holding the same in construing insurance policies
How later courts described this case
- holding the same in construing insurance policies
- “Defendant, however, raised this issue for the first time in his reply brief. Defendant, therefore, has waived this claim.”
- explaining that the “intent of the parties to the contract should govern the construction of a contract” (citation omitted)
- “Arguments not properly presented in a party’s initial brief or raised for the first time in the reply brief are deemed waived.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AECOM TECHNICAL
SERVICES, INC.,
Plaintiff,
v. Case No: 8:18-cv-2981-KKM-TGW
PROFESSIONAL SERVICES
INDUSTRIES, INC.,
Defendant.
ORDER
In 2017, the Tampa Hillsborough Expressway Authority hired Kiewit
Infrastructure South Co. to build an extension to Tampa’s Selmon Expressway. Kiewit, in
turn, contracted with AECOM to perform the design services for the extension and
AECOM then hired Professional Services Industries (PSI) as a subcontractor to perform
the geotechnical investigations on the project. This case arises from a dispute between those
last two parties over whether PSI was obligated to perform certain services in its
geotechnical investigations.
When Tampa sought to extend the Selmon Expressway, it issued a Request for
Proposal (RFP) and entertained bids from contractors who wanted to develop the project.
One contractor, Kiewit, teamed up with AECOM, the plaintiff in this case, to bid on the
project. Kiewit proceeded as the general contractor and AECOM as a subcontractor for
design services. AECOM brought on PSI as its pre-award geotechnical subcontractor and,
if Kiewit was awarded the contract, PSI agreed to provide AECOM with the geotechnical
data needed for AECOM’s designs.
Tampa ultimately awarded Kiewit the project, and Kiewit quickly executed an
agreement with AECOM to supply design services for the project. Days later, AECOM
executed a contract with PSI. Each contract incorporated to some extent the other
contracts in the project. Thus, PSI’s contract with AECOM incorporated AECOM’s
contract with Kiewit and AECOM?’s contract with Kiewit incorporated Kiewit’s contract
with Tampa and finally, Kiewit’s contract with Tampa incorporated provisions of the RFP.
After execution of the contracts and as the team started on the project, a
representative from Tampa noted that PSI’s scope of services did not conform to the
requirements listed in Tampa’s RFP. Specifically, it did not account for what Tampa called
the Pilot Hole Program (PHP). In response, PSI contended its scope of services was
sufficient to satisfy all its contractual obligations to AECOM. When AECOM insisted
that PSI must comply with Tampa’s interpretation of the RFP, PSI refused absent
increased compensation. AECOM then hired a third-party to perform the PHP and
brought this action for breach of contract based on the differing interpretations of the
contract, breach of contract for suspension of performance, negligence, and negligent
misrepresentation. PSI responded with two counterclaims, asserting breach of contract and
unjust enrichment.
Both parties now move for partial summary judgment. Each party seeks partial
summary judgment ruling that the contract means what they say it means. PSI further
moves that AECOM’s second breach of contract claim fails because PSI never suspended
performance and that all of AECOM’s damages are barred under the “first cost” doctrine.
PSI also moves for summary judgment against AECOM’s negligence and negligent
misrepresentation claims and for partial summary judgment that AECOM is liable to PSI
for certain invoices included in PSI’s counterclaims.
The Court concludes that PSI’s contract with AECOM incorporated the RFP and
that the RFP required the PHP. The Court therefore grants AECOM’s motion for partial
summary judgment and denies PSI’s motion for partial summary judgment on the same
issue. The Court also denies PSI’s motion for summary judgment against AECOM’s
negligent misrepresentation claim, PSI’s motion for summary judgment that all of
AECOM’s damages are barred under the “first cost” doctrine, PSI’s motion for summary
judgment against AECOM’s negligence claim, and PSI’s motion for partial summary
judgment on its counterclaims. But the Court grants PSI’s motion for summary judgment
against AECOM’s breach of contract claim alleging suspension of performance.
I. BACKGROUND
Tampa issued an RFP in January 2017, seeking a contractor to build an extension
to Tampa’s Selmon Expressway. (Doc. 84 at 1-2.) The proposed extension was a 2.5 mile
“elevated roadway” consisting of “two 15-foot lanes with inside and outside 6-foot to 12-
foot shoulders.” (Doc. 84-1 at 15 (RFP section I.).) The RFP sought a contractor to
conduct “all investigations, design, permitting, coordination, final approved construction
documents and the construction activities necessary” to build the Selmon West Extension.
(Id. at 13.) Importantly, the elevated roadway would be supported by sixty piers each with
a foundation secured by four to six shafts drilled in the ground. (Doc. 86 at 2.) Because
each proposed foundation included more than two drilled shafts, the foundations were
considered “redundant.” (Id.)
Before drilling the shafts, a contractor must investigate the subsurface area due to
the volatility of the area’s soil. That investigation would then provide the data necessary to
design the support for the foundation and drilled shafts. (Doc. 83 at 6.) A contractor
accomplishes this investigation by using a variety of borings to investigate the subsurface
area. (Id. at 6-7; Doc. 98 at 5.) This dispute centers on how many and what kind of borings
the RFP required the contractor to perform in investigating the subsurface terrain.
According to the RFP, the contractor must complete all geotechnical services
necessary to construct the expressway extension. These geotechnical services included
“le}valuating geotechnical conditions to determine the drilled shaft diameter and length
and construction methods to be used.” (Doc. 84-1 at 52-53 (RFP section VI.C).)
Specifically, the RFP required that the contractor “[p]erform[] the subsurface investigation
and drill[] pilot holes prior to establishing the drilled shaft tip elevations and socket
requirements.” (Id. at 53.) The subsurface investigation for redundant drilled shaft
foundations required the contractor to “perform at least one test boring in accordance with
the Soils and Foundations Handbook at each bent/pier.” (Id..) “For non-redundant drilled
shaft foundations,” the contractor must “perform at least one SPT boring in accordance
with the Soils and Foundation[s] Handbook at each drilled shaft location prior to
establishing the drilled shaft tip elevations and socket requirements.” (Id.) The RFP further
required, in item (4) of the requirements for Drilled Shaft Foundations for Bridges and
Miscellaneous Structures, that the contractor “[plerform[] pilot borings for each shaft
location . . . and load test shafts and provid[e] the results of the pilot hole borings and the
computations of calculated shaft tip elevations to the Authority at least one[] week before
beginning construction of these shafts.” (Id.) Testimony from various witnesses confirms
that test borings are used to obtain data on the general subsurface area surrounding the
boring and pilot borings are used to obtain data on the specific shaft location.' (See, e.g.,
Doc. 85-8 at 8.)
PSI disputes this definition of pilot borings but fails to point to any evidence in the record that contradicts
AECOM'’s definition. (Doc. 98 at 18 & n.14.)
