United States District Court, D. Maryland
SKANSKA USA BUILDING, INC.
J.D. LONG MASONRY, INC.
FREDERICK MOTZ, UNITED STATES DISTRICT JUDGE
Skanska USA Building Inc. (“Skanska”) brings this
lawsuit against defendant J.D. Long Masonry, Inc.
(“Long”), seeking money damages for sums incurred
and/or to be incurred by Skanska in connection with
Long's alleged breach of a subcontracting agreement
between the parties. Skanska asserts that Long has materially
breached the parties' subcontract by failing to indemnify
Skanska and pay the costs of remediation work required after
several rows of brick façade fell from the face of the
building on which Long had been hired to do masonry work. Now
pending is Long's motion for summary judgment on issues
of the statute of limitations and release/accord and
satisfaction. (ECF No. 21). The motions are fully briefed and
no oral argument is necessary. See Local R. 105.6.
For the reasons set forth below, Long's motion for
summary judgment is denied.
dispute arises out of a subcontract agreement (the
“Subcontract”) entered into by Skanska and Long
on October 12, 2004. Skanska was hired by the National
Institute of Health (NIH) as the construction manager on a
project to build a new bio-medical research facility (the
“Project”) on the Bayview Campus at Johns Hopkins
University in Baltimore, Maryland. (ECF No. 1 ¶ 7). In
October of 2004, Skanska retained Long to perform masonry
work on the Project, and the parties executed an extensive
subcontract (the “Subcontract”) outlining their
rights and obligations. (Id. ¶ 9-10). The
Subcontract provided, generally, that Long would assume all
responsibility and liability for injury or damage resulting
from or related to the masonry work performed and that Long
would indemnify Skanska for losses or expenses incurred in
connection with its performance. (Id. ¶
12(C)-(D), Ex. A, Art. 23.1, 30.1). Additionally, the
Subcontract holds Long responsible for necessary repairs or
replacement of any materials at its own expense in the event
that defective work is discovered within one year of the
final acceptance of the Project by the architects and owner.
(Id. Ex. A, Art. 21.1). On October 12, 2007, Skanska
notified Long that it had received a certificate of
substantial completion dated October 4, 2007, and that
“service warranties/guarantees are to begin on this
date.” (ECF No. 21, Ex. 2).
the Project received its certificate of completion, NIH had
apparently noted, both over the course of construction of the
Project and after it was finished, a number of structural
issues with the building, including some related to the
masonry work performed by Long. (See ECF No. 25
¶ 5). While Skanska and NIH were attempting to resolve
NIH's concerns and come to an agreement on final payment
for Skanska and its subcontrators, Long filed a lawsuit
against Skanska in the Circuit Court for the City of
Baltimore, Maryland, seeking additional payments under the
Subcontract. (Id. ¶ 9). In 2009, NIH engaged
engineering firm Wiss, Janey, Elstner Associates, Inc.
(“WJE”) to perform a visual condition assessment
of various parts of the Project's outer façade,
document any issues that may constitute a potential hazard to
pedestrians or vehicular traffic below the affected areas,
and prepare an investigative report. (See id. ¶
5-6). WJE prepared a “Draft Report” on October
30, 2009, which documented visible evidence of exterior
façade issues such as cracking, spalling, and planar
in 2010, the Office of General Counsel for Health and Human
Services and NIH retained Exponent, Inc. to conduct an
engineering assessment of the cause of distress to the
building. (Id. ¶ 7). Exponent concluded that
“total and differential settlement is ongoing and is
expected to occur in the future, and may occur in areas that
previously did not exhibit signs of distress.”
(Id. ¶ 5; see also ECF No. 21, Ex. 5).
the 2009 WJE Report and the 2010 Exponent Report apparently
served as the basis for ongoing mediation efforts between NIH
and Skanska that had resulted from significant disagreements
regarding the amounts due to Skanska on the Project and the
necessary repair and remediation of issues NIH and WJE had
identified. (See ECF No. 25 ¶ 8; see
also ECF No. 21, ¶ 5). Skanska and NIH eventually
entered into a settlement agreement which created a list of
Known Facility Issues or a “warranty list”
detailing various items the parties agreed would be repaired
or remediated by Skanska and its subcontractors.
