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University Community Hospital, Inc. v. Professional Service Industries, Inc.

United States District Court, M.D. Florida, Tampa Division

May 19, 2017

UNIVERSITY COMMUNITY HOSPITAL, INC. d/b/a Florida Hospital Tampa Plaintiff,
v.
PROFESSIONAL SERVICE INDUSTRIES, INC., Defendant.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge

         BEFORE 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.

         I. UNDISPUTED FACTS

         Plaintiff 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.

         The 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).

         The 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 issue." (Id.)

         In 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).

         On 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 issues." (Id.)

         On May 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.

         During 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).

         FHT 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.

         II. STANDARD

         Summary 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).

         The 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)).

         III. DISCUSSION

         A. FHT's Breach of Contract Claims

         FHT 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.

         The 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 1992).

         PSI 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."[1] 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.

         To 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.'"[2] (Dkt. 169).

         i Existence of a Valid Contract

         PSI's 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).[3] 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.

         ii. Breach

         As to 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.[4] (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).[5] Without doubt, PSI's failure to comply with the contractual requirement of boring to refusal was a breach.

         With 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).

         But is 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 settlement."[6]

         That 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 part.

         In the 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."

         It is 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.

         PSI 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).

         Cheryl 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.

         Based 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 ...


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