On October 10, 2016, Kiewit teamed with AECOM to bid on the expressway
contract with Kiewit operating as the contractor and AECOM as the designer. (Doc. 84-
2 at 1.) In January 2017, after AECOM and Kiewit entered into an agreement to prepare
a proposal for Tampa, AECOM began negotiations with PSI for it to provide geotechnical
services for the project. (Doc. 84 at 2.) PSI reviewed the RFP, provided a geotechnical
write-up for AECOM, and became the geotechnical subcontractor on the proposal. (Doc.
84 at 2-3.)
On June 21, 2017, PSI submitted its initial proposal to AECOM describing the
scope of services it would provide for the project. (Doc. 84 at 6.) As PSI prepared the scope
of services, it relied in part on the Soils and Foundations Handbook referenced in the RFP.
(Doc. 84 at 5.) A little over a month later, PSI provided AECOM with a revised scope of
services, wherein it promised to “perform up to 60 [Standard Penetration Test (SPT)]
borings . . . in each shaft boring location[].” (Doc. 84-13 at 1.)
Tampa awarded Kiewit the contract on August 7, 2017, and the two executed a
fixed-price contract (Prime Contract). (Doc. 84 at 9.) Two days later, Kiewit executed an
agreement with AECOM to “cooperate in carrying out the [Selmon West Extension
Project] in a relationship of mutual trust,” agreeing that AECOM “assumes toward
[Kiewit] all of the obligations and responsibilities that [Kiewit] assumes toward
[Tampa]... insofar as applicable to the Design Services to be provided by [AECOM].”
(Doc. 84-17 at 1-2.) Two weeks after Kiewit and AECOM executed their contract
(Design Contract), AECOM and PSI entered into an agreement for PSI to perform the
“geotechnical field exploration and laboratory testing as described in the... Scope of
Services,” which PSI provided to AECOM on July 28, 2017. (Doc. 84-18 at 10.) In
addition to the Scope of Services, PSI “assume[d] toward AECOM all of the obligations
and responsibilities that AECOM assume[d] toward Kiewit.” (Id. at 1.) Kiewit then
formally entered into its contract with Tampa on September 7, 2017, agreeing “to do all
the work and furnish all the materials, equipment, supplies, and labor necessary to carry
out this Contract in the manner and to the full extent as set forth in the Request for
Proposal, and the Contractor's Proposal, which are incorporated by reference herein.”
(Doc. 84-16 at 1.)
Around December 22, 2017, after all the contracts had been executed, Tampa’s
representative commented to Kiewit, AECOM, and PSI that “the project scope requires
for pilot holes to be completed for each of the drilled shafts on the project.” (Docs. 86 at
8; 84-22 at 3.) As the dispute evolved, the parties referred to this requirement as the Pilot
Hole Program (PHP). (Doc. 86 at 9.) One of the PSI employees disagreed, noting that
“[rledundant shafts do not require pilot hole boring[s] at every shaft location.” (Id.) But
the Tampa representative persisted, responding that “the project scope clearly indicates that
pilot hole borings are required for each drilled shaft location.” (Id.)
In its proposed scope of services, PSI suggested performing sixty SPT borings, one
for each foundation. (Doc. 84-13 at 1.) Under the representative’s understanding of the
RFP, PSI would need to perform over 240 borings, or at least four per foundation. (Id.)
PSI refused to perform the pilot holes at each shaft without an increased fee and neither
Kiewit nor AECOM would provide the additional compensation. (Docs. 84 at 15-16; 86
at 12-13.) AECOM then hired a replacement subcontractor to perform the pilot hole
borings for each shaft location. (Doc. 84 at 16.)
AECOM sued PSI, bringing two claims for breach of contract and, in the
alternative, two claims for negligence. (Doc. 1-1.) PSI counterclaimed, alleging AECOM
breached its contract with PSI and, in the alternative, AECOM was liable to PSI for unjust
enrichment. (Doc. 39.) PSI moves for summary judgment on all of AECOM?’s claims and
for partial summary judgment on its counterclaims. (Doc. 88.) AECOM moves for partial
summary judgment and asks the Court to conclude that PSI was obligated to perform a
pilot boring at every drilled shaft location. (Doc. 83.)
Il. LEGAL STANDARD
Summary judgment is appropriate if no genuine dispute of material fact exists and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is
material if it might affect the outcome of the suit under governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
A moving party is entitled to summary judgment when the nonmoving party “fail[s]
to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
nonmoving party must “go beyond the pleadings and her own affidavits” and point to
evidence in the record that demonstrates the existence of a genuine issue for trial. Id. at
324 (quotation omitted). The Court reviews all the record evidence and draws all legitimate
inferences in the nonmoving party’s favor. Cleveland v. Home Shopping Network, Inc.,
369 F.3d 1189, 1192-93 (11th Cir. 2004).
Ill. ANALYSIS
AECOM brought two breach of contract claims: one claiming that PSI breached
the requirement to perform the PHP and the other claiming that PSI breached by
suspending its performance of other requirements under the contract. AECOM also
claimed that PSI negligently misrepresented that the proposed scope of services included
all the geotechnical services required by the RFP and that PSI was negligent in failing to
recognize that the PHP was within the RFP and to advise AECOM that the RFP required
more than PSI included in its scope of services. For its part, PSI counterclaimed that
AECOM either breached its contract by failing to pay for services PSI contracted with
AECOM to perform or, in the alternative, that AECOM was unjustly enriched by services
PSI performed at AECOM’s request, but for which AECOM never paid.
Both parties move for partial summary judgment. PSI contends that it is entitled to
partial summary judgment because its contract with AECOM did not incorporate the RFP
and that, even if it did, the RFP did not include the PHP. PSI further argues it is entitled
to summary judgment against AECOM’s tort claims because AECOM cannot provide
evidence that it justifiably relied on PSI’s representations to establish its negligent
representation claim and that AECOM failed to proffer an expert opinion on the
appropriate standard of care that PSI allegedly breached to establish its negligence claim.
PST also argues that AECOM cannot recover any damages for PSI’s refusal to perform the
PHP because those damages are barred by Florida’s “first cost” doctrine. Finally, PSI argues
that it is entitled to partial summary judgment on its counterclaims because PSI performed
services AECOM requested but for which it never paid. AECOM moves for partial
summary judgment on the basis that PSI’s contract with AECOM required it to perform
the PHP.
As discussed below, the Court concludes that PSI was contractually obligated to
perform the PHP, that both of AECOM?’s tort claims survive summary judgment, and that
Florida’s “first cost” doctrine is inapplicable. The Court also concludes that PSI is not
entitled to partial summary judgment against AECOM holding AECOM liable to PSI
for breach of contract or unjust enrichment. But the Court rules that PSI is entitled to
10
summary judgment against AECOM’s breach of contract claim for suspension of
performance.
A. Contract Claims
PSI and AECOM both move for partial summary judgment based on their
interpretations of the contract. PSI argues that the contract did not incorporate the RFP
and that the RFP did not include the PHP. AECOM argues the opposite—that the
contract incorporated the RFP and that the RFP included the PHP. PSI further contends
that it did not suspend performance as alleged in AECOM’s second breach of contract
count, and that AECOM is liable for unpaid invoices.
