THE UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF MODERN MOSAIC, LTD. v. Turner Construction Company et al
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT. The Court grants the Defendants' 39 Motion for Partial Summary Judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/13/17. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA
FOR THE USE AND BENEFIT OF
MODERN MOSAIC, LTD.,
a foreign business corporation,
Civil Action No. 1:16CV12
TURNER CONSTRUCTION COMPANY,
a New York corporation,
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA,
FEDERAL INSURANCE COMPANY,
FIDELITY & DEPOSIT COMPANY OF MARYLAND,
ZURICH AMERICAN INSURANCE COMPANY,
LIBERTY MUTUAL INSURANCE COMPANY and
THE CONTINENTAL INSURANCE COMPANY,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT
This is a Miller Act, 40 U.S.C. §§ 3131-3133, case arising out
of an alleged breach of a subcontract on a government construction
Turner Construction Company (“Turner”), entered into a
contract with the Federal Bureau of Investigation (“FBI”) to build
the Biometric Technology Center at the FBI CJIS Division Complex in
Clarksburg, West Virginia.
Turner entered into a subcontract with
Modern Mosaic, Ltd. (“Modern Mosaic”) to fabricate and install
concrete panels for two structures as part of the FBI project, one
of which was a preexisting parking garage.
During the course of
Modern Mosaic’s performance, Modern Mosaic was required to provide
additional labor, materials, and equipment totaling $1,264,131.31.
Modern Mosaic filed this civil action under the Miller Act against
outstanding payments, and to enforce the Miller Act bonds.
defendants filed a motion for partial summary judgment regarding
additional work and increased costs on the parking garage, totaling
For the following reasons, that motion is granted.
Turner and Modern Mosaic entered into the Subcontract on May
22, 2011, providing that Modern Mosaic would fabricate and install
precast concrete panels for two structures.
See ECF No. 39-2.
issue here was Modern Mosaic’s work on a preexisting parking garage
referred to as Building 9A.
Before fabricating and installing the
concrete panels, Modern Mosaic was to create shop drawings of the
concrete panels and to submit those shop drawings to Turner and the
architect for approval.
Id. at 4.
After receiving approval,
Modern Mosaic was to fabricate the panels, transport them to the
worksite, and install them onto the parking garage.
Id. at 6-8.
As part of the approval process, the dimensions of the parking
garage were to be “field verified” to ensure that they matched the
parking garage’s plans and specifications.
Id. at 3-4, 12-13.
Field verification was to take place before fabrication.
13. The parties dispute who was contractually obligated to conduct
the field verification.
Modern Mosaic claims that sometime in
August 2011 it engaged Thrasher Engineering, Inc. (“Thrasher”), a
civil engineering and surveying firm, to “locate . . . on the
project relative to the gridlines, and the outside corners of the
structure” all of the “embeds,” which are metal prongs that were
embedded in the existing parking garage structure and upon which
the panels would be installed.
ECF No. 39-25 at 1.
Modern Mosaic did not have the dimensions of the parking garage
verified at that time.
Modern Mosaic submitted a total of four shop drawings for the
parking garage panels.
These included designs for two broad sets
of panels, those designed to fit between columns on the parking
garage in a straight line (“the flat-wall panels”) and those
designed to be installed on the corners of the structure (“the
ECF No. 45-2 at 11.
Modern Mosaic’s first set of
shop drawings was returned stamped “Revise & Resubmit” on August
ECF No. 39-7 at 1.
The second set was returned stamped
“Revise & Resubmit” on October 11, 2011.
ECF No. 39-8 at 1.
January 5, 2012, Modern Mosaic began fabricating the flat-wall
panels, continuing fabrication through February 1, 2012.
39-13 at 6, 20; 45-1 at 5; 45-2 at 11.
Modern Mosaic’s third set
of shop drawings was returned stamped “Revise & Resubmit” on
February 3, 2012.
ECF No. 39-15.
surveyed the entire parking garage to verify its dimensions and
discovered discrepancies between the parking garage’s plans and
specifications and its as-built conditions.
ECF No. 39-19.
