Hayward Baker, Inc. v. Shirttail Gulch Road District, Inc.
ORDER denying 41 Motion for Summary Judgment; denying 50 Motion for Summary Judgment; denying 31 Motion for Summary Judgment. Signed by U. S. District Judge Jeffrey L. Viken on 9/10/12. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
HAYWARD BAKER, INC.,
SHIRTTAIL GULCH ROAD
Defendant and Third
SERVICES INC., and SHANNON
& WILSON, INC.,
Third Party Defendants.
Pending before the court are motions for summary judgment filed by
Hayward Baker, Inc. (“HBI”), Shannon & Wilson, Inc. (“Shannon & Wilson”),
and American Technical Services, Inc. (ATS).
NATURE AND PROCEDURE OF THE CASE
After receiving above-average precipitation, Shirttail Gulch Road
District, Inc., (“Shirttail Gulch”) experienced a slope failure along Shirttail
Gulch Road. (Docket 32, ¶¶ 3, 5-7). Shirttail Gulch retained ATS to
evaluate the area. Id. at ¶¶ 8-9, 16. Upon ATS’s recommendation, Shirttail
Gulch hired Rogers Construction to perform an emergency slope repair. Id.
at ¶¶ 23, 26. This work consisted of the installation of rock trench drains.
(Docket 33-6). The work performed by Rogers Construction was completed
on July 1, 2008. (Docket 32, ¶ 27).
On July 2, 2008, a second slide occurred at the site. Id. at ¶ 28.
Again, ATS was called to evaluate the area. Id. at ¶¶ 31-32. ATS
recommended Shirttail Gulch either develop a new route for ingress and
egress from the development or stabilize the slope through the installation
of a post tension anchor block system. Id. at ¶ 37; Docket 33-6. ATS
contacted HBI for estimates regarding the cost of installation of an anchor
block system. (Docket 33-6). Based upon the recommendation of ATS,
Shirttail Gulch sought bids from contractors for the road shaping and
embankment work, while HBI was to install the anchor system. (Docket 32,
¶¶ 50-51, 53).
At this same time, in July of 2008, President George Bush issued a
disaster declaration for South Dakota due to the above-average precipitation
received in June of 2008. Id. at ¶ 116. Shirttail Gulch then became eligible
to receive assistance from the Federal Emergency Management Agency
(“FEMA”). Id. at ¶¶ 116-17. Shirttail Gulch was able to apply for FEMA
assistance for the road and slope repair in August of 2008. Id. at ¶ 52.
FEMA, however, requested Shirttail Gulch accept competitive bids for the
work involving the anchor block system. Id. at ¶ 54. HBI submitted a
proposal to construct a tie-back anchor block system which was accepted
by Shirttail Gulch. Id. at ¶¶ 54-58. HBI hired Shannon & Wilson, Inc.
(“Shannon & Wilson”) to design the tie-back anchor block system consisting
of twelve anchor blocks. (Docket 21).
HBI commenced construction of the tie-back anchor block system on
September 22, 2008. (Docket 32, ¶ 69). A change order was submitted on
October 9, 2008, due to a greater quantity of soil needing to be removed
than had been considered during the bidding process. Id. at ¶ 71. HBI
completed construction of the tie-back anchor block system on October 17,
2008. Id. at ¶ 77. Though HBI had completed construction of the tie-back
anchor block system, other work was still ongoing at the site including the
installation of a rock buttress system. Id. at ¶¶ 78, 80, 92.
In November of 2008, after receiving between four and five feet of
snow, a secondary slope failure occurred. Id. at ¶ 84. At the time of the
snowfall, the slide remediation project had not been completed. Id. at ¶ 94.
In March of 2009, another slide occurred at the site. Id. at ¶ 100.
ATS concluded the failure of the tie-back anchor block system was due to
“incompletion of the lower stabilization system and excessive precipitation[.]”
Id. at ¶ 109 (emphasis in original). ATS recommended a re-design of the
system. See id. Proposals were then submitted to construct a soldier beam
and lagging wall system. Id. at ¶¶ 110-12. Shirttail Gulch hired
CTL/Thompson to perform the geotechnical work and Coggins and Sons,
Inc., (“Coggins”) to perform the construction. Id. at ¶ 112.
