United Illuminating Co. v. Whiting-Turner Contracting Co.

          MEMORANDUM OF DECISION ON FOURTH-PARTY DEFENDANT'S MOTION TO DISMISS

          WARREN W. EGINTON, SENIOR UNITED STATES DISTRICT JUDGE.

         Independent Materials Testing Laboratories Inc. (“IMTL”) has moved to dismiss the cross-claim filed against it by B&W Paving & Landscaping LLC (“B&W Paving”). For the following reasons, IMTL's motion to dismiss will be granted.

         BACKGROUND

         Primary Claims

         On June 30, 2010, The United Illuminating Company (“UI”) and Whiting-Turner entered into an agreement for the construction of The United Illuminating Central Facility Project located in Orange, Connecticut.

         The agreement required the construction of an office building, an operations building, and related parking lots and common driveways.

         Whiting-Turner and B&W Paving entered into a subcontract agreement pursuant to which B&W Paving was to perform the paving work on the Central Facility. Under the subcontract, B&W Paving was responsible for performing all of the work described in the B&W Paving subcontract documents, including the “Contract Documents” defined therein, in accordance with plans, specifications and other Contract Documents.

         Under the B&W Paving subcontract, B&W Paving “represents and warrants that it is an expert in the particular line or lines of work herein contracted to be done and that it is competent to know whether the materials, methods and apparatus specified for this work are sufficient and suitable to secure the results contemplated by the Contract Documents.”

         Under the B&W Paving Subcontract, B&W Paving “warrants its workmanship and materials furnished against any defects, faults or damages.” Whiting-Turner alleges that if UI's allegations related to paving work are proven, any liability Whiting-Turner may have to UI for incomplete and/or defective work is a direct and proximate result of B&W Paving's breaches of the B&W Paving subcontract, including, but not limited to, allegations that B&W Paving installed an insufficient quantity of asphalt or otherwise improperly or incompletely installed the asphalt for the parking lots and driveways.

         Whiting-Turner alleges that B&W Paving was in exclusive control of the paving of the parking lots and driveways about which UI complains to the exclusion of Whiting-Turner.

         Cross-Claim

         B&W Paving filed a cross-claim for common law indemnification against Independent Materials Testing Laboratories Inc. (“IMTL”). B&W Paving alleges that during construction, IMTL oversaw, inspected, and approved of B&W Paving's paving work, and that B&W Paving was instructed to follow the directions from IMTL while placing the bituminous paving material. IMTL has now moved to dismiss B&W Paving's cross-claim for failure to state a plausible claim.

         DISCUSSION

         The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A plaintiff is ...