Cabell v. CMH Homes, Inc. et al
Filing
149
MEMORANDUM OPINION AND ORDER granting the [95 and 97 Motions as they pertain to Plaintiff's claims; all of the cross claims and counterclaims are dismissed; defendant's 107 Second Joint Motion is denied as moot; 116 , 118 , 119 , [12 0], 121 , 122 , 123 , 124 , 125 , 126 , 127 , 128 , 137 , 144 , and 145 Motions are denied as moot; the final settlement conference and trial are cancelled. Signed by Judge Joseph R. Goodwin on 11/18/2021. (cc: counsel of record; any unrepresented party) (lca)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
EVELYN CABELL,
Plaintiff,
v.
CIVIL ACTION NO. 2:20-cv-00507
CMH HOMES, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are motions for summary judgment filed by
Defendants CMH Homes, Inc. and CMH Manufacturing, Inc. (collectively, the “CMH
Defendants”) [ECF No. 95] and Defendant Southern Ohio Construction, LLC [ECF
No. 97]. The motions are fully briefed and ripe for consideration. For the reasons
discussed below, the Motions for Summary Judgment are GRANTED as they pertain
to Plaintiffs’ claims. 1
I.
Relevant Facts
This case presents a series of contract disputes among the parties. Plaintiff
Evelyn Cabell gave her son, Plaintiff Billy Cabell, power of attorney to purchase a
Defendant Southern Ohio also moves for summary judgment in its favor on CMH Homes
cross-claim for indemnity. In addition to CMH Homes’ cross-claim, CMH Manufacturing also crossclaims against Southern Ohio, and Southern Ohio cross claims against CMH Homes and CMH
Manufacturing. However, each cross-claim is dependent on Plaintiffs recovering from one or more
Defendants. Because all of Plaintiffs’ claims fail, all of the cross-claims are DISMISSED. Likewise,
each Defendant filed a counterclaim against Plaintiff Billy Cabell. Those counterclaims were also
dependent upon Plaintiffs recovering and are therefore DISMISSED.
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modular home in her name from Defendant CMH Homes. Billy Cabell went to CMH
Homes, worked with sales representatives, chose a home, and negotiated and signed
a Sales Agreement on behalf of Ms. Cabell. The modular home was to be
manufactured in two pieces by CMH Manufacturing and then transported to Ms.
Cabell’s land by CMH Homes. According to Plaintiffs, Billy Cabell was going to live
in the home, which would be located next to his parents, at least in part so that he
could help care for them.
In the normal course, CMH Manufacturing would manufacture the pieces of
the modular home and those pieces would be transported to the CMH Homes location.
CMH Homes would then engage a contractor to build a foundation for the home,
transport the pieces to the home site and complete construction by installing the
home on the foundation. In this case, however, Billy Cabell negotiated a lower sales
price by agreeing to hire his own contractor to build the foundation and install the
home. 2 Despite Plaintiffs’ contention otherwise, the record provides no support for
an alternate version of the facts.
When CMH sales representatives emailed Billy Cabell a quote, the sales price
included “Foundation and Setup.” [ECF No. 95-3, at 1]. Immediately below the sales
price, the quote included a list of items that were to be deducted from the sales price.
That list included items such as the countertops and carpets and the foundation and
“Setup of Home (We Deliver Only).” Id. The list reflected the amount of money
Throughout the briefing, Plaintiffs dispute this fact. While I am mindful that I must take all
facts and inferences in the light most favorable to the non-moving party—here, Plaintiffs—the record
makes clear that Billy Cabell did, in fact, take on this responsibility. Therefore, I need not accept
Plaintiffs’ contrary allegation.
2
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Plaintiffs would save from each deduction and listed the total price for the home after
the modifications. Id. Even more important, the contracts signed by Billy Cabell make
it indisputable that Billy Cabell contracted to take on responsibility for the
foundation and installation of the home.
The Sales Agreement [ECF No. 95-4] sets out lists of “Seller Responsibilities”
and “Buyer Responsibilities.” Among the seller responsibilities were “Delivery of
Home to the House Seat, Construction of Home As Per Agreed Upon Options, Drywall
Repair and Trimout Of Home Once Set, . . . [and] AC Installed.” [ECF No. 95-4, at 1].
