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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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