PRECISION PIPELINE, LLC v. TRICO SURVEYING AND MAPPING, INC. et al
Filing
132
ORDER granting 102 & 109 Defendants' Motions for Summary Judgment. A judgment order pursuant to Federal Rule of Civil Procedure 58 will follow. Signed by Judge Cathy Bissoon on 9/28/16. (dcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PRECISION PIPELINE, LLC,
Plaintiff,
v.
TRICO SURVEYING AND
MAPPING, INC., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 13-1823
Judge Cathy Bissoon
ORDER
For the reasons that follow, Defendants’ Motions for Summary Judgment (Docs. 102 &
109) will be granted.
The parties are well-acquainted with facts in this case and the law. Although the
allegations in the Complaint originally were broader, Plaintiff now persists under a single legal
theory against both Defendants: negligent misrepresentation, based on Defendants’ failure to
include subsurface crossings in the “Alignment Drawings” prepared for bidding-purposes in
connection with the Dominion-project ultimately secured and completed by Plaintiff.
See generally Pl.’s Br. (Doc. 114); see also Pl.’s Br. (Doc. 119) at 15 (confirming Plaintiff’s
abandonment of independent claim(s) based on Defendants’ purported noncompliance with
“One-Call” statute(s)). Agents of Dominion and Defendants have testified, uniformly and
consistently, that it was not their intention that all underground crossings would be identified;
rather, Defendants’ identification of crossings was limited to above-ground crossings and
underground crossings evinced by above-ground markers. See Trico’s Br. (Doc. 103) at 5
(citing record evidence).1 Nevertheless, Plaintiff contends that Trico and Dominion’s written
“scope of work” was not so limited,2 and for the purposes of summary judgment, Plaintiff may
enjoy a favorable presumption regarding potential contractual ambiguity. See generally DMP
Ltd. P’ship v. Caribou Coffee Co., Inc., 2009 WL 2750257, *2 (W.D. Pa. Aug. 26, 2009)
(“[a] contract is ambiguous if it is reasonably susceptible [to] different constructions and capable
of being understood in more than one sense,” and, ordinarily, “ambiguous [contract provisions]
are interpreted by the finder of fact”) (citations to quoted sources omitted). Although the Court
believes that, based on the entire evidentiary record, Plaintiff still may succumb under the
“no reasonable juror” standard, the Court need not go so far. This is true because the record
confirms, time and again, that Plaintiff had knowledge that Defendants’ drawings did not depict
all crossings Plaintiff was bound to encounter.
Defendants’ Motion-papers recount the numerous sworn statements of Plaintiff’s agents
confirming that, both during the bid process and shortly thereafter, Plaintiff was aware that
Defendants’ drawings did not depict all crossings. See Trico’s Stmts. of Fact (Doc. 104)
at ¶¶ 14-21. Particularly damning are the sworn statements of Jeff Taylor, a former employee of
Plaintiff involved in the bid-preparation:
Of the two Defendants, Plaintiff’s case against Defendant G-A-I is more tenuous given the
scope of that Defendant’s responsibilities. See generally G-A-I’s Stmt. of Facts (Doc. 111)
at ¶¶ 6, 10 (G-A-I’s duties were restricted to environmental compliance measures, and its
controls were superimposed on Trico’s drawings). Thus, the Court will focus on the facts
relating to Trico, although, importantly, all of the Court’s legal analyses and conclusions apply,
with at least as much force, to G-A-I.
1
See Doc. 117-1 at pg. 12 of 214 (“pertinent information” to be marked by Trico included
“foreign crossings of the proposed pipeline route”).
2
2
When I reviewed the Alignment Sheets prior to submission of the bid, I knew that
[Plaintiff] would encounter many more foreign line crossings than those that were
depicted . . . because the location of the project was in an area that was very active
in construction of gas transmission and production lines. I did not expect or
anticipate that the Alignment Sheets depicted all sub-surface pipeline and utilities.
Aff. of J. Taylor (Doc. 108-1) at ¶ 7. These sentiments are echoed by a number of Plaintiff’s
other former and current employees, with the harmfulness to Plaintiff’s case varying only in
degree. See Doc. 104 at ¶¶ 16, 17, 18, 20 & 21 (summarizing record evidence).