March 21, 2012, Modern Mosaic sent a letter to Turner notifying it
of dimensional discrepancies. ECF No. 39-19. After receiving this
letter, Turner forwarded the notice of discrepancies to the FBI and
requested that it expedite resolution of the discrepancies.
No. 39-22 at 2.
Later that month, Modern Mosaic sent Turner
another letter suggesting certain changes to the dimensions of four
ECF No. 39-20.
On April 4, 2012, Modern Mosaic submitted its fourth set of
These were returned on April 16, 2012 stamped
“Approved as Noted” with notations from the architect stating that
the location of the embeds needed to be field verified.
Modern Mosaic then began fabricating panels for the corner
portions of the parking garage (“the corner panels”). ECF No. 45-2
On May 4, 2012, Modern Mosaic sent Turner a letter noting that
the parking garage was not square and plumb, causing a “dimensional
ECF No. 39-23.
Then, on June 3, 2012, Modern Mosaic sent
Turner a letter stating that it must redesign a number of panels
because of the dimensional discrepancies.
ECF No. 39-24.
Mosaic claims that the dimensional discrepancies caused the corner
panels to not fit properly but that the flat-wall panels were not
ECF Nos. 45-1 at 5; 45-2 at 11.
Modern Mosaic then had
to refabricate the affected corner panels to fit the structure and
pay for storage for the unaffected flat-wall panels for later
ECF No. 45-1 at 5, 45-2 at 11.
Turner did not pay
Modern Mosaic for the costs of refabrication and storage resulting
from the discrepancies and delays. Modern Mosaic claims that it is
entitled to payments of those as damages totaling $975,072.31.
Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “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 fact is
“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).
A dispute of material
fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”
nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).
Celotex Corp. v.
In reviewing the supported
underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.
“The burden then shifts to the
nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945
F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Inc., 477 U.S. 242, 256 (1986).
Anderson v. Liberty Lobby,
Moreover, “[t]he nonmoving party
cannot create a genuine issue of material fact through mere
(internal quotation marks omitted).
The nonmoving party must
produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing
it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).
Turner argues that it is entitled to summary judgment as to
the parking garage claims because Modern Mosaic is responsible for
its own damages.
Turner’s argument turns on two key issues.
installing the panels.
Second, whether Modern Mosaic breached the
Subcontract and must bear its own damages.
Turner argues that the Subcontract unambiguously obligated
Modern Mosaic to field verify the dimensions of the parking garage
Modern Mosaic argues that the Subcontract is
structure, creating a genuine issue of material fact.
interpretation is a legal issue to be determined by the Court.
re Joseph G., 589 S.E.2d 507, 511 (W. Va. 2003).
This Court finds
that the Subcontract unambiguously obligated Modern Mosaic to field
verify the parking garage’s dimensions before fabricating panels.
A “valid written instrument which expresses the intent of the
parties in plain and unambiguous language is not subject to
judicial construction or interpretation but will be applied and
enforced according to such intent.”
S.E.2d 62, 72 (W. Va. 2013).
New v. GameStop, Inc., 753
However, “where the meaning [of
contractual language] is uncertain and ambiguous, parol evidence is
admissible to show the situation of the parties, the surrounding
construction given to the contract by the parties themselves either
contemporaneously or subsequently.”
McShane v. Imperial Towers,
Inc., 267 S.E.2d 196, 197 (W. Va. 1980).
“The mere fact that parties do not agree to the construction
of a contract does not render it ambiguous.”
Salem Int’l Univ.,
LLC v. Bates, 793 S.E.2d 879, 885 (W. Va. 2016) (internal quotation
marks omitted). Flanagan v. Stalnaker, 607 S.E.2d 765, 769 (W. Va.
agreement’s terms are inconsistent on their face or where the
phraseology can support reasonable differences of opinion as to the
meaning of words employed and obligations undertaken.”
rel. Fazier & Oxley, L.C. v. Cummings, 569 S.E.2d 796, 803-04 (W.
Va. 2002) (internal quotation marks omitted). Further, “a document
that may appear on its face to be free from ambiguity, may be
deemed latently ambiguous.”
