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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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