The Buyer Responsibilities were as follows:
All Setup of Home, Foundation Installation, Lot Prep,
Drainage, Utility Hookups, Garage, Steps, Decks, Gutters,
Downspouts, Anything Having To Do With Construction Of
The Home Once On Property.
Id. (emphases supplied).
In addition to the Sales Agreement, Billy Cabell executed a West Virginia
Schedule and Agreement Regarding Installation Responsibilities. [ECF No. 95-5].
That document required Billy Cabell to “acknowledge You have been notified and
understand that improper installation of Your manufactured home may result in . . .
severe damage to the structure [and] the creation of safety or health hazards in the
home or at the home site.” Id. at 1. It further explained that “You have the right to
personally install or independently hire a licensed installer for the installation of
Your manufactured home. You understand You are legally responsible for work You
contract to do relative to the installation of Your home as agreed below.” Id. On the
second and third pages of the document, a chart listing the various installation
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responsibilities designated those responsibilities as either “We”—CMH Homes—or
“You”—Billy Cabell. Billy Cabell was responsible for the following items: conducting
a soil evaluation, clearing and providing access to the site, rough grading the site,
digging footings, pouring concrete, positioning and leveling the home on its support
system, anchoring the home, close-in, making all utility connections, and final
grading and water control. Id. CMH Homes was responsible for delivering the home
to the home site, conducting a physical inspection of the site, designing footings, trim
and adjustment, non-electrical cross-over connects, and installing and venting the
facia. Id.
Billy Cabell hired Southern Ohio Construction, LLC, to complete installation
of the home at the home site. Though Plaintiffs argue otherwise, there is once again
no evidence in the record that Southern Ohio was hired by CMH Homes. Rather, as
the record makes clear, Billy Cabell agreed to hire his own installer. The record does
show that Billy Cabell learned about Southern Ohio through CMH Homes, however.
During his discussions with a CMH Homes sales representative prior to signing the
Sales Agreement, Billy Cabell asked the representative what contractor CMH Homes
would use to install the home if they were the ones responsible for doing so. The
representative told Billy Cabell that CMH Homes has a list of approved contractors
it hires from on a rotating basis; the next one up on the list was Southern Ohio.
Plaintiffs acknowledge in their response brief that “Billy Cabell was further told that
if he dealt with Southern directly, he may be able to save some money. He did so and
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requested that Southern also build a foundation for him since they were going to be
installing his home.” [ECF No. 104, at 2 (emphasis supplied)].
CMH delivered the home and Southern Ohio began installation. Once Billy
Cabell was permitted to inspect the home, he claims he found numerous defects in
the construction and installation of the home. Though the Amended Complaint lacks
any specificity about these alleged defects, Plaintiffs filed suit against the CMH
Defendants, Southern Ohio, and John Doe3 alleging four causes of action. Count One
alleges a breach of contract claim against CMH Homes; Count Two alleges negligent
construction against the CMH Defendants and Southern Ohio; Count Three alleges
Negligent Hiring or Negligent Recommendation against the CMH Defendants; and
Count Four is a third-party beneficiary claim against Southern Ohio. Defendants now
move for summary judgment on all claims. 4
II.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary
judgment. A court “may grant summary judgment only if, taking the facts in the best
light for the nonmoving party, no material facts are disputed and the moving party
is entitled to judgment as a matter of law.” Ausherman v. Bank of Am. Corp., 352
Though the Amended Complaint names John Doe, “an unknown person or entity who may
be liable for the damages sustained by the Plaintiff,” the Amended Complaint does not actually make
any specific claim against John Doe. [ECF No. 27, at 2]. Further, John Doe has never been served and
the record does not reveal any other unnamed person or entity.
3
In addition to moving for summary judgment on the merits of each claim, Defendants move
for summary judgment that Billy Cabell does not have standing to obtain damages under West
Virginia law, and on Plaintiffs’ request for attorneys’ fees. Because there is no dispute that Evelyn
Cabell has standing, this court can engage in the merits arguments. And because I ultimately grant
summary judgment on the merits of each claim, I need not decide the standing or attorneys’ fees issues.
