United States District Court, M.D. Florida, Tampa Division
UNIVERSITY COMMUNITY HOSPITAL, INC. d/b/a Florida Hospital Tampa Plaintiff,
PROFESSIONAL SERVICE INDUSTRIES, INC., Defendant.
D. WHITTEMORE, United States District Judge
THE COURT are Professional Service Industries, Inc.'s
Motion for Summary Judgment on Plaintiffs Claims (Dkt. 173)
and Plaintiff s response (Dkt. 228), and Plaintiff s Motion
for Partial Summary Judgment (Dkt. 209) and Defendant's
response (Dkt. 222). Defendant's Motion is DENIED and
Plaintiffs motion is GRANTED in part and DENIED in part.
University Community Hospital d/b/a Florida Hospital Tampa
("FHT") entered into two consulting agreements with
PSI, a geotechnical engineering firm, for geotechnical
services in connection with a project to expand its
Women's Center and relocate its Emergency Department (the
"Project"). (Dkt. 209-1, Exs. 3, 49). Under the
agreements, PSI was to investigate site conditions and
provide recommendations as to the type of foundation design,
and to supervise and monitor the auger cast pile
installation, among other things.
first agreement, dated January 10, 2012, provides that
PSI's "Geotechnical and Underground Fuel Storage
Tanks Scope of Services" are outlined in "Parsons
Original Request for Proposal Dated December 28, 2011, and
Post Addendum No. 01 dated January 18, 2012, " which
were incorporated therein. (Dkt. 209-1, Ex. 3). Relevant to
Plaintiffs claim for breach of contract, the December 28,
2011 RFP requires PSI to perform soil Standard Penetration
Tests (SPT) borings, "insure proper boring locations,
depth and count, " and take all borings to
"refusal, " "[i]dentify all karst depressions
within and directly adjacent to the proposed building site,
" "[d]efine settlement impacts to adjacent existing
structures, " and provide foundation recommendations.
(Dkt. 209-1, Ex. 267).
second agreement, dated August 9, 2012, provides that PSFs
"Construction Materials Testing and Threshold
Inspections Scope of Services ... are outlined in the
Parson's Original Request for Proposal dated July 27
2012" which was incorporated therein. (Dkt. 209-1, Ex.
49). The July 27, 2012 RFP requires PSI to provide "an
independent 3rd Party Quality Control element to the other
members of the Project Team, in support of the Owner's
best interests." (Dkt. 209-1, Ex. 37). This included,
among other things, "expediting the 'real time'
daily resolution of quality control issues, to include
issuance of handwritten daily reports, and to include
responsibility and authority to issue recommendations to stop
work, if warranted by any critical quality control
March 2012, Parson's Commercial Technology Group, Inc.,
FHT's representative, requested a proposal from PSI to
"investigate, and provide a possible reason for the
large cracks" in the Women's Center. (Dkt. 209-1,
Ex. 9). On March 20, 2012, PSI submitted a proposal noting
two areas of concern for sinkhole activity and observations
of "horizontal cracking" in the floor slab of the
Women's Center and settling of the sidewalk near an
elevator bank west of the cafeteria. (Id, Ex. 10).
The proposal suggested an approach to determine whether the
distress noted was attributable to sinkhole conditions. FHT
approved PSFs proposal and authorized PSI to begin the
investigation. (Id., Ex. 9).
April 2, 2012, PSI issued its "Evaluation of
Potential Sinkholes" report following its investigation
of the cracking in the floor slab and settlement near the
elevator bank at the Women's Center. (Id., Ex.
11). The report indicated that a Ground Penetrating Radar
("GPR") study was performed which indicated no
anomalies at either site and that a floor flatness study did
not reveal significant differential settlement.
(Id.) The report concluded that these studies did
"not indicate significant existing or active sinkhole
9, 2012, PSI issued a Geotechnical Engineering Services Final
Report with its evaluation results and recommendations for
the Project. (Dkt. 209-1, Ex. 12). PSI recommended that an
auger cast pile system was a suitable column foundation type.
