Estate of DaMon R. Fisher et al v. City of Annapolis et al

Filing 158

MEMORANDUM OPINION. Signed by Judge Catherine C. Blake on 3/27/2024. (bw5s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ESTATE OF DAMON R. FISHER, et al.,
Plaintiffs,
Civil Action No. CCB-21-1074

v.
CITY OF ANNAPOLIS and HOUSING
AUTHORITY OF THE CITY OF
ANNAPOLIS,
Defendants and Third-Party Plaintiff,
v.
CAPITAL CONSTRUCTION LLC
Defendant and Third-Party Defendant.

MEMORANDUM
This suit arises from the death of DaMon R. Fisher in his public housing apartment owned
and managed by the Housing Authority of the City of Annapolis (“HACA”). Both Mr. Fisher’s
Estate and personal representatives (collectively “the Estate”), the original plaintiffs in this case,
and HACA, originally a defendant and later a third-party plaintiff, amended their complaints to
add claims against Capital Construction LLC (“Capital”) for negligence in the case of the Estate,
and indemnification, contribution, and breach of contract in the case of HACA. Now pending
before the court are Capital’s motions to dismiss the amended complaints or in the alternative for
summary judgment. Mot. to Dismiss Estate Compl., ECF 141-2 (“Estate Mot.”); Mot. to Dismiss
HACA Compl., ECF 146-2 (“HACA Mot.”). The Estate and HACA opposed the motions, and
Capital replied. Additionally, another defendant, the City of Annapolis (“the City”), and Capital
filed a joint motion to strike an affidavit submitted by the Estate in support of its opposition to
Capital’s motion to dismiss, Mot. to Strike, ECF 153, which the Estate opposed. The City and

Capital did not reply. The motions are now fully briefed and ripe for resolution. No oral argument
is necessary. See Local Rule 105.6. For the following reasons, the court will grant in part and deny
in part Capital’s motions to dismiss or in the alternative for summary judgment, and grant in part
and deny in part the City and Capital’s motion to strike.
BACKGROUND
The underlying facts of this case have been described in several prior decisions, and only
a limited review of the general allegations is necessary here. See Estate of Fisher v. City of
Annapolis, No. 21-cv-1074-CCB, 2022 WL 959310 (D. Md. Mar. 30, 2022).
According to the Estate, Mr. Fisher lived at HACA properties from 2012 until his death in
2020. Id. at *3. An asthmatic, Mr. Fisher began experiencing serious respiratory distress shortly
after moving into the Morris H. Blum Senior Apartments. Id.; Estate Am. Compl. ¶ 16, ECF 121.
He was hospitalized seven times during the first three years he lived at HACA properties, and
doctors determined that he was suffering from a severe mold allergy. Fisher, 2022 WL 959310, at
*3. On his doctors’ orders, Mr. Fisher moved to another HACA property and his breathing troubles
subsided for a time. Id. But a few years later he began complaining to HACA that he was once
more struggling to breathe because of mold in his apartment. Id. Between 2018 and 2020, Mr.
Fisher visited the emergency room fourteen times, and doctors again confirmed that his symptoms
were mold-related. Id. HACA did not assist Mr. Fisher.
In May 2020, Mr. Fisher sought help from the City. Estate Am. Compl. ¶ 22. On May 19,
2020, a City employee remotely inspected Mr. Fisher’s apartment and confirmed the presence of
“water damage,” “mold,” and “mildew” in the “tub/shower area” of his bathroom. Id. ¶ 23. On
May 28, HACA put Mr. Fisher up in a hotel and scheduled repairs for June 4 to 10. Id. ¶ 24. The
remediation work was assigned to Capital. Id. ¶ 26; HACA Am. Compl. ¶ 44, ECF 125.

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Capitol did maintenance, renovation, and repair work at HACA properties pursuant to an
“Independent Vacant Unit Turn Over Contract” (the “Contract”), which it won in a public bidding
process. HACA Am. Compl. ¶¶ 36-38. Capitol signed the Contract in February 2019, and renewed
it in April 2020. Id. ¶¶ 37, 39. The Contract incorporated work specifications from the Invitation
for Bids, and Capitol “proposed to furnish all labor, materials, equipment, and services required to
complete all work, as shown” in the Invitation. Id. ¶ 40. Capitol also agreed to indemnify HACA
from “all suits, actions and damages or costs, of every name and description to which the HACA
maybe subject to put by reasons of injury to persons . . . or property as a result of the work, whether
caused by negligence, carelessness or willingness [sic] on the part of [Capitol].” Id. ¶ 41.
HACA alleges that it “directed Capital Construction to remediate the mold and replace the
bathroom in [Mr. Fisher’s apartment].” Id. ¶ 44. Capital “demolished and hauled away the existing
tile and shower panels, installed new drywall as well as new ceramic, painted the ceiling, walls,
and trim.” Id.; Estate Am. Compl. ¶ 26. However, according to the Estate and HACA, “the mold
which should have been removed from the bathroom if properly remediated according to industry
standard procedures, was not removed.” Estate Am. Compl. ¶ 26; HACA Am. Compl. ¶ 44.
Upon returning to his apartment, Mr. Fisher did not believe that the work had resolved the
mold issue, so he began to pack or give away his belongings to move elsewhere. Estate Am.
Compl. ¶ 28. After advising the City of continued mold-related health issues on June 19 and 22,
Mr. Fisher was found dead in his apartment on June 25. Id. ¶¶ 29-31. His death certificate listed
the immediate cause as “Exacerbation of Chronic Obstructive Pulmonary Disease with Asthma,”
and the “Conditions . . . leading to immediate cause” included “Mold in Residence.” Id. ¶ 31.
Following Mr. Fisher’s death, the Estate arranged for mold testing at his apartment. Id.
¶ 33. The testing, conducted on July 31, found “High” levels of the toxic molds

