Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C.

900 N.E.2d 801, 2009 Ind. App. LEXIS 183, 2009 WL 280018
CourtIndiana Court of Appeals
DecidedFebruary 6, 2009
Docket06A05-0804-CV-239
StatusPublished
Cited by4 cases

This text of 900 N.E.2d 801 (Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C.) 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
Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 900 N.E.2d 801, 2009 Ind. App. LEXIS 183, 2009 WL 280018 (Ind. Ct. App. 2009).

Opinions

OPINION

BAKER, Chief Judge.

We once again turn the page and delve into another chapter of the saga surrounding the renovation and expansion of the Central Library Project in Indianapolis. Perhaps our discussion below may best be summarized as follows:

When only economic harm is involved, the question becomes " 'whether the consuming public as a whole should bear the cost of economic losses sustained by those who failed to bargain for adequate contract remedies. "

And, as New York Court of Appeals Chief Judge Benjamin Cardozo recognized:

If liability for negligence exists, a thoughtless slip or blunder ... may expose [one] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.
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[If there has been neither reckless misstatement nor insincere profession of an opinion, but only honest blunder, the ensuing liability for negligence is one that is bounded by the contract, and is [804]*804to be enforced between the parties by whom the contract has been made.

Ultramares Corp. v. Touche, 255 N.Y. 170, 179-89, 174 N.E. 441, 444-48 (1981).

Appellant-plaintiff Indianapolis-Marion County Public Library (Library) appeals the trial court's entry of summary judgment in favor of appellees-defendants Charlier Clark & Linard, PC, (CCL), Thornton Tomasetti Engineers (TTE), and Joseph G. Burns (collectively, the appel-lees). Specifically, the Library argues that the judgment entered for the appel-lees on its negligence claims was erroneous because those claims were not barred under the economic loss doctrine as espoused by our Supreme Court in Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind.2005). Concluding that the trial court properly granted summary judgment for the appel-lees because the economic loss doctrine precludes the Library from recovering under these circumstances, we affirm.

FACTS2

The Library is a municipal corporation located in Indianapolis. In the late 1990s, the Library approved a plan for the expansion and renovation of its main facility in Indianapolis. The project included (1) the renovation of a building commonly known as the Cret Building; (2) the demolition of a multi-story annex structure; (8) the construction of a six-story tower; (4) the construction of an underground parking garage, which also serves as the structural foundation for the tower; (5) the construction of a new 300-seat auditorium; and (6) the construction of an atrium, which connects the Cret Building and the tower.

In February 1998, the Library engaged Woolen Molzan and Partners, Inc. (WMP), to serve as architect of record for the project. Thereafter, WMP engaged the services of several consultants, including TTE, which is an international engineering company that is headquartered in New York.3 WMP ultimately hired TTE to provide structural engineering services for the project.

In July 1999, WMP and TTE entered into a standard architect/consultant agreement. TTE agreed to provide the original structural design for the new and renovated spaces within the project. Among other things, TTE was responsible for providing construction documents, bidding services, and construction phase services. The contract provided in part that

[TTE] shall not be responsible for the acts or omissions of the Architect, Architect's other consultants, contractor, subcontractors, their agents or employees, or other persons performing any of the Work.
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The Architect and [TTE], respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to the Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Architect nor [TTE] shall assign this Agreement without the written consent of the other.
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Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a [805]*805third party against either the Architect or [TTE].

Appellant's App. p. 230, 240. The Library never purchased any services for the project directly from TTE.

Based upon TTE's recommendation, WMP retained CCL, a small civil engineering firm in Indianapolis, to provide certain services relating to the construction of the parking garage. On May 9, 2002, WMP and CCL executed an agreement, pursuant to which CCL agreed to perform twelve site visits to determine whether the project was in general compliance with construction standards. CCL was to be paid $12,000 for its services.

On August 12, 2002, TTE issued final stamped structural design drawings for the project. Burns, who was a managing principal of TTE, affixed his engineer's seal to the designs. Thereafter, the Library and WMP amended the original architect agreement and executed a standard form of agreement. CCL representatives were not made aware of the amendment to the initial agreement. Moreover, although CCL was referenced in the agreement, it was not a signatory to the document. Following the execution of the amended agreement, the Library began awarding contracts to various construction firms.

The Library broke ground on the project on September 27, 2002. The Library subsequently awarded a bid package to Shook, LLC (Shook), for the garage's construction. After TTE provided the structural design of the garage, the Library and Shook contracted for the garage construction, and Shook commenced work on March 17, 2008. Just prior to that date, WMP had issued a proposal request that required substantial modifications to the original drawings that TTE had prepared. Thus, TTE was requested to issue a new set of structural drawings. Among other things, WMP suggested that the concrete strength be increased and that an additional wall be installed.

In response, Shook provided estimates associated with the proposal. Initially, Shook's estimates totaled over $820,000, which required the approval from the Library's Board of Trustees. TTE represented to the Library that the changes set forth in the proposal were necessary to coordinate other bid packages, but Library personnel believed that the proposal was likely an effort to correct deficiencies in the structural design of the garage. However, the Library subsequently approved the proposal on May 28, 2008, and thereafter, Shook reduced its estimate to $518,515.

During the construction process, Shook prepared its own shop drawings, which were based on those of TTE. After the shop drawings were completed, Shook delivered them to the construction manager for the project, Turner Trotter Shiel-Sex-ton (TTSS), which ultimately submitted them to WMP. WMP then submitted the shop drawings to TTE for review. Following TTE's approval, Shook and the subcontractors followed the drawings and added steel reinforcements to the structural members of the garage.

During construction, Shook and its subcontractors received numerous inquiries regarding placement of the steel reinforcement beams. Those inquiries were submitted to TTE and stemmed from the lack of detail and/or clarity in the drawings.

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Bluebook (online)
900 N.E.2d 801, 2009 Ind. App. LEXIS 183, 2009 WL 280018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indianapolis-marion-county-public-library-v-charlier-clark-linard-pc-indctapp-2009.