In December of 2010, HBI requested payment from Shirttail Gulch in
the amount of $197,880. Id. at ¶ 98. Shirttail Gulch has not remitted
payment. Id. at ¶ 99. This action was subsequently commenced by HBI by
the filing of a complaint on March 5, 2010. (Docket 1).
In response to the complaint, Shirttail Gulch filed a counterclaim
against HBI alleging the tie-back anchor block system failed in November of
2008. (Docket 21). Shirttail Gulch asserts HBI was negligent in failing to
request further geological testing and in its construction of the tie-back
anchor block system. (Docket 6). Shirttail Gulch further claims Shannon &
Wilson was negligent in failing to request further geotechnical exploration
and testing and in its design of the tie-back anchor block system. (Docket
21). Shirttail Gulch also asserts a negligence claim against ATS for failing to
conduct a thorough investigation of the site. (Docket 7). Currently pending
before the court is a motion for summary judgment by HBI. (Docket 31).
Shannon & Wilson also move for summary judgment, as does ATS.
(Dockets 41 and 50).
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment
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). Once the moving party has met its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but rather must
produce affirmative evidence setting forth specific facts showing a genuine
issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). Only disputes over facts that might affect the outcome of the
case under the governing substantive law will properly preclude summary
judgment. Id. at 248. Accordingly, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party,
then summary judgment is not appropriate. Id. However, the moving party
is entitled to judgment as a matter of law if the nonmoving party fails to
“make a sufficient showing on an essential element of her case with respect
to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). In such a case, “there can be ‘no genuine issue as to any
material fact,’ since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. In determining whether summary judgment should issue,
the facts and inferences from those facts must be viewed in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is “whether the
evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.
HBI’s Motion for Summary Judgment
Economic Loss Rule
HBI contends Shirttail Gulch is barred from recovering the damages it
seeks under the economic loss rule. (Docket 34). Under the Uniform
Commercial Code (“UCC”), “[t]he general rule is that economic losses are not
recoverable under tort theories[.]” City of Lennox v. Mitek Industries, Inc.,
519 N.W.2d 330, 333 (S.D. 1994). To determine if Shirttail Gulch’s
requested recovery is limited, the court must first determine whether the
contract between HBI and Shirttail Gulch was a transaction contemplated
by the UCC. In this matter, the court applies the law of South Dakota, the
forum state. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). South
Dakota has adopted the UCC. See SDCL ch. 57A-2.
Article 2 of the UCC governs “transactions in goods.” SDCL § 57A-2102. Section 57A-2-105 of South Dakota Codified Law defines “goods” as
all things (including specially manufactured goods) which are
movable at the time of identification to the contract for sale other
than the money in which the price is to be paid, investment
securities (Chapter 57A-8) and things in action. “Goods” also
includes the unborn young of animals and growing crops and
other identified things attached to realty as described in the
sections on goods to be severed from realty (§ 57A-2-107).
SDCL § 57A-2-105. “When goods and services are sold together[,] . . . a
special inquiry must be made.” Lennox, 519 N.W.2d at 332 (citing
Jandreau v. Sheesley, 324 N.W.2d 266 (S.D. 1982)). “The test for inclusion
or exclusion is not whether they are mixed, but, granting that they are
mixed, whether their predominant factor, their thrust, their purpose,
reasonably stated, is the rendition of service with goods incidentally involved
(e.g., contract with artist for painting) or is a transaction of sale, with labor
incidentally involved (e.g., installation of a water heater in a bathroom). . . .”
Jandreau, 324 N.W.2d at 268.
HBI contends the contract was for the installation of a tie-back
anchor block system for a fixed sum which therefore constitutes a contract
for sale. (Docket 34). Shirttail Gulch contends that it is a contract for
design and construction services. (Docket 68).
The contract between HBI and Shirttail Gulch contains the following
HBI has had discussion with Dave Bressler of American Technical
Services, Inc. regarding the stabilization of the slope failure adjacent to
Shirt Tail Gulch Road. In order to increase the slope stability of this
area, HBI is proposing to construct two rows of a tie-back anchor block
system within the slope.