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“Stachybotrys/Memnoniella, Cladosporium, and Aspergillus/Penicillium” and a “Medium” level
of the toxic mold “Chaetomium.” Id. On August 25 and October 26, HACA conducted additional
mold testing, the results of which “confirmed the July 31, 2020 mold testing conducted by the
Estate and supported the findings of those results.” Id. ¶ 34.
The Estate and HACA allege that Capital was “aware that mold was present in [Mr.
Fisher’s apartment]” and “had a duty to ensure that its renovation and repair task included the
remediation and or removal of any mold or conditions contributing to mold in a manner consistent
with the standards of industry,” but failed to do so. HACA Am. Compl. ¶ 47. HACA also alleges
less specifically that Capital breached a contractual and general duty to perform its work
professionally so as to alleviate unreasonably dangerous conditions, id. ¶¶ 45-46, and more
specifically that Capital breached a duty to test surfaces for mold or follow mold removal protocols
pursuant to industry standards and procedures, id. ¶ 48; see also id. ¶ 49.
Capital’s motions are styled as motions to dismiss or in the alternative for summary
judgment, and Capital submits exhibits and asserts arguments challenging the truth of the
allegations made by the Estate and HACA. The Estate and HACA respond with exhibits and
factual arguments of their own. The following additional facts are supported by the evidence
submitted by the parties and will only be considered for summary judgment.
Capital points out that the Contract does not specifically mention “mold.” Estate Mot. Ex.
1, ECF 141-3. The Contract provides that, “[i]n accordance with [the Invitation for Bids] and
[Capital’s Bid], [Capital] shall perform all required work and shall furnish all professional and
skilled labor, services, supervision, tools, equipment, and insurances and all else required to
provide vacant unit turn over for units at HACA properties.” Id. ¶ 2.1. In its Bid, Capital affirmed
familiarity “with the local conditions affecting the Work” and HACA’s specifications regarding

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the work. Id. at 8. HACA’s Invitation for Bids describes the “Unit Turnaround” work in general
terms as “cleaning and performing routine repairs.” Estate Mot. Ex. 2 at 3, ECF 141-4.
Specifically, the proposed work includes, among other things, cleaning “includ[ing] but not limited
to”: “[a]ll bathroom accessories . . . and toilet, sink, tub, shower walls, and ceramic tile with
disinfectant and all-purpose cleaner,” id. at 9, and general repairs including “[r]emove and replace
all discolored or deteriorated caulking around tubs and sinks,” “[r]eplace Sheetrock as needed,”
and “[r]epair or replace subfloors as needed,” id. at 10-11. When they renewed the Contract, the
parties amended the “Scope of Work” “to state that the vacant units must be turnkey ready when
handed over to HACA for inspection, this means the units must be ready for immediate
occupation.” Estate Opp’n Ex. 5 at 12, ECF 149-6. The Bid winner was required to submit proof
of general liability, auto liability, and workers’ compensation insurance coverage at $1,000,000
each. Estate Mot. Ex. 2 at 12. The Contract and Invitation for Bids also include several
indemnification clauses matching those alleged by HACA. Id. at 14; Estate Mot. Ex 1 ¶ 9; see
HACA Am. Compl. ¶ 41.
According to an affidavit from Majid Chaaban, Capital’s Managing Member and majority
owner, HACA did not inform Capital of the mold in Mr. Fisher’s unit and instead only assigned
Capital to “perform standard services.” Estate Mot. Ex. 3 ¶¶ 13, 16, ECF 141-5. According to Mr.
Chaaban, mold remediation was not part of the work included in the Contract, and HACA has
never tasked Capital with mold remediation. Id. ¶ 16. Indeed, Mr. Chaaban asserts that Capital
does not have any employees who are “certified or trained to conduct testing or remediation of
mold,” nor does it carry the specialized insurance necessary for mold remediation. Id. ¶ 6-9.
Kevin Thornton, HACA’s former Maintenance Director from June 2019 to April 2022,
avers that “[d]uring [his] employment with HACA, Capital . . . was never tasked with mold

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remediation. HACA had a separate vendor for mold remediation, ServPro.” Estate Mot. Ex. 4 ¶ 3,
ECF 141-6. According to Mr. Thornton, when mold remediation was necessary, ServPro would
set up equipment to dry the air in the apartment, perform demolition work necessary to remove
mold, and test for mold (which would be verified by a third-party test). Id. ¶ 5. Only after the mold
tests came back negative were apartments turned over to Capital for repairs. Id. ¶ 6. Mr. Thornton
personally responded to Mr. Fisher’s May 2020 complaint and determined that mold was present
in the apartment. Id. ¶ 8. After Mr. Fisher was moved to a hotel, another HACA employee, Dale
Parker, conducted a mold test which came back positive and then contacted ServPro to remediate
the issue. Id. ¶ 9. ServPro demolished the wall and removed the mold, and Mr. Parker told Mr.
Thornton that subsequent mold tests had come back negative. Id. Capital thereafter repaired Mr.
Fisher’s bathroom. Id. ¶ 10. Mr. Thornton asserts that he “never requested Capital . . . to perform
mold remediation because [he] knew they were not certified to do so.” Id. ¶ 16.
The Estate and HACA offer an affidavit from Mr. Parker contradicting Mr. Thornton’s
account. Estate Opp’n Ex. 2, ECF 149-3. Mr. Parker states that HACA did not hire ServPro to
perform work at Mr. Fisher’s apartment. Id. ¶ 12. According to Mr. Parker, Mr. Thornton
investigated Mr. Fisher’s apartment and decided not to test for mold or bring in ServPro. Id. Mr.
Parker claims to “have no record of ServPro having been called for Mr. Fisher’s apartment at any
time in 2020.” Id. ¶ 14. Mr. Parker directly disputes the veracity of Mr. Thornton’s affidavit. Id.
¶ 16. Furthermore, the Estate and HACA submit emails from ServPro stating that it did not perform
services at Mr. Fisher’s apartment in 2020, Estate Opp’n Ex. 1, ECF 149-2, and a copy of Capital’s
invoice for the work it performed at Mr. Fisher’s apartment, which includes charges for tile and
drywall demolition and installation, Estate Opp’n Ex. 4, ECF 149-5.

