Qore, Inc. v. Bradford Bldg. Co., Inc.

25 So. 3d 1116, 2009 Ala. LEXIS 148, 2009 WL 1643346
CourtSupreme Court of Alabama
DecidedJune 12, 2009
Docket1070865
StatusPublished
Cited by21 cases

This text of 25 So. 3d 1116 (Qore, Inc. v. Bradford Bldg. Co., Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Qore, Inc. v. Bradford Bldg. Co., Inc., 25 So. 3d 1116, 2009 Ala. LEXIS 148, 2009 WL 1643346 (Ala. 2009).

Opinions

COBB, Chief Justice.

This appeal involves a negligence claim by Bradford Building Company, Inc. (Bradford), against QORE, Inc., d/b/a QORE Property Sciences (“QORE”). Bradford’s claims arise out of the failure of a concrete slab during the construction of a building on the slab. The slab failed because it was built over an excavated fuel-tank pit that had been filled with material that was not properly compacted. QORE appeals from the Jefferson Circuit Court’s denial of its motion for a judgment as a matter of law. We affirm.

Facts and Procedural History

When, as in this case, an appellant challenges a trial court’s ruling on a motion for a judgment as a matter of law, the appellate court views the evidence in the light most favorable to the nonmovant. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003). Therefore, with regard to facts as to which evidence or testimony was in conflict at trial, the Court has set out those facts in the light most favorable to Bradford, the nonmovant.

A. Purchase of Property

In December 2004, RKM Leeds, LLC (“RKM”), purchased a painel of real property from JDW Properties I, LLC (“JDW Properties”). RKM intended to construct a building to house a Walgreens pharmacy on the site and then to sell the developed [1119]*1119property to Walgreen Company. Before the sale of the real property, a gasoline service station had been operating on the property. Under the contract for the sale of the property, JDW Properties was to remove the underground fuel-storage tanks and related fuel lines from the property, and RKM was responsible for placing and compacting fill in the pits left by the removal of the fuel-related equipment.

B. Gallet Report

In May 2005, RKM hired Gallet & Associates, Inc. (“Gallet”), to determine whether subsurface conditions would provide the necessary structural support for the Wal-greens store. Gallet investigated the site and, on June 15, 2005, provided RKM a report of its results (“the Gallet report”). In its report, Gallet noted that the “store will be located at the site of an existing gas station.” Gallet recommended that “[t]he existing ... buried utilities (including existing fuel product lines and underground storage tanks) should be excavated from the proposed building and parking areas.”

Because excavating the tanks would create pits at least 15 feet deep, the Gallet report recommended that these “abandoned tank pits should be backfilled with engineered fill.” “Engineered fill” is fill that has been tested by an engineering firm and deemed suitable for use as structural fill and that has been properly installed and compacted. The Gallet report specified that,

“[i]n building areas, structural fill should be extended a minimum of 5 feet outside all building lines, paved areas, and slopes. The fill should be placed in thin loose lifts not exceeding 8 inches in thickness and compacted accordingly.”

Soil compaction is performed by placing appropriate fill material in thin layers and compressing each layer with a roller or other compacting machinery before adding the next layer. Fill is compacted to prevent settling of the soil over time, which can undermine the structural integrity of buildings constructed over the settling soil.

The Gallet report also recommended that, after the site had been excavated, backfilled, and graded, but before the placement of any extra fill to raise the grade to the specifications in the building plans, “the exposed subgrade should be thoroughly proof rolled.” “Proof rolling” is a process in which the surface of the soil is carefully observed as a fully loaded tandem-axle dump truck is driven over it. Any soft or structurally unsound soils revealed by the proof rolling are undercut and replaced with suitable well compacted engineered fill. Proof rolling does not detect structurally unsound soils or subsurface conditions at depths greater than roughly three feet below the surface.

C. QORE/RKM Contract

After the Gallet report had been submitted, RKM hired QORE to perform construction-materials-testing (“CMT”) services related to site grading and building construction. The contract entered into between QORE and RKM stated that the scope of CMT services to be performed by QORE “will be in accordance with the Master Work Scope of CMT Services requested by Walgreen! ] Company and Wal-greens’ Criteria Specification Fiscal 2005.”

The “Master Work Scope of CMT Services requested by Walgreen! ] Company” included the following “soils testing and site preparation” services:

“ — Standard Proctor [a soil-compaction test]
“ — Modified Proctor [a soil-compaction test]
“ — -Nuclear Gauge fa soil-density test]
“ — Compaction Control Testing
[1120]*1120“ — Compaction and Proof Roll Observation
“ — Review of Soil Boring Report and Bearing Capacities.”

The “Walgreens Criteria Specifications, Fiscal 2005” (“the Walgreens specifications”) included a schedule of “inspections, tests, and similar services representing] the minimum scope of quality control services to be performed,” including the following:

“Verify suitable soil bearing capacity
“Field density testing, compaction testing
“Optimum moisture/maximum density testing
“Pavement proof rolling
“Pavement Surface Smoothness Testing”

The Walgreens specifications also set forth specific requirements for “Site-work/Excavation,” including the following:

“Testing: ....
“1. Soil reports of actual unconfined compressive strength of each strata tested. Verify soil/fill bearing capacity conforms to design requirements. Perform one test at each column pad and per each 50 1ft. of foundation....
“5. Final building pad verification letter, submitted by the Geotechnical Engineer at the completion of Grading operations, summarizing satisfactory completion of all tests performed prior to slab placement.”

Further, the Walgreens specifications incorporated the Gallet report. Colin Se-well, project manager for QORE, testified at trial that part of QORE’s responsibility was to ensure that the recommendations in the Gallet report were followed.

In addition to providing that QORE’s services would “be in accordance with the Master Work Scope of CMT Services requested by Walgreen[ ] Company and Wal-greens’ Criteria Specification Fiscal 2005,” the contract between QORE and RKM also stated:

“The following list of construction materials testing was provided to us [i.e., QORE] by Walgreen[ ] [Company] during the CMT selection and we consider it to be the master scope of services. This scope includes requirements in the Project Specifications Manual.
“I. Earthwork
“ — Density testing of mass fill and utility trench backfill...

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Bluebook (online)
25 So. 3d 1116, 2009 Ala. LEXIS 148, 2009 WL 1643346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/qore-inc-v-bradford-bldg-co-inc-ala-2009.