SCOPE OF WORK
TIE-BACK ANCHOR BLOCK
HBI proposes to install a total of twelve (12) anchor blocks in two rows
below the existing row. The anchor blocks will be installed at
approximately 15' on-center. The exact number and location of the
anchors will need to be agreed upon by all parties prior to
commencement of work.
The following task responsibility list is provided in order to clarify this
proposal. Any item denoted as OWNER must be provided by the owner
or others at no additional cost to HBI.
Complete tie-back anchor block
design and shop drawings.
Locate all underground utilities.
HBI is specifically not responsible
for damage to mis-marked or
unknown utilities. Owner must
obtain all necessary permits.
Complete excavation in area of
anchor blocks in order to install the
10' x 10' anchor blocks. Provide a
25' wide workbench for drill rig.
Bench must be capable of
supporting a 45,000 lb drill rig.
Provide a 40' x 40' staging area near
work area for storing equipment
Install pre-cast concrete anchor
blocks at required locations. Install
multi-strand anchors through the
pre-cast concrete, slope failure soils
and into the stable bedrock
Provide containment area for
disposal of drill and grout spoil.
Ground anchor construction will
generate approximately 1-2 cubic
yards of soil per location. Removal
and transportation of spoil to be
provided by others.
Insert anchor into drilled hole and
tremie fill and subsequently
pressure grout with neat cement
Allow grout to cure for a minimum
of 3 days.
Place anchor plate over anchor, test,
and lock-off anchor to desired load
capacity. HBI will provide anchor
plates and all necessary hardware
for anchor installation.
Complete any additional excavation
to stabilize the slope.
(Docket 33-10; Docket 72-18).
In reviewing these provisions, the court finds HBI was tasked with
designing the project, installing and constructing the earth retention system
as designed, and testing the system to insure its effectiveness. HBI was to
additionally provide the anchor blocks, anchor plates, and grout. The court
finds the predominant purpose of this contract “is the rendition of service,
with goods incidentally involved[.]” Jandreau, 324 N.W.2d at 268. As a
result, the court finds Shirttail Gulch is not limited to the recovery allowed
by the UCC and is not precluded from seeking damages for more than
HBI next contends Shirttail Gulch cannot pursue a negligence claim
based upon a breach of contract. (Docket 34). HBI reasons Shirttail
Gulch’s claim for negligence is based upon HBI’s alleged failure to perform
an act required under the contract and not from a duty to Shirttail Gulch
which exists separate from the contract. Id. As a result, HBI reasons
Shirttail Gulch may not proceed on its negligence claim but only on a
breach of contract claim. Id.
“In order to prevail in a suit based on negligence, a plaintiff must
prove duty, breach of that duty, proximate and factual causation, and
actual injury.” Fisher Sand & Gravel Co. v. South Dakota Dep’t of Transp.,
558 N.W.2d 864, 867 (S.D. 1997). The determination of “[w]hether a duty
exists is a question of law[.]” Id. The South Dakota Supreme Court held
“that negligence that consists merely in the breach of a contract will not
afford grounds for a tort action by third parties and is limited under a
breach of contract cause of action to the party to the contract or for whose
benefit the contract was made.” Id. at 868. However, the South Dakota
Supreme Court also held “[a] duty to use proper care may also arise from a
contractual relationship and breach of the resulting duty may give rise to
tort liability.” Limpert v. Bail, 447 N.W.2d 48, 51 (S.D. 1989). “It may be
granted that an omission to perform a contract obligation is never a tort,
unless that omission is also an omission of a legal duty.” Smith v. Weber,
16 N.W.2d 537, 539 (S.D. 1944). Thus, the court must first determine if
HBI owed a duty to Shirttail Gulch outside of its obligations under the
“In determining whether a duty exists, [the court] examine[s] whether
‘a relationship exists between the parties such that the law will impose upon
the defendant a legal obligation of reasonable conduct for the benefit of the
plaintiff.’ ” First American Bank & Trust, N.A. v. Farmers State Bank of
Canton, 756 N.W.2d 19, 26 (S.D. 2008) (quoting Casillas v. Schubauer, 714
N.W.2d 84, 88 (S.D. 2006)). The South Dakota Supreme Court held a duty
can be created by common law, statute, or based upon foreseeability. See
First American, 765 N.W.2d at 26 (citations omitted). In Kuehl v. Horner
(J.W.) Lumber Co., 678 N.W.2d 809 (S.D. 2004), the South Dakota Supreme
Court advised trial courts to look to Restatement (Second) of Torts § 324A
(1965) when determining whether a duty has been created. Kuehl, 678
N.W.2d at 812. Restatement (Second) of Torts § 324A (1965) provides:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to the liability
for physical harm resulting from his failure to exercise reasonable
care to protect his undertaking, if
his failure to exercise reasonable care increases the
risk of such harm, or
he has undertaken to perform a duty owed by the
other to the third person, or
the harm is suffered because of reliance of the other
or the third person upon the undertaking.