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LEGAL STANDARDS
To survive a motion to dismiss, a complaint must contain factual allegations that “raise a
right to relief above the speculative level on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence
sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts
to establish those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint that the right to
relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from
conceivable to plausible.’” Id. (quoting Twombly, 550 U.S. at 570). Additionally, although courts
“must view the facts alleged in the light most favorable to the plaintiff,” they “will not accept ‘legal
conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments’”
in deciding whether a case should survive a motion to dismiss. U.S. ex rel. Nathan v. Takeda
Pharm. North Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v.
Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).
When a motion to dismiss is in the alternative one for summary judgment, “a court may in
its discretion consider matters outside of the pleadings pursuant to Rule 12(d).” Head v. Rakowski,
__ F. Supp. 3d __, 2023 WL 6388301, at *3 (D. Md. Sept. 29, 2023). Consideration of such
evidence requires the court to proceed under Rule 56 and “all parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Pevia v. Hogan, 443 F. Supp.
3d 612, 626 (D. Md. 2020) (quoting Fed. R. Civ. P. 12(d)). “[W]hen the movant expressly captions
its motion ‘in the alternative’ as one for summary judgment, and submits matters outside the
pleadings for the court’s consideration, the parties are deemed to be on notice that conversion

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under Rule 12(d) may occur,” id., and the nonmovant generally must either oppose the motion
with competent evidence or aver that discovery is necessary for its opposition under Rule 56(d),
Head, 2023 WL 6388301, at *3 (citing Pevia, 443 F. Supp. 3d at 627); Fed. R. Civ. P. 56(d). An
exception to this rule permits consideration of “documents explicitly incorporated into the
complaint by reference,” so long as the document before the court is undisputedly authentic,
without converting a motion to dismiss into one for summary judgment. Tate v. Am. Gen. Life Ins.
Co., 627 F. Supp. 3d 480, 488-89 (D. Md. 2022) (citing Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 166 (4th Cir. 2016) and Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508
(4th Cir. 2015)). Under this exception, a contract can be considered on a motion to dismiss claims
that turn on the meaning of the contract’s terms. Id. at 489; NAC Consulting, LLC v. 3Advance,
LLC, 650 F. Supp. 3d 441, 446 (E.D. Va. 2023).
If the court proceeds under Federal Rule of Civil Procedure 56(a), summary judgment will
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if
‘a reasonable jury could return a verdict for the nonmoving party.’” Libertarian Party of Va. v.
Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d
323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit under the
governing law.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Accordingly, “the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at
247-48.
The court must view the evidence in the light most favorable to the nonmoving party, Tolan
v. Cotton, 572 U.S. 650, 656-67 (2014), and draw all reasonable inferences in that party’s favor,

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Scott v. Harris, 550 U.S. 372, 378 (2007). Generally, “when there is a close question and
‘reasonable minds could differ’ when weighing the facts against the law, then summary judgment
is inappropriate.” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 208 (4th Cir. 2014) (quoting
Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989)).
ANALYSIS
Because the legal and factual arguments focus on different issues, the court begins by
analyzing the claims under the motion to dismiss standard before considering the evidence to
support any surviving claims under the summary judgment standard.
I.

Motions to Dismiss
The Estate brings one claim for negligence against Capital. Estate Am. Compl. at 54-57

(Count X). HACA brings claims for indemnification, contribution, and breach of contract. HACA
Am. Compl. at 16-19 (Counts III, IV, & V). The court considers the motion to dismiss each
amended complaint in turn.
A. Estate
A common law negligence claim in Maryland requires the plaintiff to “prove the existence
of: (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty, and (c) injury
proximately resulting from that breach.” Barclay v. Briscoe, 427 Md. 270, 292-93 (2012) (citing
Pendleton v. State, 398 Md. 447, 458 (2007)). 1 Capital argues that the allegations do not establish
the first (duty) and third (proximate cause) of these elements.

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The requirement of “actual injury or loss” is sometimes stated as a separate element from
“proximate cause,” see Doe v. Pharmacia & Upjohn Co., 388 Md. 407, 414 (2005), but the framing
of the test makes no difference here because there is no dispute that Mr. Fisher’s death is an
actionable injury.
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1. Duty
“Duty is ‘an obligation, to which the law will give recognition and effect, to conform to a
particular standard of conduct toward another.’” Doe v. Pharmacia & Upjohn Co., Inc., 388 Md.
407, 415 (2005) (quoting Dehn v. Edgecombe, 384 Md. 606, 619 (2005)). “There is no set formula
for the determination of whether a duty exists,” and “[a]t its core, the determination . . . represents
a policy question of whether the plaintiff is entitled to protection from the defendant.” Id. (citing
Coates v. S. Md. Elec., 354 Md. 499, 509 (1999) and Rosenblatt v. Exxon, 335 Md. 58, 77 (1994)).
A court should consider the “foreseeability of harm” and “the relationship of the parties” in
answering this question. Id. (quoting Coates, 354 Md. at 509 and Dehn, 384 Md. at 619). In cases
involving personal injury or death, “the principal determinant of duty [is] foreseeability.” Jacques
v. First Nat’l Bank of Md., 307 Md. 527, 535 (1986).
Capital argues that the Estate fails to allege that it owed a relevant duty to Mr. Fisher
because its Contract was with HACA alone and its contractual duties did not include mold
remediation. Estate Mot. at 4-8.
Capital’s argument fails. As the Estate points out, the Maryland Court of Appeals has
squarely held that a builder’s duty “to use due care in the design, inspection, and construction of
[a building] extend[s] to those persons foreseeably subjected to the risk of personal injury created,
as here, by a latent and unreasonably dangerous condition resulting from their negligence.”
Council of Co-Owners Atlantis Condo., Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 32
(1986). Privity of contract is not required. Id. Indeed, the duty Capital owed to Mr. Fisher was
independent of its Contract with HACA: “by entering into a contract with A, the defendant may
place himself in such a relation toward B that the law will impose upon him an obligation, sounding
in tort and not in contract, to act in such a way that B will not be injured.” Id. at 27 (quoting Prosser