135, 143 (W. Va. 2003).
Energy Dev. Corp. v. Moss, 591 S.E.2d
“A latent ambiguity arises when the
instrument upon its face appears clear and unambiguous, but there
is some collateral matter which makes the meaning uncertain.”
Flanagan, 607 S.E.2d at 769 n.4.
Further, “[a] contract that is
silent as to a point is not ambiguous in that regard; the question
presented by such silence is determination of the effect of the
contract rather than interpreting its language, and the trier of
fact may not make such a determination.”
Mountain State Coll. v.
Holsinger, 742 S.E.2d 94, 102 (W. Va. 2013).
Article XI of the Subcontract provides that “[n]otwithstanding
the dimensions of the Plans, Specifications and other Contract
Documents it shall be the obligation and responsibility of the
Subcontractor to take such measurements as will insure the proper
matching and fitting of the Work covered by this Agreement with
ECF No. 39-2 at 3 (emphasis added).
Should the proper and accurate performance of the Work
hereunder depend upon the proper and accurate performance
of other work not covered by this Agreement, the
Subcontractor shall carefully examine such other work,
determine whether it is in fit, ready and suitable
condition for the proper and accurate performance of the
Work hereunder, use all means necessary to discover any
defects in such other work, and before proceeding with
the Work hereunder, report promptly any such improper
conditions and defects to Contractor in writing and allow
Contractor a reasonable time to have such improper
conditions and defects remedied.
ECF No. 39-2 at 4.
Attachment AP-1 to the Subcontract defines the
scope of Modern Mosaic’s work and provides that Modern Mosaic
“shall verify and accept existing conditions in accordance with the
Contract Documents at the Garage at the time of Owner’s turnover of
Garage to [Turner].”
ECF No. 39-2 at 6-7 (emphasis in original).
Further, attachment AP-5 to the Subcontract provides:
Subcontractor is responsible for taking field
measurements as may be necessary to establish or verify
dimensions prior to production of fabricated items.
Contractor shall not be responsible to guarantee
dimensions for the Subcontractor. Subcontractor shall
not use other Subcontractors construction and/or layout
Subcontractor to notify Contractor of any discrepancies
between controls and existing construction.
ECF No. 39-2 at 13 (emphasis added). It further provides that each
of Modern Mosaic’s shop drawing submissions “must be formally
certified . . . stating they have carefully reviewed the submittal,
coordinated with all other work and is in strict compliance with
the project documents.
ECF No. 39-2 at 14 (emphasis in original).
The Subcontract makes clear that Modern Mosaic was obligated
to field verify the dimensions of the parking garage before
submitting its shop drawings for approval and before fabricating
Further, Modern Mosaic was obligated to report any
discrepancies or defects it found in the structure to Turner with
sufficient time for Turner and the FBI to remedy the defects.
Because the Subcontract unambiguously obligated Modern Mosaic to
field verify the parking garage’s dimensions, this Court rejects
Modern Mosaic’s appeals to prior and contemporaneous documents not
incorporated by reference into the Subcontract and the parties’
communications and stated understandings after the Subcontract was
Nevertheless, Modern Mosaic proffers two arguments against
First, Modern Mosaic argues that the prime
contract obligated Turner to verify all existing conditions, remedy
any “conditions detrimental to the proper and timely completion of
the Work,” and to “not proceed until unsatisfactory conditions have
ECF No. 39-3 at 2.
However, Article II of the
Subcontract contains what is commonly referred to as a “flow down”
clause, and provides:
With respect to the work to be performed and furnished by
the Subcontractor hereunder, the Subcontractor agrees to
be bound to Contractor by each and all of the terms and
provisions of the General Contract and the other Contract
Documents, and to assume toward Contractor all the
duties, obligations and responsibilities that Contractor
by those Contract Documents assumes toward the Owner, and
the Subcontractor agrees further that Contractor shall
have the same rights and remedies as against the
Subcontractor as the Owner under the terms and provisions
of the General Contract, and the other Contract Documents
has against Contractor with the same force and effect as
though every such duty, obligation, responsibility, right
or remedy were set forth herein in full. The terms and
provisions of this Agreement with respect to the Work to
be performed and furnished by the Subcontractor hereunder
are intended to be and shall be in addition to and not in
substitution for any of the terms and provisions of the
General Contract, and the other Contract Documents.