Here, HBI undertook the obligation to provide professional services to
Shirttail Gulch. The failure to exercise reasonable care had the potential of
increasing the risk of harm. Additionally, Shirttail Gulch and others relied
upon HBI to exercise reasonable care in designing and constructing the
earth retention system. While the obligation to provide an appropriate
design and proper construction arose out of the contract, a duty existed to
provide such services using “such skill and care ordinarily exercised by
others in the same profession.” Limpert, 447 N.W.2d at 51 (stating “it is
generally recognized that one who undertakes to provide professional
services has a duty to the person for whom the services are performed to
use such skill and care ordinarily exercised by others in the same
profession.”). The court finds this case is the type of situation foreseen by
the South Dakota Supreme Court when it said, “[a] contract may establish
a relationship requiring exercise of proper care and acts or omissions in
performance of such duty may give rise to a tort liability.” Friedhoff v.
Engberg, 149 N.W.2d 759, 762 (S.D. 1967). See also Mid-Western Electric.,
Inc. v. DeWild Grant Reckert & Assoc., 500 N.W.2d 250, 253-54 (S.D.
1993) (recognizing a cause of action against an architect or engineer based
upon a foreseeable harm caused by professional negligence). Accordingly,
the court finds HBI owed a duty to Shirttail Gulch, the violation of which
gives rise to tort liability. The court further finds a question of fact exists
as to whether that duty was breached. Accordingly, summary judgment on
this issue is not granted.
Breach of Contract
HBI also moves for summary judgment on Shirttail Gulch’s claim of
breach of contract. (Docket 34). “An action for breach of contract requires
proof of an enforceable promise, its breach, and damages.” McKie v.
Huntley, 620 N.W.2d 599, 603 (S.D. 2000). Moreover, “[t]o recover
damages for breach of contract, the loss must be clearly ascertainable in
both its nature and origin.” Id. The party seeking damages must provide
proof of “reasonable certainty” to demonstrate its right to recovery. See id.
“Reasonable certainty requires proof of a rational basis for measuring loss,
without allowing a jury to speculate.” Id.
HBI argues, without admitting it breached the contract, that Shirttail
Gulch has not been damaged. (Docket 34). First, HBI contends Shirttail
Gulch has not remitted payment, and therefore, it was left in the same
position it was in prior to the contract. Id. HBI further contends Shirttail
Gulch has not provided evidence an alleged breach caused any damages.
“The purpose of contract damages is to put the injured party in the
same position it would have been had there been no breach.” Lamar
Advertising of South Dakota, Inc. v. Heavy Constructors, Inc., 745 N.W.2d
371, 376 (S.D. 2008).
South Dakota law provides:
For the breach of an obligation arising from contract, the measure
of damages, except where otherwise expressly provided by this
code, is the amount which will compensate the party aggrieved for
all the detriment proximately caused thereby, or which, in the
ordinary course of things, would be likely to result therefrom. No
damages can be recovered for a breach of contract which are not
clearly ascertainable in both their nature and origin.
SDCL § 21-2-1.
In November of 2008, approximately one month after HBI left the site,
an additional slope failure occurred. (Docket 32, ¶ 84). Again, in March of
2009, an additional slide occurred. Id. at ¶ 100. The deposition testimony
and other exhibits in the record indicate further damage occurred to the
road and the surrounding slope as a result of these events. (Docket 33-1, p.
83, ln. 22 - p. 88, ln. 19; p. 96, ln. 21 - p. 98, ln. 1; Docket 33-2, p. 71, ln. 7
- p. 72, ln. 14; p. 121, ln. 24 - p. 124, ln. 15; p. 125, lns. 17-24; Docket 3316; Docket 33-18; Docket 51-1, p. 91, ln. 25 - p. 92, ln. 2).
