment and sanctions (Dkt.
No. 83). Having thoroughly considered the parties'
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby GRANTS the motion for summary
judgment and DENIES the motion for sanctions for the reasons
facts of this case have been described in a previous order.
(Dkt. No. 74 at 2-5.) In short, Rushforth Construction
Company hired Third-Party Defendant Malcolm Drilling to
furnish labor and materials for the bank shoring and
underpinning work in the project at issue. (Dkt. No. 54 at
¶3.1.) Malcolm hired Ground Support to create a shoring
plan. (Id. at ¶ 3.8.) The plans from each
company did not include a side sewage line. (Dkt. No. 84-6 at
4-5.) Ultimately, the project caused damage to the
not-included side sewage line, which was discovered in
October 2012, and Rushforth paid for the repairs. (Dkt. No.
54 at ¶¶ 3.10, 3.13-3.14.) Plaintiff Liberty Mutual
indemnified Rushforth, and Rushforth assigned all of its
rights to Liberty Mutual. (Id. at ¶3.15.)
Ground Support's Contract with Malcolm
described in the previous order, there was a question as to
whether Ground Support's Master Agreement or
Malcolm's Purchase Order governed this dispute.
(See Dkt. No. 74 at 2-4.) After conducting
discovery, the following has been established.
Support has been doing work for Malcolm since approximately
1994 and has prepared approximately 75-100 shoring
plans/proposals for Malcolm. (Dkt. No. 84-11 at 3.) In 2010,
Ground Support renegotiated its terms and conditions,
referred to as the Master Agreement, with Malcolm's
president, Al Rusband. (Dkt. No. 67 at ¶ 7; Dkt. No. 84-12
at 4.) The Master Agreement contains a Limitation of Remedies
clause that provides a one year time period from the
substantial completion of Ground Support's services to
bring a claim arising out of Ground Support's services.
(Dkt. No. 58-1 at 8.) The Master Agreement also contains an
express disclaimer of any warranties made in connection with
Ground Support's services. (Id. at 2.) The
renegotiated Master Agreement was sent to Malcolm for this
2011 project proposal. (Dkt. No. 67-2.) Malcom did not return
a signed copy of the Master Agreement to Ground Support.
(Dkt. No. 84-11 at 3.) However, it was common for Ground
Support to perform work for Malcolm without a signed proposal
being returned. (Dkt. No. 84-11 at 3.)
process a payment, Malcolm creates a Purchase Order, which
contains different terms than the Master Agreement. (Dkt. No.
84-11 at 4.) Liberty Mutual claims the Purchase Order
includes terms and conditions that require Ground Support to
warrant its work and indemnify Malcolm for claims arising out
of it. (Dkt. No. 65-3 at 9.) The Purchase Order does not
contain a one-year limitation period. However, in response to
a request for production for all documents reflecting
Malcolm's transmittal of a Purchase Order for this
project, Malcom responded “there is no record of
transmittal . . . to Ground Support.” (Dkt. No. 84-14
at 11.) Malcolm's Corporate Senior Vice President John
Roe testified that it was “reasonable” to say
“Ground Support does not perform work for Malcolm
subject to any terms and conditions contained in a Malcolm
Purchase Order that never gets sent.” (Dkt. No. 84-12
The Shoring Plan
was a preconstruction conference held on March 14, 2012,
attended by Rushforth, Malcolm, and Ground Support. (Dkt. No.
84-5.) During that meeting, the City of Seattle's shoring
inspector, Michael Houlihan, pointed out that the side sewer
had not been depicted in any of the shoring plans and
instructed Rushforth to find it. (Dkt. No. 84-6 at 5.)
Rushforth and Malcom met and reviewed the sewer card and
determined that there was no conflict between the side sewer
and the location of the tiebacks. (Dkt. No. 84-8 at 3.)
Ground Support was not involved in this meeting.
(Id.) However, unknown to any of the contractors
because it was not recorded on the sewer card, the side sewer
had been moved and was hit during construction. (Dkt. No.
84-10 at 1.)
8, 2016, Liberty Mutual filed an amended complaint to include
Ground Support as a defendant. (Dkt. No. 54.) Liberty Mutual
filed two causes of action against Ground Support: warranty
and contractual indemnification and negligence. (Id.
at 10-11.) Plaintiff alleges that it is entitled to
“indemnification from Ground Support under the terms of
the Master Agreement and/or the Purchase Order.” (Dkt.
No. 54 at ¶ 9.5.) Plaintiff also alleges that Ground
Support was negligent in its preparation of the shoring plan,
(id. at 10), and did not inform Malcolm that it
failed to depict the outdated location of the sewer line on
the shoring plan until February 2014, (Dkt. No. 65-1 at 2-3).
Ground Support now moves for summary judgment on these two
claims and for sanctions. (Dkt. No. 83.)
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In making such a determination, the Court
must view the facts and justifiable inferences to be drawn
therefrom in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Once a motion for summary judgment is properly made
and supported, the opposing party “must come forward
with ‘specific facts showing that there is a
genuine issue for trial.'” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are
those that may affect the outcome of the case, and a dispute
about a material fact is genuine if there is sufficient
evidence for a reasonable jury to return a verdict for the
non-moving party. Anderson, 477 U.S. at 248-49.
Conclusory, non-specific statements in affidavits are not
sufficient, and “missing facts” will not be
“presumed.” Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990). ...