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and Keeton on the Law of Torts § 93, at 667-68 (5th ed. 1984)). “[T]he contractor is liable to all
those who may foreseeably be injured by the structure, not only when he fails to disclose
dangerous conditions known to him, but also when the work is negligently done. This applies not
only to contractors doing original work, but also to those who make repairs, or install parts . . .”
Id. at 27-28 (quoting Prosser and Keeton on the Law of Torts § 104A, at 723 (5th ed. 1984))
(emphasis omitted). Moreover, a contractor’s duty to disclose known dangerous conditions is not
strictly limited to the precise duties delineated in a contractual arrangement and can extend to
conditions that a reasonable contractor in the defendant’s position would recognize. Landaverde
v. Navarro, 238 Md. App. 224, 255-56, 259-61 (2018); see Cash & Carry Am., Inc. v. Roof Sols.,
Inc., 223 Md. App. 451, 469-71 (2015).
The Estate alleges that Mr. Fisher died because of Capital’s negligence regarding the mold
in his apartment. Estate Am. Compl. ¶ 146. The Estate straightforwardly alleges that “HACA
directed Capital . . . to remediate the mold,” which it did negligently, id. ¶¶ 26, 144-45, 2 and more
generally that Capital was aware of mold in Mr. Fisher’s apartment when it undertook its work,
and “had a duty to conduct the renovation of Mr. Fisher’s apartment in such a manner that would
. . . not create an unreasonably dangerous condition through the renovation of the bathroom” but
failed to do so. Id. ¶¶ 142-44(a). The Estate asserts that a contractor in Capital’s position would
have identified mold and taken steps to “ensure that [it] was remediated in a manner consistent
with the standards of the industry.” Id. ¶¶ 143, 144(a).

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That Capital disputes the truth of this allegation is not relevant at the motion to dismiss stage
when the truth of the allegations must be assumed. Fessler v. Int’l Bus. Machs. Corp., 959 F.3d
146, 151-52 (4th Cir. 2020). Capital’s factual argument will be addressed in the court’s ruling on
summary judgment. See infra Section II.
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Taking these allegations as true, Twombly, 550 U.S. at 555, the Estate has set forth two
plausible theories of duty. First, if it was tasked with remediating the mold, Capital had a duty to
perform that work properly; whether such an assignment was consistent with the HACA Contract
is irrelevant to the Estate’s claim, because the duty Capital owed to Mr. Fisher sounds in tort.
Whiting-Turner, 308 Md. at 27-28. Second, if Capital was merely aware of mold in Mr. Fisher’s
apartment, it had a duty to alert Mr. Fisher or HACA to the continued presence of mold rather than
performing work that it knew would be insufficient to remediate the danger. See Landaverde, 238
Md. App. at 259-60. That the Estate primarily alleges that Capital was tasked with the remediation
does not eclipse its allegations supporting this second, more general theory of liability, and both
are adequately alleged in any event. Finally, Capital’s duty under these theories of negligence is
owed to Mr. Fisher because his mold-related injuries were a foreseeable risk of negligent mold
remediation or failure to address a mold problem in his apartment.
Of course, the Estate will bear the burden of proving that Capital was either tasked with
remediating the mold or was aware of the mold and did nothing about it. But it has sufficiently
alleged that one of those scenarios occurred, and, if true, could establish a duty owed by Capital
to Mr. Fisher.
2. Proximate Cause
To recover against a defendant, the plaintiff must show that its negligence was “a proximate
cause of the harm alleged.” Pittway Corp. v. Collins, 409 Md. 218, 243 (2009) (quoting Stone v.
Chi. Title Ins., 330 Md. 329, 337 (1993)). “To be a proximate cause for an injury, ‘the negligence
must be 1) a cause in fact, and 2) a legally cognizable cause.’” Id. (quoting Hartford Ins. Co. v.
Manor Inn, 335 Md. 135, 156-57 (1994)); cf. Wadsworth v. Sharma, 479 Md. 606, 621 (2022)
(applying traditional causation elements to statutory wrongful death suits). It is important to keep

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in mind that “proximate cause is ordinarily a jury question.” Kiriakos v. Phillips, 448 Md. 440,
470 (2016) (citing Lashley v. Dawson, 162 Md. 549, 562 (1932)).
Here, where the Estate alleges that both HACA and Capital were negligent, the court
applies the “substantial factor” test to determine whether Capital’s alleged negligence was a cause
in fact of Mr. Fisher’s injury, asking whether “it is ‘more likely than not’ that the defendant’s
conduct was a substantial factor in producing the plaintiff’s injuries.” Pittway, 409 Md. at 244
(citing Reed v. Campagnolo, 332 Md. 226, 240 (1993)). In deciding whether a defendant’s
negligence was a substantial factor in producing the plaintiff’s injury, the court should consider
“(a) the number of other factors which contribute in producing the harm and the extent of the effect
which they have in producing it; (b) whether the actor’s conduct has created a force or series of
forces which are in continuous and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces for which the actor is not responsible; [and]
(c) lapse of time.” Collins v. Li, 176 Md. App. 502, 550 (2007) (quoting Restatement (Second) of
Torts § 433 (1965)). If the defendant’s negligence was a substantial factor in the plaintiff’s harm,
liability can still be severed if there is a “rule of law relieving the actor from liability because of
the manner in which his negligence has resulted in the harm.” Pittway, 409 Md. at 245 (quoting
Restatement (Second) of Torts § 431(b) (1965)).
To determine whether negligence is a “legally cognizable cause,” the court asks whether
“the actual harm to a litigant falls within a general field of danger that the actor should have
anticipated or expected.” Id. at 245 (citing Stone, 330 Md. 337). This is essentially a foreseeability
test with policy considerations. Id. at 245-46. As explained, see supra p.12, Mr. Fisher’s death was
a foreseeable result of inadequate work under the circumstances.

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Capital’s argument that it was not a proximate cause of Mr. Fisher’s injuries focuses on
two primary contentions: (1) that its alleged negligence was a minimal factor in Mr. Fisher’s death
given his years-long history of health issues stemming from mold in his apartment, all of which
preceded Capital’s renovation work; and (2) that Mr. Fisher was contributorily negligent when he
moved back into his apartment after the renovations. 3
a. Minimal Factor
Capital’s first point appears to be that too many “other factors . . . contribute[d] in
producing the harm” and had too great an “effect . . . in producing it” for Capital to be liable.
Collins, 176 Md. App. at 550 (quoting Restatement (Second) of Torts § 433 (1965)). But a single
injury can, of course, have multiple proximate causes, all of which can support liability for that
injury. Yellow Cab Co. v. Hicks, 224 Md. 563, 567-68 (1961); see Parler & Wobber v. Miles &
Stockbridge, 359 Md. 671, 686-87 (2000); Carter v. Wallace & Gale Asbestos Settlement Trust,
439 Md. 333, 354-55 (2014) (explaining that liability for multiple tortfeasors is joint and several
in the case of indivisible injury such as death). Capital’s argument essentially asks the court to
conclude as a matter of law that negligence cannot be a proximate cause of an injury if it is part of
and occurs close to the end of a long period of negligence which cumulatively produced the harm.
It identifies no Maryland case reaching a similar conclusion to support its argument. In contrast,
in cases where the plaintiff’s injury was caused by cumulative exposure to a harmful substance
due to multiple parties’ negligence, the question of causation has been considered “fact specific”
and left for the jury. See Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 205-13 (1992) (holding