Plaintiff’s understanding was ratified, in conduct and writing, both during the bidding
process and after. In a cover letter to its bid, Plaintiff singled out the issue as a
“Recommendation[]” regarding “Risk Areas/Mitigation”:
For the most part these projects are standard for the region and as such, from a
construction prospective, do not warrant discussion here. The only general
comment we have is that we suspect there may be some quantity of unknown
pipelines to cross on these projects. This has been our experience in the recent
past on similar type projects. We do not feel these unknown [crossings] pose an
unacceptable risk in terms of safety or our ability to install pipe as per our
schedule. We propose that, should [Plaintiff] be the successful bidder,
we negotiate a crossing price for unknown lines prior to the start of construction.
Doc. 107-1 at pg. 2 of 3 (emphasis added).
The sworn testimony of Plaintiff’s agents confirms that, soon after construction
commenced, Plaintiff began encountering a significant number of unmarked crossings. See, e.g.,
Dep. Tr. of J. Holley (filed under Doc. 108-4) at tr. pgs. 70-71 (Plaintiff began encountering
foreign crossings within two weeks of commencing construction); Dep. Tr. of R. Fischer
(filed under Doc. 108-3) at tr. pgs. 103-104 (acknowledging that Plaintiff was “hitting a lot of
unknown foreign crossings” shortly after late August 2011, and before meeting with Dominion
in October 2011, in which concern was specifically addressed); Dep. Tr. of M. Pratt (filed under
Doc. 107-3) at tr. pgs. 36-37 (in advance of October 2011 meeting, “[t]he number [of unmarked
3
crossings] was in far excess of what [Plaintiff] anticipated” based on “what was shown on the
[drawings] at the time of bidding”); Dep. Tr. of S. Rooney (filed under Doc. 107-2) at tr. pgs. 1516 (testimony of Plaintiff’s president, confirming that it “began encountering foreign crossings
almost immediately upon commencement,” and it raised the issue with Dominion “almost
immediately”). As alluded to in the above-quoted testimony, Plaintiff raised the issue with
Dominion during a meeting in October 2011, and meeting minutes memorialize the discussion:
[Plaintiff] would like to submit a unit lump sum price for all additional foreign
line crossings not shown on the construction [drawings] at the time of bid. . . .
Dominion instructed [Plaintiff] to submit this request and Dominion would take a
look at it for consideration.
Doc. 108-5 (emphasis added).
On these facts, Defendants have leveled numerous arguments in support of summary
judgment. The Court need not reach many of them, as the record clearly establishes that
Plaintiff’s claims are barred by the two-year statute of limitations; and Plaintiff cannot establish
“justifiable reliance,” as required under its negligent misrepresentation theory.
Before reaching those issues, though, the Court independently determines that, based on a
review of the entire record, Plaintiff has failed to demonstrate that Defendants owed it a duty
pursuant to Bilt-Rite. As Defendants aptly have observed, an application of Bilt-Rite under the
circumstances would result in them owing a greater duty to Plaintiff than they did to Dominion.
Although Plaintiff is correct that Defendants (and the Court) have not identified caselaw
affirmatively stating that such a result is problematical, the Court believes that the teachings in
Bilt-Rite, more generally, counsel against a finding of duty.
In Bilt-Rite, the Supreme Court of Pennsylvania’s decision to narrowly circumvent the
contractual-privity requirement, and the prohibitions under the economic-loss-doctrine,
4
was premised on the understanding that its adoption of Section 552 “would not supplant the
common law[,] . . . but rather . . . would serve to clarify the elements of the tort as they apply to
those in the business of supplying information to others for pecuniary gain.” Id., 866 A.2d 270,
280 (Pa. 2005) (emphasis added). Under the common law, the existence of duty is a legal
question, requiring a weighing of several discrete factors, including: (1) the relationship between
the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor;
and (5) the overall public interest in the proposed solution. Id. at 281 (citation to quoted source
omitted).
The Court agrees with Plaintiff, as it did at the 12(b)(6) stage, that Plaintiff’s claims,
on the surface, appear to fall within the category envisioned under Bilt-Rite. But a closer
examination of the duty-factors, now that all of the facts from discovery are in, counsels against
a finding of duty. Given the essentially-unrefuted evidence that neither Dominion nor
Defendants understood or intended their contractual relationships to require the identification of
all subsurface crossings, the foreseeability of Defendants’ liability is significantly undermined.
