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Blue Rock Investments, LLC v. City of Xenia

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

December 12, 2019

BLUE ROCK INVESTMENTS, LLC, et al., Plaintiffs,
v.
CITY OF XENIA, OHIO, et al., Defendants.

         DECISION AND ENTRY SUSTAINING THIRD-PARTY DEFENDANT OHIO CASUALTY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT (DOC. #68) AND DISMISSING ALL CLAIMS AGAINST IT; SUSTAINING BADGER CONSTRUCTION'S RULE 12(B)(6) MOTION TO DISMISS XENIA'S CROSS-CLAIMS (DOC. #81); SUSTAINING MOTION OF THIRD-PARTY DEFENDANT, PHILLIPS SAND AND GRAVEL COMPANY TO DISMISS THIRD-PARTY COMPLAINT OF DEFENDANT/THIRD-PARTY PLAINTIFF, BADGER CONSTRUCTION COMPANY, INC. (DOC. #103)

          WALTER H. RICE, UNITED STATES DISTRICT JUDGE

         This matter is currently before the Court on three pending motions: (1) Third-Party Defendant Ohio Casualty Insurance Company's Motion for Summary Judgment, Doc. #68; (2) Badger Construction's Rule 12(b)(6) Motion to Dismiss Xenia's Cross-Claims, Doc. #81; and (3) Motion of Third-Party Defendant, Phillips Sand and Gravel Company to Dismiss Third-Party Complaint of Defendant/Third-Party Plaintiff, Badger Construction Company, Inc., Doc. #103.

         I. Background and Procedural History

         Plaintiffs, Blue Rock Investments, LLC, and Boymel Family, LLC, sued the City of Xenia after a building owned by Plaintiffs was damaged during the City's demolition of an adjacent building. Plaintiffs sought relief under 42 U.S.C. § 1983 for three alleged constitutional violations. They also asserted claims of breach of contract and negligence. Doc. #1.

         The City of Xenia then filed a Third-Party Complaint against its demolition contractor, Badger Construction Co., Inc., and Ohio Casualty Insurance Company ("Ohio Casualty"), which had issued a Performance and Payment Bond on the Badger contract. Doc. #11. The City later filed an Amended Third-Party Complaint, which included claims against Badger for breach of contract (Count I), breach of express and implied warranties (Counts II and III), failure to perform in a workmanlike manner (Count IV), express and implied indemnification (Counts V and VI), and contribution (Count VIII). The City also asserted a claim for express indemnification against Ohio Casualty (Count VII). Doc. #26.

         Ohio Casualty filed a Motion for Summary Judgment, arguing that because the contract was fully performed by Badger, Ohio Casualty was no longer contractually liable under the terms of the Bond. It also argued that the City was statutorily prohibited from seeking indemnification on counts predicated on the City's own alleged negligence. Doc. #68.

         On M arch 20, 2019, the Court issued a Decision and Entry dismissing Counts III (4th Amendment § 1983 claim) and V (negligence) of the Complaint. Doc. #73. Thereafter, Plaintiffs filed a First Amended Complaint, reasserting all original claims and adding a claim of negligence against Badger. Doc. #76.

         On March 28, 2019, the Court issued a Decision and Entry dismissing Counts l-IV, VI, VIII, and a portion of Count V of the Amended Third-Party Complaint as unripe. It dismissed the remainder of Count V on the merits. Doc. #77.

         The City filed cross-claims against Badger for breach of contract, breach of express and implied warranties, express and implied indemnification, and contribution. Doc. #79. Badger has filed a Motion to Dismiss Xenia's Cross-Claims. Doc. #81.

         Badger also filed a Third-Party Complaint against Levin Porter Associates, Inc., Phillips Sand and Gravel Company, Charles F. Jergens Construction, Inc., and Complete General Construction Company. Doc. #82. Phillips Sand and Gravel Company has filed a Motion to Dismiss Badger's Third-Party Complaint. Doc. #103.

         II. Third-Party Defendant Ohio Casualty Insurance Company's Motion for Summary Judgment (Doc. #68)

         Ohio Casualty has moved for summary judgment, Doc. #68, on Count VII of the City's Amended Third-Party Complaint, Doc. #26, the City of Xenia's claim for express indemnification. The City alleges that Ohio Casualty is obligated to indemnify Xenia against any failure by Badger to perform its work in accordance with the Badger contract and is obligated to defend Xenia against Plaintiffs' claims. Doc. #26. Ohio Casualty maintains that, because no claims remain that fall within the scope of the contractual indemnification provision, summary judgment is warranted.

         A. Fed.R.Civ.P. 56

         Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).

         "Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Rest., Ltd.,61 F.3d 1 241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 250 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Bee. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, "The plaintiff must present more than a scintilla of evidence in ...


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