Travelers Cas. and Sur. Co. v. Dormitory Auth.-State of N.Y.
| Decision Date | 11 August 2010 |
| Docket Number | No. 07 Civ. 6915 (DLC),07 Civ. 6915 (DLC) |
| Parties | TRAVELERS CASUALTY AND SURETY COMPANY as Administrator for Reliance Insurance Company, Plaintiff, v. DORMITORY AUTHORITY-STATE OF NEW YORK, TDX Construction Corp., and Kohn Pedersen Fox Associates, P.C., Defendants. Dormitory Authority of the State of New York and TDX Construction Corp., Third-Party Plaintiffs, v. Trataros Construction, Inc., Third-Party Defendant. Trataros Construction, Inc. and Travelers Casualty and Surety Company, Fourth-Party Plaintiffs, v. Carolina Casualty Insurance Company; BARTEC Industries, Inc.; Dayton Superior Specialty Chemical Corp. a/k/a Dayton Superior Corporation; Specialty Construction Brands, Inc. t/a TEC; Kemper Casualty Insurance Company d/b/a Kemper Insurance Company; Great American Insurance Company; National Union Fire Insurance Company of Pittsburgh, PA.; United States Fire Insurance Company; North American Specialty Insurance Company; Allied World Assurance Company (U.S.) Inc. f/k/a Commercial Underwriters Insurance Company; Zurich American Insurance Company d/b/a Zurich Insurance Company; Ohio Casualty Insurance Company d/b/a Ohio Casualty Group; Harleysville Mutual Insurance Company (a/k/a Harleysville Insurance Company); John Does 1-20; and XYZ Corps. 1-19, Fourth-Party Defendants. Kohn Pedersen Fox Associates, P.C., Third-Party Plaintiff, v. Weidlinger Associates Consulting Engineers, P.C.; Castro-Blanco Piscioneri and Associates, Architects, P.C.; Arquitectonica New York, P.C.; Cosentini Associates, Inc.; Cermak, Peterka Petersen, Inc.; Jordan Panel Systems Corp.; Trataros Construction, Inc.; and LBL Skysystems (U.S.A.), Inc., Third-Party Defendants. |
| Court | U.S. District Court — Southern District of New York |
JoAnne M. Bonacci, David C. Dreifuss, Eli J. Rogers, Dreifuss Bonacci & Parker LLP, Florham Park, NJ, for Travelers Casualty and Surety Company and Trataros Construction, Inc.
Stephen B. Shapiro, Timothy B. Froessel, Holland & Knight LLP, New York, NY, for TDX Construction Corp.
Michael K. De Chiara, David Abramovitz, Zetlin & De Chiara, LLP, New York, NY, for Kohn Pedersen Fox Associates, P.C.
This complex litigation arises out of the construction of a 785,000 square-foot vertical campus for Baruch College ("Baruch"), part of the City University of New York ("CUNY"), between about 1998 and about 2002 (the "Project").1 Plaintiff TravelersCasualty & Surety Company ("Travelers"), equitably subrogated to the rights of a prime contractor for the Project, third-party defendant Trataros Construction Inc. ("Trataros"), has brought suit against defendants Kohn Pedersen Fox Associates, P.C. ("KPF") and TDX Construction Corp. ("TDX"), respectively the architect and construction manager for the Project, for economic damages and attorney's fees resulting from KPF's and TDX's allegedly negligent work performance. KPF and TDX have separately moved for summary judgment to dismiss Travelers' claims against each of them. For the following reasons, both motions are granted.
The instant litigation has already been the subject of numerous Opinions by this Court.2 Familiarity with all prior proceedings is assumed, and only the facts relevant to the pending motions are set forth herein. These facts, taken from the parties' evidentiary submissions on summary judgment, are undisputed or construed in the light most favorable to the nonmoving party, Travelers.
On or about September 14, 1995, defendant Dormitory Authority-State of New York ("DASNY"),3 acting on CUNY's behalf as "owner" of the Project, finalized a contract (the "KPF-DASNY Contract") whereby KPF was engaged "to Provide Programming, Architectural, Engineering and Construction Phase Services for the Construction of [the Project]" as enumerated in the contract's "scope-of-services" appendix. KPF thereby became the Project's chief designer and architect of record.