4
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F.3d 896, 899 (4th Cir. 2003). “Facts are ‘material’ when they might affect the
outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ.
Co. v. Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).
The moving party may meet its burden of showing that no genuine issue of fact
exists by use of “depositions, answers to interrogatories, answers to requests for
admission, and various documents submitted under request for production.” Barwick
v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). “[A] party opposing a properly
supported motion for summary judgment may not rest upon mere allegation or
denials of his pleading, but must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986).
Although the court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some
“concrete evidence from which a reasonable juror could return a verdict in his [or her]
favor.” Id. The nonmoving party must satisfy this burden of proof by offering more
than a mere “scintilla of evidence” in support of her position. Id. at 252. Likewise,
conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of a summary judgment motion. See Felty v. Graves–
Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).
Summary judgment is appropriate when the nonmoving party has the burden
of proof on an essential element of her case and does not make, after adequate time
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for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986).
III.
Discussion
A. Count One – Breach of Contract
Plaintiffs’ Amended Complaint alleges breach of contract against Defendant
CMH Homes. According to the Amended Complaint, “Plaintiffs and Defendant CMH
Homes entered into a contract whereby Defendant CMH Homes would sell to
Plaintiffs and construct the Modular Home on the Property in a reasonably prudent
manner . . . Defendant CMH Homes breached said contract by failing to construct the
Modular Home on the Property.” [ECF No. 27, at ¶ 18 (emphasis supplied)]. CMH
Homes moves for summary judgment because the contract at issue, the Sales
Agreement, plainly makes “Anything Having to Do With Construction Of The Home
Once On Property” Plaintiffs’ responsibility. [ECF No. 96, at 4–8; ECF No. 95-4].
Plaintiffs respond that CMH is “attempt[ing] to play semantics,” and that “the mere
phrase ‘home on the property’ was describing the location of the home” and not the
location where the breach occurred. [ECF No. 104, at 3]. Plaintiffs also contend that
the contract is ambiguous as to who was responsible for installation of the home, and
they claim—for the first time—that CMH breached the contract by breaching an
implied warranty of merchantability.
1. Scope of the Claim
As an initial matter, I must determine whether Plaintiffs’ claim is as narrow
as CMH Homes suggests. I find that it is. Plaintiffs’ contention that “failing to
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construct the Modular Home on the Property” [ECF No. 27, at ¶ 19] was meant to
only refer to the location of the home rather than the location of the breach is
disingenuous and in any event would not resolve the issue. Though Plaintiffs now say
the breach of contract claim has always related to both manufacturing defects and
defects in the installation or construction of the home on the property, there is no
evidence that this is the case.
Plaintiffs are the masters of their own complaint. They were represented by
counsel in drafting the Complaint and Amended Complaint, and counsel is clearly
aware that the terms “manufacture” and “construct” have distinct meanings—
especially given the facts of this case. Even Plaintiffs’ Amended Complaint recognizes
that “Plaintiffs contracted . . . to purchase a modular home manufactured by
Defendant CMH Manufacturing to be constructed on the Property,” [ECF No. 27, at
¶ 11], and that Southern Ohio was hired “to construct the Modular Home on the
Property,” id. at ¶ 14. This same distinction is made throughout the briefing in this
case. But the Amended Complaint makes no mention of manufacturing defects.
Instead, it claims, without specificity, that the home was “constructed poorly,” id. at
¶ 15, and CMH Homes breached the contract “by failing to construct the Modular
Home on the Property in a reasonably prudent manner,” id. at ¶ 19. I find that
Plaintiffs’ breach of contract claim relates only to construction of the home on the
property. The next question, then, is whether the contract at issue makes clear who
was responsible for that construction.