The Court concludes that the contract incorporated the RFP and that the RFP
included the PHP. But the Court agrees that PSI cannot be held liable for suspension of
performance as alleged in AECOM’s second breach of contract claim because the contract’s
suspension clause does not apply to PSI’s performance of the PHP.
i. The Contract Required Pilot Borings at Every Proposed Drilled
Shaft Location.
AECOM claims that PSI’s refusal to perform pilot holes at every drilled shaft
location constituted a material breach of contract. PSI responds that it was contractually
obligated to perform only sixty SPT borings as outlined in its Subcontracted Services
attachment to the contract. PSI is incorrect on both scores—its contract incorporated the
11
RFP and the RFP required pilot holes at every drilled shaft location, even if that
contradicted a statement within the Subcontracted Services attachment.
When interpreting a contract under Florida law, a court should first look to the
language of the contract, as it is the best evidence of the parties’ intent. See Hurt v.
Leatherby Ins. Co., 380 So. 2d 432, 433 (Fla. 1980); White v. Fort Myers Beach Fire
Control Dist., 302 So. 3d 1064, 1071 (Fla. 2d DCA 2020) (citation omitted); see also Am.
Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So. 2d 195, 197 (Fla. 1992)
(explaining that the “intent of the parties to the contract should govern the construction of
a contract” (citation omitted)). If the terms of a contract “are clear and definite, they must
be understood according to their ordinary meaning.” Institutional & Supermarket Equip.,
Inc. v. C & S Refrigeration, Inc., 609 So. 2d 66, 68 (Fla. 4th DCA 1992) (citation
omitted).
“Where a contractual provision is unambiguous, no issue of fact is presented as to
the meaning of the language or the parties’ intent, and the moving party is entitled to
judgment as a matter of law.” Pan Am. W., Ltd. v. Cardinal Com. Dev., LLC, 50 So. 3d
68, 71 (Fla. 3d DCA 2010). A contract is ambiguous when there are competing reasonable
interpretations of the instrument, but “fanciful, inconsistent, and absurd interpretations”
do no not create ambiguity. Nabbie v. Orlando Outlet Owner, LLC, 237 So. 3d 463, 467
(Fla. 5th DCA 2018) (quoting Vyfvinkel v. Vyfvinkel, 135 So. 3d 384, 385 (Fla. 5th DCA
12
2014)). Extrinsic evidence may be used to interpret a latent ambiguity, an ambiguity that
“do[es] not become clear until extrinsic evidence is introduced.” Bd. of Regents, Univ. of
S. Fla. Bd. of Trs. v. Rowsey, 320 So. 3d 954, 962 (Fla. 2d DCA 2021) (quotation
omitted). If a contract uses technical terms beyond the understanding of the lay person or
the court, the court may consider extrinsic evidence that explains the meaning of those
terms to determine if the contract is ambiguous. See Se. Banks Tr. Co. v. Higginbotham
Chevrolet-Oldsmobile, Inc., 445 So. 2d 347, 348 (Fla. 5th DCA 1984) (allowing expert
testimony to “show the meaning of technical terms” because such explanation “does not
contradict or vary the written instrument, but simply places the court in the position of the
parties when they made the contract” and using that expert testimony to find the contract
was unambiguous); see also NCP Lake Power, Inc. v. Fla. Power Corp., 781 So. 2d 531,
536 (Fla. 5th DCA 2001); Hinote v. Brigman, 33 So. 303, 305 (Fla. 1902).
Finally, “[e]very provision in a contract should be given meaning and effect and
apparent inconsistencies reconciled if possible.” Excelsior Ins. Co. v. Pomona Park Bar &
Package Store, 369 So. 2d 938, 941 (Fla. 1979); see Auto-Owners Ins. Co. v. Anderson,
756 So. 2d 29, 34 (Fla. 2000) (holding the same in construing insurance policies).
1. The Contract Incorporated the RFP.
PSI contends that its contract did not incorporate the RFP issued by Tampa and
thus it never agreed to perform the PHP. PSI relies on a provision in the attached
13
Subcontracted Services that “expressly reject[s]” incorporation of any other terms or
documents into the contract. (Doc. 84-18 at 10 (emphasis omitted).) This provision
directly conflicts with two provisions earlier in the contract, one expressly incorporating
the Design Contract and the second giving precedence to the Design Contract over the
Subcontracted Services attachment. (Id. at 1, 9.) Given these clear provisions, the contract
incorporated the Design Contract and PSI assumed toward AECOM all of AECOM’s
obligations toward Kiewit as set forth in their Design Contract, notwithstanding the
contradictory language included in the Subcontracted Services attachment. Of course, the
Design Contract likewise incorporated the Prime Contract that expressly included the RFP
requirements. So in the end, PSI agreed to the RFP requirements through a series of
contract incorporations.
Beginning with the plain language, the contract between AECOM and PSI
obligated PSI to “perform the services set forth in [the Subcontracted Services
attachment].” (Id. at 1.) Three paragraphs down, the contract expressly incorporated the
Design Contract between AECOM and Kiewit. (Doc. 84-18 at 1 (“Article 4”).)? Not only
* The paragraph incorporating the Design contract provided as follows:
4. INCORPORATION OF SUBCONTRACT FOR DESIGN. Subconsultant assumes
toward AECOM all of the obligations and responsibilities that AECOM assumes toward
[Kiewit] in the Subcontract for Design between AECOM and Kiewit effective August 9,
2017. The Subcontract for Design between AECOM and Kiewit is attached at EXHIBIT
C and incorporated herein by reference. Unless otherwise set forth in Article 26 (Special
Terms and Conditions) in the event of a conflict or inconsistency between this Subcontract
and the Subcontract for Design, the more stringent provision shall apply.
14
did the contract incorporate by reference the Design Contract, it also expressly required
PSI to “assume[] toward AECOM all of the obligations and responsibilities that AECOM
assumes toward Kiewit . . . in the Subcontract for Design between AECOM and Kiewit.”°
(Id.) Lastly, “in the event of a conflict or inconsistency” between the contract and the
Design Contract, “the more stringent provision shall apply.” (Id.) PSI concedes that the
contract incorporated the Design Contract, but disputes that the “more stringent
provision” clearly required it to construct a boring at every shaft location compared to every
foundation. (Docs. 88 at 17; 98 at 9 & n.6.)
Turning next to the plain language of the Design Contract, which was also
incorporated into the contract, it included a variety of obligations from the RFP and the
Prime Contract between Kiewit and Tampa. Start with the Design Contract obligations
for AECOM. They included Kiewit’s design service obligations to Tampa; specifically,
AECOM “assume[d] toward [Kiewit] all the obligations and responsibilities that [Kiewit]
(Doc. 84-18 at 1.)
> The parties appear to have mistakenly attached the Prime Contract between Tampa and Kiewit as
Exhibit C to their contract instead of the Design Contract between AECOM and Kiewit. (Doc. 84-18 at
22.) Neither party argues that this error means that the contract did not incorporate the Design Contract.
