Daniel Lee and Hui Luo Lee v. GDH, LLC

25 N.E.3d 761, 2015 Ind. App. LEXIS 26, 2015 WL 291939
CourtIndiana Court of Appeals
DecidedJanuary 22, 2015
Docket49A04-1404-CT-175
StatusPublished

This text of 25 N.E.3d 761 (Daniel Lee and Hui Luo Lee v. GDH, LLC) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel Lee and Hui Luo Lee v. GDH, LLC, 25 N.E.3d 761, 2015 Ind. App. LEXIS 26, 2015 WL 291939 (Ind. Ct. App. 2015).

Opinion

OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Daniel Lee, a plumber, was injured on the job at a construction site. He and his wife, Hui Luo Lee, sued several companies involved in the construction project, including GDH, LLC. The Lees appeal the trial court’s grant of summary judgment in favor of GDH. We affirm.

ISSUE

The Lees raise one issue, which we restate as: whether the trial court erred in granting summary judgment to GDH.

FACTS AND PROCEDURAL HISTORY

In 2005, Ivy Tech Community College of Indiana contracted with GDH for GDH’s services as a construction manager for a building project at Ivy Tech’s campus in Logansport, Indiana. GDH agreed to manage the project “consistent with the best interests of [Ivy Tech].” Appellants’ App. p. 62, Appellee’s App. p. 21.

With respect to safety, Ivy Tech and GDH’s contract states that before construction began, GDH would “provide recommendations and information to [Ivy Tech] regarding the allocation of responsibilities for safety programs among the contractors.” Appellants’ App. p. 63, Appel-lee’s App. p. 22.

GDH further agreed in its contract with Ivy Tech that it:

shall review the safety programs developed by each of the Contractors for purposes of coordinating the safety programs with those of the other Contractors. [GDH’s] responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, agents or employees of the Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by [GDH]. Should [GDH] become aware of a contractor performing its work in an unsafe or hazardous manner, [GDH] shall take immediate steps to prevent such unsafe or hazardous work.

Appellants’ App. p. 66, Appellee’s App. p. 25. The contract further provides:

With respect to each Contractor’s own Work, [GDH] shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the *764 Contractors, since these are solely the Contractor’s responsibility under the Contract for Construction. [GDH] shall not be responsible for a Contractor’s failure to carry out the Work in accordance with the respective Contract Documents unless [GDH] knows of any nonconforming work and does not stop or reject such work in accordance with the Contract Documents. [GDH] shall not have control over or charge of acts or omissions of the Contractors, Subcontractors, or their agents or employees, or any other persons performing portions of the Work not directly employed by [GDH]. Should a contractor fail to perform its work in a timely fashion as to non-conforming work known to [GDH], [GDH] shall immediately take all reasonable steps to mitigate any delays and damages to the Owner and other contractors.

Appellants’ App. p. 66, Appellee’s App. p. 25. During the construction phase, GDH’s contract with Ivy Tech required GDH to “schedule and conduct regularly scheduled meetings at least once every two weeks to, discuss matters such as procedures, progress, and scheduling.” Appellants’ App. p. 64, Appellee’s App. p. 28. Ivy Tech and GDH’s contract also states, “Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either [Ivy Tech] or [GDH].” Appellants’ App. p. 73, Appellee’s App. p. 32.

Ivy Tech separately contracted with other companies to perform specific portions of the construction project. One of these companies was Project Design & Piping, Inc. (PDP), Daniel’s employer. PDP did not enter into a contract with GDH.

Ivy Tech’s contract with PDP incorporated a “Project Manual.” Appellants’ App. p. 93, Appellee’s App. p. 52. The Project Manual describes the scope of work for the entire Logansport project. It includes technical specifications, bidding requirements, regulations on the use of apprentices in construction projects, and general conditions of construction. The general conditions of construction state, in relevant part, “The Contract Documents shall not be construed to create a contractual relationship of any kind ... between [GDH] and [PDP].” Appellee’s App. p. 221. 1 The general conditions further provide:

[PDP] shall supervise and direct the Work, using [PDP’s] best skill and attention. [PDP] shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract, subject to overall coordination of [GDH].

Appellee’s App. p. 227. Furthermore, “[PDP] shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of [GDH] or Architect in their administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than [PDP].” Id.

With respect to safety, the general conditions of construction included in Ivy Tech’s contract with PDP required PDP to submit its “safety program” prior to construction. Appellants’ Appendix p. 203, Appellee’s Appendix p. 228. The contract *765 states that the Construction Manager (GDH) will be responsible for coordinating the activities of the contractors, but except for coordination duties,

[GDH] ... and Architect will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely [PDP’s] responsibility ..., and neither will be responsible for [PDP’s] failure to carry out the Work in accordance with the Contract Documents. Neither [GDH] nor the Architect will have control over or charge of or be responsible for acts or omissions of [PDP], Subcontractors, or their agents or employees, or of any other persons performing portions of the Work.

Appellants’ App. p. 207, Appellee’s App. p. 236.

In addition, Ivy Tech’s contract with PDP indicates that GDH, as the construction manager, has the power to reject work that does not comply with project specifications, but

neither ... [GDH’s] authority to act ... nor a decision made ... in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of ... [GDH] to [PDP], Subcontractor, material and equipment suppliers, their agents or employees, or other persons performing any of the Work.

Appellee’s App. p. 237.

Next, Ivy Tech’s contract with PDP reiterates that PDP:

shall be solely responsible for initiating, maintaining, and supervising- all safety precautions and programs in connection with the performance of the Contract, and shall be in full compliance with all federal, state, and local safety and health related statutes, rules, and regulations.

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Cite This Page — Counsel Stack

Bluebook (online)
25 N.E.3d 761, 2015 Ind. App. LEXIS 26, 2015 WL 291939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-lee-and-hui-luo-lee-v-gdh-llc-indctapp-2015.