HBI contends Shirttail Gulch had work to complete before the system
would be fully functional. (Docket 34). Shirttail Gulch contends that the
tie-back anchor block system failed not only because it was an
inappropriate design for the situation but because HBI failed to construct
the system in accordance with the design specifications. (Docket 68). The
court finds a question of fact exists as to whether a breach of contract
occurred and, if so, whether the breach of contract resulted in further
damage to the road and surrounding slope.
Assuming a breach occurred, the court further finds a question of fact
exists as to the extent of damages. The South Dakota Supreme Court
previously declined “dictating any specific formula for calculating damages.”
McKie, 620 N.W.2d at 603. Rather, the Supreme Court applies a “ ‘
reasonable certainty test concerning the proof needed to establish a right to
recover damages.’ ” Id. (quoting Drier v. Perfection, Inc., 259 N.W.2d 496,
506 (S.D. 1977)). For instance, the Supreme Court previously approved
allowing a jury to calculate damages based upon the reasonable cost of
repair or the difference between the fair market value of the system as
contracted and the system as it was constructed. See City of Bridgewater v.
Morris, Inc., 594 N.W.2d 712, 716 (S.D. 1999). Here, damages may be only
the amount left to be paid under the contract. However, the record reflects
on March 24, 2009, HBI, Shannon & Wilson, and ATS met with Shirttail
Gulch. (Docket 69, p. 6, ¶¶ D and E). At that meeting it was determined a
soldier pile wall was the best solution to remedy the failure of the tie-back
anchor block system. Id. Under the previous holdings of the South Dakota
Supreme Court, Shirttail Gulch’s damages could include the cost of repair.
See Morris, 594 N.W.2d at 716. Assuming a breach, a question of fact
exists as to what sum would place Shirttail Gulch in the same position had
no breach occurred. See Lamar, 745 N.W.2d at 376.
ATS’s Motion for Summary Judgment
ATS also moves for summary judgment on the issue of damages.
(Docket 50). ATS, like HBI, contends that Shirttail Gulch’s damages are
capped at the amount of Shirttail Gulch’s potential out-of-pocket expenses
of $42,630.31.1 As previously determined, a question of fact exists as to
whether a breach occurred and, if so, the extent of damage caused by the
breach. There is evidence in the record which indicates further damage to
the road and surrounding slope as a result of the failure of the tie-back
anchor block system. A jury must determine whether the failure of the tieback anchor block system constitutes a breach and, if so, the amount of
damages required to compensate Shirttail Gulch. The court finds summary
judgment on this issue is not appropriate.
The total cost of the tie-back anchor block system was $426,303.10.
(Dockets 48, ¶ 21 and 55-13). FEMA and the State of South Dakota provided
funding in the amount of $383,672.79, leaving Shirttail Gulch to provide the
remaining $42,630.31. (Docket 48, ¶ 22).
HBI, Shannon & Wilson, and ATS all move for summary judgment on
the issue of FEMA damages. (Dockets 31, 41, and 50). As stated
previously, Shirttail Gulch is seeking reimbursement for the funding which
it alleges it could have received from FEMA under the Public Works
Assistance Program. (Docket 68). The parties agree that for FEMA to
approve of the Coggins project, it must be shown that:
The applicant is an eligible applicant;
The applicant’s facility was damaged by the event declared
as a major disaster and is located in a county included in
the President’s declaration as eligible for public assistance;
The work proposed by the applicant is required as a direct
result of the disaster and is the applicant’s responsibility;
The cost of the work is reasonable[.]
(Docket 72-43, ¶ 12). Additionally, FEMA must find the project is not an
“improvement.” (Docket 72-43, ¶ 15).
The parties appear to agree the first three criteria are met. (Dockets
34, 45, and 49). HBI, Shannon & Wilson, and ATS, however, contend
Shirttail Gulch is unable to show the cost of the project would have been
deemed reasonable by FEMA. Id. In response, Shirttail Gulch offers the
testimony of Larry Coggins, the principal of Coggins, to support its claim the
cost of the project was reasonable. (Dockets 64, 66, 68, and 72-4, p. 75, ln.