(Docs. 83 at 21; 88 at 17.) And the contract clearly referred to the Design Contract—the contract notes
that AECOM’s contract with Kiewit was executed on August 9, 2017, and titled “Subcontract for Design.”
(Doc. 84-18 at 1.) This identification comports with the Design Contract, which was executed on that date
and titled the same. In contrast, the Prime Contract between Tampa and Kiewit was executed on September
7, 2017, and is titled “Design-Build Contract.” (Doc. 84-18 at 22.) And because courts under Florida law
may reform a contract suffering from a scrivener’s error because the clear intent of the parties was a contract
without the error, this Court will interpret the contract as if the Design Contract were attached as Exhibit
C. See Plantation Key Off. Park, LLLP v. Pass Int'l, Inc., 110 So. 3d 505, 508 (Fla. 4th DCA 2013).
15
assume[d] toward [Tampa], as set forth in the Prime Contract, insofar as applicable to the
Design Services to be provided by [AECOM] hereunder.” (Doc. 84-17 at 1-2.) The
Design Contract also obligated AECOM to perform design services, including preparing
“the design, plans and specifications, and design documentation, including any Technical
Special Provisions for approval including all related work necessary to enable [Kiewit] to
perform the construction specified in the Prime Contract.” (Doc. 84-17 at 15.)
In turn, the Prime Contract incorporated the RFP and required Kiewit to perform
all the work necessary to carry out its contract with Tampa “as set forth in the [RFP].”
(Doc. 84-16 at 1.) Thus, Kiewit was responsible for performing the RFP and AECOM
was responsible for all design work that was necessary for Kiewit to perform the
construction in the RFP. The pilot borings at each shaft location required by item (4) in
the Drilled Shaft Foundations for Bridges section of the RFP were a design service required
to be done before construction began and thus composed a part of AECOM’s obligations
to Kiewit. (See Doc. 84-1 at 53 (RFP section VI.C.) (noting that the results of pilot borings
must be provided “at least one (1) week before beginning construction of these [drilled]
shafts”).) As such, PSI owed an obligation to AECOM to complete the pilot borings
because AECOM owed that duty to Kiewit and Kiewit to Tampa.
PSI contends that a provision in the attached Subcontracted Services prevents the
contract from incorporating either the Prime Contract or the RFP. (Doc. 88 at 16-19.) At
16
the start of the attached description of Subcontracted Services, the contract states that the
“Subcontract only consists of the Articles and Exhibits expressly set forth in the referenced
Subcontract and any executed Change Order” and that any “additional Subconsultant
terms and conditions, qualifications, restrictions or modifications to the terms and
conditions of the Subcontract contained in Subconsultant’s proposal, Scope of Work or
other documents attached to or/ incorporated by reference into this Subcontract are
expressly rejected and shall not be deemed to be part of this Subcontract.” (Doc. 84-18 at
10 (emphasis in original).) Although AECOM entirely ignores PSI’s argument on this
score concerning the provision rejecting other incorporated documents, the Court
concludes that this provision does not prevent the incorporation of the RFP given the plain
meaning of other provisions in the contract.
Per its plain terms, the contract includes an order of precedence to apply “[i]n the
event of a conflict within the Subcontract documents.” (Doc. 84-18 at 9.) There is a direct
conflict between the incorporation of the Design Contract and the provision in the
Subcontracted Services attachment expressly rejecting any incorporation of other
documents. But by including an order of precedence provision that places article four,
which incorporates the Design Contract, above the Subcontracted Services in priority, the
contract’s meaning is clear by its own terms. (Doc. 83 at 24-25.) And AECOM’s
17
obligations toward Kiewit enumerated in the Design Contract included all the geotechnical
investigations required for preparing the design.
Even if the contract did not contain an order of precedence clause, the paragraph
incorporating the Design Contract also states that where there is a conflict or inconsistency
between the contract and the Design Contract, “the more stringent provision shall apply.”
(Doc. 84-18 at 1.) “Stringent” means “marked by rigor, strictness, or severity.” Stringent,
Webster’s Third New International Dictionary of the English Language Unabridged
(1993). As discussed below, the Design Contract, through incorporating the RFP, requires
that pilot hole borings be performed at the site of each drilled shaft, totaling at least 240
borings. That is a more rigorous and stricter provision than the sixty-four borings included
in PSI’s Scope of Services—a premise which PSI implicitly concedes. (Doc. 88 at 13
(contending that interpreting the contract to require pilot hole borings at all drilled shaft
locations would produce an absurd result by requiring PSI to perform substantially more
work than the sixty-four borings it proposed).) Thus, there are two provisions that clearly
express the parties’ intent that the Design Contract, if in conflict with any other part of the
contract, governs when it imposes a “more stringent” requirement than the contract.
PSI’s last argument for rejecting incorporation likewise fails. PSI argues that the
pilot holes were part of the construction services of the Prime Contract and were thus not
a part of the design services undertaken by AECOM. In support, PSI cites testimony from
18
Jeff Blazowski, AECOM’s corporate representative, that PSI was not required to perform
another kind of testing that was also located within the geotechnical services section of the
RFP. (Doc. 85-12 at 21-22.) But the plain language of the RFP rebuts any argument that
the pilot holes were a part of the construction phase of the contract. The RFP provision
requiring the performance of pilot holes “for each shaft location” also required that the
contractor must “provid[e] the results of the pilot hole borings... at least one (1) week
before beginning construction of these shafts.” (Doc. 84-1 at 53 (RFP section VI.C).) The
pilot holes thus had to be performed before construction could begin. They were not
themselves a part of the construction services.
2. The RFP Required Pilot Holes Within Each Drilled Shaft
Location.
Assuming the contract incorporated the RFP, PSI contends that the RFP did not
require pilot borings to be performed for each drilled shaft location. Instead, it reads the
RFP to require only the drilling of a pilot boring at each pier foundation. AECOM
disputes this interpretation, arguing that the RFP unambiguously required pilot borings to
be performed within the circumference of every planned drilled shaft because that is the
very meaning of a pilot boring. Because there is no genuine dispute of fact identified in the
record about the meaning of pilot and test borings and because the record evidence defines
pilot borings as ones that must be performed within the circumference of the proposed
19
drilled shaft location, the Court concludes that the RFP (and by incorporation, the
contract) unambiguously required a pilot boring in each proposed drilled shaft location.
For redundant drilled shaft bridge foundations—the type of foundations used for
the Selmon West Extension—PSI was required to “perform at least one test boring in
accordance with the Soils and Foundations Handbook at each bent/pier.” (Doc. 84-1 at 53
(RFP section VI.C.) (emphasis added).) If PSI had designed non-redundant foundations,
the RFP required PSI to perform “at least one SPT boring... at each drilled shaft
location.” (Id. (emphasis added).) In a separate section of the RFP, PSI was also required
to perform “pilot borings for each shaft location.” (Id. (emphasis added).)
