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Travelers Casualty and Surety Co. v. Dormitory Authority

August 11, 2010

TRAVELERS CASUALTY AND SURETY COMPANY AS ADMINISTRATOR FOR RELIANCE INSURANCE COMPANY, PLAINTIFF,
v.
DORMITORY AUTHORITY - STATE OF NEW YORK, TDX CONSTRUCTION CORP., AND KOHN PEDERSEN FOX ASSOCIATES, P.C., DEFENDANTS.
DORMITORY AUTHORITY OF THE STATE OF NEW YORK AND TDX CONSTRUCTION CORP., THIRD-PARTY PLAINTIFFS,
v.
TRATAROS CONSTRUCTION, INC., THIRD-PARTY DEFENDANT.
TRATAROS CONSTRUCTION, INC. AND TRAVELERS CASUALTY AND SURETY COMPANY, FOURTH-PARTY PLAINTIFFS,
v.
CAROLINA CASUALTY INSURANCE COMPANY; BARTEC INDUSTRIES, INC.; DAYTON SUPERIOR SPECIALTY CHEMICAL CORP. A/K/A DAYTON SUPERIOR CORPORATION; SPECIALTY CONSTRUCTION BRANDS, INC. T/A TEC; KEMPER CASUALTY INSURANCE COMPANY D/B/A KEMPER INSURANCE COMPANY; GREAT AMERICAN INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.; UNITED STATES FIRE INSURANCE COMPANY; NORTH AMERICAN SPECIALTY INSURANCE COMPANY; ALLIED WORLD ASSURANCE COMPANY (U.S.) INC. F/K/A COMMERCIAL UNDERWRITERS INSURANCE COMPANY; ZURICH AMERICAN INSURANCE COMPANY D/B/A ZURICH INSURANCE COMPANY; OHIO CASUALTY INSURANCE COMPANY D/B/A OHIO CASUALTY GROUP; HARLEYSVILLE MUTUAL INSURANCE COMPANY (A/K/A HARLEYSVILLE INSURANCE COMPANY); JOHN DOES 1-20; AND XYZ CORPS. 1-19, FOURTH-PARTY DEFENDANTS.
KOHN PEDERSEN FOX ASSOCIATES, P.C., THIRD-PARTY PLAINTIFF,
v.
WEIDLINGER ASSOCIATES CONSULTING ENGINEERS, P.C.; CASTRO-BLANCO PISCIONERI AND ASSOCIATES, ARCHITECTS, P.C.; ARQUITECTONICA NEW YORK, P.C.; COSENTINI ASSOCIATES, INC.; CERMAK, PETERKA PETERSEN, INC.; JORDAN PANEL SYSTEMS CORP.; TRATAROS CONSTRUCTION, INC.; AND LBL SKYSYSTEMS (U.S.A.), INC., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge.

OPINION & ORDER

This complex litigation arises out of the construction of a 785,000 square-foot vertical campus for Baruch College ("Baruch"), part of the City University of New York ("CUNY"), between about 1998 and about 2002 (the "Project").*fn1 Plaintiff Travelers Casualty & Surety Company ("Travelers"), equitably subrogated to the rights of a prime contractor for the Project, third-party defendant Trataros Construction Inc. ("Trataros"), has brought suit against defendants Kohn Pedersen Fox Associates, P.C. ("KPF") and TDX Construction Corp. ("TDX"), respectively the architect and construction manager for the Project, for economic damages and attorney's fees resulting from KPF's and TDX's allegedly negligent work performance. KPF and TDX have separately moved for summary judgment to dismiss Travelers' claims against each of them. For the following reasons, both motions are granted.

BACKGROUND

The instant litigation has already been the subject of numerous Opinions by this Court.*fn2 Familiarity with all prior proceedings is assumed, and only the facts relevant to the pending motions are set forth herein. These facts, taken from the parties' evidentiary submissions on summary judgment, are undisputed or construed in the light most favorable to the nonmoving party, Travelers.

A. The Construction Project On or about September 14, 1995, defendant Dormitory

Authority - State of New York ("DASNY"),*fn3 acting on CUNY's behalf as "owner" of the Project, finalized a contract (the "KPF-DASNY Contract") whereby KPF was engaged "to Provide Programming, Architectural, Engineering and Construction Phase Services for the Construction of [the Project]" as enumerated in the contract's "scope-of-services" appendix. KPF thereby became the Project's chief designer and architect of record.

