CSX Transp., Inc. v. Columbus Downtown Dev. Corp., Case No: 2:16–cv–557

• Citation: 307 F.Supp.3d 719
• Decision Date: 26 March 2018
• Docket Number: Case No: 2:16–cv–557
• Parties: CSX TRANSPORTATION, INC. and Norfolk Southern Railway Company, Plaintiffs, v. COLUMBUS DOWNTOWN DEVELOPMENT CORP. et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

307 F.Supp.3d 719

CSX TRANSPORTATION, INC. and Norfolk Southern Railway Company, Plaintiffs,

v.COLUMBUS DOWNTOWN DEVELOPMENT CORP. et al., Defendants.

Case No: 2:16–cv–557

United States District Court, S.D. Ohio, Eastern Division.

Signed March 26, 2018

Brandon Lee Abshier, Isaac, Wiles, Burkholder & Teetor, LLC, Columbus, OH, Eric C. Palombo, Pro Hac Vice, Jeffrey D. Cohen, Pro Hac Vice, Paul D. Keenan, Keenan Cohen & Merrick P.C., Ardmore, PA, for Plaintiff.

Joseph Anthony Gerling, Scott Alan Fenton, Lane Alton & Horst, David Tehan Patterson, Frederick T. Bills, Weston Hurd LLP, Columbus, OH, Jane Michele Lynch, Fredric L. Young, Jared A. Wagner, Green & Green Lawyers, Dayton, OH, Earl K. Messer, Taft Stettinius & Hollister, Cincinnati, OH, Sean Patrick McCormick, Thompson Hine LLP, Miamisburg, OH, Richard M. Garner, David W. Orlandini, Sunny Lane Horacek, Collins Roche Utley & Garner, LLC, Dublin, OH, for Defendants.

Opinion and Order

JAMES L. GRAHAM, United States District Judge

The Scioto Greenways Project in downtown Columbus reshaped the Scioto River by removing the Main Street Dam and narrowing and deepening the river channel. Plaintiffs CSX Transportation, Inc. and Norfolk Southern Railway Company each operate two railroad tracks that run across a bridge spanning the Scioto River a few hundred feet downstream of where the Main Street Dam was located. Knowing that the Project would affect the river's flow, CSX and Norfolk entered into contractual arrangements in 2014 with defendant Columbus Downtown Development Corporation (CDDC). CDDC agreed to implement measures designed to protect the bridge's piers from "scour," or the erosion of sediment around the bridge's foundation.

Plaintiffs allege that they discovered in 2015 that the bridge had become unstable and shifted and that they spent $10 million to repair the bridge. Plaintiffs allege that CDDC and defendants Messer Construction Company (the construction manager at risk) and George J. Igel & Company (a subcontractor) are liable for the damage because they failed to properly implement the scour protection measures.

The filing of the complaint, which has been amended, triggered the filing of third-party complaints and numerous counter- and cross-claims against entities involved in the Project.

Pending before the court are five motions for judgment on the pleadings—two filed by third-party defendant Stantec Consulting Services, Inc. and three filed by Messer. These motions seek dismissal of certain indemnification and contribution claims brought against the movants.

I. Background

A. Relationships Among the Parties¹

Prior to the start of the Project, CDDC contracted with Stantec to serve as the project engineer, as memorialized in a Professional Design Services Agreement of July 2, 2012. (Doc. 82–1). CDDC retained Stantec to complete geotechnical explorations and to conduct a hydraulic and scour analysis at the CSX bridge. Stantec prepared a written report concerning river restoration and greenspace development along a 1.2 mile stretch of the Scioto River. Stantec also provided design and engineering plans, which included bridge scour protection measures for the bridge.

Stantec entered into a Subconsultant Agreement with third-party defendant MSK2 LLC on July 6, 2012. (Doc. 100–1). MSK2 agreed to provide support and park design services in connection with the Project. Stantec alleges that MSK2 prepared landscape designs which called for the removal of existing vegetation and for the planting of plants, shrubs and other vegetation throughout the Project's 1.2 mile stretch. (Doc. 100 at PAGEID # 1096, ¶ 18).

CDDC hired Messer in October 2012 to serve as the construction manager for the Project under a Standard Form of Agreement for Construction Manager at Risk (the "CM Agreement"). (Doc. 95 at PAGEID # 1036, ¶ 9).

Messer in turn entered into a Subcontracting Agreement with Igel whereby Igel agreed to perform river channel excavation work and related services. (Doc. 76–1). Messer alleges that the Subcontracting Agreement required Igel to perform scour protection work at the bridge piers. (Doc. 76 at PAGEID # 701, ¶ 3).

It is alleged that Igel entered into some type of contract directly with CDDC. (Doc. 98 at PAGEID # 1049, ¶ 5). Igel denies the existence of such a contract. (Doc. 106 at PAGEID # 1165, ¶ 1). A copy of the alleged contract between Igel and CDDC is not on the record.