The undisputed facts support defining a pilot boring as the process of investigating
subsurface soil in the precise location of the proposed drilled shaft. By implication, this
definition also requires that the boring be done within the circumference of the proposed
drilled shaft location. The undisputed facts also support defining a test boring as the process
of investigating the subsurface soil of the area surrounding the test boring. These terms are
not used in common parlance or understood by the lay person; they are instead technical
terms familiar to those in the industry. Because they are technical terms not susceptible to
ordinary or non-technical meaning, the Court looks to extrinsic evidence to determine their
definitions. See Se. Banks Tr. Co., 445 So. 2d at 348. AECOM has provided evidence
20
explaining the meaning of each and PSI has not pointed to any evidence in the record that
contradicts this explanation.
AECOM explains that a test boring “is performed within a ‘test hole’ or ‘test shaft’
to inform the engineer’s decision on how to construct and support the superstructure being
built” and helps “determine soil conditions in the project vicinity.” (Doc. 83 at 7.) On the
other hand, a pilot boring is “performed before construction of a drilled shaft within the
circumference of the shaft location to analyze soil conditions in that precise location.” (Id.
at 6 (emphasis omitted).) In support, AECOM points to the testimony of three witnesses.
Tom Cooling, the Principle Geotechnical Engineer for AECOM testified that a test
boring is “a boring just in the vicinity of the shaft . . . it may not be specifically located at a
shaft,” but that a pilot boring “is a boring that would be specifically drilled at a given drill
shaft location such that it would fall within the location of the shaft.” (Doc. 85-8 at 2, 8.)
Scott Collister, the former Deputy Manager of Surface Transportation at AECOM,
explained pilot borings the same way: “A pilot boring is a boring that is performed before
the construction of a drilled shaft to confirm the material that is there” and “is much smaller
than the diameter of the actual drilled shaft that’s constructed.” (Doc. 85-9 at 2, 7.) Larry
Moore, who worked for Tampa’s representative on geotechnical investigations, echoed this
general definition: “A test boring could be used in . . . a general vicinity of a pier for general
design purposes” but the “intent of item number 4,” the requirement for pilot hole borings,
21
“is to provide data at the individual shaft locations.” (Doc. 85-14 at 7-8, 33.) The Florida
Department of Transportation Specifications Package, which governed the RFP's
implementation, also contemplated that pilot hole borings must be done within the
circumference of the drilled shaft location: “When pilot holes are shown in the Plans|, |
core a pilot hole[] prior to shaft excavation . . . through part or all of the shaft. .. . Prior to
excavating load test shafts, provide pilot holes to a minimum depth of three times the
diameter of the drilled shaft... .” (Doc. 85-6 at 48.)
Although PSI disputes that pilot borings are only those borings performed within
the circumference of a proposed drilled shaft, it does not point to any evidence that
contradicts this definition. (Doc. 98 at 18 & n.14.) Instead, the portions of the record it
cites simply explain that a test boring could be the same as a pilot boring if the test borings
were done within the circumference of the proposed drilled shaft location. That definition
comports with AECOM’s and would still require a pilot hole boring in each shaft location
per the RFP.
First, PSI cites Lloyd Lasher’s deposition where he notes that there is no difference
between an SPT boring and a pilot hole. (Docs. 84-8 at 41; 98 at 18 & n.14.) But PSI
omits Lasher’s next sentence clarifying that there’s no difference “if that’s what’s defined
by the designer.” (Doc. 84-8 at 41.) And that does not contradict the earlier explanation of
pilot borings or test borings—it merely explains that a SPT boring can be a pilot boring.
22
And although PSI does not cite them, other portions of Lasher’s testimony are no more
helpful. Earlier in his deposition, he explained that test borings and pilot borings are not
necessarily different—they can be the same “if the test boring meets the requirements set
forth by the designer’s defined pilot hole. We use test borings and design borings and other
borings as pilot holes all the time....” (Doc. 84-8 at 36.) This statement merely
establishes that a test boring can be the same as a pilot boring, but it does not allow for
pilot borings to be done outside the proposed shaft location. And a few pages later in his
deposition transcript, Lasher confirms that “not all test borings are pilot borings.” (Doc.
84-8 at 38.)
Other evidence likewise only supplements AECOM’s explanation of the different
kinds of borings. PSI cites an email from Cooling where he notes that “[t]he pilot borings
[he] propose[s] would be SPT borings” and the deposition of Paul Passe where he notes
that “you can use a design boring for a pilot hole.” (Docs. 98-1 at 1; 84-4 at 25.) Again,
there is no contradiction between AECOM’s explanation of pilot borings and the fact that
AECOM proposed to do SPT borings as the pilot borings. (Doc. 98-1 at 1 (email from
an AECOM engineer).) Nor does the fact that a design boring can be used for a pilot hole
boring contradict AECOM’s definition of pilot borings.
PSI also argues that, if the Court interprets the contract using extrinsic evidence,
the record demonstrates that AECOM did not intend that pilot borings were required at
23
every drilled shaft. But while AECOM’s earlier conduct may be relevant if the Court were
considering extrinsic evidence, the Court cannot do that here where the plain language of
the contract and the RFP are unambiguous. The Court only consults extrinsic evidence for
the limited purpose of determining the meaning of the terms of test boring and pilot hole
boring.
Finally, PSI’s textual arguments fail. PSI argues that because the SPT borings for
non-redundant drilled shaft locations would be required “at each drilled shaft location” but
pilot borings would be required “for each shaft location,” the pilot borings must not be
required at each individual shaft location. (Doc. 84-1 at 53 (RFP section VI.C.).)
According to PSI, when the contract requires borings at a specific location, it uses the term
“at.” The fact that the contract uses “for” when describing where the pilot borings must be
performed indicates that they are not required to be done at each shaft location but merely
for each shaft location. PSI offers support from the Soils and Foundations Handbook,
which required test borings to be done within 20 feet of each shaft. (Doc. 84-9 at 15.)
Thus, according to PSI, the pilot borings would be compliant with the Handbook and
would be “for” each shaft location so long as they were performed within 20 feet of the
shaft.
PSI’s argument relies on the presumption that a material variation of terminology
implies a material variation of meaning. See Fowler v. Gartner, 89 So. 3d 1047, 1048 (Fla.
24
3d DCA 2012) (“[T]he use of different language in different contractual provisions
strongly implies that a different meaning was intended.” (quoting Kel Homes, LLC v.
Burris, 933 So. 2d 699, 703 (Fla. 2d DCA 2006)). Although the canon of meaningful
differentiation provides persuasive evidence of a contract’s meaning, it is not absolute. See
Antonin Scalia & Bryan A. Garner, Reading Law § 25, at 170 (2012) (noting that the
“presumption makes sense when applied (as it usually is) pragmatically”). And despite “for”
and “at” carrying different meanings, compare At, Webster’s Third New International
Dictionary of the English Language Unabridged (1993) (“[U]sed as a function word to
indicate presence in, on, or near....”), with For, Webster’s Third New International
Dictionary of the English Language Unabridged (1993) (“[T]o supply the need of... .”),
the lack of material variation of meaning is less pronounced when considered in the context
of the other terms of the contract. See Scalia & Garner, supra, § 2 at 56 (“Of course, words
are given meaning by their context....”). In particular, the contract requires pilot
borings—which can only be conducted within the circumference of a proposed drilled shaft
location—“for each shaft location.” Whether “for” (to the satisfy the needs of) or “at” (to
indicate the presence in or on) the shaft location, the definition of pilot borings mandates
the boring occur within the circumference of the drilled shaft. Thus the preposition
proceeding lends less material meaning to the requirement.