(Id. ¶ 3.3.3; Dkt. 24 ¶¶ 20, 23-24).
The Final Report also included information regarding
potential sinkhole development and found that the site had a
moderate to elevated potential for sinkhole development.
(Dkt. 209-1, Ex. 12 ¶¶ 2.6, 3.1). Based on
PSI's recommendations, the Project was designed by the
Project architect and structural engineer, who utilized auger
cast piles. (Dkt. 2 ¶ 11). Geotechnical Foundation
Systems, Inc. was hired by the construction manager to
perform the auger cast piles installation. (Dkt. 24
¶¶ 14, 28). And pursuant to the August 9, 2012
agreement, PSI was to monitor GFS's installation of the
auger cast piles, prepare inspection reports, and report any
problems with the installation to FHT.
construction, around November or December 2012, problems
arose with the installation of the auger cast piles. PSI
observed ground surface collapse due to sinkholes. (Millburg
Dep., Dkt. 178-1 at 213:16-214:6). In January 2013, the
foundation of the Women's Center experienced settlement,
and installation was stopped. (See Dkt. 24 ¶
31; Millburg Dep. at 261:7-25). As a result, it became
necessary to design and implement repairs to the Women's
Center building and for additional stabilization to the
building. (Id. at 266:8-16).
sued PSI for breach of the consulting agreements and
professional negligence arising out of the delay in the
Project caused by settlement in the foundation of the
Women's Center. FHT moves for partial summary judgment on
liability for its breach of contract claims (Counts I and
III) and PSI's First, Third, Fourth, Sixth, Ninth, Tenth,
Twelfth, Thirteenth, Fourteenth, Eighteenth, Nineteenth, and
Twenty-First Affirmative Defenses. PSI moves for summary
judgment on all of FHT's claims.
judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
"A genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a
verdict.'" Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 252 (1986)). A fact is
material ifit may affect the outcome of the suit under the
governing law. Allenv. Tyson Foods, Inc., 121 F.3d
642, 646 (Uth Cir. 1997).
moving party bears the initial burden of showing the court,
by reference to materials on file, that there are no genuine
disputes of material fact that should be decided at trial.
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1260 (11thCir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the moving party
fails to demonstrate the absence of a genuine dispute, the
motion should be denied. Kernel Records, 694 F.3d at
1300 (citing Adickes v. S.K Kress & Co., 398
U.S. 144, 160 (1970); Clark v. Coats & Clark,
Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)).
FHT's Breach of Contract Claims
contends that pursuant to the consulting agreements, PSI was
obligated to (i) take bore holes "to refusal" -
that is, until the drill hit rock or similar dense material -
and identify all karst conditions (e.g., sinkholes) on the
project site, and (ii) inspect the subcontractor (GFS)
installing the auger cast piles to ensure that it performed
its work scope in accordance with the Project's
specifications, and to warn FHT if it did not. FHT contends
that PSI failed to take all of the bore holes to refusal,
failed to identify all karst conditions, and failed to
inspect the installation of the auger cast piles and report
deficiencies in the installation work, thereby breaching its
agreements with FHT.
elements of a breach of contract action are: (1) a valid
contract; (2) a material breach; and (3) damages. Abbott
Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740
(Fla. 5th DCA 2000). A plaintiff may only recover if the
damages are a proximate result of the material breach.
