Qore, Inc. v. Bradford Bldg. Co., Inc.

• Citation: 25 So.3d 1116
• Decision Date: 12 June 2009
• Docket Number: 1070865.
• Parties: QORE, INC., d/b/a QORE Property Sciences v. BRADFORD BUILDING COMPANY, INC.
• Court: Supreme Court of Alabama

25 So.3d 1116

QORE, INC., d/b/a QORE Property Sciences v. BRADFORD BUILDING COMPANY, INC.

1070865.

Supreme Court of Alabama.

June 12, 2009.

Joseph C. Staak of Smith Currie & Hancock, LLP, Atlanta, Georgia, for appellant.

Charles A. Burkhart and M. Todd Lowther of Balch & Bingham LLP, Birmingham, for appellees.

COBB, Chief Justice.

This appeal involves a negligence claim by Bradford Building Company, Inc. (Bradford), against QORE, Inc., d/b/a QORE Property Sciences ("QORE"). Bradford's claims arise out of the failure of a concrete slab during the construction of a building on the slab. The slab failed because it was built over an excavated fuel-tank pit that had been filled with material that was not properly compacted. QORE appeals from the Jefferson Circuit Court's denial of its motion for a judgment as a matter of law. We affirm.

Facts and Procedural History

When, as in this case, an appellant challenges a trial court's ruling on a motion for a judgment as a matter of law, the appellate court views the evidence in the light most favorable to the nonmovant. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003). Therefore, with regard to facts as to which evidence or testimony was in conflict at trial, the Court has set out those facts in the light most favorable to Bradford, the nonmovant.

A. Purchase of Property

In December 2004, RKM Leeds, LLC ("RKM"), purchased a parcel of real property from JDW Properties I, LLC ("JDW Properties"). RKM intended to construct a building to house a Walgreens pharmacy on the site and then to sell the developed property to Walgreen Company. Before the sale of the real property, a gasoline service station had been operating on the property. Under the contract for the sale of the property, JDW Properties was to remove the underground fuel-storage tanks and related fuel lines from the property, and RKM was responsible for placing and compacting fill in the pits left by the removal of the fuel-related equipment.

B. Gallet Report

In May 2005, RKM hired Gallet & Associates, Inc. ("Gallet"), to determine whether subsurface conditions would provide the necessary structural support for the Walgreens store. Gallet investigated the site and, on June 15, 2005, provided RKM a report of its results ("the Gallet report"). In its report, Gallet noted that the "store will be located at the site of an existing gas station." Gallet recommended that "[t]he existing ... buried utilities (including existing fuel product lines and underground storage tanks) should be excavated from the proposed building and parking areas."

Because excavating the tanks would create pits at least 15 feet deep, the Gallet report recommended that these "abandoned tank pits should be backfilled with engineered fill." "Engineered fill" is fill that has been tested by an engineering firm and deemed suitable for use as structural fill and that has been properly installed and compacted. The Gallet report specified that,

"[i]n building areas, structural fill should be extended a minimum of 5 feet outside all building lines, paved areas, and slopes. The fill should be placed in thin loose lifts not exceeding 8 inches in thickness and compacted accordingly."

Soil compaction is performed by placing appropriate fill material in thin layers and compressing each layer with a roller or other compacting machinery before adding the next layer. Fill is compacted to prevent settling of the soil over time, which can undermine the structural integrity of buildings constructed over the settling soil.

The Gallet report also recommended that, after the site had been excavated, backfilled, and graded, but before the placement of any extra fill to raise the grade to the specifications in the building plans, "the exposed subgrade should be thoroughly proof rolled." "Proof rolling" is a process in which the surface of the soil is carefully observed as a fully loaded tandem-axle dump truck is driven over it. Any soft or structurally unsound soils revealed by the proof rolling are undercut and replaced with suitable well compacted engineered fill. Proof rolling does not detect structurally unsound soils or subsurface conditions at depths greater than roughly three feet below the surface.

C. QORE/RKM Contract

After the Gallet report had been submitted, RKM hired QORE to perform construction-materials-testing ("CMT") services related to site grading and building construction. The contract entered into between QORE and RKM stated that the scope of CMT services to be performed by QORE "will be in accordance with the Master Work Scope of CMT Services requested by Walgreen[ ] Company and Walgreens' Criteria Specification Fiscal 2005."