25
And the Soil and Foundations Handbook’s requirement that the test borings—not
pilot borings—be performed within 20 feet sheds no light on the RFP’s requirements for
pilot hole borings. A pilot boring would always satisfy the undisputed definition of test
boring, but a test boring need not necessarily satisfy the undisputed definition of a pilot
boring.
Further, PSI’s textual arguments leave item (4) of the RFP without independent
force. PSI argues test borings are the same as pilot borings and need not be conducted
within the circumference of the proposed shaft location. And it argues that the RFP merely
requires the contractor to perform them at every pier or bent. It finally argues that a boring
at every pier or bent would qualify as a boring “for” every drilled shaft because each shaft
would be within twenty feet of one of the sixty borings required by the RFP. That
interpretation renders item (4) redundant, simply repeating item (2)’s requirement that a
test boring be performed at each bent or pier. But Florida law disfavors interpreting
contracts in a way that renders some portions of the contract ineffective. See Excelsior Ins.
Co., 369 So. 2d at 941; Philip Morris Inc. v. French, 897 So. 2d 480, 488 (Fla. 3d DCA
2004) (“Courts are required to construe a contract as a whole and give effect, where
possible, to every provision of the agreement.”). Here, the language clearly communicates
independent meanings through the RFP’s use of two different terms in item (2) and item
26
(4). Item (2) requires that a test boring be performed at each bent or pier while item (4)
requires that a pilot boring be performed for each shaft location.
Giving effect to all its provisions and according to the plain meaning of the terms,
the Court interprets the RFP to require that a pilot boring be performed for each drilled
shaft location. Thus, the RFP requires a pilot boring be performed within the
circumference of every proposed drilled shaft location, and PSI was obligated to do that
under the contract.
3. Conclusion.
AECOM moves for partial summary judgment concluding that the contract
incorporated the RFP and that the RFP required the PHP. The Court agrees and grants
AECOM’s motion for partial summary judgment and denies PSI’s motion on the same
issue.
ii. PSI Is Not Liable for Suspension of Performance.
PSI contends that it is entitled to summary judgment on AECOM?’s claim for
suspension of performance because the undisputed facts show that PSI never suspended
performance. In its complaint, AECOM claims that PSI violated Articles 12, 13, and 17
of the contract when it suspended its performance. These articles required PSI to continue
performing the Subcontracted Services even if a dispute arose over the contract. But the
Subcontracted Services did not include the PHP, an obligation that PSI undertook in a
27
different section of the contract, and so these provisions only required PSI to continue
performing its non-PHP obligations while the dispute was settled. And PSI points to
evidence that it did continue performing—evidence that AECOM fails to contradict.
As noted in AECOM’s complaint, the contract prohibited PSI from “suspend|[ing]
its performance or otherwise fail[ing] to maintain the timely progress of the Subcontracted
Services,” required PSI to take responsibility for delays of the Subcontracted Services, and
required PSI to “proceed diligently with the performance of the Subcontracted Services as
directed by AECOM” pending resolution of any dispute about the contract. (Doc. 84-18
at 5-8 (PSI Contract §§ 12, 17).) The contract defines “Subcontracted Services” as the
services set out in Exhibit A of the contract. (Doc. 84-18 at 1.) Exhibit A itself incorporates
an exhibit which lists the services PSI undertook to perform for AECOM, which included
only sixty SPT borings—not a pilot boring at every proposed drilled shaft location as
required by the RFP. (Doc. 84-18 at 10.) Thus, although PSI was obligated to perform the
PHP because of the “flow down” clause in Article 4 of the contract wherein PSI assumed
all obligations under the Design Contract, it was not contractually prohibited from
suspending performance on the PHP because the PHP was not part of the Subcontracted
Services.
And, as PSI shows, the undisputed facts show PSI never suspended performance on
the Subcontracted Services. AECOM’s corporate representative testified that he was “not
28
aware of a - - like a complete suspension of [PSI’s] work” and that he “[did] not know for
sure” whether documents were withheld by PSI. (Doc. 86-5 at 111.) And he also testified
that the only time AECOM returned any of PSI’s deliverables on the project, PSI
resubmitted the deliverables. (Id. at 164.)
AECOM offers no evidence that PSI suspended performance on non-PHP
contractual duties—and even appears to concede the point. (Doc. 97 at 11-12.) Instead,
AECOM contends that PSI suspended performance on the contract because it did not
perform the PHP. (Id.) But, as discussed above, PSI did not violate the contract’s
prohibitions on suspension of performance by suspending performance on the PHP—it
would only have violated those prohibitions if it suspended performance on the
Subcontracted Services.’
iii. PSI Is Not Entitled to Partial Summary Judgment on Its
Counterclaims.
PSI contends it is entitled to partial summary judgment on its counterclaims for
either breach of contract or unjust enrichment against AECOM. In its counterclaims, PSI
asserts that AECOM requested services from PSI that PSI performed; PSI sent AECOM
invoices; and AECOM never paid. PSI claims that this constituted a breach of contract or,
in the alternative, unjust enrichment. The undisputed facts prove that PSI has established
4 Of course, as discussed previously, the contract obligated PSI to perform the PHP. But AECOM’s second
count complains that PSI failed to perform the services unrelated to the PHP.
29
its prima facie case for breach of contract, but AECOM also establishes an affirmative
defense which PSI fails to rebut. PSI is thus not entitled to partial summary judgment on
AECOM’s liability for breach of contract. Further, because a valid contract governs the
disputed payments, PSI cannot show that AECOM is liable as a matter of law on PSI’s
unjust enrichment claim.
PSI points to sufficient facts establishing its prima facie case for breach of contract.
A claim for breach of contract requires “(1) a valid contract; (2) a material breach; and (3)
damages.” Abbott Lab’ys, Inc. v. Gen. Elec. Cap., 765 So. 2d 737, 740 (Fla. 5th DCA
2000). PSI and AECOM executed a valid contract. This contract required PSI to perform
specified services and for AECOM to pay PSI for these services. (Doc. 84-18 at 15-18
(discussing compensation and rates).) And if AECOM needed PSI to perform additional
or different services than those set out in the contract, it could request such changes and
pay PSI accordingly. (Id. at 15.)
