United States District Court, D. Connecticut
DOMINION RESOURCES SERVICES, INC. et al., Plaintiffs,
ALSTOM POWER, INC., Defendant.
RULING RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT AND
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (DOC.
NOS. 129, 131, 132, 134)
C. Hall, United States District Judge
Dominion Resources Services, Inc., Dominion Resources, Inc.,
Dominion Energy, Inc., Dominion Generation Corporation, and
Dominion Technical Solutions, Inc. (collectively
“Dominion” and “plaintiffs”), bring
this action concerning alleged breach of a contract against
defendant Alstom Power, Inc. (“Alstom”).
See Amended Complaint (“Am. Compl.”)
(Doc. No. 45) at 1.
the court are the parties' Cross-Motions for Summary
Judgment. See Motion for Summary Judgment on Phase I
(“Pl.'s MSJ”) (Doc. No. 129); Motion for
Summary Judgment Dismissing Plaintiffs Breach of Contract
Claims (“Def.'s First MSJ”) (Doc. No. 131);
Motion for Summary Judgment Dismissing Plaintiffs Claims as
Barred by the Statute of Limitations (“Def.'s
Second MSJ”) (Doc. No. 132); and Motion for Summary
Judgment on the Pleadings and Alternative Motion for Summary
Judgment (“Def.'s Third MSJ”) (Doc. No. 134).
reasons stated below, the Motions for Summary Judgment are
granted in part and denied in part, and the Motion for
Judgment on the Pleadings is denied.
STANDARD OF REVIEW
motion for summary judgment, the burden is on the moving
party to establish that there are no genuine issues of
material fact in dispute and that the party is entitled to
judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); Wright v. N.Y. State
Dep't of Corr., 831 F.3d 64, 71-72 (2d Cir. 2016).
Once the moving party has met its burden, the nonmoving party
“must set forth specific facts showing that there is a
genuine issue for trial, ” Anderson, 477 U.S.
at 256, and present “such proof as would allow a
reasonable juror to return a verdict in [its] favor, ”
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.
2000). “An issue of fact is genuine and material if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d
assessing the record to determine whether there are disputed
issues of material fact, the trial court must “resolve
all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought.” LaFond v.
Gen. Physics Servs. Corp., 50 F.3d 165, 175 (2d Cir.
1995). “Where it is clear that no rational finder of
fact ‘could find in favor of the nonmoving party
because the evidence to support its case is so slight,'
summary judgment should be granted.” F.D.I.C. v.
Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)
(quoting Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). On the
other hand, where “reasonable minds could differ as to
the import of the evidence, ” the question must be left
to the finder of fact. Cortes v. MTA N.Y. City
Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d
as here, both parties come before the court on cross-motions
for summary judgment, the court is not required to grant
judgment as a matter of law for either side. See Ricci v.
DeStafano, 530 F.3d 88, 109-10 (2d Cir. 2008).
“Rather the court must evaluate each party's motion
on its own merits, taking care in each instance to draw all
reasonable inferences against the party whose motion is under
consideration.” Id. at 110.
Motion for Judgment on the Pleadings
deciding a Motion for Judgment on the Pleadings, pursuant to
Federal Rule of Civil Procedure 12(c), courts “employ[
] the same standard applicable to dismissals pursuant to
Fed.R.Civ.P. 12(b)(6).” Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010) (alterations in original).
Therefore, courts “accept all factual allegations in
the complaint as true and draw all reasonable inferences in
[plaintiffs'] favor.” Id. To survive a
Motion for Judgment on the Pleadings, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face. Id.
and Alstom executed a contract titled “Amended and
Restated Alliance Agreement” (“Alliance
Agreement”) on February 1, 2005. Plaintiffs' Local
Rule 56(a)(2) Statement of Material Facts in Opposition to
Motion for Summary Judgment (“Pl. SOF”) ¶ 1.
The Alliance Agreement applied to certain services provided
by Alstom related to the construction, operation, and
maintenance of Dominion's power generation facilities.
