Submitted: November 8, 2013
On Third-Party Defendant Design Collaborative, Inc.'s Motion for Summary Judgment.
Donald Gouge, Jr., Esq., Donald L. Gouge, Jr., LLC, Wilmington, Delaware. Attorney for Plaintiff.
Joseph S. Naylor, Esq., Swartz Campbell, LLC, Wilmington, Delaware. Attorneys for Defendant Petrucon Construction, Inc.
Patrick McGrory, Esq. and Paul Cottrell, Esq., Wilmington, Delaware 19899. Attorneys for Third-Party Defendant Design Collaborative, Inc.
Bruce C. Herron, Esq., Losco & Marconi, P.A., Wilmington, Delaware 19802. Attorney for Third-Party Defendant Framemasters.
CALVIN L. SCOTT, J.
Before the Court is Third-Party Defendant Design Collaborative, Inc.'s ("DCI") motion for summary judgment of Defendant Petrucon Construction, Inc.'s ("Petrucon's) Amended Third-Party Complaint. The Court has reviewed the parties' submissions and considered the oral arguments made during the earlier hearing and the pretrial conference. For the following reasons, DCI's motion is
On June 15, 2005, DCI entered into a contract with Plaintiff Smyrna Hospitality, LLC ("Smyrna") to design the construction of Smyrna's hotel (the "Hotel"). On May 15, 2006, Smyrna entered into a separate contract with Petrucon for the construction of the Hotel. The agreement between Smyrna and Petrucon identified Smyrna as the owner and Petrucon as the contractor. In addition, it stated that DCI was the architect for the project. Although DCI was listed as the architect, there was no contractual relationship between DCI and Petrucon.
The final Certificate of Occupancy was issued for the Hotel in 2007. In January 2008, the Hotel began experiencing water penetration issues. In January 2010, Smyrna filed this suit, asserting four causes of action against Petrucon: Breach of Contract, Fraudulent/Intentional Misrepresentation, Breach of the Covenant of Good Faith and Fair Dealing, and Negligence. In June 2011, Smyrna sold the Hotel to a non-party.
On June 17, 2011, Petrucon filed a third-party complaint which combined, in one-count, claims against DCI and two other parties for negligence, contribution and indemnification. In DCI's answer, DCI asserted twenty affirmative defenses, including the economic loss doctrine and the statute of limitations. In March 2013, DCI moved for summary judgment of the third-party complaint, arguing that any claim for negligence was barred by the economic doctrine, Petrucon had no right to indemnification in the absence of a contract, and that Petrucon could not seek contribution because Petrucon and DCI did not meet the definition of ...