PSI points to testimony confirming that AECOM requested PSI perform
additional work (unrelated to the PHP), that PSI performed the work, and that AECOM
never paid. The first unpaid item was $26,613 for two additional borings at Pier 2E. Wally
Jordan, “a practice leader in the Complex Bridge Group” at AECOM, confirmed that he
asked PSI to do additional boring work at Pier 2E because it was originally designed to be
30
a “driven pilot” but was changed to a “drilled shaft.”> (Doc. 86-6 at 9, 29-31.) Jordan also
confirmed that PSI complied with the request. (Id. at 31.) The second unpaid item was
$9,085 for an additional boring at Pier 43D. Jordan confirmed that an additional boring at
Pier 43D was “beyond the original scope of work” and that he approved the invoice for the
work. (Id. at 31-32.) The third unpaid item was $16,316 for two additional borings at End
Bent 40. AECOM conceded in its answers to PSI’s request for admissions that PSI
performed those two additional borings. (Doc. 87-18 at 1.) AECOM also conceded that
it has not paid PSI for any of the work described in the November 2018 invoice. (Id.)
PSI has thus demonstrated that it performed services for additional work requested
and approved by AECOM, invoiced AECOM for the services, and that AECOM never
paid, despite the contract requiring payment. In its response, AECOM does not dispute
these facts or provide a legal argument for why this does not constitute a breach of contract.
Instead, it argues that PSI has failed to overcome AECOM’s affirmative defenses. Several
of AECOM’s defenses concern PSI’s damages and are thus irrelevant to the question of
partial summary judgment based on AECOM’s liability.
But AECOM raises one affirmative defense which, if established, would prevent
AECOM from being liable to PSI for breach of contract. Specifically, AECOM asserts
that if PSI breached the contract first, Florida law “prohibit[s PSI] from recovering any
5 AECOM’s corporate representative confirmed that he defers to Jordan’s testimony about the additional
borings at Pier 2E. (Doc. 86-5 at 159-60.)
31
damages resulting from any breach on the part of AECOM.” (Doc. 97 at 19.) “It is settled
contract law in Florida that a breach by anticipatory repudiation allows the nonbreaching
party to terminate his own performance and bring litigation for damages.” Aberdeen Golf
& Country Club v. Bliss Constr., Inc., 932 So. 2d 235, 240 (Fla. 4th DCA 2005). And a
party breaches by anticipatory repudiation where a party engages in “words or acts evincing
an intention to refuse performance in the future.” Alvarez v. Rendon, 953 So. 2d 702, 709
(Fla. 5th DCA 2007). Thus, if PSI first breached its contract with AECOM, AECOM
was entitled to cease performance on the contract and sue for damages.
Because a reasonable finder of fact could find that PSI breached the contract first,
PSI is not entitled to partial summary judgment regarding AECOM’s liability. A disputed
material fact remains as to who breached the contract first. PSI told AECOM in March
of 2018 that it would not perform the PHP. (Doc. 84-25 at 2-3.) PSI billed AECOM in
November 2018 for services and, because the contract requires PSI to submit invoices
monthly, a reasonable finder of fact could infer that PSI performed these services in either
October or November of 2018, several months after PSI told AECOM it would not
perform the PHP. (Doc. 84-18 at 15; 86-30 at 20-23.) The Court need not decide at this
stage that PSI breached its contract with AECOM first, but AECOM’s assertion of its
32
defenses, combined with the facts in the record, are sufficient to preclude summary
judgment as a matter of law in PSI’s favor.®
And because there is a valid contract that governs the services PSI performed, PSI
is not entitled to summary judgment on its unjust enrichment claim. Where one party is
“unjustly enriched,” a court may find a “contract implied in law, or quasi contract.” Com.
P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So. 2d 383, 386 (Fla. 4th DCA
1997), as modified on clarification (June 4, 1997). That is, a claim for unjust enrichment
is just a request for a court to imply a contract that does not exist in fact. But, under Florida
law, when there is a valid contract governing the dispute, a plaintiff cannot recover under
a contract implied by law—instead, the express contract governs. See Agritrade, LP v.
Quercia, 253 So. 3d 28, 34 (Fla. 3d DCA 2017). Here, the contract governs the November
invoice. To the extent that the invoice billed AECOM for services beyond the initial scope
in the contract, the contract still governed because the services were approved by AECOM
through the process in the contract. (Doc. 84-18 at 15.) Specifically, PSI notes that two of
the items it billed in its November invoice were outside the initial scope of services, but
points to testimony from the project manager who was required to approve the additional
services, confirming that he approved the additional services. (Doc. 86-6 at 29-32.)
° PSI may still be entitled to damages on its breach of contract claim if it can overcome AECOM’s defense
at trial. But PSI has not offered any factual or legal arguments that show that the record demonstrates
AECOM’s defense fails.
33
B. Tort Claims
PSI moves for summary judgment against AECOM’s claims for negligent
misrepresentation and negligence. Both arguments fail.
i. AECOM’s Negligent Misrepresentation Claim May Proceed.
AECOM’s third count alleges that PSI negligently misrepresented its scope of
services as including the geotechnical services required by the RFP. (Doc. 1-1 at 6.) PSI
moves for summary judgment on this count because it contends AECOM fails to establish
that it justifiably relied on PSI’s representation. (Doc. 88 at 23.) Because PSI misstates the
legal standard and the record evidence would permit a reasonable finder of fact to conclude
that AECOM justifiably relied on PSI’s representations, the Court denies PSI’s requested
relief on this count.
Under Florida law, negligent misrepresentation requires “(1) a misrepresentation of
material fact that the defendant believed to be true but which was in fact false; (2) that
defendant should have known the representation was false; (3) the defendant intended to
induce the plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in justifiable
reliance upon the misrepresentation, resulting in injury.” Arlington Pebble Creek, LLC v.
Campus Edge Condo. Ass’n, Inc., 232 So. 3d 502, 505 (Fla. lst DCA 2017) (citation
omitted); see also Hasenfus v. Secord, 962 F.2d 1556, 1561 (11th Cir. 1992) (applying
Florida law). Justifiable reliance requires more than lack of actual knowledge of the
34
representation’s falsity, but does not mandate that the plaintiff have independently
investigated the representation. See Specialty Marine & Indus. Supplies, Inc. v. Venus, 66
So. 3d 306, 310 (Fla. 1st DCA 2011) (“[A] misrepresenter is precluded from arguing that
the recipient of information did not justifiably rely because he or she failed to conduct an
adequate independent investigation.”). For example, justifiable reliance has been found
where a potential property buyer asked the seller about a boundary dispute and then relied
on the defendant’s representation of where the boundary line was located. See id. at 308
(discussing facts); id. at 310-11 (affirming “the jury’s finding that [the plaintiff buyer]
justifiably relied on [defendant seller]|’s negligent misrepresentations”).
AECOM claims that PSI negligently misrepresented that its proposed scope of
services and price included all the geotechnical services required by the RFP. (Doc. 1-1 at
6.) It notes that, at different times prior to Tampa awarding the contract to Kiewit, PSI
assured AECOM that the project would not require borings for each shaft and that all
geotechnical investigations required by the RFP were included in its price. (Docs. 84-7 at
2; 84-12 at 7; 84-8 at 21-22.) PSI argues that AECOM should have investigated whether
PSI’s proposed scope of services and price adequately addressed the RFP’s requirements
and that AECOM’s failure to do so is fatal to its negligent misrepresentation claim. (Doc.