3

The Estate did not concede the question of proximate cause when it failed to respond to Capital’s
arguments. Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3 (4th Cir. 2014) (“[T]he
district court . . . has an obligation to review [unopposed] motions to ensure that dismissal is
proper.”). Moreover, the Estate’s arguments about the existence of Capital’s duty prove that it did
not intend to abandon its negligence claim.
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that a jury could find that a cement company’s asbestos cement was a proximate cause of
decedents’ mesothelioma despite their frequent exposure to many sources of asbestos).
It is true that the Estate alleges that Mr. Fisher had mold-related health problems for many
years before Capital did any work at his apartment. See Estate Am. Compl. ¶¶ 17-21. But the Estate
also alleges that Mr. Fisher’s symptoms were alleviated when he was away from mold, id. ¶¶ 27,
29, and that it was medically advisable for him to leave the apartment after Capital had completed
its work, id. ¶ 29. Capital’s allegedly negligent work was directly responsible for Mr. Fisher’s
mold exposure for at least some of the final two weeks before his death. Taking these allegations
as true, whether Capital’s alleged negligence was an insignificant drop in the bucket of years of
HACA’s negligence or the decisive straw that broke the camel’s back cannot be decided by the
court on the current record. Kiriakos, 448 Md. at 470. The Estate’s allegations show that Capital’s
alleged negligence may have caused additional mold exposure resulting in or contributing to Mr.
Fisher’s death, and that is sufficient for proximate cause at this stage.
b. Contributory Negligence
In Maryland, a plaintiff’s contributory negligence serves a complete bar to recovery.
Wooldridge v. Price, 184 Md. App. 451, 461-62 (2009); see Coleman v. Soccer Ass’n of Columbia,
432 Md. 679, 690-91, 695 (2013) (declining to abrogate common law contributory negligence
defense). Capital contends that Mr. Fisher’s decision to return to his apartment following the
allegedly defective remediation was “doing . . . something that a person of ordinary prudence
would not do, or the failure to do something that a person of ordinary prudence would do, under
the circumstances.” Estate Mot. at 14 (quoting Menish v. Polinger Co., 277 Md. 553, 558-59
(1976)). Specifically, Capital contends that an ordinarily prudent tenant either would not have
returned to the apartment at all or would have “asked for proof that the mold was removed.” Id.

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Capital’s argument fails for two reasons. First, “a person may rely on assurances of safety
made to him by others in a situation where an ordinarily prudent person would do so.” Erdman v.
Johnson Bros. Radio & Television Co., 260 Md. 190, 204 (1970). Completion of the work in Mr.
Fisher’s apartment came with the assurance that it was done correctly, and that the motivating
mold issue was resolved. See Miller v. Howard, 206 Md. 148, 155 (1955). Although it is true that
a plaintiff’s reliance on assurances can be unreasonable when the circumstances belie the truth
thereof, Erdman, 260 Md. at 204-05, and the allegations suggest that HACA was not entirely
trustworthy, it was not unreasonable for Mr. Fisher to rely on the promise of adequate work for at
least a short time, Lawrence v. Cavanaugh, 249 Md. 176, 180-181 (1968). This is especially true
given that the issue likely appeared to have been resolved because of the fresh drywall, ceramic,
and paint. See Estate Am. Compl. ¶ 26. Second, the allegations make clear that Mr. Fisher
otherwise acted reasonably. Within days of returning to his apartment he realized that the mold
had not been remediated and began packing or giving away his belongings in preparation to move
out. Id. ¶¶ 27-28. With no other ready options, he was willing to move to a shelter to escape the
mold. Id. Sadly, Mr. Fisher passed away before he could find new accommodations. Id. ¶ 31. These
circumstances reflect the efforts that any reasonably prudent person would take. Mr. Fisher was
not required to immediately abandon his home, with nowhere else to go, on the assumption that
the people who were obligated to help him would fail to do so. On the Estate’s allegations, Mr.
Fisher was not contributorily negligent. 4
The Estate has stated a negligence claim against Capital, and Capital’s motion to dismiss
will be denied.

4

This analysis also applies to deny Capital’s argument that Mr. Fisher assumed the risk of faulty
mold remediation. Lawrence, 249 Md. at 181 (applying reasoning from contributory negligence
cases to assumption of risk defense).
16

B. HACA
Because the relationship between HACA and Capital is contractual, the court begins by
outlining Maryland’s law of contract interpretation. In Maryland, “the interpretation of a contract,
including the question of whether the language of a contract is ambiguous, is a question of law.”
Myers v. Kayhoe, 391 Md. 188, 198 (2006). Maryland applies the “objective theory of contract
interpretation,” meaning that the court “must determine from the language of the agreement itself
what a reasonable person in the position of the parties would have meant at the time it was
effectuated . . ., when the language is plain and unambiguous there is no room for construction,
and a court must presume that the parties meant what they expressed.” Id. (quoting Dennis v. Fire
& Police Emps. Ret. Sys., 390 Md. 639, 656-57 (2006)). In determining whether a contract is
ambiguous, the court is limited to consideration of the contract’s actual language; extrinsic
evidence is irrelevant until an ambiguity is found. Calomiris v. Woods, 353 Md. 425, 437-39
(1999). Where a document is incorporated by reference into a contract, “that other document is to
be interpreted as part of the writing.” Wheaton Triangle Lanes, Inc. v. Rinaldi, 236 Md. 525, 531
(1964). To resolve Capital’s motion to dismiss, the court will consider the parties’ Contract, which
they agree is authentic. Tate, 627 F. Supp. 3d at 488-89; Opp’n to HACA Mot. at 12, ECF 151
(“HACA Opp’n”).
HACA brings claims for contractual indemnification, contribution, and breach of contract.
The court will consider each in turn.
1. Indemnification
An express contractual indemnification provision is generally valid and will be enforced
as written under Maryland law. Pulte Home Corp. v. Parex, Inc., 403 Md. 367, 381-82 (2008); see
Matter of Bridge Watersports, LLC, 656 F. Supp. 3d 553, 566 (D. Md. 2023). As HACA and