Id. ¶ 2. Dominion and Alstom agreed that the
Alliance Agreement would be construed in accordance with
Virginia law. Id. ¶ 3. The Alliance
Agreement's General Terms and Conditions were
Dominion's standard terms and were prepared by Dominion.
Id. ¶ 4. Section 5 of the Alliance Agreement
contained the parties' rights and obligations as to one
another regarding indemnity and defense in the event of
certain claims filed against either party. See id.
¶ 5; Pl. SOF, Ex. 1 (“Alliance Agreement”)
(Doc. No. 133-1) at 39- 40. Section 7 of the Alliance
Agreement required Alstom to obtain and maintain insurance
policies, including “commercial general liability
insurance.” Pl. SOF ¶ 6. The Alliance Agreement
stated that Alstom and Dominion each would, “to the
extent permitted by its insurers, require each of their
respective insurers to waive all rights of recovery against
each other, whether in contract, tort (including negligence
and strict liability) or otherwise.” Id.
to the execution of the Alliance Agreement, Dominion and
Alstom did not discuss whether the Agreement required the
parties to obtain “non-eroding” insurance
policies. Id. ¶ 9. Alstom obtained a primary
insurance coverage (“the Zurich Policy”) and an
excess insurance policy (“the Allianz policy”)
for the 2007-2008 period, both of which contained
“eroding” limits of liability. Id.
¶ 13. Dominion was an additional insured party under
both policies. Id. ¶ 26. The Alliance Agreement
required Alstom to provide Dominion with Certificates of
Insurance; Alstom submitted such a certificate in March 2007,
confirming that Alstom had obtained the Zurich and Alliance
Policies. Id. ¶ 28. The March 2007 Certificate
of Insurance included the representation that Alstom had
obtained “Commercial General Liability” coverage.
April 2007, Alstom performed an inspection of a boiler at a
Dominion-owned power generating station in Massachusetts.
Id. ¶ 33. In November 2007, the boiler failed,
resulting in injuries-including fatal injuries-to five
workers at the Dominion facility. Id. ¶ 36. In
May 2009, the workers and the estates of the workers injured
and killed in the accident filed a lawsuit (the
“Underlying Litigation”) in Massachusetts state
court. Id. ¶ 37. The plaintiffs in the
Underlying Litigation alleged that the boiler accident was
caused by the fault of Dominion, Alstom, and other
defendants. Id. ¶ 39.
24, 2009 and September 26, 2009, Alstom made written demands
on Dominion that Dominion defend and indemnify Alstom for the
claims in the Underlying Litigation. Id. ¶ 40.
Dominion denied those demands in a letter dated September 29,
2009. Id. ¶ 41. In the same letter, Dominion
noted its position that, “[i]n the event that
Plaintiffs' claims against Dominion are determined to be
‘arising out of, resulting from, or caused by or to the
extent in connection with any of the Materials or Equipment
supplied or Services performed by Alstom'” and the
Alliance Agreement's exception to the duty to indemnify,
that Alstom would be “obliged to indemnify
Dominion.” See Defendant's Local Rule
56(a)(1) Statement of Material Facts, Ex. F (“Notice of
Claims Letter”) (Doc. No. 135-6) at 3-4. Dominion
further noted that the letter was meant to fulfill the
requirement of written notice in accordance with Section 5 of
the Alliance Agreement. Id. at 4. Dominion did not
expressly use the word “defend” in its Notice of
Claims Letter. Pls.' SOF ¶ 42. The Notice of Claims
Letter was the only written notice to Alstom, prior to the
current action, concerning the claims in this action.
Id. ¶ 43.
December 15, 2009, Dominion and Alstom entered into a tolling
agreement (“the Tolling Agreement”), concerning
the Underlying Litigation. Id. ¶ 45. The
Tolling Agreement stated that Dominion would have "one
year from the date of any settlement or final judgment to
bring any action for, or related to, indemnification,
contribution, or any other claim or cross claim that may be
asserted against (Alstom) with respect to the claims asserted
in the [Underlying] Litigation." Id. ¶ 46.