25 - p. 76, ln. 4). The court finds Shirttail Gulch presented sufficient
evidence that a genuine issue of material fact exists regarding whether the
cost of the work was reasonable.
HBI, Shannon & Wilson, and ATS further contend Shirttail Gulch has
not provided evidence FEMA would have determined the Coggins project
was not an “improvement” or more extensive than required. (Dockets 34,
45, and 49). Shirttail Gulch, however, argues HBI, Shannon & Wilson, and
ATS were negligent in the proposal, design, and construction of the tie-back
anchor block system. Moreover, Shirttail Gulch proffers the testimony of
Frank Holliday asserting the Coggins project should have been designed and
constructed from the beginning. (Docket 63, ¶ 4 subparagraph O). Should
Shirttail Gulch be successful in proving these assertions, it would be
reasonable to conclude FEMA would not have deemed the Coggins project to
be an “improvement” or to be a project which was more extensive than the
situation required. As a result, the court finds this is an issue properly
presented to the trier of fact.
Shannon & Wilson’s Motion for Summary Judgment
Shannon & Wilson also moves for summary judgment on Shirttail
Gulch’s claim of negligence against Shannon & Wilson. (Docket 50). As
stated previously, to prove a claim of negligence, Shirttail Gulch must show
Shannon & Wilson owed Shirttail Gulch a duty. Shirttail Gulch must
further demonstrate the duty was breached and, as a result of the breach, it
suffered damages. See Fisher, 558 N.W.2d at 868. Shannon & Wilson
allege Shirttail Gulch fails to meet its burden as it has not proffered the
necessary expert testimony regarding the standard of care or the
appropriateness of the design of the tie-back anchor block system. (Docket
50). “There is no requirement that a party produce expert testimony when
the question is within a layperson’s knowledge. However, expert testimony
is required to establish the standard of care for a professional unless the
issue is within the common knowledge of the jury.” Luther v. City of
Winner, 674 N.W.2d 339, 344 (S.D. 2004). See also Mid-Western Elec., 500
N.W.2d at 255. The court finds neither the standard of care for an engineer
nor the knowledge necessary to determine the appropriateness of a design
are within the “common knowledge” of a layperson. The court concludes
expert testimony is required. See Luther, 674 N.W.2d at 345 (requiring
plaintiff to present expert testimony to establish the professional standard of
care for an engineer on a negligent design claim).
Shirttail Gulch, however, has proffered the expert testimony of Frank
J. Holliday and Robin G. Dornfest to support the claim Shannon & Wilson
was negligent and the design was inappropriate. (Docket 43, ¶ 25).
Shannon & Wilson moved to exclude the testimony of these experts
asserting they were unqualified to testify as to the standard of care or the
appropriateness of the design. (Docket 35). In an order dated August 8,
2012, the court determined Mr. Dornfest was qualified to testify as to the
soil assessments and the impact of an earth retention system on the soil.
The court, however, limited Mr. Dornfest’s testimony regarding the integrity
of the tie-back anchor block system. With regard to Mr. Holliday, the court
found him qualified to opine as to the integrity of the design. As an
engineer, Mr. Holliday is also qualified to testify as to the professional
standard of care owed by Shannon & Wilson. (Docket 85). As a result, the
court finds Shirttail Gulch will offer expert testimony regarding the
professional standard of care for an engineer and the appropriateness of the
tie-back anchor block system, thus raising a question of material fact.
Accordingly, the court will not grant summary judgment for Shannon &
Wilson on this issue.
The court finds questions of material fact exist as to whether HBI,
Shannon & Wilson, and/or ATS committed a breach of contract and/or a
breach of duty. Questions of material fact also exist as to whether such a
breach resulted in damage to Shirttail Gulch and, if so, the extent of that
damage. The court further concludes questions of fact exist regarding
Shirttail Gulch’s request for damages for lost FEMA funding. As a result,
the court finds summary judgment is not appropriate. Accordingly, it is
ORDERED that HBI’s motion for summary judgment (Docket 31) is
IT IS FURTHER ORDERED that Shannon & Wilson’s motion for
summary judgment (Docket 41) is denied.
IT IS FURTHER ORDERED that ATS’s motion for summary judgment
(Docket 50) is denied.
Dated September 10, 2012.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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