Furthermore, the consequences of imposing such a duty on Defendants would be troublesome,
given that an obligation to fully investigate subsurface crossings, under the circumstances,
may or would have warranted a significant increase in remuneration to justify Defendants’
assumption of the risk (or, conversely, a dearth of professionals willing to engage the endeavor).
On the other side of the ledger, the sworn testimony of Plaintiff’s own agents indicates its
appreciation of the risk, and/or lack of reasonable expectation that all underground crossings
would be depicted. Under the circumstances, a shifting of the risk from Plaintiff (or Dominion)
to Defendants appears unwarranted, if not patently unfair. Walters v. UPMC Presbyterian
5
Shadyside, 2016 WL 4035668, *6 (Pa. Super. Jul. 21, 2016) (“Whether a duty exists is
ultimately a question of fairness.”) (citation to quoted source omitted); accord Prudential Ins. Co.
of Amer. v. Goldman, Sachs & Co., 2013 WL 1431680, *9 (D. N.J. Apr. 9, 2013) (recognizing
that such fairness relates to “both the party making the representation and to the party aggrieved
by its dissemination”).3
Even assuming Plaintiff could survive the duty-inquiry, summary judgment
unquestionably remains warranted on the wholly-independent basis that Plaintiff’s claims are
time-barred under the applicable statute of limitations. The parties agree that the limitations
period is two years, and this case was initiated on December 27, 2013. See Compl. (Doc. 1).
Thus, Plaintiff’s claims are untimely unless it can demonstrate that the statute was tolled until at
least December 27, 2011.
As early as September 2011, and in no event later than October 19, 2011, Plaintiff was
well aware of the operative facts, namely, that a significant number crossings existed that were
not reflected on Defendants’ drawings. See discussion supra. Realizing that it has to say
something in response to its agents’ numerous admissions, Plaintiff has devised a theory that it
As relates to duty, and more generally, the opinions of Plaintiff’s liability expert are inapposite.
The expert has conceded that his opinions do not account for the operative-contract(s); nor does
he accept or bind himself to Plaintiff’s admissions-against-interest demonstrating foreseeability.
Furthermore, although the duties that flow under Bilt-Rite are tort based, rather than contractual,
the parties’ contractual dealings can, and arguably must, be considered as part of the
circumstances and relationships between the parties. Roche v. Ugly Duckling Car Sales, Inc.,
879 A.2d 785, 790 (Pa. Super. 2005) (duty inquiry examines foreseeability under
“the circumstances of the case,” and involves “[a] weighing of the relationship of the parties”)
(citations to quoted and other sources omitted); see also Gongloff Contracting, L.L.C. v. L.
Robert Kimball & Assocs., Architects & Eng’rs, Inc., 119 A.3d 1070, 1077 (Pa. Super. 2015)
(Bilt-Rite allows recovery for negligent representations supplied “while performing”
responsibilities “assumed or specifically made a part of [the] contract with the owner”)
(emphasis added). Finally, the Court believes, and therefore holds, that any putative ambiguity
of contract (as referenced supra) is not dispositive of the duty determination, which is a question
of law reserved for the Court.
3
6
did not discover until later a sufficiently high number of unidentified crossings to trigger its
comprehension that the construction-approach it relied upon in bidding, “mainline construction,”
would prove too costly. See Pl.’s Opp’n Br. (Doc. 114) at 7-9. In support of this theory,
Plaintiff’s counsel highlights the testimony of some (though not all) of its agents that, based on
history and/or experience, Plaintiff reasonably expected the number of unidentified crossings to
be in the 5-15% range, as opposed to the significantly greater number actually encountered.
See id. (citing record evidence). Unfortunately for Plaintiff, its theoretical attempt at “splitting
the baby” bears little relation to governing law.
In Pennsylvania, the standard of reasonable diligence applied under the discovery rule
“is objective, not subjective. It is not a standard of reasonable diligence unique to a particular
plaintiff, but instead, a standard of reasonable diligence as applied to a reasonable person.”
Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997) (emphasis added). The rule is strict, and it
has been applied “harsh[ly]” to plaintiffs appearing far more sympathetic. See, e.g., id.
(refusing to extend rule into realm of subjectiveness, even for plaintiff alleging that psychic
damage from child-abuse prevented earlier discovery of harm). Courts here, and in other
jurisdictions bound by materially analogous standards, have rejected the “unique to me”-type
argument presented by Plaintiff. See, e.g., Ingros v. BFG Electroplating & Mfg. Co., 81 Pa. D.
& C.4th 481, 488-89 (Pa. Com. Pl. 2006) (rejecting, as a matter of law, plaintiffs’ “subjective
feeling that they did not possess enough information to sue . . . until hearing that [defendant]
was ‘most likely’ the cause of the contamination” in question); Gagliardi v. Flack, 446 N.W.2d
858, 861-64 (Mich. App. 1989) (rejecting argument that limitations period should be tolled until
injury, known and obvious to plaintiff, reached sufficient level of seriousness to exceed
statutory-threshold for recovery).
7
While the Court could cite ad nauseam permutations of the governing legal standards and
illustrative case-holdings, to do so would only belabor an already-obvious point. Plaintiff’s
operative agents repeatedly confirmed that it had actual knowledge of the alleged-harm by no
later than September/October 2011. Although some (though not all) of its decision-makers claim
to have anticipated a smaller percentage of unknown crossings, this purported distinction is
insufficient under Pennsylvania law.
Even less grounded are Plaintiff’s suggestions that tolling should be tied to Dominion’s
subsequent refusal to negotiate acceptable payment-adjustments regarding unknown crossings;
or that Plaintiff did not uncover the pertinent details until after having taken discovery in this
case. See Pl.’s Opp’n Br. (Doc. 114) at 9-10. Unsurprisingly, Plaintiff cites no legal authority in
support of these positions, and they are facially inconsistent with governing law. See discussion
supra; see also Ingros at 488-89 (acceptance of analogous theory would contravene a central
purpose of limitations periods, namely, providing repose). The Court also notes that, were
Plaintiff’s case-discovery argument read too literally, it might well raise eyebrows under Federal
Rule 11. Compare Fed. R. Civ. P. 11(b)(3) (in submitting pleadings, signatory represents that
“the factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery”)
(emphasis added) with Am. Compl. (Doc. 14) at ¶¶ 66, 78 (alleging, without qualification
on “information and belief,” that Defendants prepared drawings containing negligent
misrepresentation(s), thereby harming Plaintiff).4
To be sure, the paragraphs cited above can be read to incorporate-by-reference other averments
stated on information and belief. See id. at ¶ 64. But even conditioned on information and
belief, Plaintiff’s averments beg the question: how can it claim to have lacked sufficient
understanding of the harm, while at the same time knowing enough to commence this lawsuit
against these Defendants? The Court asks these questions not to suggest that Plaintiff or its
4
8
Finally, Defendants are entitled to summary judgment for Plaintiff’s failure, as a matter
of law, to establish justifiable reliance. Although the controlling standards arguably may be
more forgiving than those regarding the statute of limitations, the result is no different.
The purported “falsity” of Defendants’ representations, i.e., its negligent provision of
incompletely-marked drawings, was known to Plaintiff, both before its bid was accepted and
shortly after construction commenced. See discussions supra. A recipient is not “justified in
relying upon the truth of an allegedly fraudulent misrepresentation if [it] knows [the statement]
to be false or if [the] falsity is obvious.” Toy v. Metro. Life Ins. Co., 928 A.2d 186, 207
(Pa. 2007) (citation omitted). To the extent Plaintiff relied, its reliance was unjustified.
For all of the reasons stated above, Defendants’ Motions for Summary Judgment
(Docs. 102 & 109) are GRANTED. A judgment order pursuant to Federal Rule of Civil
Procedure 58 will follow.
IT IS SO ORDERED.
September 28, 2016
s\Cathy Bissoon
Cathy Bissoon
United States District Judge
cc (via ECF email notification):
All Counsel of Record
counsel have run afoul of Rule 11, but merely to highlight the logical inconsistency (and degree
of desperation reflected) in its stated position.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?