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2. Ambiguity in the Contract
“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.” Syl. Pt. 1, Cotiga Dev. Co.
v. United Fuel Gas Co., 128 S.E.2d 626 (W. Va. 1962). “The mere fact that parties do
not agree to the construction of a contract does not render it ambiguous. The question
as to whether a contract is ambiguous is a question of law to be determined by the
court.” Syl. Pt. 1, Berkeley Cty. Pub. Serv. Dist. v. Vitro Corp., 162 S.E.2d 189 (W.
Va. 1968). “Contract language is considered ambiguous where an 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.” Syl. Pt. 6, State ex rel. Frazier & Oxley, L.C. v. Cummings, 569 S.E.2d
796 (W. Va. 2002). “And where the written contract is ambiguous and uncertain, parol
evidence is admissible to show the situation of the parties, the surrounding
circumstances at the time of the writing, and the practical construction given by the
parties.” Stewart v. Blackwood Elec. Steel Corp., 130 S.E. 447, 449 (W. Va. 1925).
“Even then, if the parol evidence be not in conflict, the duty remains with the court
to construe the writing; otherwise, it becomes a jury question under proper
instructions.” Id.
Here, Plaintiffs argue the Sales Agreement is ambiguous as to whether CMH
was responsible for the installation of the home, which is part of the “construction of
the home on the property.” In support, Plaintiffs point to two allegedly conflicting
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provisions within the Sales Agreement. 5 First, Plaintiffs recognize that the front
page of the Sales Agreement, which specifies the specific options made by the parties,
states that “All Setup of Home, Foundation Installation,” and “Anything Having To
Do With Construction Of The Home Once On Property” is Plaintiffs’ responsibility.
However, Plaintiffs note that the back of the Sales Agreement, which includes
“Additional Terms and Conditions,” states that “Normal delivery and installation are
included in the purchase price.” [ECF No. 95-4, at 2].
CMH Homes argues that the back side of the Sales Agreement is a form
document that includes the standard terms and conditions that apply in a normal
sale. CMH Homes points to additional term and condition number one, which states
that “[t]he terms and conditions stated herein are in addition to any provisions of the
sale . . . stated on the front of the agreement.” [ECF No. 95-4, at 2]. According to CMH
Homes, this provision means that “the provisions set forth on the front of the Sales
Agreement are controlling, and that the parties can use the front page to alter the
form provisions.” [ECF No. 106, at 5].
I find that the Sales Agreement is ambiguous. Contrary to CMH Homes’
assertion, I do not find that additional term number one provides that the front of the
document is “controlling.” Rather, it provides that the terms and conditions on the
back of the document are “in addition to,” as in, taken together with, the terms stated
on the front of the agreement. Here, the front of the agreement provides that
Plaintiffs also point to supposed actions by CMH Homes with regard to the set-up and
installation of the home that, according to Plaintiffs, conflict with the duties assigned in the Sales
Agreement. These arguments are irrelevant to the determination of whether the Sales Agreement
itself is ambiguous, and I need not consider them here.
5
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Plaintiffs are responsible for “All Setup of Home, Foundation Installation,” and
“Anything Having To Do With Construction Of The Home Once On Property,” but
additional term number two states that “Normal delivery and installation are
included” in the sales price. These terms used here can support a reasonable
difference of opinion as to the obligations undertaken by the parties because
“installation,” “All Setup,” and “Construction . . . On the Property” all relate to the
process of placing the home on the foundation and putting the pieces together to
create the home. Because the contract is ambiguous, parol evidence, that is evidence
prior to and contemporaneous with the signing of the Sales Agreement, is admissible
to determine the intent of the parties.
The parol evidence in the record before me includes the email quotation and
subsequent conversation between Billy Cabell and CMH Homes [ECF No. 95-3], and
the West Virginia Schedule and Agreement Regarding Installation Responsibilities
[ECF No. 95-5]. These documents do not conflict with the Sales Agreement. Rather
they serve to clarify the terms in the Sales Agreement. Therefore, interpretation of
the contract terms is still a matter of law rather than a question for the jury.