ECF No. 39-2 at 1 (emphasis added).
Thus, while Modern Mosaic is
correct that the General Contract obligated Turner to conduct all
necessary field verification, the Subcontract’s flow down provision
along with the specific provisions discussed above obligated Modern
Mosaic to conduct field verification as it pertained to the work in
Thus, this Court finds that the Subcontract
dimensions of the parking garage before fabricating the panels.
Second, Modern Mosaic argues that Attachment AP-3 to the
Subcontract includes “alternate” terms for the Subcontract that
Turner could exercise by issuing a change order.
that “Option #1” was “Not Exercised.”
#1 is not defined in the document.
ECF No. 45-3 at 46.
ECF No. 45-3 at 46.
Mosaic argues that its bid included an optional addition entitled
“Add for survey of Structure and embeds at precast locations only,”
ECF No. 45-5 at 2, which it argues is “Option #1” in AP-3.
Mosaic argues that Turner did not exercise that option and, thus,
retained its obligation to field verify the structure.
that this is in conflict with other portions of the Subcontract,
making the it ambiguous as to who was obligated to field verify the
However, Modern Mosaic’s argument is flatly contradicted by
the clear terms of the Subcontract.
Option #1 is undefined in the
Subcontract and the parties offer competing definitions.
this disagreement does not create a latent ambiguity because the
Subcontract unambiguously obligated Modern Mosaic to field verify
the parking garage’s dimensions.
Bates, 793 S.E.2d at 885.
interpret Option #1 as Modern Mosaic suggests, this Court would
have to disregard the clear language set out in at least three
separate provisions of the Subcontract obligating Modern Mosaic to
field verify the parking garage’s dimensions.
“expresses the intent of the parties in plain and unambiguous
inconsistently with the parties expressed intent.
New, 753 S.E.2d
Further, Article XXXVII of the Subcontract provides that the
document “constitutes the entire agreement” between the parties and
that “[n]o oral representations or other agreements have been made
. . . except as stated in the [Subcontract].”
ECF No. 39-2 at 5.
The parties have offered no evidence to the contrary, and this
Court finds the Subcontract to be a fully integrated written
Thus, Modern Mosaic’s reliance on its bid is irrelevant
obligated Modern Mosaic to field verify the parking garage’s
dimensions before fabricating any panels.
Breach of the Subcontract
Having found that Modern Mosaic was obligated to field verify
the dimensions of the parking garage before fabricating the panels,
this Court must now determine whether Modern Mosaic defaulted on
Turner argues that Modern Mosaic fabricated the
flat-wall panels before its shop drawings were approved and that
Modern Mosaic fabricated the corner panels before field verifying
the parking garage’s dimensions.
Modern Mosaic argues that it
received approval for all panels before fabrication.
First, Modern Mosaic breached the Subcontract by fabricating
the flat-wall panels before receiving proper approval of its shop
Modern Mosaic argues that its second set of shop
drawings, which were returned on October 11, 2011 stamped “Revise
& Resubmit,” specifically noted that the flat-wall panels were
fabricating the flat-wall panels in January 2012, after this
alleged approval. However, under § 013000 of the General Contract,
revise and resubmit “means that a portion of the submittal does not
comply with the design intent of the Contract Documents and that
Contractor shall make revisions and resubmit entire submittal only
revising portions as needed.”
ECF No. 39-4 at 5 (emphasis added).
Any work done before approval of shop drawings “shall be at the
[subc]ontractor’s risk.” 48 C.F.R. § 52.236-21(e); ECF No. 39-2 at
16 (incorporating by reference § 52.236-21 into the Subcontract).1
Thus, despite the architect’s finding that the flat-wall panel shop
drawings were acceptable, the architect stamped the submittal as
“Revise & Resubmit,” requiring Modern Mosaic to resubmit the entire
Mosaic’s fabrication of the flat-wall panels before obtaining final
approval of its shop drawings was in breach of the Subcontract.