Chipman v. Chonin, 597 So.2d 363, 364 (Fla. 3d DCA
spends a great deal of time attacking FHT's motion and
claims with unsupported rhetoric, sarcasm, unsupported
conclusions, unsupported "facts, " disingenuous
arguments, and inflammatory labels such as "false
narrative, " "newly minted allegations" made
out of "whole cloth, " and "intentional
material misrepresentations." However, the undisputed
evidence shows that PSI was contractually obligated to
perform certain duties for FHT relating to site investigation
and foundation recommendations and supervision, and that PSI
failed to do so in at least three ways. Specifically, (i) PSI
stopped its borings short of refusal in at least two
locations, (ii) failed to locate a karst condition directly
under the existing building on the project, and (iii) failed
to notify FHT of deficiencies it observed with GFS's
installation of the auger cast piles.
begin with, PSF s contention that FHT "simply made up
claims not found anywhere in its Amended Complaint" is
without merit. FHT's Amended Complaint alleges the
existence of the consulting agreements, references the
requests for proposals, and alleges that PSI breached its
contractual obligations by "failing to recognize the
true nature of the geologic hazards that the subject site
posed to the construction of the Project, "
"failing to perform adequate testing and assessment of
the site in May 2012, and later in December 2012 failing to
adequately investigate the cause of the observed collapsing
of the soils adjacent to auger cast pile installation, "
and "failing to properly observe and report the
activities of the auger cast pile contractor." (Dkt. 2
¶¶ 7-8, 18, 26-27). While these allegations are not
as specific as FHT's contentions in its motion for
summary judgment, they were sufficient to put PSI on notice
of the claims against it and the factual basis for such
claims. And, notably, FHT moved to amend its Amended
Complaint to include more specific allegations, which the
Court denied because "the proposed 'minor
modifications do not add any new causes of action nor do they
modify the relief requested.'" (Dkt. 169).
Existence of a Valid Contract
next contention, that FHT has materially misstated PSI's
contractual obligations, is likewise meritless. PSI does not
dispute that it entered into the January and August 2012
consulting agreements, but argues that those agreements did
not require PSI to supervise GFS' installation of the
auger cast piles or to "provide quality control services
to [GFS]." However, as set out in the undisputed facts
and conceded by PSI, PSI was obligated to provide engineering
technicians to observe the auger cast piles installation and
report any deficiencies in the work or equipment. (Dkt. 222
at 9). And PSI does not legitimately dispute
that it was required to undertake soil borings to refusal,
identify all karst conditions within and adjacent to the
building site, and provide a soil analysis and foundation
recommendations. (See Dkt. 222 at 5-8). Accordingly,
FHT has established the existence of PSPs contractual
obligations and has therefore satisfied the first element of
its breach of contract claim.
the second element, breach, it is undisputed that PSI
performed eight borings, but failed to take two of them to
refusal. PSI does not argue that it took all eight borings to
refusal. Rather, it attempts to gloss over this undisputed
evidence by referencing Exhibit B to the January 10, 2012
Consulting Agreement, the breakdown of PSI's
compensation, which budgeted for 223 linear feet of borings,
or as PSI contends, 28 feet per boring. (Dkt. 161-9 at 9).
Regardless, the agreement expressly required PSI to take all
borings to refusal, which, as indicated in PSI's Final
Report, it did not do. (See Dkt. 209-1, Ex. 12 at
73). Indeed, PSI's own expert testified that B5 and B7
were not taken to refusal. (Murphy Dep., Dkt. 176-1 at
103:3-17). Without doubt, PSI's failure to
comply with the contractual requirement of boring to refusal
was a breach.
respect to FHT's contention that PSI failed to identify
all karst conditions on the site, PSTs April 2012 Evaluation
of Potential Sinkholes report issued after its investigation
of the floor cracking and settlement near the elevator bank
at the Women's Center indicated no anomalies at either
side and that the floor flatness study did not reveal
significant differential settlement. It concluded that the
studies did "not indicate significant existing or active
sinkhole issues." It is undisputed, as PSI concedes,
that that "[n]o Karst conditions were found by PSI or
anyone else." (Dkt. 222 at 7).
