United States District Court, S.D. Ohio, Western Division
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.
H. RICE, UNITED STATES DISTRICT JUDGE
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.
Background and Procedural History
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.
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.
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.
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.
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.
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.
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.
Third-Party Defendant Ohio Casualty Insurance Company's
Motion for Summary Judgment (Doc. #68)
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.
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).
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 ...