Second, Modern Mosaic breached the Subcontract by fabricating
the corner panels in the face of known dimensional discrepancies.
Modern Mosaic field verified the parking garage’s dimensions on
March 1, 2012 and informed Turner of the dimensional discrepancies
it found on March 21, 2012.
ECF No. 39-19.
Turner then forwarded
This Court notes that the clause provided at 48 C.F.R.
§ 52.236-21 was a required clause in the General Contract.
C.F.R. § 36.521. If the clause was not specifically included in
the General Contract, it would be read into the contract by
operation of law. G. L. Christian & Assocs. v. United States, 312
F.2d 418, 425-26 (Ct. Cl.), cert. denied, 375 U.S. 954 (1963).
those discrepancies to the FBI and asked the FBI to expedite its
review and resolution of the discrepancies so Modern Mosaic’s work
ECF No. 39-22 at 2.
Modern Mosaic continued to
inform Turner of additional discrepancies as Thrasher discovered
them through continued analysis of its survey data. ECF Nos. 39-19
at 1; 39-20; 39-21 at 2; 39-23.
Although Modern Mosaic’s fourth
set of shop drawings was returned “Approved as Noted” on April 16,
2012, Modern Mosaic’s letters to Turner from April to June 2012
indicate that Modern Mosaic was aware of dimensional discrepancies
discrepancies had not yet been resolved by Turner, the architect,
or the FBI.
See ECF Nos. 39-23; 39-24.
Mosaic fabricated the corner panels between April 16 and June 2012,
only to find in June that those panels would need to be redesigned
due to the dimensional discrepancies. ECF No. 39-24. Thus, Modern
Mosaic fabricated the corner panels after it had actual knowledge
of the parking garage’s dimensional discrepancies but before those
discrepancies were resolved.
Modern Mosaic did so in the face of
known discrepancies and without waiting for those discrepancies to
be resolved as required by the Subcontract.
Article XII of the Subcontract provides that “[a]pproval of
such shop drawings . . . shall not relieve [Modern Mosaic] . . . of
its responsibility for the proper matching and fitting of the
[panels] with contiguous work.”
ECF No. 39-2 at 4.
attachment AP-5 to the Subcontract provides that:
must be formally certified . . . and approved by the Subcontractor
prior to submission, stating they have carefully reviewed the
ECF No. 39-2 at 14 (emphasis in original).
Nevertheless, Modern Mosaic argues that it was unable to field
verify the parking garage before fabrication because Turner failed
to provide Modern Mosaic with the “Building Control Lines” so that
it could field verify the garage.
Attachment AP-5 provides:
25. Benchmarks and Building Control Lines:
Control Points and Benchmarks for the site will be
brought onto the site by others. Each Trade Contractor
shall be responsible for providing their own layout and
The “Building Control”/reference points and
benchmarks will be established for the project by the
Flatwork Contractor . . . .
Contractor” is not defined in the Subcontract.
“Contractor” to refer to Turner and “Subcontractor” to refer to
These proper nouns make clear that “Flatwork
Contractor” references some third party.
Thus, the Subcontract
provides that the Flatwork Contractor was obligated to provide
initial building control points and benchmarks, and that Modern
ECF No. 45-3 at 51.
Turner was not obligated to provide
building controls for Modern Mosaic, and Modern Mosaic’s obligation
to fabricate panels for the as-build structure was not absolved
because the initial building controls.
Modern Mosaic fabricated
the flat-wall panels before its shop drawings were approved and
fabricated the corner panels in the face of known dimensional
Thus, Modern Mosaic’s damages were the result of
its own breach of the Subcontract.
This Court finds that there is not genuine issue of material
fact regarding the parties’ contractual obligations and performance
Construction Company is entitled to judgment as a matter of law as
to Modern Mosaic, Ltd.’s parking garage claims.
defendants’ motion for partial summary judgment (ECF No. 39) is
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
March 13, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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