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COA reverses judgment on 1 cross-claim in library appeal

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The Indianapolis-Marion County Public Library should be able to pursue a cross-claim against an engineering company for breach of professional standard of care, the Indiana Court of Appeals ruled today.

The appellate court addressed three issues in its ruling in Indianapolis-Marion County Public Library v. Thorton Tomasetti Engineers, et al., No. 06A05-0906-CV-327: whether the trial court erred in granting summary judgment in favor of Thorton Tomasetti Engineers on cross-claims against the company for common law indemnity, contractual indemnity, and breach of professional standard of care.

The library was assigned the cross-claims against TTE that were originally filed by Woollen Molzan and Partners Inc. pursuant to a settlement between the library and WMP.

The complaints against WMP and TTE filed by the library, and the subsequent cross-claims filed by WMP and TTE stem from the construction and renovation of the Central Library in Indianapolis. WMP served as architect of record on the project and WMP and TTE executed an architect/consultant agreement for which TTE served as the structural engineer of record for the project.

Shortly after construction began on the project, major issues were found in the concrete beams and columns of the underground parking garage, which would be the foundation for the new library tower. Construction had to be suspended and millions of dollars in costs and delays were accrued.

In 2006, the library and WMP settled and WMP assigned the library all the claims it has or may have against TTE and other consultants. The library never amended the cross-claims. In November 2008, the trial court ruled in favor of TTE on the three cross-claims originally filed by WMP.

The Court of Appeals upheld summary judgment in favor of TTE on the cross-claims for common law indemnity and contractual indemnity. The library, as WMP’s assignee, doesn’t possess a valid cause of action under a theory of common law indemnity because WMP hasn’t yet paid any damages in satisfaction of any claim or judgment against TTE. Because of this, the common law indemnity claim is not yet ripe for adjudication, wrote Judge Terry Crone.

Also, given the nature of the library’s claims against WMP, WMP’s liability to the library with regard to TTE can’t be solely derivative or constructive because WMP can’t be without fault. WMP’s alleged liability to the library in relation to TTE is purely contractual and direct and the library can’t now escape its own allegations and recast its claims against WMP as being solely derivative, the judge continued.

There was no indemnity provision in the contract between WMP and TTE that runs to WMP from TTE, so there can be no cause of action for express contractual indemnity against TTE. But the library argued that WMP is entitled to implied contractual indemnity. The Court of Appeals declined to adopt the doctrine of implied contractual indemnity in the instant case because WMP and TTE were free to include an indemnity provision in the contract that allocated the risk between them but didn’t do so.

“We agree with TTE that adopting the doctrine would ‘invite havoc into not only contract cases in the construction setting but throughout the spectrum of civil cases,’” wrote Judge Crone.

The appellate court did reverse summary judgment for TTE on the cross-claim of breach of professional standard of care because the trial court erred in determining this cross-claim was actually a claim for indemnity. It’s up to a jury to determine whether TTE committed a breach that directly injured WMP. This cross-claim was remanded for further proceedings.  
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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