United States District Court, D. Delaware
Stephani J. Ballard, Law Offices of Stephani J. Ballard, LLC,
Wilmington, DE Attorney for Plaintiff
E. Chambers, Gary E. Junge, Schmittinger & Rodriguez,
P.A., Dover, DE Attorneys for Defendant David A. Bramble,
E. Polesky, Stradley Ronon Stevens & Young, LLP,
Wilmington, DE Patrick R. Kinglsey, Benjamin E. Gordon,
Stradley Ronon Stevens & Young, LLP, Philadelphia, PA
Attorneys for Defendant Liberty Mutual Insurance Company
D. Landon, Murphy & Landon, Wilmington, DE Attorney for
Third-Party Defendant Lee Rain, Inc.
U.S. District Judge.
Town of Georgetown ("Plaintiff or the "Town")
filed suit against Defendants David A. Bramble, Inc.
("Bramble") and Liberty Mutual Insurance Company
("Liberty Mutual" and, collectively, with Bramble,
"Defendants") in Delaware Superior Court on June 3,
2015. (D.I. 1-1 Ex. A) On June 29, 2015, Defendants removed
the case to this Court pursuant to 28 U.S.C. §§
1332, 1441, and 1446. (D.I. 1) On August 6 and 7, 2015,
Bramble and Liberty Mutual, respectively, filed third-party
complaints against Third-Party Defendants Lee Rain, Inc.
("Lee Rain") and Travis, Pattern & Foundry,
Inc. ("Wade Rain" and, collectively, with Lee Rain,
"Third-Party Defendants"). (D.I. 11, 14)
before the Court are: (i) the Town's Motion for Partial
Summary Judgment (D.I. 157) ("Town Motion"); (ii)
Bramble's Motion for Summary Judgment Regarding
Plaintiffs Claim (D.I. 159-2) ("Bramble Motion");
(iii) Liberty Mutual's Motion for Summary Judgment
Against the Town (D.I. 156) ("Liberty Mutual
Motion"); (iv) Bramble's Motion for Partial Summary
Judgment Against Lee Rain (D.I. 145) ("Bramble
Third-Party Motion"); and (v) Liberty Mutual's
Motion for Joinder in Bramble's Motion for Partial
Summary Judgment Against Lee Rain (D.I. 151) ("Motion
for Joinder"). Certain other requests for relief have
also been made during the course of briefing and oral
argument, including the Town's request for summary
judgment on Defendants' affirmative defense of design
defect and Bramble's request for summary judgment on the
applicability of the Town's shop drawings.
reasons set forth below, the Court will grant the Town
Motion, the Bramble Third-Party Motion, and the Motion for
Joinder. The Court will deny the Bramble Motion, the Liberty
Mutual Motion, and the requests relating to design defect and
around May 2012, the Town "solicited bids for the
construction of a large, solid set spray irrigation system
known as the 'Pettyjohn Woods Spray Irrigation
Project'" (the "Project" or
"System"). (D.I. 158 at 1) "The purpose of the
System was to carry . . . wastewater . . . from the
Town's wastewater treatment facility" to a 90-acre
wooden area, using above-ground pipes. (Id.)
receiving numerous bids, in July 2012 the Town awarded the
Project to Bramble in July 2012 for $1, 212, 786.85. (See
id.) As the general contractor for the Project, Bramble
entered into an Agreement ("Agreement" or
"Contract") with the Town. (See D.I. 158-1
atA-32) The Agreement consisted of a signed Agreement, a
number of General Conditions, and other Contract Documents.
(See Id. at A-35-36) Pursuant to the Agreement,
Bramble was required to obtain a Performance Bond, which was
issued by Liberty Mutual as surety for Bramble. (See
Id. at A-40)
Agreement also required Bramble to work with Davis, Bowen
& Friedel ("DBF"), a private engineering firm
designing the Project. (See Id. at A-32) Under the
Agreement's terms, Bramble represented that it
"ha[d] given Engineer [('DBF')] written notice
of all conflicts, errors, ambiguities, or discrepancies that
[Bramble had] discovered in the Contract Documents."