Here, the email conversations prior to the execution of the Sales Agreement
clarify that the purchase price does typically include foundation and setup. However,
the emails make clear that the purchase price in this case was lowered to reflect
certain changes to the standard agreement. Specifically, as relevant here, Billy Cabell
negotiated a purchase price that was “Minus Foundation” and “Minus Setup of Home
(We Deliver Only).” [ECF No. 95-3, at 1]. Billy Cabell responded to the quote by
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pointing out a mathematical error and then signed a sales worksheet reflecting the
total price without the foundation and setup. Id. at 3. Similarly, the West Virginia
Schedule and Agreement Regarding Installation Responsibilities [ECF No. 95-5]
clarifies which parts of the installation were assigned to each party. That document
makes clear that Plaintiffs were responsible for the foundation and for “Positioning
and leveling the home on its support system,” “Anchoring the home,” and “Close-in”
of the home. These documents, taken together, make clear that the intent of the
parties was expressed on the front of the Sales Agreement. Plaintiffs were to be
responsible for “installation,” “All Setup,” and “Construction . . . Once On Property”
because Billy Cabell negotiated a lower purchase price in exchange for taking on
those responsibilities.
3. Conclusion
Because Plaintiffs were responsible for “Anything Having to Do With
Construction . . . Once On Property,” CMH Homes could not have breached the
contract “by failing to construct the Modular Home on the Property in a reasonably
prudent manner.” CMH Homes’ Motion for Summary Judgment on Count One is
GRANTED.
B. Count Two – Negligent Construction
Plaintiffs’ second count alleges Negligent Construction against Defendants
CMH Homes, CMH Manufacturing, and Southern Ohio. Defendants move for
summary judgment because West Virginia law makes clear that tort liability “will
not arise for breach of contract unless the action in tort would arise independent of
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the existence of the contract.” Beattie v. Skyline Corp., 906 F. Supp. 2d 528, 542 (S.D.
W. Va. 2012). That is, a Plaintiff must plead breach of contract, rather than
negligence, when the source of the duty allegedly breached is a contract. The Supreme
Court of Appeals of West Virginia has explained
In seeking to prevent the recasting of a contract claim as a tort claim, [it applies] the
‘gist of the action’ doctrine. Under this doctrine, recovery in tort will be barred when
any of the following factors is demonstrated:
(1) where liability arises solely from the contractual
relationship between the parties;
(2) when the alleged duties breached were
grounded in the contract itself;
(3) where any liability stems from the contract; and
(4) when the tort claim essentially duplicates the
breach of contract claim or where the success of the
tort claim is dependent on the success of the breach
of contract claim.
Gaddy Eng’ Co. v. Bowles Rice McDavid Graff & Love, LLP, 746 S.E.2d 568, 577 (W.
Va. 2013) (citations omitted). And, of course, where an action in tort is proper, the
standard elements of duty, breach, causation, and damages apply.
In the Amended Complaint, Plaintiffs allege that Defendants breached their
“dut[ies] to properly design, construct, supervise, inspect and otherwise assemble the
Modular Home on the Property in a reasonably prudent manner as would any other
reasonably prudent modular home manufacturers, sellers, assemblers and
contractors.” [ECF No. 27, at ¶22]. Defendants move for summary judgment. The
CMH Defendants argue first, as I have already found, that Billy Cabell contracted to
take on many of these responsibilities himself and so CMH owed him no duty in the
first instance. To the extent any alleged duty did remain with the CMH Defendants,
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they argue the source of the duty is the Sales Agreement, so a negligence claim is
improper. Southern Ohio argues that a negligence claim against it is likewise
improper because Plaintiffs do not allege a duty that arises apart from the contract
between Southern Ohio and Billy Cabell. In response, Plaintiffs acknowledge the
relevant West Virginia law but then baldly claim the “CMH Defendants [sic] conduct
and representations in this case have given rise to Plaintiffs’ tort actions, and these
claims are independent from the actual terms of the contract” [ECF No. 104, at 16],
and that “it is the deceptive and negligent actions of Defendant Southern that give
rise to the Plaintiffs’ negligence cause of action” [ECF No. 103, at 14].