The scope-of-services appendix to the KPF-DASNY Contract includes a detailed catalogue of responsibilities to be undertaken by KPF during various phases of the Project. With respect to the "Construction Documents Phase" of the Project, the scope-of-services appendix provided, inter alia, that KPF would prepare "contract drawings and specifications" in a manner "fully coordinated for bidding by the various Contractors." With respect to the "Bidding and Award of Prime Construction Contracts Phase" of the Project, the scope-of-services appendix provided that KPF would "prepare and supply the necessary sets of Contract Documents ... for bidding and eventual award of contracts between [DASNY] and the Contractors"; "keep account of and distribute drawings to prospective bidders"; and "investigate questions posed by bidders relative to bid documents or any other questions, and issue written replies to all bidders in the form of supplemental bulletins, addenda, or bid instructions." Withrespect to the "Construction Phase" of the Project, the scope-of-services appendix provided that KPF would, inter alia, "[r]eview and approve or disapprove all shop drawings and samples submitted by the Contractor"; "[r]eview, check, and approve or disapprove all substitutions ... submitted by the Contractor"; and "[p]rovide interpretations of Contract Documents and design." The KPF-DASNY Contract also incorporates DASNY's "Design Consultants Guide," which provides that KPF must produce the "Working Drawings" and "Technical Specifications" that are "necessary to construct the project." 4
DASNY also entered into three phased contracts with TDX (collectively, the "TDX-DASNY Contracts") for the purpose of engaging TDX as construction manager. First, in October 1996, TDX contracted with DASNY to provide construction management services in connection with the Project's "Design and Pre Construction Phase." Second, in May 1997, TDX contracted with DASNY to provide construction management services pertaining to the Project's "Construction Phase." Finally, in January 1998, TDX contracted with DASNY to provide construction management services in connection with the Project's "General Conditions Work Phase."
As with the KPF-DASNY Contract, the TDX-DASNY Contracts included detailed scope-of-services appendices enumerating dozens of specific responsibilities and tasks to be undertaken by TDX. In the scope-of-services appendix to the "Construction Phase" contract, for example, TDX was directed, inter alia, to "[s]erve as [DASNY's] chief representative in the field"; "[r]eceive, investigate, and reply to all Prime Contractors' correspondence pertaining to the Construction Work"; "[c]onduct all job progress meetings and job coordination meetings"; "[i]nspect all work daily for quality and conformance to the Contract Documents"; "[a]dvise Prime Contractor(s) of necessary corrective work"; and "[r]eview all shop drawings for coordination of field conditions among the Prime Contractors" and "[r]eturn shop drawings, as necessary, for corrections."
Finally, DASNY entered into thirteen prime contracts, spread among eleven separate contractors, for carrying out the substance of the Project's construction work.5 Trataros was ultimately awarded two ofthese prime contracts, known as "Contract 15" and "Contract 16." KPF prepared the initial plans and specifications included within the bid packages for Contracts 15 and 16 (the "Bidding Documents"), and also prepared addenda to the Bidding Documents during the pre-bid phase. For both contracts, TDX maintained a list of "plan holders," who were potential bidders that had obtained copies of the Bidding Documents and addenda.
The Bidding Documents for Contract 15 were made available on February 2, 1998, with the issuance of a "Notice to Bidders." The scope of work under Contract 15 included, inter alia, construction of the exterior walls and windows (known as the "curtainwall"), elevators, and rough carpentry. On or about March 19, 1998, Trataros submitted a bid for Contract 15 in the amount of $50,222,000. DASNY and Trataros then entered into a written contract on or about April 27, 1998, by which Trataros agreed to perform the scope of work within Contract 15 for the fixed sum of $50,222,000. On or about April 27, 1998, Trataros obtained two surety bonds from Reliance Insurance Company ("Reliance") 6-a "performance bond" and a "labor and materials payment bond"-each carrying a penal sum of $50,222,000.7 Both bonds named Trataros as principal and DASNY as obligee.
Sometime in early- or mid-1998, the Bidding Documents for Contract 16 were also released to potential bidders. The scope of work under Contract 16 included, inter alia, the interior fit-out, miscellaneous metal work, roofing installation, and flooring installation and finishing. As with Contract 15, TDX maintained a list of "plan holders" and ensured that both the Bidding Documents and addenda prepared by KPF were sent to those holders.
On or about June 10, 1998, Trataros submitted a bid in the amount of $24,140,000 for Contract 16. DASNY and Trataros then entered into a written contract on or about September 1, 1998, under which Trataros agreed to perform the scope of work within Contract 16 for the fixed sum of $24,140,000. On or about the same date, Trataros obtained additional performance and payment bonds from Reliance, each in the amount of $24,140,000, and each naming Trataros as principal and DASNY as obligee.
The Project did not proceed on schedule. As a result of various delays, problems,and deficiencies-the responsibility for which remains disputed among the parties-DASNY issued dozens of Change Orders to extend the time for work and provide extra compensation to various contractors. Nevertheless, in many respects, the Project participants could not reach agreement regarding who should bear the financial responsibility for the extra costs incurred, and litigation ultimately ensued in both state and federal fora.
On August 1, 2007, Travelers commenced this action...
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