Sentinel Insurance Co., Ltd. v. Durham Engineering, Inc.

          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, ...