(Id. at A-35) The Agreement further provided that
Bramble would "be fully responsible to [the Town and
DBF] for all acts and omissions of [its] Subcontractors,
Suppliers, and other individuals or entities performing or
furnishing any of the Work just as Contractor is responsible
for Contractor's own acts and omissions."
(Id. at A-l 13)
hired Lee Rain, an irrigation subcontractor, for the
above-ground pipe portion of the Project. (See Id.
at A-54) Lee Rain, in turn, obtained materials for that
portion of the project from supplier Wade Rain. (See
Id. at A-181) Bramble submitted information and data on
materials to DBF though a Shop Drawing process. (See
Id. at A-l 15) In its Shop Drawings, Bramble represented
that the materials met specified performance and design
criteria for each specification. (See Id. at A-l
15-16) Moreover, before submitting each Shop Drawing, the
Contract provided that Bramble was to have "determined
and verified the suitability of all materials."
(Id. at A-l 16) The General Conditions in the
Contract further provided that "all materials and
equipment incorporated into the Work shall be as specified
or, if not specified, shall be of good quality and new."
(Id. at A-l 12)
#15952 (the "Specification") required Bramble and
Lee Rain to obtain self-draining gaskets. (See Id.
at A-122-41) To meet the Specification, Bramble and Lee Rain
selected Wade Rain's automatic self-draining lateral
coupler gaskets: 10-6-6L and 10-6-4L" ("L-style
gaskets"), which are characterized as "normal fast
draining" gaskets. (See Id. at A-136) These
L-style gaskets were identified in Shop Drawing 10, which was
stamped as "[a]pproved" by DBF for "general
compliance with the contract documents." (Id.
of the System began "on or about August 20, 2012."
(Id. at A-13 ¶ 41) DBF acknowledged June 7,
2013 as the date of final completion, and Lee Rain issued its
release of liens on or around that same date. (D.I. 168 at
B-85) The Town began operating the System in October 2013.
(See D.I. 158-1 atA-14¶50)
Town first discovered problems in the System's pipes in
January 2014. (See D.I. 168 at B-90; D.I. 169 at
B-222) On January 16, 2014, the Town discovered split pipes
and broken couplers in the System. (See D.I. 169 at
B-222) In the summer and fall of 2014, the Town also observed
leaks from the pipes themselves. (See Id. at B-223)
Despite the Specification's reference to L-style gaskets
to be installed in the pipes, the Town discovered that the
gaskets in the field were actually a combination of L-style
and M-style gaskets, the latter of which are characterized as
"normal slow draining" gaskets. (D.I. 158-1 at
Town notified Bramble of these problems through various
correspondence in 2014 and 2015. (See, e.g., D.I.
168 at B-90) Bramble responded that any failures from the
gaskets were "the result of [the] design and operation
of the [S]ystem, unrelated to performance under the
Contract." (D.I. 158-1 at A-17 ¶ 73; id.
at A-57) (internal quotation marks omitted) Liberty Mutual
agreed with Bramble "that the damages were ... the
result of design and maintenance errors." (Id.
at A-21 ¶ 87; id. at A-58) (internal quotation
to obtain any informal resolution with Defendants, the Town
formalized a claim under the [Performance] Bond and declared
a Contractor's and Surety's default, ultimately
resulting" in the instant litigation. (D.I. 166 at 2)
The Town filed its complaint on June 3, 2015, alleging the
following claims: breach of contract against Bramble (Count
I); breach of warranty against Bramble (Count II); and breach
of contract against Liberty Mutual (Count III). (D.I. 1-1 Ex.
A¶¶96, 103, 107)
Bramble and Liberty Mutual both filed third-party complaints.