March 23, 2015, the Massachusetts court in the Underlying
Litigation entered an “Order for Entry of Dismissal
Nisi, ” providing that the action had been
“REPORTED SETTLED to the Court by counsel.”
Id. ¶ 57. The Order noted that a judgment of
dismissal was to enter on June 22, 2015. Id. On
April 7 and 9, a judge in the Underlying Litigation made
notations on pleadings filed in the Massachusetts action,
stating that the settlements were “fair and
reasonable.” Id. ¶ 63.
has filed three Motions for Summary Judgment, and a Motion
for Judgment on the Pleadings. See Doc. Nos. 131,
132, and 134. In its first Motion, Alstom argues that summary
judgment in its favor is warranted because (1) no admissible
evidence establishes that Alstom had an obligation under the
Alliance Agreement to obtain a “non-eroding”
insurance policy, see Def.'s First MSJ (Doc. No.
131) at 6; (2) Alstom complied with its contractual duties by
procuring the insurance policies at issue in this case,
id. at 18; (3) Dominion did not suffer any
recoverable damages; and (4) Dominion's alleged damages
were not caused by Alstom's breach, or were alternatively
barred or limited by provisions of the Alliance Agreement,
id. at 30.
second Motion for Summary Judgment, Alstom argues that
Dominion's breach of contract claims are barred by the
applicable statute of limitations. See Def.'s
Second MSJ (Doc. No. 132) at 2-4. Alstom first argues that
Dominion's breach of contract claims accrued no later
than 2007, as to Count II, and 2009, as to Count I.
Id. at 5-9. Second, Alstom argues that, even if the
court concludes that the parties' Tolling Agreement is
applicable to Dominion's claims, the claims are still
time-barred because the one-year tolling of the statute of
limitations ran from the earlier of any settlement
or final judgment as to an applicable claim, and the
parties' Memorandum of Understanding (“MOU”)
agreements constituted such a settlement. Id. at
Third Motion for Summary Judgment, Alstom argues that there
is no genuine issue of material fact as to whether section
11-4.1 of the Virginia Code voids any portion of the Alliance
Agreement that would impose a requirement on Alstom to pay
Dominion for expenses incurred in its defense of the
Underlying Litigation. See Def.'s Third MSJ
(Doc. No. 134) at 4-6, 8-11. In its Motion for Judgment on
the Pleadings Alstom argues that, taking Dominion's
allegations as true, Dominion's relief is nonetheless
barred by the same Virginia statute. See id. at 6-8.
Statute of Limitations
makes two arguments as to why Dominion's claims are
barred by the applicable statute of limitations. First,
Alstom argues that, because breach of contract claims are
subject to Virginia's five-year statute of limitations,
Dominion's claims accrued no later than 2007 and 2009,
for Count II and Count I, respectively. See
Def.'s Second MSJ (Doc. No. 132) at 5. Second, Alstom
argues that, even if a Tolling Agreement between the parties
tolled the statute of limitations, the tolling period expired
before Dominion initiated the present action. See
id. at 13.
Applicability of the Tolling Agreement
and Alstom entered into a Tolling Agreement on December 15,
2009. See Defendant's Local Rule 56(a)(1)
statement, Ex. G (“Tolling Agreement”) (Doc. No.
135-7) at 2. The Tolling Agreement made clear that,
“[p]rior to settlement or final judgment in the
[Underlying] Litigation, the Parties shall not file or assert
any claims or cross claims arising from the claims asserted
in the Litigation against any of the other Parties to this
Agreement, including claims for indemnification and
contribution.” Id. at 2 ¶ 1. The
Agreement further stated that all parties to the agreement
would have “one year from the date of any settlement or
final judgment” to bring any “claim or cross
claim that may be asserted against any of the Parties to the
[Underlying] Litigation with respect to the claims asserted
in the litigation.” Id. at 3. The Parties also
agreed that, “[i]n the event that any applicable
statute of limitations is shorter, such limitations period
shall be tolled until one year after the date of any
settlement or final judgment in the [Underlying]
first argument, that Dominion's claims are time-barred
because the Tolling Agreement did not apply to toll the
applicable statute of limitations, see Def.'s
Second MSJ at 5, is without merit. The Tolling Agreement
stated that the parties would have “one year from the
date of any settlement or final judgment to bring any action
for, or related to, indemnification, contribution, or any
other claim or cross claim that may be asserted against any
of the Parties to the Litigation with respect to the claims
asserted in the Litigation.” Tolling Agreement at 3
¶ 2. The broad language of the Tolling Agreement
unambiguously tolled any applicable statute of limitations on
claims between the parties. Alstom offers no argument to
contest the applicability of the Tolling Agreement to
Dominion's present claims. Because any statute of
limitations was tolled until one year after any settlement or
judgment in the underlying litigation, Alstom's Motion
for Summary Judgment on the basis that the five-year statute
of limitations barred Dominion's claims as of 2012 and
2014, respectively, is denied.