17

Capital have identified, the Contract contains multiple indemnity clauses. See Estate Mot. Ex. 1 ¶
9; Estate Mot. Ex. 2 at 14; id. at 30. Each provision is slightly different and appears in a different
context. First, the main Contract contains an “Indemnification” paragraph providing that:
The Contractor shall indemnify and hold harmless HACA, its affiliates, and its
respective officers, directors, agents and employees, from any and all claims,
demands, losses, causes of action, damage, lawsuits, judgments, including
attorneys’ fees and costs, arising out of, or relating to, the Contractor’s services
under this agreement, including any claims related to Contractor’s Personnel.
Estate Mot. Ex. 1 ¶ 9. Second, the General Conditions section of the Invitation for Bids (which is
incorporated into the Contract, see Estate Mot. Ex. 1 ¶ 12), contains an “Indemnification”
paragraph providing that:
In the acceptance of award, the Contractor defends, indemnifies, and saves the
HACA from all suits, actions and damages or costs, of every name and description
to which the HACA may be subject to put by reasons of injury to persons (bodily
injury, including death) or property as result of the work, whether caused by
negligence, carelessness or willingness [sic] on the part of the Contractor, his/her
employees or agents, or other causes.
Estate Mot. Ex. 2 at 14. And third, the “Protection of Existing Vegetation, Structures, Equipment,
Utilities, and Improvements” section of a HUD-standardized attachment to the Invitation for Bids
contains a paragraph providing that:
The Contractor shall indemnify and save harmless [HACA] from any damages on
account of settlement or the loss of lateral support of adjoining property, any
damages from changes in topography affecting drainage, and from all loss or
expense and all damages for which [HACA] may become liable in consequence of
such injury or damage to adjoining and adjacent structures and their premises.
id. at 30.
Of the three indemnification provisions included in the Contract, two are relevant. The
“Protection of Existing . . . Structures” indemnification paragraph is inapplicable because it
focuses only on “damage to adjoining and adjacent structures and their premises,” none of which
is at issue here. Id. at 30. The other indemnification provisions are substantially similar; both
18

provide that Capital shall indemnify HACA from any suits, claims, damages, and costs imposed
for an injury to person or property arising out of or resulting from Capital’s work for any reason,
including Capital’s negligence, carelessness, or willfulness. Estate Mot. Ex. 1 ¶ 9; Estate Mot. Ex.
2 at 14.
Capital offers two arguments why the indemnification provisions should not apply here.
First, it contends that mold remediation was not part of the “work” that it contracted to perform,
and thus any harm caused by the presence of mold cannot qualify for indemnification. Second, it
argues that the indemnification provisions are void under common law and statute as against public
policy.
Capital’s first argument construes the indemnification provisions too narrowly. Neither
paragraph specifically limits Capital’s duty to indemnify to the tasks enumerated in the Invitation
for Bids. See Estate Mot. Ex. 2 at 9-11. Instead, the Contract indemnification provision covers all
harm “arising out of, or relating to, the Contractor’s services,” Estate Mot. Ex. 1 ¶ 9, and the
Invitation for Bids provision covers harm caused “as result of the [negligent] work,” Estate Mot.
Ex. 2 at 14. The Maryland Court of Appeals exhaustively explored the meaning of the phrase
“arising out of” in an indemnification provision in Mass Transit Administration v. CSX
Transportation, Inc. 349 Md. 299, 310-19 (1998). Reasoning that indemnification was intended to
serve as liability insurance, the Court of Appeals reviewed liability insurance cases interpreting
the phrase. Id. at 310-11. Those cases generally interpreted “‘arising out of’ . . . to mean originating
from, growing out of, flowing from, or the like.” Id. at 311 (quoting N. Assurance Co. of Am. v.
EDP Floors, Inc., 311 Md. 217, 230-31 (1987)). In such cases, it does not matter “whether the
injury may also be said to have arisen out of other causes further back in the sequence of events,”
Id. at 311-12 (quoting N. Assurance Co., 311 Md. at 230-31), because “while the words import

19

and require a showing of causal relationship, recovery is not limited by the strict rules developed
in relation to direct and proximate cause,” id. at 313-14 (quoting Nat’l Indemnity Co. v. Ewing,
235 Md. 145, 149 (1964)). The Court of Appeals went on to cite several cases that involved
expansive understandings of the phrase “arising out of.” Id. at 318-19 (collecting cases) and
concluded that the injury at hand “arose out of” the contracted work even though that work only
fortuitously related to injury and other negligence preceded it. Id. at 312, 319.
Here, as explained, there are two plausibly alleged theories of Capital’s negligence: (1) that
Capital was tasked with remediating the mold and failed to adequately perform; or (2) that Capital
was aware of the mold, knew it had not been properly remediated, and took no reasonable action
to ensure that it was remediated before performing final repair work. In either case, Capital
encountered the mold during its normal “work” operations and acted negligently, and any
subsequent injuries therefore “arose out of” the contracted work. Whether the original existence
of the mold was caused by HACA’s negligence does not affect this conclusion. Mass. Transit
Admin., 349 Md. at 311-12 (quoting N. Assurance Co., 311 Md. at 230-31). Thus, the
indemnification provision applies to the alleged negligence.
Next, Capital argues that the “common law presumption that an indemnifying party need
not protect the indemnified party for the indemnified party’s own negligence” voids the
indemnification clause’s application in this case because the mold was present in Mr. Fisher’s
apartment due to HACA’s negligence. HACA Mot. at 14 (quoting Bd. of Trs., Cmty. Coll. of Balt.
Cnty. v. Patient First Corp., 444 Md. 452, 465 (2015)). This presumption will not overcome an
unambiguous indemnification provision because it “is simply an aid to [contract construction].”
Patient First, 444 Md. at 467. But where a Contract is ambiguous, “a court will not interpret an
indemnification clause ‘to indemnify a person against his own negligence unless an intention so

