United States District Court, S.D. Indiana, New Albany Division
GENERALI - U.S. BRANCH Subscribing to Policy No. CAR700005, as subrogee of Walsh Construction Company/Vinci Gran Projects JV d/b/a Walsh Vinci Joint Venture, d/b/a THE GENERAL INSURANCE COMPANY OF TRIESTE & VENICE - U.S. BRANCH, Plaintiff,
LACHEL & ASSOCIATES, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO
WALTON PRATT, JUDGE
matter is before the Court on Defendant's Motion to
Dismiss or in the Alternative, for Summary Judgment, filed
pursuant to Federal Rule of Civil Procedure 12(b)(6) or in
the alternative, Fed.R.Civ.P. 56, by Defendant Lachel &
Associates, Inc. (“Lachel”) (Filing No.
5). Plaintiff, Generali - U.S. Branch doing business as
The General Insurance Company of Trieste & Venice - U.S.
Branch (“Generali”), initiated this lawsuit,
seeking damages as the subrogee of Walsh Construction
Company/Vinci Gran Projects JV doing business as Walsh Vinci
Joint Venture (“Walsh Vinci JV”). Lachel moved to
dismiss Generali's claims, arguing that the applicable
statute of limitations bars this action and a contractual
waiver of subrogation further bars the claims asserted in
this action. For the following reasons, the Court
grants Lachel's Motion to Dismiss.
following facts are not necessarily objectively true, but as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the complaint and
draws all inferences in favor of Generali as the non-moving
party. See Bielanski v. County of Kane, 550 F.3d
632, 633 (7th Cir. 2008).
is a New York corporation with its principal place of
business in New York. It sells and issues insurance policies.
Lachel specializes in design and construction management
services for tunneling and other heavy civil construction
projects in the areas of transportation, water and wastewater
infrastructure, and hydroelectric power. It provides
consulting and design engineering services (Filing No.
1-1 at 2-3).
East End Crossing is a public-private partnership between the
Indiana Finance Authority and WVB East End Partners, LLC for
a project to develop, design, construct, finance, operate,
and maintain a bridge facility and associated roadway and
facilities across the Ohio River in Southern Indiana and
Louisville, Kentucky (Filing No. 1-1 at 2;
Filing No. 5-5). The Indiana Finance Authority and
WVB East End Partners entered into a public-private agreement
for construction of the project on December 27, 2012
(Filing No. 1-1 at 3; Filing No. 5-5 at 3).
The project included a new bridge across the Ohio River that
would tie into existing interstate highway via two new
highway tunnels (Filing No. 12 at 3).
the public-private agreement was executed, WVB East End
Partners contracted with Walsh Vinci JV to perform the design
and construction work for the project. Id. at 3-4.
Walsh Vinci JV “specialized in financing, designing and
constructing major highway and bridges projects.”
(Filing No. 1-1 at 3.) Walsh Vinci JV is “a
separate entity from WVB East End Partners, LLC which was
tasked with the design of the project among other
issued an insurance policy to WVB East End Partners and Walsh
Vinci JV, with a policy number CAR700005, to provide
insurance protection for the project against builder's
risk, constructional plant and equipment risk, existing
property risk, and delay in startup risk (Filing No. 5-4
at 2, 6; Filing No. 1-1 at 3; Filing No. 12
10, 2013, Lachel and Walsh Vinci JV entered into a contract
for Lachel to perform consulting and design engineering
services for the project. Lachel performed work on the
project pursuant to this agreement. Lachel provided
professional design services related to the initial support
systems for the tunnel portions of the project. The agreement
called for Lachel to provide professional engineering
services that included design of the initial tunnel support,
blasting plans, vibration monitoring, and contingency
planning. The agreement required Lachel to perform its
professional engineering services in a manner consistent with
the professional skill and care ordinarily provided by
members of the engineering profession practicing in the same
locality (Filing No. 1-1 at 3, 8, 13-15; Filing
No. 12 at 5).
Friday, September 19, 2014, at 6:30 p.m., normal tunneling
activities were taking place when a noise was heard coming
from the south tunnel. The workers were evacuated from the
tunnel, and then rock from the roof of a portion of the south
tunnel collapsed (Filing No. 12 at 7; Filing No.