of Tolling Period Commencement
second argument is that, even assuming that the Tolling
Agreement applies to Dominion's claims, the claims are
time-barred. Alstom raises two arguments in this regard.
Alstom first argues that the one-year tolling of the statute
of limitations began running in February 2015, when the
parties in the Underlying Litigation entered into Memorandum
of Understanding (“MOU”) agreements. See
Def.'s Second MSJ at 11-12. Alstom argues that, by
February 2015, “the plaintiffs in the underlying
litigation action had agreed to accept specified amounts to
settle their claims.” Id. at 11. Alstom
further argues that MOUs between the defendants and the
plaintiffs “(1) confirmed that the parties had
‘reached an agreement to settle any and all claims'
asserted by the various plaintiffs in the underlying
litigation action, (2) specified the total settlement amount
agreed for each plaintiff, and (3) allocated payment of those
amounts to Dominion, Alstom and other parties.”
Id. at 11-12. Alstom points to the parties'
actions following the MOUs as support for the existence of a
settlement agreement: (1) the parties reported to the court
in March 2015, that “the action was settled;” (2)
the court entered a dismissal order in March 2015; (3) the
defendants agreed to allow the plaintiffs to publish an
article confirming settlement; and (4) the parties later
executed additional settlement agreements consistent with the
amounts agreed upon in February 2015. Id. at 12.
Alstom's second argument is that, notwithstanding any
involvement of the plaintiffs in the Underlying Litigation,
MOU agreements between the defendants in the Underlying
Litigation were sufficient to start the tolling period.
See Defendant's Reply to Plaintiff's
Opposition to Summary Judgment (“Def.'s Reply in
Supp.”) (Doc. No. 145) at 9-10. Based on the foregoing,
Alstom contends that the tolling period commenced in February
2015. Id.; Def.'s Second MSJ at 13.
argues that the Massachusetts Workers' Compensation Act,
section 15 of chapter 152 of the Massachusetts General Laws,
required that any settlement required court approval,
“after a hearing in which both the employee and the
insurer have had an opportunity to be heard, ” in order
to be enforceable. See Mass. Gen. Laws ch. 152
§ 15; Pls.' Mem. in Opp. at 16. Therefore,
“the only settlement date recognized under
Massachusetts law is the date of the statutorily required
court hearings and approvals-here, April 7 and April 9,
2015.” Pls.' Mem. in Opp. at 17. Because Dominion
filed the current action on April 6, 2016, see
Complaint (Doc. No. 1), it argues that its claims are timely.
responds that (1) section 15 of chapter 152 of the
Massachusetts General Laws does not apply to the MOUs signed
by the defendants in the Underlying Litigation alone; (2) the
unambiguous language of the Tolling Agreement makes clear
that the running of the one-year limitations period did not
require court approval of settlement agreements; and (3)
construing the Tolling Agreement so as to apply only to
approved settlement agreements would impermissibly render
other parts of the Agreement meaningless. See
Def.'s Second MSJ at 13-15; Def.'s Reply in Supp. at
Relevant Settlements for Purpose of Tolling
noted above, Alstom argues that, without regard to any
settlements involving the plaintiffs in the Underlying
Litigation, the MOUs between the defendants in the Underlying
Litigation were sufficient to trigger the beginning of the
one-year limitations period in the Tolling Agreement.