Plaintiffs do not dispute the existence of a contract with any Defendant, and
they make no attempt to explain how the alleged negligence of any Defendant arises
from a duty that is independent of a contract. Because “a party opposing a properly
supported motion for summary judgment may not rest upon mere allegation or
denials of his pleading, but must set forth specific facts,” Plaintiffs have failed to
overcome Defendants’ showing that they are entitled to summary judgment.
Defendants Motions for Summary Judgment on Count Two are GRANTED.
C. Count Three – Negligent Hiring/Referral
Count Three of the Amended Complaint alleges the CMH Defendants
negligently hired or negligently referred Southern Ohio. The CMH Defendants move
for summary judgment in their favor. CMH Manufacturing argues that there is no
evidence in the record that it hired, referred, or was involved in any way with
Southern Ohio. CMH Homes argues it is entitled to summary judgment on the
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negligent hiring claim because CMH Homes did not hire Southern Ohio and the terms
of the West Virginia Schedule and Agreement Regarding Installation Responsibilities
unambiguously place all responsibility for installation, including selecting and
supervising an installer, with Plaintiffs. CMH Homes argues it is entitled to
summary judgment on the negligent referral claim because West Virginia does not
recognize such a claim; CMH Homes did not refer Southern Ohio; and, even if it did
hire or refer Southern Ohio, there is no evidence it was negligent in doing so.
Plaintiffs make no response to CMH Manufacturing’s arguments. In response
to CMH Homes, Plaintiffs first argue that CMH Homes did hire Southern Ohio. In
support, Plaintiffs point only to Billy Cabell’s deposition where he claims he did not
choose Southern Ohio but that Josh Dials, a salesman at CMH Homes, told him
Southern was next in line. [ECF No. 104, at 17–18]. According to Plaintiffs, if CMH
Homes had its own list of approved installers it hires from, “Plaintiffs could not have
hired their own contractor,” id. at 19, even though, as I have already found, they took
on that responsibility. Plaintiffs make no response to CMH Homes’ argument that
West Virginia does not recognize a negligent referral claim or its argument that, even
if it did hire or refer Southern Ohio, there is no evidence it was negligent in doing so.
First, I find that West Virginia does not, and would not, recognize a claim for
negligent referral or recommendation of a contractor. Pied Piper, Inc. v. Datanational
Corp., 901 F. Supp. 212, 214 (S.D. W. Va. 1995). The court is not aware of, and
Plaintiffs do not point to, any change in West Virginia law on this issue. As for the
negligent hiring claim, “[t]o state a claim for negligent hiring, retention, or
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supervision, a plaintiff must allege facts, which, if true, would show that the employer
was negligent in selecting and retaining the employee and that such negligence
proximately caused harm to the plaintiff.” Sullivan v. City of Smithers, No. 2:08-cv0337, 2008 WL 11429359, at *7 (S.D. W. Va. Nov. 17, 2008) (citing Thomas v.
McGinnis, 465 S.E.2d 922, 929 (W. Va. 1995)). A principal has no “affirmative duty
to conduct a comprehensive inquiry into the credentials of an individual hired as an
independent contractor. Where the independent contractor selected is a licensed,
reputable individual or firm . . . the [principal] is not obligated to engage in a personal
inquiry into the credentials or training of the contractor.” Thomas, 465 S.E.2d at 929.
“However, where the exercise of reasonable diligence would disclose facts
demonstrating that the contractor was clearly incompetent for the particular task
contemplated, a reasonably prudent [principal] should not retain the contractor.” Id.
Here, there is no evidence in the record that Southern Ohio was incompetent
for the particular task contemplated. CMH included evidence in the record that
Southern Ohio is a contractor licensed to do work in West Virginia [ECF No. 95-12]
and that Southern Ohio’s owner is licensed as a mobile home installer [ECF No. 9513]. Plaintiffs do not dispute that Southern Ohio is licensed. Rather, Plaintiffs’ only
attempt to argue incompetence is their claim that “in just Southern West Virginia
alone, there have been several suits filed against both Southern and CMH for homes
with defects that were manufactured by CMH and installed by Southern.” [ECF No.
