United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT
SARAH
EVANS BARKER, JUDGE
This is
a declaratory judgment action wherein Plaintiff Sentinel
Insurance Company, Ltd. (“Sentinel”) seeks a
declaration that it owes no defense or indemnity to Defendant
Durham Engineering (“Durham”) in connection with
a lawsuit filed against Durham and other entities by
Defendant Paul Buck, individually and as the Administrator of
the Estate of Jill Buck and as parent and guardian of his two
minor children, B.B. and A.B. Plaintiff's Motion for
Summary Judgment [Dkt. 67] was filed on December 5, 2018, to
which Mr. Buck responded but Durham did not. For the reasons
detailed in this entry, we GRANT Plaintiff's
motion for summary judgment.
Factual
Background
The
Applicable Consulting Contracts
On
January 29, 2015, the Indiana Department of Transportation
(“INDOT”) entered into Consulting Contract EDS
#A249-15-P141003 (“the Prime Contract”) with
Parsons Transportation Group, Inc. (“Parsons”)
for construction inspection services in connection with an
Added Travel Lanes Project, Contract Number R-37115-A, on
Interstate 65 in Tippecanoe County, Indiana (“the
Project”). Parsons, in turn, entered into a
Subconsultant Professional Services Agreement (“the
Subconsultant Contract”) with Defendant Durham on April
1, 2015 for construction inspection services in connection
with the Project.
The
Prime Contract provides that Parsons “binds its
successors and assignees to all the terms and conditions of
this Contract.” Dkt. 68-2 at PARSONSTRANS000006.
Similarly, the Subconsultant Contract provides that it
incorporates the Prime Contract and that Durham:
will be bound by the Prime Contract terms and conditions
insofar as they relate in any way, directly or indirectly,
… to the Services covered by this Agreement. [Durham]
agrees to be bound to [Parsons] in the same manner and extent
that [Parsons] is bound to [INDOT] under the Prime Contract,
to the extent such obligations of [Parsons to INDOT] relate
to the Services outlined in Attachment A (Scope of Services).
In the event of conflict between a provision of the Prime
Contract and this Agreement, the term of the Prime Contract
will prevail.
Dkt. 68-3 at 8.
The
Prime Contract requires Parsons (and, by virtue of the
Subconsultant Contract, Durham) to “understand and
utilize all relevant INDOT standards including the Design
Manual, where applicable, and other appropriate materials and
shall perform all Services in accordance with the standards
of care, skill and diligence required in Appendix
‘A' or, if not set forth therein, ordinarily
exercised by competent professionals doing work of a similar
nature.” Dkt. 68-2 at PARSONSTRANS000019. Appendix A to
the Prime Contract sets forth the services to be performed by
Parsons, and, in turn, by Durham, per the Subconsultant
Contract. Appendix A provides that Parsons and its
subconsultants will provide project engineers/project
supervisors (“PE/S”) and any necessary support
staff. Id. at PARSONSTRANS000022.
The
“Description of Services” specified in Appendix A
to the Prime Contract requires Parsons and its subconsultants
to “[p]erform all appropriate inspection duties,
functions, and tasks that pertain to [Parsons'] PE/S and
staff as directed by INDOT's Area Engineer or PE/S and as
described in the ‘General Instructions to Field
Employees' (including revisions thereto) construction
memorandums as published by INDOT, and as otherwise directed
by the INDOT personnel.” Id. Appendix A
further provides that Parsons and its subcontractors shall,
inter alia, “[f]urnish all construction field
testing equipment necessary to sample and test materials in
accordance with INDOT procedures”; “[r]eceive and
act upon shop drawings and falsework drawings”;
“[c]onduct on-site inspections of the work in progress
as a basis for determining that the work is proceeding in
accordance with the contract documents.” Id.
at PARSONSTRANS000023.
Attachment
E to the Subconsultant Contract contains “Special
Provisions” binding Durham, including the following:
SP 6. Health and Safety-Subconsultant [Durham] and each of
Subconsultant's lower-tier subcontractors shall establish
and implement a safety health and environment program that
complies with all applicable provisions of federal, state,
and municipal health and safety, health and environment laws,
including, but not limited to, appropriate record keeping and
training requirements, for the purpose of preventing
incidents and injuries to persons or property on, about, or
adjacent to the Work Site. Subconsultant shall erect and
properly maintain as required by the conditions and progress
of the Services, necessary safeguards for the protection of
workers, the public and the environment.
