Kohl's Department Stores, Inc. v. Target Stores, Inc.

214 F.R.D. 406, 2003 U.S. Dist. LEXIS 5373, 2003 WL 1786227
CourtDistrict Court, E.D. Virginia
DecidedMarch 14, 2003
DocketNo. CIV. 3:02cv633
StatusPublished
Cited by7 cases

This text of 214 F.R.D. 406 (Kohl's Department Stores, Inc. v. Target Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kohl's Department Stores, Inc. v. Target Stores, Inc., 214 F.R.D. 406, 2003 U.S. Dist. LEXIS 5373, 2003 WL 1786227 (E.D. Va. 2003).

Opinion

MEMORANDUM OPINION

PAYNE, District Judge.

This consolidated civil action arises out of the construction of the Chesterfield Crossing Shopping Center (the “Project”). The four buildings comprising the Project each have suffered significant structural damage since construction was completed. The owners of three of the four buildings each filed actions against the developer/owner seeking contractual indemnification for the damage to their respective buildings. The developer/owner instituted a third-party complaint against the site contractor on the same theory. A number of third-party indemnity claims ensued.

All four building owners assert that the damage to their respective buildings is the result of the expansion of fill material supplied by ReUse Technologies, Inc. (“ReUse”). Several of the third-party complaints assert the same theory. ReUse was impleaded by the excavation and grading contractor which procured the fill material from ReUse. Thereafter, ReUse impleaded the contractors who worked on the owners’ buildings (the “Building Contractors”) on a theory of contribution, alleging that any damage to the buildings was the result of substandard construction by the contractors, instead of, or in addition to, any defect associated with ReUse’s fill material. Each of the Building Contractors has moved, under Fed.R.Civ.P. 12(b)(6), to dismiss the ReUse contribution claim against it. For the reasons that follow, these motions will.be GRANTED, and the ReUse contribution claims will be DISMISSED without prejudice.

[409]*409STATEMENT OF FACTS

A. The Relationship Among The Project Participants

To understand the contribution claims brought by ReUse against the Building Contractors, it is necessary to understand the contractual relationships among all of those involved in the Project. At some point before May 1997, Target Stores, Inc. (“Target”) and Ukrop’s Super Markets, Inc. (“Ukrop’s”) each purchased parcels of land at what is now known as the Chesterfield Crossing Shopping Center (the “Project”). In May 1997, Kohl’s Department Stores, Inc. (“Kohl’s”) and Ukrop’s, along with Chesterfield Crossing Shopping Center, L.L.C. (“CCSC”) entered into a Site Development Agreement (“SDA”) with Target. Under the SDA, Target agreed to convey a portion of its parcel to CCSC, and to perform all of the site development work on the Project, The site development work included “[c]learing and grading the entire Shopping Center, including any necessary undercutting, dewater-ing or stabilization of subgrades and compaction of soils (including subcharges) [and] the construction of any retaining walls or berms within the [Project] which are necessary to establish the Common Areas shown on the Site Plan.” (Kohl’s Compl., Exh. A.) On October 1, 1997, CCSC assigned to Kohl’s its right to purchase the portion of the Target parcel identified in the SDA, and the SDA was so amended. On February 16, 1998, Kohl’s conveyed to CCSC a portion of the parcel it acquired pursuant to the amended SDA.

In sum, Target agreed to perform site development work for the Project. Kohl’s and Ukrop’s each allege that Target agreed in the SDA to indemnify them for any damages resulting from defects associated with the site development work. CCSC further alleges that Kohl’s agreed “to perform its obligations under the SDA and cause such Site Improvement Work for the [CCSC] Property to be performed in accordance with the SDA.” (CCSC Compl., Exh. D.) Kohl’s, Ukrop’s, CCSC and Target will be referred to hereafter as “the Building Owners.”

Target contracted the site development work to The Williams Company of Orlando, Inc. (“Williams”) which contracted with various subcontractors who ultimately performed the site development work. The four Building Owners contracted with the Building Contractors who performed the work on the actual buildings. The specific contractual arrangements made by Williams and the Building Owners, respectively, are best understood when discussed in context of the actions filed by the respective Building Owners.

B. The Structure of this Civil Action

Shortly after completion of the Project, each Building Owner discovered structural damage of varying severity to its respective building. After some investigation, the Building Owners determined that the damage was generally the result of defects associated with the fill material used in constructing the building pads that served as the base for their buildings. Kohl’s, Ukrop’s, and CCSC then initiated civil actions against Target and Target filed a third-party complaint against Williams. At the instance of the parties, these actions were consolidated, but clarity and completeness counsel that, for purposes of the pending motions, they be addressed separately.

1. The Kohl’s Action

Kohl’s filed a complaint against Target on September 3, 2002 (the “Kohl’s Action”) alleging that the damage to its store was the result of expanding ash material used as fill in the construction of the building pad. Kohl’s asserted a number of contract-based theories of recovery against Target, each arising out of the alleged breach of contractual duties that Target is alleged to have owed Kohl’s under the SDA. Target then impleaded Williams Company of Orlando, Inc. (“Williams”), the general contractor for both the site development work and the construction of the Target building, asserting that the Target building likewise had suffered structural damage, and that Williams was responsible under its contracts with Target for both the damage to the Target building, as well as any liability of Target for damage to the Kohl’s building.1 Respecting site improvement work, Target alleged that:

[410]*410[d]uring the course of construction of the site improvements for [the Project], Williams or one or more subcontractors to Williams, made use of defective and unsuitable fill materials; failed to properly prepare and/or compact the subgrade; and/or failed to properly place and/or compact the engineered fill to properly or sufficiently support the foundations, slabs and buildings to be constructed at [the Project.]

(Target 3d Party Compl. at If 7.)

Williams, in turn, filed a Fourth-Party Complaint against three of the subcontractors who contracted with Williams to perform different aspects of the site improvement work — S.W. Rodgers Co., Inc. (“Rodgers”), the earth-moving subcontractor; Engineering Consulting Services, Ltd. (“ECS”), which provided engineering testing and inspection services; and McKinney & Co. (“McKinney” or “CTI”), which provided soils engineering services — as well as Foundation Contractors, Inc. (“FCI”), the foundation subcontractor employed by Williams pursuant to its contract to build the Target store. Williams sought contractually-based indemnity from each of these subcontractors because of any alleged breaches of their respective contracts that might be found to have caused Williams to be liable to Target. Williams voluntarily has dismissed without prejudice its claims against ECS, McKinney, and FCI. In its claim against Rodgers, Williams alleged that:

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Cite This Page — Counsel Stack

Bluebook (online)
214 F.R.D. 406, 2003 U.S. Dist. LEXIS 5373, 2003 WL 1786227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kohls-department-stores-inc-v-target-stores-inc-vaed-2003.