United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
Skanska USA Building, Inc. (“Skanska”) filed a
one-count Complaint against Defendant J.D. Long Masonry, Inc.
(“Long”), seeking money damages in connection
with a breach of a subcontract between the parties. ECF 1. On
July 24, 2019, this Court granted Skanska's Motion for
Summary Judgment on the Issue of Liability, and denied
Long's Cross-Motion for Summary Judgment. ECF 77. Skanska
filed a second Motion for Summary Judgment on Compensatory
Damages, Pre-Judgment Interest, and Attorneys' Fees (the
“Motion”) on August 16, 2019. ECF 81. Long timely
filed its Response. ECF 82. The issues have been fully
briefed, and no hearing is necessary. See Loc. R.
105.6 (D. Md. 2018). For the reasons that follow,
Skanska's Motion is granted in part, and denied in part.
relevant facts are not in dispute. In 2004, the National
Institutes of Health (“NIH”) hired Skanska as the
general contractor on a project to build a research facility
in Baltimore, Maryland. ECF 77 at 1. Skanska and Long
thereafter entered into a subcontract in October, 2004
(“the Long Subcontract”), under which Long agreed
to construct a masonry façade for the research
facility in exchange for monetary payment. Id. The
Long Subcontract contained the following indemnification
ARTICLE XXIII INDEMNITY AND INSURANCE
23.1 To the fullest extent permitted by law, the
Subcontractor hereby assumes entire responsibility and
liability for any and all damage or injury of any kind or
nature whatever (including death resulting therefrom) to all
persons, whether employees of the Subcontractor or otherwise,
and to all property, caused by, resulting from, arising out
of or occurring in connection with the execution of the Work;
and if any claims for such damage or injury (including death
resulting therefrom) be made or asserted, . . . the
Subcontractor agrees to indemnify, defend, and save harmless
Skanska . . . from and against any and all such claims, and
further from and against any and all loss, cost expense,
liability, damage or injury, including legal fees and
disbursements, that Skanska, the Architect or Owner, their
officers, agents, servants or employees may directly or
indirectly sustain, suffer or incur as a result thereof.
* * * * * * * * * * * * * * * * * * * * * *
ARTICLE XXX INDEMNIFICATION
30.1 To the fullest extent permitted by law, the
Subcontractor shall indemnify, defend and hold Skanska, the
Owner, the Owner's subsidiaries and associates, the
Architect/Engineer and their respective agents and employees
(the “Indemnitees”) harmless from all claims,
loss, costs and expenses (including attorney's fees and
disbursements) whether arising before or after completion of
the Subcontractor's Work, caused by, arising out of,
resulting from, or occurring in connection with, the
performance of the Work by the Subcontractor, its
sub-subcontractors, their agents and employees, their
presence on the premises or the breach of this Agreement
whether or not caused in part by the active or passive
negligence or other fault of the Indemnitees excepting only
such claims, costs, expenses or liabilities caused by the
sole negligence of the Indemnitees.
Id. at 2; see also ECF 71-2 at 21, 24.
in April, 2013, part of the masonry façade Long
constructed collapsed. ECF 77 at 4-5. The collapse occurred
due to Long's failure to construct the façade
according to the requirements of the Long Subcontract and
relevant industry standards. Id. at 5, 14-15. Since
the façade's collapse, Long has not taken any
action to remediate the damage caused as a result of its
breach of the Long Subcontract. Id. at 4-5.
2017, Skanska and C.A. Lindman, Inc. (“Lindman”)
entered into a contract (“the Lindman
Subcontract”) for Lindman to remediate the damage
Long's breach had caused. ECF 71-21 at 1. Lindman
completed its work in June, 2018. ECF 81-6 at 1. The Lindman
Subcontract's initial value was fixed at $797, 354, but
the contract allowed the parties to execute Change Orders
should there be changes in the scope of work that Lindman
needed to perform. ECF 71-21 at 1, 22. Pursuant to four
Change Orders that Skanska and Lindman executed between
August, 2017 and October, 2017, the Lindman Subcontract now
obligates Skanska to pay Lindman $1, 595, 917.54 for the
façade repairs. ECF 81-2 to -5.
date, Skanska has made the following payments to Lindman
under the Lindman Subcontract:
January 11, 2017
February 28, 2017
April 11, 2017
October 2, 2017
November 22, 2017
December 14, 2017
$1, 141, 312.34
ECF 81-8 at 1, 3-5, 7, 9. According to Joseph Kifus,
Skanska's senior project manager, Skanska is withholding
the balance owed to Lindman pending the result of
Lindman's additional claims against Skanska. ECF 81-50,
¶¶ 2, 8-9.
addition to the amount to be paid to Lindman, Skanska has
incurred $331, 617.00 in “general conditions” and
“general requirements” costs in administering the
Lindman Subcontract. ECF 81-9, ¶¶ 34-39 (Mr. Simiso
Kabo Expert Report); see also ECF 81-7
(Skanska's accounting ledger). These costs include those
related to investigating the façade collapse, those
incurred in supervising Lindman's remediation efforts
(e.g., employee salaries), and other miscellaneous costs.
See ECF 81-9, ¶¶ 34-35; ECF 81-50,
¶¶ 11-16 (Kifus Affidavit).
in the course of litigating this matter, Skanska incurred
over $400, 000.00 in legal fees. ECF 81-52, ¶¶
28-29 (Affidavit of Bennett D. Greenberg of Seyfarth Shaw LLP
(“Seyfarth”), counsel for Skanska); see
ECF 81-49 (itemized legal bills). Given this Court's
rules regarding attorneys' fee awards, see Loc.
R. app. B, Skanska only seeks an award of $346, 237.64. ECF
81-1 at 1, 24-25; see ECF 81-52, ¶¶ 28-30.
Skanska also seeks to recuperate its expert fees incurred in
litigation, ECF 81-1 at 9-11, a pre-judgment interest award
on the total compensatory damages award calculated from
January 12, 2017, id. at 7-9, and a post-judgment
interest award, id. at 25.
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate only “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). Skanska, as the moving party, bears the
burden of showing that there is no genuine dispute of
material facts. See Casey v. Geek Squad, 823
F.Supp.2d 334, 348 (D. Md. 2011) (citing Pulliam Inv. Co.
v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987)).
If Skanska establishes that there is no evidence to support
Long's case, the burden then shifts to Long to proffer
specific facts to show a genuine issue exists for trial.
Id. Long must provide enough admissible evidence to
“carry the burden of proof in [its] claim at
trial.” Id. at 349 (quoting Mitchell v.
Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)).
The mere existence of a scintilla of evidence in support of
Long's position will be insufficient; there must be
evidence on which the factfinder could reasonably find for
Long. Id. at 348 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). Moreover, a
genuine issue of material fact cannot rest on “mere
speculation, or building one inference upon another.”
Id. at 349 (quoting Miskin v. Baxter Healthcare
Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999)).
summary judgment shall be warranted if the non-moving party
fails to provide evidence that establishes an essential
element of the case. Id. at 352. Long “must
produce competent evidence on each element of his or her
claim.” Id. at 348-49 (quoting
Miskin, 107 F.Supp.2d at 671). If Long fails to do
so, “there can be no genuine issue as to any material
fact, ” because the failure to prove an essential
element of the case “necessarily renders all other
facts immaterial.” Id. at 352 (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Coleman v. United States, 369 Fed.Appx. 459,
461 (4th Cir. 2010 (unpublished)). In ruling on a motion for
summary judgment, a court must view all of the facts,
including reasonable inferences to be drawn from them,
“in the light most favorable to the party opposing the
motion.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655