Subconsultant shall abide by and enforce all posted
Consultant's and Client's fire, safety, health and
environment rules and regulations that are in force at the
work site. Subconsultant shall fully acquaint itself with
these rules and regulations before starting the Services.
Consultant may require Subconsultant to remove from the work
site any of Subconsultant's employees or lower-tier
subcontractors for committing a serious fire, safety, health,
and environment violation.
…
SP 6.1 Safety Representative-Subconsultant shall designate a
qualified and experience safety representative at the Work
Site whose duties and responsibilities shall be the
prevention of incidents and the implementing, maintaining and
supervising of safety, health and environment precautions and
safety, health and environment programs that may be impacted
by the Subconsultant's services and/or actions. The
Consultant reserves the right to approve or reject this
person based on performance or lack of qualifications.
Dkt. 68-3 at 18.
Other
separate documents, including INDOT Standard Specifications
for 2014 and the INDOT Contract Information Book
(“CIB”), were incorporated by reference in the
Prime Contract and applied to the construction activities
forming the basis of this litigation. Parsons and, in turn,
Durham were contractually obligated to enforce and monitor
the plans and procedures set forth in those incorporated
documents. As relevant here, paragraph 103.07 of the Standard
Specification provides as follows:
Accident Prevention and Safety In the
performance of the contract work, the Contractor shall comply
with all applicable federal, State, and local laws governing
safety, health, and sanitation. The Contractor shall provide
all safeguards, safety devices, and protective equipment. The
Contractor shall take all reasonably necessary actions to
protect the life and health of employees on the project site
and the safety of the public ….
Dkt. 70-5 at 24. The Standard Specifications also required
there to be “sufficient watchers” furnished and
on duty during all widening and patching operations who were
assigned to monitor and prevent traffic backups similar to
the one that existed at the time of the collision forming the
basis of this litigation. Duncan Dep. at 52-54.
The CIB
provides in relevant part that a “Traffic Control
Plan” for the Project was to be included in the
contract documents addressing “the maintenance and
protection of traffic within the construction zone, detour
route locations, local road closures, construction operation
phasing, access for construction equipment, and construction
signage.” Dkt. 70-6 at 8. This “Traffic Control
Plan” was among the plans and procedures Durham was
responsible for enforcing and monitoring on the Project.
The
Underlying Lawsuit
On
December 19, 2016, Paul Buck filed a lawsuit in Tippecanoe
Superior Court (“the Buck Lawsuit”)
following the tragic deaths of his wife, Jill Buck, and two
of his sons, B.B. and A.B., as a result of a multiple-vehicle
accident that occurred on July 23, 2015. In that lawsuit,
Durham is named as a defendant along with Parsons and several
other entities alleged to have entered into consulting
contracts, subconsulting contracts, or other contractual
agreements to perform supervisory, inspection, and/or
engineering services in connection with the Added Travel
Lanes construction project.
The
Buck Lawsuit alleges that on July 23, 2015, Jill
Buck was driving southbound on I-65 with her sons, B.B. and
A.B., as passengers when she brought her vehicle to a stop
behind traffic near mile marker 177.4 in West Lafayette,
Tippecanoe County, Indiana. A tractor-trailer approaching the
traffic backup was unable to stop in time and struck the
Bucks' vehicle from behind, pushing it into a third
party's vehicle. The tractor-trailer caught fire and the
fire spread to the Bucks' vehicle. The Buck
Lawsuit alleges that Jill Buck, B.B., and A.B. died as a
result of the impact with the tractor-trailer and the
subsequent fire.
Durham
is named in Count VI of the Buck Lawsuit, which is
asserted against a group of fourteen
“Consulting/Subconsulting Defendants, ” all of
whom are alleged to have entered into contracts to perform
services in connection with the I-65 project and owed a duty
of care to those traveling on public roads, including Jill
Buck, A.B., and B.B., “to exercise reasonable care in
the selection, supervision, inspection, retention, and
oversight of those persons or entities which [they] selected
to repair, maintain, construct and/or reconstruct streets,
highways and roadways in the State of Indiana.” Dkt.
68-5 (Third Amended Complaint in Buck Lawsuit)
¶ 109. The Buck Lawsuit further alleges that
those defendants, including Durham, “owed a duty to the
traveling public to conduct the planning, ...