COA reverses judgment on 1 cross-claim in library appeal

The Indianapolis-Marion County Public Library should be able to pursue a cross-claim against an engineering company for breach
of professional standard of care, the Indiana Court of Appeals ruled today.

The appellate court addressed three issues in its ruling in Indianapolis-Marion County Public Library v. Thorton Tomasetti Engineers, et al., No. 06A05-0906-CV-327:
whether the trial court erred in granting summary judgment in favor of Thorton Tomasetti Engineers on cross-claims against
the company for common law indemnity, contractual indemnity, and breach of professional standard of care.

The library was assigned the cross-claims against TTE that were originally filed by Woollen Molzan and Partners Inc. pursuant
to a settlement between the library and WMP.

The complaints against WMP and TTE filed by the library, and the subsequent cross-claims filed by WMP and TTE stem from the
construction and renovation of the Central Library in Indianapolis. WMP served as architect of record on the project and WMP
and TTE executed an architect/consultant agreement for which TTE served as the structural engineer of record for the project.

Shortly after construction began on the project, major issues were found in the concrete beams and columns of the underground
parking garage, which would be the foundation for the new library tower. Construction had to be suspended and millions of
dollars in costs and delays were accrued.

In 2006, the library and WMP settled and WMP assigned the library all the claims it has or may have against TTE and other
consultants. The library never amended the cross-claims. In November 2008, the trial court ruled in favor of TTE on the three
cross-claims originally filed by WMP.

The Court of Appeals upheld summary judgment in favor of TTE on the cross-claims for common law indemnity and contractual
indemnity. The library, as WMP’s assignee, doesn’t possess a valid cause of action under a theory of common law
indemnity because WMP hasn’t yet paid any damages in satisfaction of any claim or judgment against TTE. Because of this,
the common law indemnity claim is not yet ripe for adjudication, wrote Judge Terry Crone.

Also, given the nature of the library’s claims against WMP, WMP’s liability to the library with regard to TTE
can’t be solely derivative or constructive because WMP can’t be without fault. WMP’s alleged liability to
the library in relation to TTE is purely contractual and direct and the library can’t now escape its own allegations
and recast its claims against WMP as being solely derivative, the judge continued.

There was no indemnity provision in the contract between WMP and TTE that runs to WMP from TTE, so there can be no cause
of action for express contractual indemnity against TTE. But the library argued that WMP is entitled to implied contractual
indemnity. The Court of Appeals declined to adopt the doctrine of implied contractual indemnity in the instant case because
WMP and TTE were free to include an indemnity provision in the contract that allocated the risk between them but didn’t
do so.

“We agree with TTE that adopting the doctrine would ‘invite havoc into not only contract cases in the construction
setting but throughout the spectrum of civil cases,’” wrote Judge Crone.

The appellate court did reverse summary judgment for TTE on the cross-claim of breach of professional standard of care because
the trial court erred in determining this cross-claim was actually a claim for indemnity. It’s up to a jury to determine
whether TTE committed a breach that directly injured WMP. This cross-claim was remanded for further proceedings.