The scope-of-services appendix to the KPF-DASNY Contract includes a detailed catalogue of responsibilities to be undertaken by KPF during various phases of the Project. With respect to the "Construction Documents Phase" of the Project, the scope-of-services appendix provided, inter alia, that KPF would prepare "contract drawings and specifications" in a manner "fully coordinated for bidding by the various Contractors." With respect to the "Bidding and Award of Prime Construction Contracts Phase" of the Project, the scope-of-services appendix provided that KPF would "prepare and supply the necessary sets of Contract Documents . . . for bidding and eventual award of contracts between [DASNY] and the Contractors"; "keep account of and distribute drawings to prospective bidders"; and "investigate questions posed by bidders relative to bid documents or any other questions, and issue written replies to all bidders in the form of supplemental bulletins, addenda, or bid instructions." With respect to the "Construction Phase" of the Project, the scope-of-services appendix provided that KPF would, inter alia, "[r]review and approve or disapprove all shop drawings and samples submitted by the Contractor"; "[r]review, check, and approve or disapprove all substitutions . . . submitted by the Contractor"; and "[p]rovide interpretations of Contract Documents and design." The KPF-DASNY Contract also incorporates DASNY's "Design Consultants Guide," which provides that KPF must produce the "Working Drawings" and "Technical Specifications" that are "necessary to construct the project."*fn4

DASNY also entered into three phased contracts with TDX (collectively, the "TDX-DASNY Contracts") for the purpose of engaging TDX as construction manager. First, in October 1996, TDX contracted with DASNY to provide construction management services in connection with the Project's "Design and Pre Construction Phase." Second, in May 1997, TDX contracted with DASNY to provide construction management services pertaining to the Project's "Construction Phase." Finally, in January 1998, TDX contracted with DASNY to provide construction management services in connection with the Project's "General Conditions Work Phase."

As with the KPF-DASNY Contract, the TDX-DASNY Contracts included detailed scope-of-services appendices enumerating dozens of specific responsibilities and tasks to be undertaken by TDX. In the scope-of-services appendix to the "Construction Phase" contract, for example, TDX was directed, inter alia, to "[s]erve as [DASNY's] chief representative in the field"; "[r]eceive, investigate, and reply to all Prime Contractors' correspondence pertaining to the Construction Work"; "[c]onduct all job progress meetings and job coordination meetings"; "[i]nspect all work daily for quality and conformance to the Contract Documents"; "[a]dvise Prime Contractor(s) of necessary corrective work"; and "[r]review all shop drawings for coordination of field conditions among the Prime Contractors" and "[r]eturn shop drawings, as necessary, for corrections."

Finally, DASNY entered into thirteen prime contracts, spread among eleven separate contractors, for carrying out the substance of the Project's construction work.*fn5 Trataros was ultimately awarded two of these prime contracts, known as "Contract 15" and "Contract 16." KPF prepared the initial plans and specifications included within the bid packages for Contracts 15 and 16 (the "Bidding Documents"), and also prepared addenda to the Bidding Documents during the pre-bid phase. For both contracts, TDX maintained a list of "plan holders," who were potential bidders that had obtained copies of the Bidding Documents and addenda.

The Bidding Documents for Contract 15 were made available on February 2, 1998, with the issuance of a "Notice to Bidders." The scope of work under Contract 15 included, inter alia, construction of the exterior walls and windows (known as the "curtainwall"), elevators, and rough carpentry. On or about March 19, 1998, Trataros submitted a bid for Contract 15 in the amount of $50,222,000. DASNY and Trataros then entered into a written contract on or about April 27, 1998, by which Trataros agreed to perform the scope of work within Contract 15 for the fixed sum of $50,222,000. On or about April 27, 1998, Trataros obtained two surety bonds from Reliance Insurance Company ("Reliance")*fn6 -- a "performance bond" and a "labor and materials payment bond" -- each carrying a penal sum of $50,222,000.*fn7 Both bonds named Trataros as principal and DASNY as obligee.

Sometime in early- or mid-1998, the Bidding Documents for Contract 16 were also released to potential bidders. The scope of work under Contract 16 included, inter alia, the interior fit-out, miscellaneous metal work, roofing installation, and flooring installation and finishing. As with Contract 15, TDX maintained a list of "plan holders" and ensured that both the Bidding Documents and addenda prepared by KPF were sent to those holders.

On or about June 10, 1998, Trataros submitted a bid in the amount of $24,140,000 for Contract 16. DASNY and Trataros then entered into a written contract on or about September 1, 1998, under which Trataros agreed to perform the scope of work within Contract 16 for the fixed sum of $24,140,000. On or about the same date, Trataros obtained additional performance and payment bonds from Reliance, each in the amount of $24,140,000, and each naming Trataros as principal and DASNY as obligee.

The Project did not proceed on schedule. As a result of various delays, problems, and deficiencies -- the responsibility for which remains disputed among the parties -- DASNY issued dozens of Change Orders to extend the time for work and provide extra compensation to various contractors. Nevertheless, in many respects, the Project participants could not reach agreement regarding who should bear the financial responsibility for the extra costs incurred, and litigation ultimately ensued in both state and federal fora.

