Missionary Benedictine Sisters, Inc. v. Hoffman, LLC
| Decision Date | 04 May 2015 |
| Docket Number | 4:11CV3180 |
| Parties | MISSIONARY BENEDICTINE SISTERS, INC., Plaintiff, v. HOFFMAN, LLC, Defendant and Third-Party Plaintiff v. FREDERICKSEN ENGINEERING, INC., VOLKMAN PLUMBING & HEATING, INC., and LONNIE ROBINSON d/b/a R&R Mechanical Insulation, Third-Party Defendants VOLKMAN PLUMBING & HEATING, INC., and AMCO INSURANCE COMPANY, Third-Party Plaintiffs v. LONNIE ROBINSON d/b/a R&R Mechanical Insulation, and ENGINEERED CONTROLS, INC., Third-Party Defendants |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court on motions for summary judgment (Filing Nos. 121, 130) filed by Lonnie Robinson doing business as R&R Mechanical Insulation ("Robinson" or "R&R"). Robinson also requests leave to amend one of the motions for summary judgment (Filing No. 153). The motions are directed at a third-party complaint (Filing No. 78) filed against Robinson by Hoffman, LLC ("Hoffman") and a second amended third-party complaint (Filing No. 148) filed against Robinson by Volkman Plumbing & Heating, Inc. ("Volkman"), and AMCO Insurance Company ("AMCO").
This action was commenced on September 23, 2011, in the District Court of Madison County, Nebraska, by Missionary Benedictine Sisters, Inc. ("MBS"), a Nebraska non-profit corporation, against Hoffman, a Wisconsin limited liability company which is wholly owned by a Wisconsin corporation (Filing Nos. 1-1, 7). In its complaint, MBS alleged that it "is the owner of real property and building improvements known as the Immaculata Monastery located at 300 North 18th Street, Norfolk, NE (herein, 'Monastery')"; that "[o]n or about March 28, 2007, [MSB] and [Hoffman] entered into a written contract pursuant to which [Hoffman] agreed to perform an extensive renovation project on the Monastery ... [and] to act as general contractor, designer and engineer for all aspects of the renovation project (herein, 'Project')"; that "[s]everal months after moving back into the Monastery [in May 2009], the occupants of the Monastery began noticing deficiencies and defects relating to the HVAC system and other mechanical systems including ... that the system fails to dehumidify the air in the interior of the Monastery which in turn has resulted in the formation of significant amounts of mold"; that "[i]t has also been determined that the equipment and machinery comprising the mechanical systems ... greatly exceeds that which would be necessary to meet the needs of a building of the Monastery's size and type; thus, [MSB] has been inappropriately overcharged"; and that "[b]eginning in July and August of 2009 and thereafter, the occupants of the Monastery began observing numerous defects and deficiencies in the construction and design of the renovation work by [Hoffman], including ... defective gasket work, defective air handler units, defective flooring, defective insulation, defective bathroomvents, negative building pressure, and defective water heaters" (Filing No. 1-1, at CM/ECF pp. 2-3, ¶¶ 3, 4, 8-10). MSB sued Hoffman to recover damages "in excess of $250,000.00" for alleged breach of contract, negligence, and professional negligence (Filing No. 1-1, at CM/ECF pp. 4-5, ¶¶ 11-21).
Hoffman removed the action to this court on October 19, 2011, on the basis of diversity jurisdiction (Filing No. 1). Following removal, Hoffman obtained a stay of proceedings to allow time for mediation, as provided by the parties' contract (Filing No. 21). The stay was twice extended upon the joint motion of Hoffman and MBS (Filing Nos. 23, 26).
On October 1, 2012, Hoffman answered and filed a third-party complaint against Fredericksen Engineering, Inc. ("Fredericksen"), a Wisconsin corporation, and Volkman, a Nebraska corporation (Filing No. 28).1 Hoffman alleged that it "entered into a contract ... with Fredericksen, pursuant to which Fredericksen ... was to act as a design consultant with respect to the HVAC components of the project," and that it also "entered into a subcontract ... with Volkman, pursuant to which Volkman was to perform construction services related to the Monastery's plumbing and HVAC components ... [and] also [be] responsible for the design and implementation of the HVAC control system" (Filing No. 28, at CM/ECF pp. 7-8, ¶¶ 44, 46). Hoffman claimed that it had expended $945,674.38 "to perform various remediation and repair work on the Monastery" and to "attempt[ ] to resolve this dispute with MBS" (Filing No. 28, at CM/ECF p. 9, ¶ 52), and it sought to recover this amount, plus any additional future damages, from both third-party defendants based on theories of breach of contract, negligence, indemnity, contribution, and subrogation (Filing No. 28, at CM/ECF pp. 9-17, ¶¶ 53-76 (re Fredericksen), 77-100 (re Volkman)).