CSX and Norfolk have an agreement between themselves that CSX is the party responsible for maintenance and repair of the bridge. (Doc. 70 at PAGEID # 634, ¶ 24).

At some point, CSX retained third-party defendant STV Incorporated. STV provided engineering services and reviewed Stantec's scour protection plans for CSX. (Doc. 41 at PAGEID # 187, ¶ 9).

On October 1, 2014, after the Main Street Dam had been removed, CSX entered into a Construction Agreement with CDDC. CSX granted a license to CDDC to access and cross the bridge and CDDC agreed to "[c]onstruct grouted riprap scour protections around [the] bridge piers." (Doc. 99–1 at PAGEID # 1072). Section 1.1 of the Agreement provided that CSX had reviewed and approved of the various design plans prepared by Stantec. (Id. at PAGEID # 1065). A schedule attached to the Agreement and signed by Messer provided that Messer would serve as CDDC's contractor to perform the work and would abide by the Agreement between CSX and CDDC. (Id. at PAGEID # 1084).

In September and October of 2014, Norfolk entered into right of entry agreements with CDDC and with Messer, granting them access to Norfolk's lines on the bridge. (Doc. 99–2).

B. The Parties' Claims

1. The Amended Complaint

According to the amended complaint, CSX discovered in April 2015 that the bridge "had shifted because it piers had settled and become unstable." (Doc. 70 at PAGEID # 633, ¶ 21). CSX conducted an investigation, which led it to believe that "CDDC and its contractors failed to protect, and/or undermined the structural integrity of the Bridge." (Id. at ¶ 22). In order to keep the railroad tracks over the bridge in service, CSX had the bridge repaired and stabilized at a cost of $10 million. CSX demanded that CDDC and Messer pay the costs for the repairs, but they refused to do so.

The amended complaint asserts claims for breach of contract against CDDC and Messer. CSX alleges that CDDC and Messer, in breach of the Construction Agreement, either failed to install scour protection, installed it improperly, or otherwise compromised the integrity of the bridge. Norfolk alleges that CDDC and Messer, in breach of the Right of Entry Agreements, performed their work in a manner that interfered with Norfolk's rail operations. CSX and Norfolk also assert claims for contractual indemnification against CDDC and Messer. In the alternative, plaintiffs allege that CDDC's and Messer's negligence in performing work on the Project caused damage to the bridge.

Against Igel, plaintiffs assert a negligence claim alleging that Igel failed to properly install scour protection and left the bridge susceptible to damage in the course of dredging near the bridge.

CSX and Norfolk have also sued Cincinnati Insurance Company, from whom CDDC obtained Railroad Protective Liability insurance policies identifying CSX and Norfolk as named insureds. Plaintiffs allege that Cincinnati Insurance has breached the insurance policies by refusing to pay their claims.

2. Igel's Third–Party Complaint

Igel brings claims against Stantec, STV and MSK2. (Doc. 74). Igel denies that it was negligent in performing work on the Project. It asserts that Stantec's designs and plans for scour protection were flawed and negligently prepared. Igel further alleges that STV, having been retained by CSX to review Stantec's scour protection plans, performed its review services negligently and improperly approved of the plans. As to MSK2, Igel alleges that its landscaping designs directed contractors to remove trees and shrubs which were growing from the base of the bridge piers and that removal of the trees and shrubs left holes which caused the bridge's foundation to shift or settle. Igel alleges that the damage to the bridge was proximately caused by the negligent acts of Stantec, STV and MSK2.

Against each of these three parties Igel asserts a claim for implied indemnification. Igel alleges that, to the extent it is found liable for any portion of the damage to the bridge, its actions were passive and secondary to the active and primary negligence of Stantec, STV and MSK2. Igel also asserts claims for contribution against Stantec, STV and MSK2.

3. Messer's Claims

Messer brings crossclaims against Igel, Stantec and STV. (Doc. 76). Messer alleges that, to the extent it is found liable for the damage to the bridge, it is entitled to express indemnification under its Subcontracting Agreement with Igel. Messer further asserts claims for implied indemnification and contribution against Igel, Stantec and STV, alleging that its actions were passive and secondary to the active and primary negligence of those parties.

Messer also brings crossclaims for implied indemnification and contribution against MSK2. (Doc. 90).

Messer has filed a third-party complaint Ohio Farmers Insurance Company. (Doc. 77). Messer alleges that on December 11, 2013, Igel obtained a performance bond from Ohio Farmers, in accordance with the terms of Messer's Subcontracting Agreement with Igel. Messer alleges that the terms of the bond imposed a surety obligation on Ohio Farmers. Messer asserts claims for express and implied indemnification and contribution, alleging that Messer is entitled to recovery from Ohio Farmers as surety for Igel.

4. CDDC's Crossclaims

CDDC brings a crossclaim against Stantec. (Doc. 89). CDDC alleges that it retained Stantec to prepare scour protection plans for the bridge but that Stantec did not exercise ordinary care in performing its professional design services. CDDC alleges that Stantec failed to properly determine the impact of river flow on the piers and failed to...