104, at 17]. In support, Plaintiffs do not point to any evidence or facts from these
alleged cases; they do not provide case names, case numbers, or any other
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information. Instead, Plaintiffs cite only to Billy Cabell’s deposition at pages 141 to
143. While a portion of Billy Cabell’s deposition is attached to the response [ECF No.
103-1], pages 141 to 143 are not included. In fact, the “transcript” includes only pages
21, 23, 57, 60, 62, 63, 64, 144, 150 to 156, and 166. Therefore, Plaintiffs utterly fail to
overcome CMH Homes’ showing that there is no genuine dispute of material fact and
that it is entitled to judgment as a matter of law. The CMH Defendants’ Motion for
Summary Judgment on Count Three is GRANTED.
D. Count Four – Third-Party Beneficiary
Finally, Count Four of the Amended Complaint alleges a third-party
beneficiary claim against Southern Ohio. Plaintiffs allege that CMH Homes or CMH
Manufacturing entered into a contract with Southern Ohio to construct the home on
the property, Southern breached the contract, and damaged Plaintiffs as third-party
beneficiaries to the contract. [ECF No. 27, at ¶¶ 29–34]. Southern Ohio moves for
summary judgment because it was not hired or paid by the CMH Defendants to do
work on Plaintiffs’ home. [ECF No. 98, at 10]. Though Southern Ohio and CMH
Homes have an agreement whereby Southern Ohio is an independent contractor for
CMH Homes, that agreement was not implicated in this case because Billy Cabell
contracted directly with Southern Ohio. Even if the agreement was applicable here,
Southern Ohio argues it was not created for Plaintiffs’ sole benefit and therefore
cannot be the basis of a third-party liability claim. [ECF No. 98, at 11]. Plaintiffs’
Response [ECF No. 103] to Southern Ohio’s motion for summary judgment neglects
to make any argument in opposition.
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I have already held that Plaintiffs agreed to take responsibility for hiring their
own contractor to install the modular home. And there is no evidence in the record
that CMH Homes contracted with or paid Southern Ohio for its work on Plaintiffs’
home. As noted above, Plaintiffs acknowledge in their briefing in this case that “Billy
Cabell was further told that if he dealt with Southern directly, he may be able to save
some money. He did so and requested that Southern also build a foundation for him
since they were going to be installing his home.” [ECF No. 104, at 2 (emphasis
supplied)]. Therefore, Southern Ohio is entitled to summary judgment on that basis.
Even if Southern Ohio was acting in its capacity as an independent contractor
for CMH Homes, West Virginia law makes clear that a contract only gives rise to
third-party liability if the contract was made for the third party’s “sole benefit.” See
W. Va. Code § 55-8-12; United Dispatch v. E. J. Albrecht Co., 62 S.E.2d 289, 296 (W.
Va. 1950). Here, the independent contractor agreement between Southern Ohio and
CMH Homes was executed on May 19, 2010, nearly a decade before Plaintiffs
purchased the modular home. Therefore, the independent contractor agreement could
not have been for Plaintiffs sole benefit and cannot give rise to a third-party
beneficiary claim. Southern Ohio’s Motion for Summary Judgment on Count Four is
GRANTED.
IV.
Conclusion
For the foregoing reasons, Defendants’ Motions for Summary Judgment [ECF
Nos. 95, 97] are GRANTED as they pertain to Plaintiffs’ claims. All of the cross-claims
and counterclaims are DISMISSED. Because Plaintiffs have withdrawn the relevant
18
Case 2:20-cv-00507 Document 149 Filed 11/18/21 Page 19 of 19 PageID #: 1448
document [ECF No. 110], Defendants’ Second Joint Motion to Exclude Untimely
Expert Disclosures [ECF No. 107] is DENIED AS MOOT. 6 All pending motions in
limine [ECF Nos. 116, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 137] and
the pending motions related to jury information [ECF Nos. 144, 145] are DENIED AS
MOOT. Because the court is still considering Defendants’ Joint Motion for Sanctions
[ECF No. 129] this case will remain open and on the court’s active docket. The final
settlement conference and trial are CANCELLED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: November 18, 2021
6
Of course, the court did not consider the document.
19
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