also undisputed that additional borings in January 2013 by
Terracon Consultants, Inc., a geotechnical engineer hired
after the settlement, revealed karst conditions under and
adjacent to the Women's Center. (See Ex. 136;
Ex. 366A (correspondence of Andrew Johnson, P.E., identifying
sinkhole condition at Terracon's TB-3 borehole at page
14114). PSI does not counter this with any competent
evidence. See Fed. R. Civ. P. 56(c)(1). Indeed,
PSI's September 2013 draft report acknowledged the
results of the Terracon borings. And Marty Millburg emailed
Lloyd Lasher on September 10, 2013, alluding to the PSI and
Terracon borings and the "extensive zones of very poor
deep soils from about 100 to 150 feet deep, " and
opining that "these soils are the cause of this
settlement . . . [and] [t]he hospital should perform deep
grouting in this area to reduce future
said, whether PSI materially breached the agreement by
failing to identify the karst condition is a question for the
trier of fact. If the jury finds that the two borings which
were not "to refusal" prevented PSI from
discovering the deep soil condition Terracon found, it would
be within its province to find a material breach on PSFs
August 9, 2012 contract, PSI agreed to perform supervisory
and quality control inspections during GFS's installation
of the auger cast pile foundations at the project. FHT argues
that PSI failed to inspect the installation of the auger cast
piles and report deficiencies in the installation work,
thereby breaching its agreements with FHT. Among other
responsibilities, PSFs inspector was to record and notify FHT
of "any unusual occurrences during the plie
installation, " and to "immediately notify the
Contractor if a Pile is not in conformance with these
specifications." Ben Doan of PSI confirmed that PSI was
to "confirm whether things were done compliant or not,
" and if not, to "document it."
undisputed that GFS withdrew (at least two dozen times)
augers from the karst areas without grouting, contrary to the
specifications for the project. Ben Doan confirmed that
"backing that auger out without grouting was
inconsistent with the project's plans and specs."
And PSFs expert, Murphy, says if the auger was pulled out of
its hole without grouting, that should have been reported to
FHT. And whether PSI was aware that GFS was improperly
installing the augers does not seem to be disputed. PSI plead
in its Third Party Complaint against GFS was installing the
augers improperly, notwithstanding numerous warnings (Dkt. 24
at ¶¶ 32-33). Philip Harwell of GFS confirms that
PSFs inspector observed its removal of augers without
grouting, but never voiced any concern or objection.
contends that it repeatedly warned FHT that GFS was
installing the auger cast piles improperly by withdrawing the
auger without grouting. However, the evidence PSI relies on
does not supports this assertion. PSI's reliance on the
testimony of John Negley, an assistant vice president for
FHT, identifying a November 13, 2012 PSI Inspection Report
"reporting on issues with the 10 auger cast pile
contractor" and that at some unspecified time, he was
aware that" the drill rig was removed because of surface
collapse" does not create a disputed issue of fact. More
specifically, Negley testified that he did not recall seeing
any documents that were written prior to the building
settling "indicating that [GFS] may have pulled their
auger without grouting. (Negley Dep. at 319:12-23).
Badinger, an employee of Parsons, likewise does not remember
PSI advising her before January 4, 2013 that GFS pulled the
auger out without grouting. (Dkt. 148-2, Badinger Dep. at
238:7-16). PSF s Ben Doan does not know whether anyone at PSI
recommended to FHT that GFS' work be stopped. (Doan Dep.,
Dkt. 174-1 at 70:18-71:18). And tellingly, PSI does not cite
to any testimony of its own employees demonstrating that PSI
warned FHT of GFS' improper auger cast pile installation.
The undisputed evidence therefore demonstrates that PSI knew
that GFS's installation of the auger cast pile
foundations was deficient and not in conformity with the
project plans and specifications but failed to report that.
on the undisputed evidence, FHT has established that PSI
breached the contracts in at least two respects, failing to
comply with the contractual requirement of boring to refusal
and failing to report deficiencies on GFS's auger cast
pile installation. Whether these breaches were ...