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Skanska USA Building, Inc. v. J.D. Long Masonry, Inc.

United States District Court, D. Maryland

September 9, 2019

SKANSKA USA BUILDING, INC., Plaintiff,
v.
J.D. LONG MASONRY, INC., Defendant.

          MEMORANDUM OPINION

          STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. FACTUAL BACKGROUND

         The 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 provisions:

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.

         Eventually, 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.

         In 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.

         To date, Skanska has made the following payments to Lindman under the Lindman Subcontract:

Check Number

Payment Date

Payment Amount

933965

January 11, 2017

$198, 004.56

942685

February 28, 2017

$47, 383.58

953285

April 11, 2017

$177, 220.00

994213

October 2, 2017

$252, 328.82

1007545

November 22, 2017

$162, 141.48

1012977

December 14, 2017

$304, 233.90

Total:

$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.[1]

         In 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).

         Further, 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.

         II. LEGAL STANDARD

         Under 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)).

         Additionally, 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 (1962)).

         III. ANALYSIS

         A. SKANSKA'S ...


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