(See ECF No. 25 ¶ 8; see also ECF No.
21, Ex. 8). The portion of the “warranty list”
pertaining to the masonry work on the Project was submitted
to Long, and Long performed all of the listed repairs in
2010. (See ECF No. 21 ¶ 10, Ex. 8; see
also ECF No. 25 ¶ 8). On August 3, 2011, Skanska
and Long entered into a Settlement Agreement and Release (the
“Release”), seeking to “resolve all issues
between them on the Project . . . with no admission of
liability by any party.” (ECF No. 1, Ex. B, p.
April 9, 2013, approximately 20 rows of brick façade
fell from an outer wall on the eighth story of the Project
onto a grassy area bordering the building (the
“Incident”). (See id. ¶ 13).
Skanska promptly contacted Long by letter on April 19, 2013,
notifying Long of the Incident and informing Long of its
obligation to indemnify and hold Skanska harmless for all
related claims and damages. (See id., Ex. C).
again hired to investigate the Incident and assess the cause
of the damage. (See id. ¶ 19). On April 24,
2013, Skanska informed Long of its opportunity to participate
in the WJE investigation should it so choose. (See
id., Ex. D). WJE issued a report on July 31, 2013,
outlining its conclusions regarding the causes of the
Incident and making certain recommendations for remediation
and repair work to the building's structure and
façade. (See id., Ex. E). The 2013 WJE report
lists a number of alleged deficiencies related to Long's
masonry work, including lack of horizontal soft joints,
improper spacing and location of lateral veneer anchors, and
inadequate bearing for the clay brick veneer on the
shelf-angles. (See id., Ex. E, p. 6; see
also ECF No. 21, p. 7). WJE also made a number of
recommendations for repairing the damage, which included the
removal and reinstallation of the brick façade above
and below each floor-line shelf-angle and potentially the
replacement of the brick veneer in its entirety.
(See ECF No. 1, ¶ 24, Ex. E, p. 8).
instituted temporary stabilization methods and provided a
copy of the WJE report to Long. (Id. ¶ 24-25).
In mid-April 2014, Skanska sent Long a letter demanding Long
take responsibility for the Incident and perform the
suggested repairs or, alternatively, provide Skanska with
evidence that Long was not at fault for the Incident.
(See id. ¶ 26, Ex. F). Long did not provide
Skanska with information that was responsive to the WJE
report. (See id. ¶ 27; see also ECF
No. 8 ¶ 25). On May 2, 2014, Skanska sent Long another
letter declaring Long in default under the Subcontract for
failure to take responsibility for the Incident and perform
repairs. (See ECF. No. 1 ¶ 27, Ex. G).
April of 2015, WJE provided a comprehensive remediation plan
to Skanska and NIH, and Skanska informed Long of its
intention to coordinate with NIH regarding the remediation
work on the façade. (See id. ¶ 28-29,
Ex. H). According to Skanska, the repair work will cost an
estimated $3.5 million. (See id. ¶ 30). Skanska
filed a complaint in this court on March 29, 2016, asserting
one count of breach of contract against Long. On September
22, 2016, defendant Long filed a motion for summary judgment
on issues of the statute of limitations and release/accord
and satisfaction pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (ECF No. 21).
56(a) of the Federal Rules of Civil Procedure provides the
“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). “By its very terms, this standard
provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A genuine issue of material fact exists where
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). When reviewing a motion for summary judgment, the
court must take all facts and inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007).
party opposing summary judgment must, however, “do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also In re Apex Express Corp., 190 F.3d 624, 633 (4th
Cir.1999). The non-movant “‘may not rest upon the
mere allegations or denials of [his] pleadings, ' but
rather must ‘set forth specific facts showing that
there is a genuine issue for trial.'” Bouchat
v. Baltimore Ravens Football Club, Inc., 346 F.3d 514,
522 (4th Cir. 2003) (alteration in original) (quoting
Fed.R.Civ.P. 56(e)); see also Adickes v. S. H. Kress
& Co., 398 U.S. 144, 160 (1970). A court should
enter summary ...