Agl Resources Inc. et al v. Urs Corporation et al

REPLY BRIEF re MOTION for Summary Judgment ON URS CORPORATION'S CROSSCLAIM

N.D. Ga.March 23, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AGL RESOURCES, INC., AGL SERVICES COMPANY AND ATLANTA GAS LIGHT COMPANY, Plaintiffs, vs. CIVIL ACTION FILE NO. 1:16-cv-01141-MHC URS CORPORATION, CORRPRO COMPANIES, INC., MAGNOLIA RIVER SERVICES, INC. AND DOUBLE M, INC., Defendants. REPLY TO DEFENDANT URS CORPORATION’S RESPONSE IN OPPOSITION TO DOUBLE M, INC.’S MOTION FOR SUMMARY JUDGMENT ON URS CORPORATION’S CROSSCLAIM The sole issue before this Court is whether URS is entitled to common law contribution and apportionment from Double M in this action. The URS contribution and apportionment claims are derivative of AGL’s claims of negligence, breach of contract, breach of warranty, and contractual indemnity against URS. As detailed in its original brief and below, URS is not entitled to contribution and apportionment from Double M. URS is not entitled to contribution and apportionment from Double M in the contract context. Claims for breach of contract, breach of warranty, and contractual indemnity are based upon whether or not a defendant met its contractual obligations. Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 1 of 8 -2- Contribution is based upon the tort concept of apportionment of fault. In fact, the statute which sets out a statutory right of contribution, O.C.G.A. § 51-12-32, is located in Title 51, which is the Torts section of the Code. Title 13, the Contracts section of the Code, is conspicuously silent as to any right of contribution. Moreover, URS admits it has not “...located any case law that squarely addresses the application of O.C.G.A. § 51-12-33...” in the context of contract claims. (Doc. 118, p. 6). This, of course, is because contribution has no application in the context of contract law. It is a statutory creation of tort law. O.C.G.A. § 51-12-32. Even if contribution did apply in the contract context (which no known Georgia statute or case holds), it is undisputed that Double M had no contractual relationship with URS and that Double M did not perform any work for, or on behalf of URS. (Doc. 101-1, p. 14). In sum, there is simply no privity of contract between URS and Double M. Accordingly, there is no legal basis for URS to claim contribution from Double M on the breach of contract, breach of warranty, and contractual indemnity claims. In the tort context, URS is similarly not entitled to contribution and apportionment from Double M. Contribution for negligence is dead in Georgia, except for one narrow exception: Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 2 of 8 -3- when joint tortfeasors have settled and there has been no apportionment of fault by the trier of fact. Zurich American Insurance Company, et al. v. Heard et al., 321 Ga. App. 325 (2013). This narrow exception only applies to joint tortfeasors who have settled with the plaintiff. Notably, URS has not settled with AGL. Moreover, the right to contribution relates only to joint tortfeasors. URS and Double M are not joint tortfeasors because the jury is capable of distinguishing between the services provided by URS and Double M and apportioning fault for any alleged damages resulting from the performance of these services. The case of Murray v. Patel, 304 Ga. App. 253 (2010) cited by URS does not change this analysis. In Dist. Owners Ass'n v. AMEC Envtl. & Infrastructure, Inc., 322 Ga. App. 713 (2013), the Court of Appeals directly addressed Murray’s “dubious continuing precedential value.” Id. at 718. Specifically, the Dist. Owners Court explained that Murray stood for the proposition that “…the third-party practice statute was not necessarily incompatible with the apportionment statute” and “the plain language of O.C.G.A. § 51-12-33 (b) requires that the factfinder apportion liability between the defendant and the third-party defendant, and neither has the right of contribution against the other.” Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 3 of 8 -4- Id. Importantly, the Dist. Owners Court acknowledged that since the Murray decision, “...our Supreme Court has held that O.C.G.A. § 51-12-33 supplanted claims for common-law contribution and apportionment.” Id. The Dist. Owners Court was referring to the decision of McReynolds v. Krebs, 290 Ga. 850 (2012), in which the Supreme Court affirmed the dismissal of a crossclaim for contribution. In keeping with the precedent established by the McReynolds decision, the Dist. Owners Court ultimately affirmed the dismissal of the common law apportionment claim. URS correctly notes that the Dist. Owners Court commented “...we have no reason to dispute that actual claims for common- law indemnity...are still viable.” Id. at 718. However, this is not relevant to our analysis. It is undisputed that URS did not assert an indemnity claim against Double M. (Doc. 118, p. 14). “Where no allegations of imputed negligence or vicarious liability have been made, common law indemnity principles do not apply.” City of Atlanta v. Benator, 310 Ga. App. 597, 608-609 (2011). Therefore, undertaking an analysis of common law indemnity claims following the McReynolds and Distr. Owners decisions is beyond the issue before this Court. Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 4 of 8 -5- The issue before this Court is whether common law contribution and apportionment claims survive outside of the Heard exception and the consistent answer is no. See Hines v. Holland, 334 Ga. App. 292 (2015)(affirming dismissal of third- party complaint for contribution); Burton v. City of Adairsville, Civil Action File No. 4:14-CV-0099-HLM, 2014 U.S. Dist. LEXIS 190425 (N.D. Ga. Sept. 22, 2014 (dismissing third- party claim for contribution); FDIC v. First One Grp., LLC, Civil Action File No. 1:12-CV-1815-CAP, 2014 U.S. Dist. LEXIS 190563, (N.D. Ga. July 23, 2014)(granting summary judgment on third-party claims for contribution and indemnification); Allstate Prop. & Cas. Ins. Co. v. Omega Flex, Inc., Civil Action File No. 1:13-cv-879-JEC, 2014 U.S. Dist. LEXIS 45454 (N.D. Ga. Apr. 1, 2014)(granting judgment on the pleadings on contribution and indemnity claims). Like these cases, which follow the decisions in McReynolds and Dist. Owners, the Court in this case should find URS is not entitled to common law contribution or apportionment from Double M on the negligence claims. WHEREFORE, Double M respectfully requests this Court grant summary judgment in its favor on the URS Crossclaim for common law contribution and apportionment. Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 5 of 8 -6- DENNIS, CORRY, PORTER & SMITH, L.L.P. /s/ Grant B. Smith GRANT B. SMITH, ESQ. Georgia Bar No. 658345 /s/ Jan Seanor Sigman JAN SEANOR SIGMAN, ESQ. Georgia Bar No. 076229 For the Firm Attorneys for Defendant Double M, Inc. 3535 Piedmont Road, NE 14 Piedmont Center, Suite 900 Atlanta, Georgia 30305-4611 Telephone: (404) 365-0102 Facsimile: (404) 365-0134 Gbs@dcplaw.com JSigman@dcplaw.com Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 6 of 8 -7- CERTIFICATE OF SERVICE I hereby certify that on March 23, 2017, I electronically filed REPLY TO DEFENDANT URS CORPORATION’S RESPONSE IN OPPOSITION TO DOUBLE M, INC.’S MOTION FOR SUMMARY JUDGMENT ON URS CORPORATION’S CROSSCLAIM with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: John P. Brumbaugh, Esq. Amy Y. Jones, Esq. King & Spalding, LLP 1180 Peachtree Street, NE Atlanta, GA 30309 Craig J. Ledet, Esq. Martha B. Daniels, Esq. King & Spalding LLP 1100 Louisiana Street Suite 4000 Houston, TX 77002 Michael W. Lord, Esq. Neil L. Wilcove, Esq. Ze’eva Kushner Banks, Esq. Freeman Mathis & Gary LLP 100 Galleria Parkway Suite 1600 Atlanta, GA 30339 Lela Hollabaugh, Esq. Bradley Arant Boult Cummings 1600 Division Street, Suite 700 Nashville, Tennessee 37203 Brooke F. Voelzke, Esq. Hunton & Williams LLP Bank of America Plaza, Suite 4100 600 Peachtree Street, NE Atlanta, Georgia 30308 Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 7 of 8 -8- /s/ Grant B. Smith For the Firm Georgia Bar No. 658345 For the Firm Attorney for Defendant Double M, Inc. DENNIS, CORRY, PORTER & SMITH, L.L.P. 3535 Piedmont Road, NE 14 Piedmont Center, Suite 900 Atlanta, Georgia 30305-4611 Telephone: (404) 365-0102 Facsimile: (404) 365-0134 Gbs@dcplaw.com Case 1:16-cv-01141-MHC Document 123 Filed 03/23/17 Page 8 of 8