20

to do is expressed in those very words or in other unequivocal terms.’” Id. at 465 (quoting Crockett
v. Crothers, 264 Md. 222, 227 (1972)).
Here, the terms of the indemnification provisions apply only to Capital’s negligence and
do not feature any unequivocal requirement that Capital indemnify HACA for HACA’s negligent
acts, whether they be the sole or concurrent cause of an injury. 5 Cf. Canton R. Co. v. Am. Smelting
& Refining Co., 504 F.2d 1377, 1378 (4th Cir. 1974) (per curiam) (upholding contract provision
that explicitly split liability equally in cases of joint or concurrent negligence); Bethlehem Steel
Corp. v. G.C. Zarnas & Co., Inc., 304 Md. 183, 193-95 (1985) (upholding concurrent negligence
indemnification provision). To the extent that this silence creates an ambiguity, the common law
presumption applies to resolve that ambiguity against HACA. Patient First, 444 Md. at 465. The
Estate’s allegations against HACA make out a clear case of active negligence by failing to take
action to remediate the mold in Mr. Fisher’s apartment for many years. See Estate Am. Compl.
¶¶ 17-24, 27-30. Because it can only be held liable for its own negligence, whether sole or
concurrent, and because the indemnification provision is silent as to such liability, HACA’s
indemnification claim fails.
Under Maryland law, a party can only be indemnified against its own negligence when it
contracts for that protection using clear and unequivocal terms. The Contract features no such
agreement, and HACA’s indemnification claim will therefore be dismissed. 6

5

The Mass Transit holding that prior negligence does not prohibit a conclusion that an injury
“arose out of” the indemnitor’s negligence does not affect this analysis because the provision in
Mass Transit unambiguously indemnified the indemnitee for its own negligence. 349 Md. at 310.
6
The court does not reach Capital’s statutory policy argument but observes that the statutory
provision cited prohibits indemnification only for the indemnitee’s sole negligence, Md. Code.
Ann., Cts. & Jud. Proc. § 5-401, and has been consistently interpreted to be inapplicable in cases
of concurrent negligence, Helm v. W. Md. Ry. Co., 838 F.2d 729, 734 (4th Cir. 1988).
21

2. Contribution
Capital argues that HACA’s contribution claim should be dismissed because it owes no
tort-based duty to Mr. Fisher, and therefore cannot be a joint tortfeasor with HACA as is necessary
for a contribution claim. HACA Mot. at 16-18; see Md. Code Ann., Cts. & Jud. Proc. § 3-1402;
Chevron U.S.A. Inc. v. Apex Oil Co., 113 F. Supp. 3d 807, 824 (D. Md. 2015) (quoting Balt. Transit
Co. v. State, to Use of Schriefer, 183 Md. 674, 679-80 (1944)). As the court explained, the Estate
has stated a claim for negligence against Capital, including adequately pleading the Capital owed
Mr. Fisher a tort-based duty. See supra Section I.A.1. The complaints have alleged that Capital
and HACA were joint tortfeasors in negligently causing Mr. Fisher’s death. Accordingly, HACA
has stated a claim for contribution, and Capital’s motion to dismiss that claim will be denied.
3. Breach of Contract
To assert a breach of contract claim, “a plaintiff need only allege the existence of a
contractual obligation owed by the defendant to the plaintiff, and a material breach of that
obligation by the defendant.” RRC Ne., LLC v. BAA Md., Inc., 413 Md. 638, 658 (2010) (citing
Taylor v. NationsBank, N.A., 365 Md. 166, 175 (2001)). HACA asserts two breach of contract
theories: (1) that Capital failed to provide the insurance required by the Contract, HACA Am.
Compl. ¶ 74; see id. ¶¶ 41-43, 49(j)-(l) 7; and (2) that Capital did not adequately perform its
contractual construction and repair duties, id. ¶ 73; see id. ¶¶ 44-45, 49(a)-(k).
On HACA’s insurance theory, the Contract requires that HACA provide $1,000,000 per
occurrence of general liability, automobile liability, and workers’ compensation insurance,
respectively. Estate Mot. Ex. 1 ¶ 13; see Estate Mot. Ex. 2 at 12. According to HACA’s allegations,

7

Paragraph 49 of HACA’s Amended Complaint contains two sub-paragraphs labeled “j.” Citations
regarding insurance refer to the second sub-paragraph “j.”
22

Capital did not provide that insurance. HACA Am. Compl. ¶¶ 49(j), 74. HACA has plausibly
alleged a contractual obligation and a breach thereof, and has therefore stated a claim. Capital’s
motion to dismiss the breach of contract count will be denied with regard to HACA’s insurance
theory.
Capital argues that HACA’s construction performance theory is unsupported because it
had no contractual duty to perform mold remediation services. HACA Mot. at 6-8. HACA
acknowledges that mold is not mentioned in the Contract, but contends that the Contract’s
requirement that “units must be turnkey ready when handed over to HACA for inspection”
required Capital to complete all tasks necessary to make a unit safe for occupation, or at least to
“advise[] HACA that it had discovered conditions for which it was not qualified to make repairs
or clean.” HACA Opp’n at 7-8, 12-14.
The court agrees with HACA. When they renewed the Contract, the parties expanded
Capital’s “Scope of Work” to include a requirement “that the vacant units must be turnkey ready
when handed over to HACA for inspection, this means the units must be ready for immediate
occupation.” Estate Opp’n Ex. 5 at 12. Although many of HACA’s allegations contend that Capital
did not remediate the mold itself, see HACA Am. Compl. ¶¶ 44, 47, 48, 49(d), 49(f)-(j), which
does not appear to be a task it was explicitly required to perform, see generally HACA Mot. Ex.
2, HACA also clearly alleges that Capital failed to “provide the renovation of HACA’s property
as leased to Fisher’s apartment in such a manner that would provide for the safety of HACA’s
residential rental property,” HACA Am. Compl. ¶¶ 45-46, and did not identify the continued
presence of mold or warn HACA that mold persisted, id. ¶¶ 49(a)-(b), 49(k). As the court explained
in analyzing the Estate’s negligence claim, the plaintiffs have alleged that Capital was tasked with
repairing Mr. Fisher’s apartment and knew about the mold, but did nothing to ensure that the mold

23

was properly remediated before sealing up Mr. Fisher’s wall and handing the keys back to HACA.
If it knew that Mr. Fisher’s apartment remained unsafe after its work, Capital was contractually
obligated to so inform HACA. Estate Opp’n Ex. 5 at 12. HACA has alleged that this was the case,
and has therefore stated a claim for breach of contract; Capital’s motion to dismiss HACA’s breach
of contract claim will be denied. 8
II.