On October 23, 2012, Volkman answered Hoffman's third-party complaint and filed its own third-party complaint against Lonnie Robinson doing business as R&R Mechanical Insulation ("Robinson"), a Nebraska resident, and Engineered Controls, Inc. ("Engineered Controls"), a Nebraska corporation (Filing No. 39).2 Fredericksen answered Hoffman's third-party complaint on October 26, 2012, (Filing No. 46).
In its third-party complaint, Volkman alleged that it "subcontracted the insulation portion of the work on the Monastary Renovation to ... [Robinson] pursuant to Purchase Order No. 1490 attached [to the third-party complaint]" (Filing No. 39, at CM/ECF p. 7, ¶ 60), and that "[i]f as alleged by Hoffman the insulation work at the Monastery Renovation was not properly performed and resulted in damage to the [MBS] and/or Hoffman, Robinson has breached his agreement to perform his insulation work on the Monastery Renovation in a good and workmanlike manner, and/or has negligently performed his work under the insulation subcontract with Volkman" (Filing No. 39, at CM/ECF p. 8, ¶ 62). Similarly, Volkman alleged that it "subcontracted the controls portion of its subcontract work to Engineered Controls" (Filing No. 39, at CM/ECF p. 9, ¶ 69), and that "[i]f as alleged by Hoffman the work on the HVAC controls on the Monastery Renovation was not properly performed and resulted in damage to the [MBS] and/or Hoffman, Engineered Controls has breached its agreement to perform its work at the Monastery in a good and workmanlike manner, and/or has negligently performed its work under the subcontract with Volkman" (id., ¶ 71).
On November 21, 2012, Engineered Contols answered Volkman's third-party complaint (Filing No. 56). On December 19, 2012, Robinson answered Volkman's third-party complaint (Filing No. 60).
On February 1, 2013, MBS filed a Rule 41(a)(2) motion for the voluntary dismissal, with prejudice, of its claims against Hoffman (Filing No. 66). Hoffman,Fredericksen, Volkman, and Engineered Controls all consented to the motion, but Robinson did not (id.; Filing No. 68). The motion was granted by the court on February 6, 2013 (Filing No. 69), but no judgment was entered.
On March 18, 2013, Volkman filed a Rule 41(a)(2) motion for the voluntary dismissal, with prejudice, of its claims against Engineered Controls (Filing No. 72). Hoffman and Fredericksen consented to the motion, but Robinson did not (id.; Filing No. 74). The motion was granted by the court on April 22, 2013 (Filing No. 77), but no judgment was entered.
On March 21, 2013, Hoffman filed a Rule 41(a)(2) motion for the dismissal, with prejudice, of its claims against Fredericksen (Filing No. 73). Volkman and Engineered Controls consented to the motion, but Robinson did not (id.; Filing No. 75). The motion was granted by the court on April 22, 2013 (Filing No. 77), but no judgment was entered.
On May 10, 2013, Hoffman filed a Rule 41(a)(2) motion for the dismissal, with prejudice, of its claims against Volkman (Filing No. 79). Volkman and Engineered Controls consented to the motion, but Robinson did not (id.). The motion was granted by the court on June 10, 2013 (Filing No. 84), but no judgment was entered.
Also on May 10, 2013, Hoffman filed third-party complaint against Robinson and Volkman filed an amended third-party complaint against Robinson (Filing Nos. 78, 80). Hoffman and Volkman both claim a right to indemnification, contribution, and subrogation, and seek to recover damages for "sums paid ... to make repairs and/or make repairs on the Project and to settle the dispute with MBS" (id.). Robinson answered both pleadings on May 20, 2013 (Filing Nos. 81, 82). Discovery followed.
On December 12, 2014, Robinson filed a motion for summary judgment on Hoffman's third-party complaint (Filing No. 121). The motion is supported by a brief (Filing No. 122), index of evidence (Filing No. 123), and supplemental index ofevidence (Filing No. 133). Hoffman responded to the motion on January 16, 2015, with a brief (Filing No. 135) and index of evidence (Filing No. 136). Robinson filed a reply brief on January 23, 2015 (Filing No. 139).
On January 13, 2015, Robinson filed a motion for summary judgment on Volkman's amended third-party complaint (Filing No. 130).The motion is supported by a brief (Filing No. 131), index of evidence (Filing No. 132), and supplemental index of evidence (Filing No. 134). Volkman responded to the motion on February 6, 2015, with a brief (Filing No. 143) and index of evidence (Filing No. 144). Robinson filed a reply brief on February 13, 2015 (Filing No. 149), together with an index of evidence (Filing No. 150).
On February 6, 2015, Volkman filed an unopposed motion to amend its third-party complaint to add AMCO Insurance Company ("AMCO") as a third-party plaintiff in order "to address R&R's concerns about the real-party in interest on the claims asserted by Volkman" (Filing No. 142). The court granted the motion on February 9, 2015 (Filing No. 145 (text order)), and the second amended third-party complaint was filed on February 13, 2015 (Filing No. 148). Robinson answered this pleading on February 27, 2015 (Filing No. 154).
On February 23, 2015, Robinson...
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