A design-build contractor made changes to the size of steel supports for a bridge contrary to the design specifications and without approval of design engineer. It then built the bridge despite being advised of the non-conformities by its two subcontracted engineering inspection firms. When the state required the contractor to tear down and rebuild the bridge, the contractor sued its two inspection firms for indemnification of its damages. Summary judgment was granted to both engineers on the basis that the contractor ignored the inspection reports and was by its own negligence fundamentally responsible for its own damages. As stated the by court, the contractor changed the structure of the bridge and cannot hold its inspectors liable as guarantors of its work. W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP, 2018 WL 1177358 (U.S. Dist. Ct. W.D Virginia, 2018).
W.C. English, Inc. entered into a design-build contract with the Virginia Department of Transportation to design and construct a bridge. It subcontracted with AECOM to complete the design of the bridge. Once the contractor submitted the final AECOM design to the state it was required to build the bridge consistent with the approved AECOM plans and specifications. No change could be made to the bridge design without AECOM approval. No approval for design changes could be accepted by AECOM unless the requested revision still met the VDOT standards.
The contractor entered into a quality assurance subcontract with Rummel, Klepper & Kahl, LLP (RK&K) to inspect whether construction of the project conformed with the contract documents and VDOT standards. And it entered into a subcontract with CDM Smith (CDM) for quality control services which involved measuring “quality characteristics” and inspecting construction to determine that it conformed with the plans and specifications.
RKK and CDM jointly developed an overall quality assurance and quality control plan that specified the parties’ roles. Under the plan, the contract was “ultimately responsible for the quality of the construction.” Neither engineering firm had direct control over the contractor’s means or methods of construction.
The VDOT regulations required steel enforcement that would be covered with concrete, and these specified how much “cover” or concrete could be on top of the steel. The contractor started out installing 2.5 inch “slab runners.” When they were about half way through the job they started using 1.75 inch slab runners. This move to the shorter slab runners caused excess concrete over the top of the steel reinforcements, which became the source of the non-conformity that forced it to replace the bridge.
Inspectors from both RKK and CDM notified contractor employees, including the project manager and job foreman, that the slab runners with excess concrete cover over them did conform to the plans and specifications. The inspectors believed the contractor had cured their concerns before it poured the concrete. Unfortunately, that was not the case.
After construction of the bridge was almost finished, VDOT did an inspection and noted the excessive concrete cover (caused by the decrease in slab runner size) and required calculations to determine whether this affected the structural integrity of the deck – which it subsequently decided was the case.
To determine whether the inspectors owed any duty to indemnify the contractor for the costs incurred for the bridge replacement, the court reviewed the wording of the indemnification clauses of the inspection contracts. Both contracts contained language stating that the engineers would have no duty to indemnify the contractor for damages caused by the contractors negligence. The court quoted form the contract that “RK&K is liable for damages ‘to the extent directly caused by the negligence of [RK&K] but not to the extent caused by the acts or omissions of [English].’” It further quoted from the contract that RK&K agreed to indemnify the contractor for damages ‘caused by the negligent performance of [RK&K’s work]’ unless the injury is caused by the negligence of English.” The court quoted similar language in the CDM subcontract.
In granting summary judgment to the engineering inspectors, the court found that the contractor was responsible for ordering and installing the new slab runners that caused the non-conformance, that it knew of the non-conformance and did not obtain approval from AECOM to make the change, and that it poured the concrete after being advised by both inspection firms of the non-conformity. In light of this conduct the court concluded that the term’s of the subcontracts did not allow the contractor to seek contractual damages or indemnity from the inspectors.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 21, No. 4 (Apr 2019).
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