Summary Judgment
Remaining for resolution under the principles applicable to summary judgment are the

Estate’s negligence claim and HACA’s contribution and breach of contract claims.
As to the plaintiffs’ claims centering on Capital’s allegedly negligent renovations,
negligence, contribution, and breach of contract for faulty performance, summary judgment is
inappropriate at this stage because the limited record reflects that practically all of the material
facts are genuinely disputed. Libertarian Party of Va., 718 F.3d at 313. Capital’s affidavits from
Mr. Chaaban and Mr. Thornton assert that Mr. Parker hired ServPro to perform the mold
remediation at Mr. Fisher’s apartment, that Capital never performed any mold remediation
anywhere, and that Capital was not aware that mold was present in Mr. Fisher’s apartment. Estate
Mot. Ex. 3; Estate Mot. Ex. 4.

8

Although not mentioned by either party, the Contract includes a conspicuously titled “Liability”
paragraph providing that:
[E]xcept with respect to the parties’ indemnification obligations, neither party shall
be liable to the other for any special, indirect, incidental, punitive, or consequential
damages arising from or relating to this agreement, including bodily injury, death,
loss of revenue, or profits or other benefits, and claims by any third party. . . . The
foregoing limitation applies to all causes of action in the aggregate, including
withoout [sic] limitation to breach of contract, breach of warranty, negligence, strict
liability, and other torts.
Estate Mot. Ex. 1 ¶ 11. Because the parties did not acknowledge this provision, the court does not
consider its impact on any of HACA’s claims.
24

The Estate’s affidavit from Mr. Parker directly contradicts those of Mr. Chabaan and Mr.
Thornton and features sworn statements from the very person whom Capital claims hired ServPro
averring that Mr. Thornton made the decision not to hire ServPro to do work in Mr. Fisher’s
apartment. Estate Opp’n Ex. 2. 9 Further evidence conflicts with Capital’s assertion that ServPro
handled the mold in Mr. Fisher’s apartment: ServPro apparently has no record of doing the work,
and Capital’s invoice includes charges for demolition that Capital’s affiant attributes to ServPro.
Estate Opp’n Ex. 1; Estate Opp’n Ex. 4.
The court “cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C.
Admin. Off. of the Cts., 780 F.3d 562, 569 (4th Cir. 2015) (citing Mercantile Peninsula Bank v.
French, 499 F.3d 345, 352 (4th Cir. 2007)). Therefore, because the evidence in the record does
not support any undisputed account of the events surrounding the work done in Mr. Fisher’s
apartment in June 2020, and it appears that the plaintiffs’ theories of liability could be supportable,
at this stage summary judgment will be denied without prejudice.

9

Capital and the City moved to strike Mr. Parker’s affidavit as untimely because the Estate
submitted an unsigned copy with its opposition at the deadline and did not submit a signed copy
until four days later. Mot. to Strike. The signed affidavit is identical to the timely filed unsigned
copy, compare Estate Opp’n Ex. 2 and Suppl. to Opp’n, ECF 150, and the Estate explained that a
signed copy was forthcoming when it filed its opposition, Opp’n at 5 n.2. Capital identifies no
prejudice caused by the four-day delay in obtaining Mr. Parker’s signature, and the court,
cognizant of the fact that full discovery has not yet been conducted, will not close its eyes to the
existence of contradictory evidence merely because it was verified a few days late. See Bell v.
Kolongo, No. 03-cv-501-GBL, 2004 WL 3247156, at *3 (E.D. Va. Oct. 25, 2004).
Capital and the City also contend that certain statements in Mr. Parker’s affidavit should be
stricken because they are not admissible. “Rule 56 affidavits must contain factual matters and other
information ‘such as would be admissible in evidence.’” Choice Hotels Int’l, Inc. v. Madison
Three, Inc., 83 F. Supp. 2d 602, 604 (D. Md. 2000) (quoting Sakaria v. Trans World Airlines, 8
F.3d 164, 171 (4th Cir. 1993)) (internal quotations and alterations omitted). Several of Mr. Parker’s
statements are purely speculative or not sufficiently supported by personal knowledge and will be
stricken: (1) the final sentence of ¶ 12; (2) the final sentence of ¶ 14; (3) the final sentence of ¶ 15;
(4) ¶ 17; and (5) the final sentence of ¶ 19. Estate Opp’n Ex. 2. Striking these statements does not
erase the genuine disputes of material fact that preclude summary judgment.
25

With regard to HACA’s insurance-based breach of contract claim, Capital submitted
certificates of insurance showing coverage of at least $1,000,000 in general liability, automobile
liability, and workers’ compensation throughout the contract period from 2019 to 2023. See
generally HACA Reply Ex. 1, ECF 154-1. HACA did not submit contradictory evidence, nor did
it submit an affidavit attesting to the need for additional discovery. Nader v. Blair, 549 F.3d 953,
961 (4th Cir. 2008). Accordingly, although the motion to dismiss this claim was denied, the
undisputed evidence establishes that Capital complied with its contractual insurance obligations,
and Capital’s motion for summary judgment will be granted as it relates to HACA’s insurancebased breach of contract claim.
CONCLUSION
For the reasons stated, Capital’s motions to dismiss or in the alternative for summary
judgment will be denied as to the Estate and granted in part and denied in part as to HACA. In
short, the Estate’s claim against Capital for negligence may proceed, as may HACA’s claims
against Capital for contribution and breach of contract as to performance of work. The denial of
Capital’s summary judgment motion on these claims will be without prejudice. HACA’s claims
against Capital for indemnification and breach of contract as to insurance may not proceed. Capital
and the City’s motion to strike will be granted in part and denied in part as set forth above.
A separate Order follows.
3/27/2024
Date

/s/
Catherine C. Blake
United States District Judge

26