B. Procedural History

On August 1, 2007, Travelers commenced this action asserting claims of negligence against KPF and TDX as well as breach-of-contract and subcontractor pass-through claims against DASNY (the "Complaint").*fn8 Travelers alleges that both KPF and TDX "did not properly perform [their] contractual and/or professional responsibilities" during the Project and that "[t]he actions and/or failures to act [by both KPF and TDX] constituted negligence and/or professional negligence" which, in turn, "contributed to the impacts that plagued the Project." Travelers asserts that KPF and TDX each owed a "duty of care to Trataros and/or Trataros' subcontractors/suppliers" based either on those contractors' "status as third-party beneficiaries" of the KPF-DASNY Contract and the TDX-DASNY Contracts, or alternatively, "as a result of the functional equivalent of privity existing" among the parties. The Complaint seeks not only compensatory and consequential damages from KPF and TDX, but also attorney's fees incurred by Travelers in litigation with third parties.*fn9

On October 1, 2007, KPF moved to dismiss the Complaint. Following briefing by the parties, the motion was denied by Order of January 24, 2008 (the "January 2008 Order"). The January 2008 Order indicated that KPF's motion was denied for "substantially the reasons stated" set forth in Judge Baer's previous opinion in Travelers Cas. & Ins. Co. v. Dormitory Auth. of the State of N.Y., No. 04 Civ. 5101 (HB), 2005 WL 1177715 (S.D.N.Y. May 19, 2005) (the "2005 Opinion"), which had also denied a motion to dismiss filed by KPF.

The parties then proceeded to discovery. Travelers produced at least two expert reports relating, at least in part, to KPF's and TDX's performance during the Project.*fn10 First, R.V. Buric Construction Management Consultants, Inc. ("Buric") concluded, with respect to KPF, that "[t]he incomplete design by KPF led to significant and unanticipated RFIs [requests for information], bulletins, and change orders causing severe Project delays, disruptions, and prolongation," thereby "creat[ing] additional work[] or otherwise modify[ing] the scopes of work[] for the Project's prime contractors." Buric observed that KPF's design changes were "ongoing during construction and were exacerbated by the poor performance of KPF." Another expert, Cashin Spinelli & Ferretti ("CSF"), produced a report concluding, inter alia, that the Bidding Documents prepared by KPF were "not thoroughly checked for accuracy" and "not fully coordinated for bidding"; that "KPF's failure to provide clear, coordinated and unambiguous bid documents caused numerous RFI's, Change Orders and delays on the project"; that KPF "failed to provide timely interpretations of its Contract Documents and design," thereby causing delays; that KPF "allowed a non-professional Construction Manger [sic] to review change orders for their effect on design"; that "the abilities of Trataros [and others] to perform their contractual scopes of work were unreasonably and chronically hindered by the style and substance of KPF's professional services"; and that "[DASNY] has acknowledged that KPF's failure to satisfy its contractual obligations and professional standard of care has delayed the project."

Travelers' experts also opined that TDX was negligent in various ways. Buric concluded that "TDX failed to comply with industry standards and its contractual obligations related to the development of Project CPM [critical path method] schedules, coordination of the work, and its review of the design." Likewise, CSF concluded that TDX had "negligently performed" its work during the "preconstruction" phase in a number of ways, including by "recommend[ing] the fast track construction of a project not suited for such a project delivery methodology"; "fail[ing] to properly develop and coordinate bid packages"; and "fail[ing] to develop schedules that were properly planned and prepared based on flawed or missing logic [sic]." With respect to the Project's later phases, CSF concluded that TDX "failed to review and coordinate all shop drawings among the Prime Contractors"; "failed to expedite and coordinate the Work of all Prime Contractors"; "permitted non-conforming and defective work to be installed on the project"; "failed to expedite and coordinate the progress of the Architect"; "failed to be cognizant of potential delays"; "failed to determine the cause and responsibility for any delays and to take remedial action"; "refused to evaluate requests for extensions of time, claims and/or cost adjustments"; "failed to provide contractors on site with an accurate schedule based on logical, sequential relationships"; and "failed to prepare periodic Exception Reports." CSF also concluded that TDX was "grossly negligent" insofar as it "substituted its judgment for that of the Architect on site in matters as they relate to building design."

On February 19, 2010, KPF and TDX each moved for summary judgment.*fn11 Travelers filed opposition papers for each motion on March 19, and the motions became fully submitted on April 2.

DISCUSSION

Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In making this determination, the court must "construe all evidence in the light most favorable to the nonmoving ...


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