Def.'s Reply in Supp. at 9-10. Alstom also argues that
Massachusetts law did not require court approval of
settlements between defendants in the Underlying Litigation.
Id. The court rejects as objectively unreasonable
Alstom's interpretation of the Tolling Agreement, such
that agreements in principle to settle claims, made solely
between the defendants in the Underlying Litigation, were
sufficient to trigger the start of the one-year claims
Virginia Supreme Court recently reiterated, “[i]n
determining whether a term is ambiguous, a court cannot look
at the term in isolation; it must look at the term in the
context of the entire contract.” James River Ins.
Co. v. Doswell Truck Stop, LLC, 827 S.E.2d 374, 376 (Va.
2019). In this case, viewing the Tolling Agreement as a
whole, it is clear that the term “any settlement”
is a reference to settlement in the Underlying Litigation
between the opposing parties, as opposed to related
agreements in principle to settle made between the
the preamble to the Tolling Agreement indicates that the
motivating factor in the pursuit of the Tolling Agreement was
the fact that “Plaintiffs in the [Underlying]
Litigation have asserted claims against the Parties to [the
Tolling Agreement].” Tolling Agreement at 2. Second,
paragraph one of the Tolling Agreement states that,
“[p]rior to settlement or final judgment in the
Litigation, the Parties shall not file or assert any
claims or cross claims arising from the claims asserted in
the Litigation.” Id. ¶ 1 (emphasis
added). The first sentence of paragraph two of the Tolling
Agreement states that the parties will have “one year
from the date of any settlement or final judgment” to
bring claims against one another related to the Underlying
Litigation. Id. ¶ 2. While the reference to
“any settlement” in the first sentence of
paragraph two is not qualified by the words “in the
Litigation, ” the following sentence states that any
shorter limitations period “shall be tolled until one
year after the date of any settlement . . . in the
provides no basis to read the second reference to “any
settlement” as describing a different
“settlement” than that referenced in the
preceding paragraph and subsequent sentence. Reading the
words of the Agreement consistently, the Tolling
Agreement's references to “any settlement”
means settlement in the Litigation. See Cone v.
Cone, 64 Va. Cir. 311 (2004) (reading contract to
“allow[ ] the same meanings and the same connotations
to be used for wording throughout the entire
agreements between the defendants in the Underlying
Litigation as to the manner or structure of potential
settlement with the plaintiffs could be construed as
related to the Litigation, they could not reasonably
be understood as being “settlements . . . in the
Litigation.” Moreover, as noted above, the preamble to
the Tolling Agreement indicates that the agreement was
precipitated by the fact that “the Plaintiffs in the
[Underlying] Litigation . . . asserted claims against the
Parties to [the Tolling] Agreement.” It would be
unreasonable to read the Agreement in a manner that would
render sufficient to trigger the one-year claim period
agreements that (1) did not include the plaintiffs in the
Underlying Litigation, and (2) would not resolve the
plaintiffs' claims in the Litigation. The court therefore
concludes that the one-year time period in the Tolling
Agreement, which period was to be triggered by “any
settlement or judgment, ” could only reasonably be
construed as referencing settlements between the plaintiffs
and defendants in the Underlying Litigation. The court denies
Alstom's Motion for Summary Judgment on the basis that
agreements in principle between the defendants in the
Underlying Action were sufficient to start the clock on the
Agreements Between Plaintiffs and Defendants
also argues that the conduct of the parties in the Underlying
Litigation “after executing the February 2015 MOUs
demonstrated that an enforceable settlement had been
reached.” See id. at 12. In particular, Alstom
argues that (1) two of the plaintiffs in the Underlying
Litigation “signed and executed separate Settlement
Agreements” with the defendants in the Underlying
Litigation in February 2015; (2) the parties reported the
action settled to the court; (3) the court entered an Order
for Entry of Dismissal Nisi on March 23, 2015; (4)
the defendants in the Underlying Litigation permitted the
plaintiffs to publish an article confirming that a settlement
had been reached as of March 2015; and (5) the parties later