English v. RKK. . . The Rest of the Story

Back in February, I discussed a case relating to indemnity and ambiguity.  The opinion in that case, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al., allowed a breach of contract and indemnity claim to move forward despite the fact that conflicting term sheets between the plaintiff and defendant could have been read to violate Virginia law by requiring indemnity for English’s own negligence.  In other words, the ambiguity worked in English’s favor (though that is not something to count on).  The Court did not however address whether there was any negligence on English’s part and if there was, what was the contractual effect.

I’ll bet you were wondering what happened later in that case.  Well, here’s the answer.  In a subsequent opinion, the Court looked at the same ambiguous and conflicting term sheets between and among those defendants that were required to provide quality assurance services for the construction of a bridge in western Virginia. For the full procedural and factual analysis, be sure to read the full memorandum opinion linked above.

As you may recall, the Court had previously interpreted the term sheets to exclude English’s sole negligence from the indemnity language.  While the Court did not evaluate the term sheets between English and its other QA engineer, CDM Smith, the Court provided an opinion on the motions for summary judgment by both RKK and CDM Smith.  In doing so, the Court specifically found that English had been negligent in its actions prior to the Virginia Department of Transportation’s final inspection and finding that English’s construction was non-conforming.

Based upon the conduct of English relating to the concrete pour on the bridge and other actions, and the fact that negligence was incorporated into the contracts between English and RKK, the Court found as follows:

In light of this conduct, the term’s of English’s contract do not allow it to now seek contractual damages or indemnity from RK&K. English is not entitled to contractual damages from RK&K because its own “acts or omissions” caused its injury.  These same acts or omissions demonstrate that RK&K did not “directly” cause those injuries. (Id.). RK&K had no authority to change the construction. Only English could order new supplies and command its own employees. In light of this undisputed evidence, and English’s failure to get the change approved or heed its inspectors’ warnings, English is also not entitled to indemnity.

The Court similarly looked at CDM Smith’s contract with English and found that CDM Smith fulfilled its contractual obligations and that English’s negligence was the cause of the damages.  Therefore, the Court granted the defendants’ motions for summary judgment asking for dismissal of English’s claims.  Finally, the Court held that English was in breach of contract for it’s failure to pay for the work of the defendants and granted summary judgment on the defendants’ breach of contract claims.

In short, English won the prior battle, but lost the war.

This opinion provides a great primer on contract interpretation and the law of indemnification.  The opinion also makes it clear that this is a complicated area of law that requires an experienced construction attorney to assist you in navigating it.

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