On August 6, 2015, Bramble filed a complaint against DBF, Lee
Rain, and Wade Rain, stating as particular claims:
negligence/non-performance against DBF (Count I); breach of
contract, indemnification, and negligent conduct against Lee
Rain (Count II); breach of implied warranties against Lee
Rain and Wade Rain (Count III); and breach of express
warranties against Lee Rain and Wade Rain (Count IV). (D.I.
11) The next day, August 7, Liberty Mutual filed its
third-party complaint against DBF, Lee Rain, and Wade Rain,
specifically: contribution/indemnity against DBF (Count I);
contribution/indemnity against Lee Rain (Count II); breach of
implied warranties against Lee Rain and Wade Rain (Count
III); and breach of express warranties against Lee Rain and
Wade Rain (Count IV). (D.I. 14)
Town, Bramble, and Liberty Mutual filed their motions for
summary judgment between February and April 2017. Briefing
was completed on the last of the motions on May
The Court heard oral argument on June 27, 2017.
("Tr.") The final pre-trial conference is scheduled
for August 3, 2017 and a jury trial is scheduled to begin on
August 14, 2017.
Rule 56(a) of the Federal Rules of Civil Procedure,
"[t]he court shall grant 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." The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986). An assertion that a fact cannot
be - or, alternatively, is - genuinely disputed must be
supported either by "citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials, " or by "showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
56(c)(1)(A) & (B). If the moving party has carried its
burden, the nonmovant must then "come forward with
specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal
quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000).
defeat a motion for summary judgment, the nonmoving party
must "do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586; see also Podobnik
v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present
more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue")
(internal quotation marks omitted). The "mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 411 U.S. 242, 247-48 (1986).
"If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted." Id. at 249-50 (internal citations
omitted); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (stating entry of summary judgment is
mandated "against a party who 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"). Thus, the "mere
existence of a scintilla of evidence" in support of the
nonmoving party's position is insufficient to defeat a
motion for summary judgment; there must be "evidence on
which the jury could reasonably find" for the nonmoving
party. Anderson, 477 U.S. at 252.
The Town's Motion for Summary Judgment
Town Motion consists of several subsidiary motions. The Court
addresses each in turn.
Choice of Law Governing the Contract
Town seeks summary judgment that Delaware law governs the
Contract. (See D.I. 158 at 10) In response, Bramble
does not raise a choice-of-law dispute or otherwise oppose
this portion of the Town Motion. (See generally D.I.
170) At oral argument, Bramble's counsel stated that
"as a matter of law, Delaware law governs the
Contract." (Tr. at 19)
the Court will grant summary judgment that Delaware law
governs the Contract.
Applicability of the Contract and Performance Bond
Town asks for summary judgment that Bramble is bound by the
Contract and that both Bramble and Liberty Mutual are bound
by the Performance Bond. (See D.I. 158 at 12) In
their briefing, Defendants did not dispute the binding nature
of the Contract or the Performance Bond. At oral argument,
counsel for Defendants agreed that the Contract binds Bramble
and that the Performance Bond binds both Defendants.
(See Tr. at 50)
the Court will grant summary judgment that the Agreement is
applicable to the Town's claims against Bramble and that
the Performance Bond is applicable to the Town's claims
against both Defendants.
Bramble's Responsibility for Suppliers',
Subcontractors', and Third- Parties'
Acts and Omissions in Relation to the Project
Town seeks summary judgment that Bramble "is responsible
... for the acts and omissions of subcontractors and
suppliers and third-parties who contributed to the Work of
the Project." (D.I. 158 at 16) In the Town's view,
Bramble's responsibility for third parties' acts and
omissions is unambiguously provided for in § 6.06 of the
General Conditions of the Contract, which states:
Contractor shall be fully responsible to Owner and Engineer
for all acts and omissions of the Subcontractors, Suppliers,
and other individuals or entities performing or furnishing
any of the Work, just as Contractor is ...