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Lee v. GDH, LLC

Court of Appeals of Indiana

January 22, 2015

DANIEL LEE and HUI LUO LEE, Appellants-Plaintiffs,
v.
GDH, LLC, Appellee-Defendant

Page 762

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Timothy W. Oakes, Judge. Cause No. 49D13-1107-CT-28569.

ATTORNEYS FOR APPELLANTS: DAVID W. STONE IV, Stone Law Office and & Legal Research, Anderson, Indiana; JOHN P. NICHOLS, Anderson & Nichols, Terre Haute, Indiana.

ATTORNEYS FOR APPELLEE: JOSEPH M. LEONE, SEAN T. DEVENNEY, Drewry Simmons Vornehm, Carmel, Indiana.

SHARPNACK, Senior Judge. ROBB, J., and BARNES, J., concur.

OPINION

Page 763

SHARPNACK, Senior Judge

STATEMENT OF THE CASE

Daniel Lee, a plumber, was injured on the job at a construction site. He and his wife, Hui Luo Lee, sued several companies involved in the construction project, including GDH, LLC. The Lees appeal the trial court's grant of summary judgment in favor of GDH. We affirm.

ISSUE

The Lees raise one issue, which we restate as: whether the trial court erred in granting summary judgment to GDH.

FACTS AND PROCEDURAL HISTORY

In 2005, Ivy Tech Community College of Indiana contracted with GDH for GDH's services as a construction manager for a building project at Ivy Tech's campus in Logansport, Indiana. GDH agreed to manage the project " consistent with the best interests of [Ivy Tech]." Appellants' App. p. 62, Appellee's App. p. 21.

With respect to safety, Ivy Tech and GDH's contract states that before construction began, GDH would " provide recommendations and information to [Ivy Tech] regarding the allocation of responsibilities for safety programs among the contractors." Appellants' App. p. 63, Appellee's App. p. 22.

GDH further agreed in its contract with Ivy Tech that it:

shall review the safety programs developed by each of the Contractors for purposes of coordinating the safety programs with those of the other Contractors. [GDH's] responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, agents or employees of the Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by [GDH]. Should [GDH] become aware of a contractor performing its work in an unsafe or hazardous manner, [GDH] shall take immediate steps to prevent such unsafe or hazardous work.

Appellants' App. p. 66, Appellee's App. p. 25. The contract further provides:

With respect to each Contractor's own Work, [GDH] shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the

Page 764

Contractors, since these are solely the Contractor's responsibility under the Contract for Construction. [GDH] shall not be responsible for a Contractor's failure to carry out the Work in accordance with the respective Contract Documents unless [GDH] knows of any nonconforming work and does not stop or reject such work in accordance with the Contract Documents. [GDH] shall not have control over or charge of acts or omissions of the Contractors, Subcontractors, or their agents or employees, or any other persons performing portions of the Work not directly employed by [GDH]. Should a contractor fail to perform its work in a timely fashion as to nonconforming work known to [GDH], [GDH] shall immediately take all reasonable steps to mitigate any delays and damages to the Owner and other contractors.

Appellants' App. p. 66, Appellee's App. p. 25. During the construction phase, GDH's contract with Ivy Tech required GDH to " schedule and conduct regularly scheduled meetings at least once every two weeks to discuss matters such as procedures, progress, and scheduling." Appellants' App. p. 64, Appellee's App. p. 23. Ivy Tech and GDH's contract also states, " Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either [Ivy Tech] or [GDH]." Appellants' App. p. 73, Appellee's App. p. 32.

Ivy Tech separately contracted with other companies to perform specific portions of the construction project. One of these companies was Project Design & Piping, Inc. (PDP), Daniel's employer. PDP did not enter into a contract with GDH.

Ivy Tech's contract with PDP incorporated a " Project Manual." Appellants' App. p. 93, Appellee's App. p. 52. The Project Manual describes the scope of work for the entire Logansport project. It includes technical specifications, bidding requirements, regulations on the use of apprentices in construction projects, and general conditions of construction. The general conditions of construction state, in relevant part, " The Contract Documents shall not be construed to create a contractual relationship of any kind . . . between [GDH] and [PDP]." Appellee's App. p. 221.[1] The general conditions further provide:

[PDP] shall supervise and direct the Work, using [PDP's] best skill and attention. [PDP] shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract, subject to overall coordination of [GDH].

Appellee's App. p. 227. Furthermore, " [PDP] shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of [GDH] or Architect in their administration of the Contract, or by tests, inspections, or ...


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