1-1 at 4). After this incident occurred, Generali
retained geotechnical engineers to determine the cause of the
incident, and Generali's engineers determined that the
primary reason for the roof collapse was inadequate design of
the initial support for the tunnel provided by Lachel
(Filing No. 1-1 at 4). “Pursuant to the terms
of its [insurance] policy, Generali paid [Walsh Vinci] JV for
its damages and became subrogated to all rights and causes of
action of the Insured.” Id.
August 10, 2017, Generali filed a Complaint in the Clark
County Circuit Court of Indiana as subrogee of Walsh Vinci
JV. Id. at 1. In its Complaint, Generali alleged
that Lachel breached the agreement between Walsh Vinci JV and
Lachel by failing to provide adequate initial support design
and contingency plans for the tunnel and that Lachel's
design failure was the proximate cause of Walsh Vinci
JV's loss. Generali made payments in excess of $13
million, and it alleged in the Complaint that it is now
subrogated to the extent of the payments made to Walsh Vinci
JV. Id. at 5. Generali asserted a second claim in
the Complaint, alleging that Lachel is required to indemnify
Walsh Vinci JV for “property damage that may arise from
the performance of the Services to the extent caused by the
negligent acts or omissions of [Lachel], ” and this
claim for indemnification was subrogated to Generali.
Id. at 5-6.
September 5, 2017, Lachel removed the lawsuit from state
court to this Court on the basis of diversity jurisdiction.
Then six days later, Lachel filed its Motion to Dismiss,
asserting that the applicable statute of limitations bars
Generali's claims and a contractual waiver of subrogation
also bars the claims.
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a complaint that has failed to “state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). When deciding a motion to dismiss under Rule
12(b)(6), the court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the
plaintiff. Bielanski, 550 F.3d at 633. However,
courts “are not obliged to accept as true legal
conclusions or unsupported conclusions of fact.”
Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir.
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic
Corp. v. Twombly, the Supreme Court explained that the
complaint must allege facts that are “enough to raise a
right to relief above the speculative level.” 550 U.S.
544, 555 (2007). Although “detailed factual
allegations” are not required, mere “labels,
” “conclusions, ” or “formulaic
recitation[s] of the elements of a cause of action” are
insufficient. Id.; see also Bissessur v. Ind.
Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009)
(“it is not enough to give a threadbare recitation of
the elements of a claim without factual support”). The
allegations must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555. Stated
differently, the complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009) (citation and quotation marks
omitted). To be facially plausible, the complaint must allow
“the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
filed the instant Motion seeking dismissal pursuant to Rule
12(b)(6) or alternatively, pursuant to Rule 56 for summary
judgment. As an initial matter, the Court determines that it
need not consider the Motion under Rule 56 because,
“[i]n deciding a Rule 12(b)(6) motion, the court may
consider documents attached to a complaint, such as contract
documents, without converting the motion into one for summary
judgment. See Fed.R.Civ.P. 10(c).” Bible v. United
Student Aid Funds, Inc., 799 F.3d 633, 639-40 (7th Cir.
2015). While review under Rule 12(b)(6) is limited to the
complaint, courts consider documents attached to and
incorporated in the complaint as part of the complaint and
will consider documents that are referred to in the
complaint, which are concededly authentic and central to the
plaintiff's claim. Santana v. Cook County Bd. of
Review, 679 F.3d 614, 619 (7th Cir. 2012); Reger
Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 764 (7th
Cir. 2010). “As a general rule, we may take judicial
notice of public records not attached to the complaint in
ruling on a motion to dismiss under Rule 12(b)(6).”
Olson v. Champaign Cty., 784 F.3d 1093, 1097 n.1
(7th Cir. 2015). The documents filed in connection with the
Motion to Dismiss are public records and contract documents,
which can be considered as part of the Complaint, so the
Court will decide Lachel's Motion under Rule 12(b)(6).
Motion to Dismiss, Lachel asserts two arguments for the
dismissal of this action. First, Lachel argues that the
applicable statute of limitations bars Generali's claims.
Second, it argues that a waiver of subrogation among the
contracting parties also bars the claims. The Court will
first address the statute of limitations argument and then
turn to the waiver of subrogation argument.
Statute of Limitations
Liability for professional services related actions are
defined in Indiana Code § 34-11-2-3, specifically, that
An action of any kind for damages, whether brought in
contract or tort, based upon professional services rendered
or which should have been rendered, may not be brought,
commenced, or maintained, in any of the courts of Indiana
against physicians, dentists, surgeons, hospitals,
sanitariums, or others, unless the action is filed within ...