The "Master Work Scope of CMT Services requested by Walgreen[ ] Company" included the following "soils testing and site preparation" services:

"—Standard Proctor [a soil-compaction test]

"—Modified Proctor [a soil-compaction test]

"—Nuclear Gauge [a soil-density test]

"—Compaction Control Testing

"—Compaction and Proof Roll Observation

"—Review of Soil Boring Report and Bearing Capacities."

The "Walgreens Criteria Specifications, Fiscal 2005" ("the Walgreens specifications") included a schedule of "inspections, tests, and similar services represent[ing] the minimum scope of quality control services to be performed," including the following:

"Verify suitable soil bearing capacity

"Field density testing, compaction testing

"Optimum moisture/maximum density testing

"Pavement proof rolling

"Pavement Surface Smoothness Testing"

The Walgreens specifications also set forth specific requirements for "Sitework/Excavation," including the following:

"Testing: ....

"1. Soil reports of actual unconfined compressive strength of each strata tested. Verify soil/fill bearing capacity conforms to design requirements. Perform one test at each column pad and per each 50 lft. of foundation....

"5. Final building pad verification letter, submitted by the Geotechnical Engineer at the completion of Grading operations, summarizing satisfactory completion of all tests performed prior to slab placement."

Further, the Walgreens specifications incorporated the Gallet report. Colin Sewell, project manager for QORE, testified at trial that part of QORE's responsibility was to ensure that the recommendations in the Gallet report were followed.

In addition to providing that QORE's services would "be in accordance with the Master Work Scope of CMT Services requested by Walgreen[ ] Company and Walgreens' Criteria Specification Fiscal 2005," the contract between QORE and RKM also stated:

"The following list of construction materials testing was provided to us [i.e., QORE] by Walgreen[ ] [Company] during the CMT selection and we consider it to be the master scope of services. This scope includes requirements in the Project Specifications Manual.

"I. Earthwork

"—Density testing of mass fill and utility trench backfill...

"—Evaluation of soil subgrades prior to fill placement...

"—Standard Proctor compaction tests, where required...

"—Modified Proctor tests, where required (does not currently apply)

"—Nuclear gauge density testing, if required

"—Review of geotechnical subsurface exploration report [the Gallet report] ....

"We will perform our evaluations and tests in general accordance with the project specifications and applicable standards of the industry in the local area of the project. Our personnel do not have the authority to direct the contractor or his subcontractors in the performance of their work or to authorize changes in the construction contract. We will, however, bring to their attention any observations or test results that indicate non-compliance with the contract documents. We point out that the tests will be performed on a random basis and they are not a guarantee of the work in accordance with the construction documents. ...

"Standard of Care. The [CMT] Services [provided by QORE] will be performed in accordance with the standards customarily provided by a firm rendering the same or similar services in the same geographic region during the same time period."

D. Bradford, RKM's General Contractor

On September 8, 2005, RKM entered into a contract with Bradford pursuant to which Bradford was to serve as general contractor for the construction of the Walgreens drug-store building. Bradford had built Walgreens stores for RKM on previous occasions. For the construction project at issue in this case, Bradford subcontracted the grading work on the site to Borden & Brewster Contractors, Inc. ("B & B").

Bradford undertook the responsibility to inform QORE of the progress of the construction. However, Bradford's personnel did not know what construction-materials tests needed to be performed, and, as the general contractor, Bradford did not undertake any responsibility to direct QORE as to which tests to perform. Rather, as the firm that was to perform the CMT services for the project, QORE was responsible for determining what tests to perform at each of the various stages of construction and to send an engineer or technician, as appropriate, to perform those tests at the proper times.

E. Improper Backfilling

JDW Properties or a related entity¹ entered into a contract with CDG Engineers & Associates, Inc. ("CDG"), to remove the underground storage tanks and fuel lines from the site. CDG subcontracted the work to Milam & Co. Construction, Inc. ("Milam").

On the morning of October 11, 2005, B & B's general superintendent, Donald Edwards, visited the construction site to observe the progress of Milam's underground-storage-tank-removal work. Edwards noticed that Milam had not compacted the fill dirt that was being placed in the large pits left by the removal of the underground storage tanks. Edwards telephoned Bradford's project manager, Michael Cahoon, to inform him that Milam's dump trucks were dumping loose fill into the pits where the fuel tanks had been and that he saw no compaction...