United States District Court, S.D. Ohio, Eastern Division
CSX Transportation, Inc. and Norfolk Southern Railway Company, Plaintiffs,
Columbus Downtown Development Corp. et al., Defendants.
OPINION AND ORDER
L. GRAHAM, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Relationships Among the Parties
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.
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).
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).
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,
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.
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).
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,
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).
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).
The Parties' Claims
The Amended Complaint
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.
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.
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
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.
Igel's Third-Party Complaint
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.
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.
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.
also brings crossclaims for implied indemnification and
contribution against MSK2. (Doc. 90).
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.
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 design appropriate
scour countermeasures. CDDC asserts claims for professional
negligence, breach of the Professional Design Services
Agreement, contractual indemnification and contribution.
also brings a crossclaim against STV. (Doc. 50). It alleges
that STV, upon reviewing Stantec's plans on behalf of
CSX, recommended that certain changes be made, including
using non-grouted riprap instead of grouted riprap. CDDC
alleges that the changes made by STV resulted in damage to
the bridge, and it asserts claims for implied indemnification
brings a crossclaim against Messer, alleging that the CM
Agreement between CDDC and Messer contained an indemnity
clause which obligates Messer to indemnify the
“Indemnified Parties” for claims and damages
arising in connection with the Project. (Docs. 95). Stantec
asserts a claim for indemnification, alleging that it falls
within the definition of “Indemnified Parties.”
Stantec asserts crossclaims against MSK2. (Doc. 100). Stantec
alleges that pursuant to their Subconsultant Agreement, MSK2
provided landscaping plans which directed contractors to
remove trees and shrubs embedded in the bridge's piers.
Stantec alleges that removal of the plants created holes
which caused the bridge's foundation to shift. Stantec
asserts claims for professional negligence, breach of the
Subconsultant Agreement and contractual indemnification.
brings a counterclaim against CDDC. (Doc. 111). According to
Stantec, the parties executed a modification of their
Professional Design Services Agreement, providing that
Stantec would receive $80, 000 for performing additional
services not contemplated by the Agreement. Stantec asserts a
claim for breach of contract, alleging that it performed the
additional services but CDDC failed to pay it the amount due.
brings crossclaims against Messer and Igel. (Docs. 97, 98).
As to Messer, MSK2 makes allegations and claims similar to
what Stantec made. MSK2 alleges that it is entitled to
indemnification under the CM Agreement because MSK2 falls
within the definition of “Indemnified Parties.”
MSK2 asserts claims against Messer for indemnification and
Igel, MSK2 alleges that Igel entered into a contract with
CDDC. This contract allegedly contains the same indemnity
clause which appears in the CM Agreement between Messer and
CDDC. MSK2 alleges that it is one of the “Indemnified
Parties” under the contract between Igel and CDDC
because it falls within the definition of MSK2 asserts claims
for indemnification and contribution.
brings a counterclaim against Igel and crossclaims against
Messer and CDDC. (Doc. 41). STV denies that it was negligent
in reviewing, on behalf of CSX, Stantec's plans for scour
protection. STV alleges that, to the extent it is found
liable for any part of the damage to the bridge, its actions
were passive and secondary to the active and primary
negligence of Igel, Messer and CDDC. STV asserts claims for
implied indemnification and contribution against these
dismissed without prejudice crossclaims (doc. 41) that it had
brought against Stantec for implied indemnification and
Standard of Review
the pleadings are closed - but early enough not to delay
trial - a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). The standard applied to
motions for judgment on the pleadings is the same standard
applicable to motions to dismiss under Rule 12(b)(6). See
Hindel v. Husted, 875 F.3d 344, 346 (6th Cir. 2017).
“For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and
the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,
582 (6th Cir. 2007) (internal citation and quotation marks
omitted). However, the court need not accept as true legal
conclusions or unwarranted factual inferences. Id.
(citing Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.
withstand a motion for judgment on the pleadings, “a
complaint must contain direct or inferential allegations
respecting all the material elements under some viable legal
theory.” Commercial Money Ctr., Inc. v. Illinois
Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007).
“The factual allegations in the complaint need to be
sufficient to give notice to the defendant as to what claims
are alleged, and the plaintiff must plead ‘sufficient
factual matter' to render the legal claim plausible,
i.e., more than merely possible.” Fritz v. Charter
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
Stantec's Motions as to the Claims of Messer and
(Construction Manager at Risk) and Igel (Subcontractor) each
assert claims for implied indemnification and contribution
against Stantec (Project Engineer), based on the allegation
that Stantec negligently prepared the scour protection plans
which Messer and Igel followed during their work on the
motions for judgment on the pleadings, Stantec makes
arguments that apply equally to the claims of both Messer and
Elements of a Claim
arises from contract, either express or implied, and is the
right of a person, who has been compelled to pay what another
should have paid, to require complete reimbursement.”
Worth v. Aetna Cas. & Sur. Co., 32 Ohio St.3d
238, 240, 513 N.E.2d 253, 256 (Ohio 1987). The party
asserting an indemnification claim “seeks complete
reimbursement from the party primarily liable for damages he
or she has incurred.” Wagner-Meinert, Inc. v. EDA
Controls Corp., 444 F.Supp.2d 800, 804 (N.D. Ohio 2006).
implied right to indemnification is recognized under Ohio law
“in situations involving related tortfeasors, where the
one committing the wrong is so related to a secondary party
as to make the secondary party liable for the wrongs
committed solely by the other.” Reynolds v.