Courts Decline to Impose Liability on Subcontractor Where Contractor Could Not Prove Subcontractor’s Exclusive Control on Shared Project Site

United Illuminating Company v. Whiting-Turner Contracting Co. v. Cherry Hill Construction Co., Inc., et al. v. GEI Consultants, Inc., et al., 3:18-cv-00327-WWE (D. Conn. 2019)

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Danielle J. Volpe

In 2010 The United Illuminating Company (“UI”), an electric utility company, and Whiting-Turner, a construction contractor, entered into a general contractor agreement for the construction of the United Illuminating Central Facility Project (the “Project”) in Orange, Connecticut.  The Project required construction of an office building, an operations building, and related parking lots and common driveways.  Whiting-Turner and Cherry Hill Construction Co. (“Cherry Hill”), a heavy civil construction contractor, then entered into a subcontractor agreement which required Cherry Hill to perform site work.

UI encountered significant defects in the contract documents which prevented it from constructing the facility as planned.  Therefore, in February 2018, UI sued Whiting-Turner for its damages.  Whiting-Turner, in turn, sued Cherry Hill, alleging that if UI proved its allegations then Whiting-Turner’s liability to UI for incomplete or defective work is a direct and proximate result of Cherry Hill’s breaches of its subcontract, including Cherry Hill’s installation of substandard fill and an inadequate drainage layer for the parking lots and drive ways.

Cherry Hill then brought a complaint against GEI Consultants, Inc. (“GEI”) for indemnification. Cherry Hill alleged that GEI over saw and approved its site work, and thus if UI proves its allegations concerning the use of substandard fill, GEI failed to identify any such deficiency.  Cherry Hill also alleged that  (i) it had no knowledge of GEI’s negligence or carelessness, and (ii) Cherry Hill reasonably relied upon GEI not to be negligent or careless.  GEI then moved to dismiss Cherry Hill’s complaint on the grounds that Cherry Hill has not proven that GEI exercised exclusive control over the situation at issue.

The Court granted GEI’s motion to dismiss Cherry Hill’s complaint.  The Court first considered the legal significance of the Connecticut Supreme Court’s interpretation of “exclusive control”.  The Court defined exclusive control as “exclusive control over the condition that gave rise to the injury”.  See Skuzinski v. Bouchard Fuels, 240 Conn. 694 , 706 , 694 A.2d 788 (1997).  The Court reasoned that Cherry Hill admitted that the area of the site at issue expanded beyond the portion the GEI had control over.  The Court further found that Cherry Hill, who was engaged as the site contractor, had a contractual obligation to prepare the building site, and represented and warranted that its work complied with the contract documents.  The Court listed a host of provisions from the Cherry Hill subcontract which obligated Cherry Hill to perform its work properly, fully, and in compliance with the specifications.

From these contractual obligations, the Court concluded that Cherry Hill had an independent responsibility to maintain the Project site.  Cherry Hill could not delegate this duty, and it prevented GEI from exercising exclusive control over the site.  The Court held that regardless of whether Cherry Hill’s factual allegations were accurate, Cherry Hill could not show that GEI had exclusive control or that GEI’s negligence alone was the immediate cause of the injury.

To view the full text of the court’s decision, courtesy of Bloomberg Law, click here.