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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 we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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