88 at 23-25.)
35
But PSI misstates the standard for negligent misrepresentation. PSI seems to
suggest that, if AECOM did not investigate the representations, it could not—as a matter
of law—have acted in justifiable reliance on PSI’s representations. (Id. at 24.) But Florida
law imposes no absolute duty to investigate as part of “justifiable reliance.” Florida law
instead requires that a plaintiff bringing a claim of negligent misrepresentation show that
he acted in “justifiable reliance” on the negligent misrepresentation. See Butler, 44 So. 3d
at 105. Whether a plaintiff acts in justifiable reliance when he failed to investigate turns on
whether “a reasonable person in the position of the recipient [of the representation] would
be expected to investigate” the representation. Gilchrist Timber Co. v. ITT Rayonier, Inc.,
696 So. 2d 334, 339 (Fla. 1997).
PSI relies on Gilchrist, noting that “the recipient of an erroneous representation
can[not] hide behind the unintentional negligence of the misrepresenter when the recipient
is likewise negligent in failing to discover the error.” [d. But that argument omits the
context of the statement: the Florida Supreme Court was explaining that a recipient might
be comparatively negligent and suffer a reduction in damages if he failed to investigate.
The Florida Supreme Court also clarified that “a recipient of information will not have to
investigate every piece of information furnished.” Id.; see also Newbern v. Mansbach, 777
So. 2d 1044, 1046 (Fla. Ist DCA 2001) (“Gilchrist in no way suggests that a cause of action
may be precluded as a matter of law based on the trial court’s determination that a plaintiff
36
reasonably could have discovered the information and/or that such information is part of
public record.”); Specialty Marine & Indus. Supplies, Inc., 66 So. 3d at 311 (affirming jury
finding that plaintiff justifiably relied on defendant’s representations and applying
“principles of comparative negligence” to conclude that the defendant “w[as] only
90[ percent] the cause of [the plaintiff]s damages”).
Thus, a plaintiff might justifiably rely on a defendant’s representation even if he was
likewise negligent in not investigating the representation. For example, the Florida
Supreme Court reversed a trial court’s determination that failure to exercise “due diligence”
prevented the plaintiff from justifiably relying on the defendant’s representations. Butler,
44 So.3d at 103. The Court held that “justifiable reliance on a representation is not the
same thing as failure to exercise due diligence.” Id. at 105. And it clarified in other opinions
that, where a plaintiff is negligent in investigating a representation, the appropriate course
is to offset the plaintiff's damages according to ordinary comparative negligence rules. See
Gilchrist Timber, 696 So.2d at 339; Specialty Marine & Indus. Supplies, Inc., 66 So. 3d
at 311 (affirming jury finding that plaintiff justifiably relied but nonetheless finding the
misrepresentations were the cause of ninety percent of the plaintiffs damages).’
7 PSI cites a decision from this district noting that “an action for negligent misrepresentation cannot be
maintained if an investigation by the recipient of the information would have revealed the falsity of the
information.” Scolieri v. John Hancock Life Ins. Co. (U.S.A.), No. 2:16-C V-690-FTM-38CM, 2017 WL
700215, at *6 (M.D. Fla. Feb. 22, 2017). To the extent that statement of the law was intended to be
absolute, the Court respectfully disagrees, as it does not account for Gilchrist full holding that a defendant
may prove a plaintiff was comparatively negligent without necessarily disproving the plaintiffs justifiable
reliance on the representations.
37
Because a failure to investigate is not fatal to AECOM’s negligent
misrepresentation claim as a matter of law, PSI must show that the evidence is insufficient
for a reasonable factfinder to conclude that AECOM justifiably relied on PSI’s
representations. Gilchrist Timber Co., 696 So. 2d at 339; see also Optimum Techs., Inc.
v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1251 (11th Cir. 2007) (affirming
summary judgment against a plaintiffs negligent misrepresentation claim because the
plaintiff had not provided evidence on an essential element). PSI does not clear that hurdle.
To support its contention that AECOM cannot establish justifiable reliance, it
points to facts purportedly showing that AECOM failed to investigate whether PSI’s scope
of services covered AECOM’s contractual commitments to Kiewit, failed to clarify with
Tampa the precise scope of the geotechnical requirements of the RFP, and failed to obtain
other bids for the geotechnical work. (Doc. 88 at 24-25.) PSI also points out that in April
2017—before Tampa awarded Kiewit the contract or AECOM executed its agreement
with PSI—two of AECOM’s employees discussed “test drilling every drilled shaft,”
suggesting that AECOM knew that pilot borings may be the best method for geotechnical
investigation. (Docs. 86 at 5; 86-9 at 2.) PSI also points out that AECOM had extensive
geotechnical experience, making reliance less justified.
AECOM responds that it justifiably relied on PSI’s representations that its scope
of services and price included all the geotechnical investigation required by the RFP unless
38
specifically excluded. (Docs. 84-7 at 2; 84-12 at 7; 84-8 at 21-22.) Specifically, AECOM
argues that PSI knew it would rely on PSI’s scope of services and fee estimate to properly
calculate the fixed-price bid. For example, in the bid process, Tampa asked Kiewit to
confirm that Kiewit “understlood] that Geotechnical explorations are to be completed in
accordance with the... project RFP requirements and that the cost of site investigations
to meet the requirements of . . . the project RFP requirements will be included in [Kiewit’s]
bid price.” (Doc. 84-12 at 7.) An employee of PSI confirmed that PSI was assigned this
question and PSI subsequently responded in the affirmative. (Docs. 84-8 at 21-22; 84-12
at 7.) And in PSI’s proposed scope of services, incorporated into the contract, PSI stated
that, based on its review of the RFP, it had “outlined a scope of services to obtain
geotechnical information that will be needed in the design of the proposed improvements.”
(Doc. 84-18 at 12.)
AECOM also points to statements from those familiar with the project that would
allow a reasonable factfinder to find justifiable reliance. Lloyd Lasher, PSI’s corporate
representative, confirmed that “PSI understood . . . that AECOM was going to rely on the
fee estimate in preparing its bid” and that AECOM and Kiewit “had a right to rely on...
PSI’s interpretation as to what was required with respect to the geotechnical design under
the... RFP.” (Doc. 84-8 at 17, 19.)
39
Although PSI has offered evidence that is probative of whether AECOM justifiably
relied on PSI’s misrepresentations, the Court is unable to conclude that no reasonable
factfinder could find AECOM’s reliance unjustified. See Specialty Marine & Indus.
Supplies, Inc., 66 So. 3d at 311 (finding sufficient evidence supported jury’s conclusion
that the plaintiffs reliance was justifiable where the defendant misrepresented the extent
of a property dispute, even though the plaintiff obtained a report from a third-party
investigator).
ii. PSI Is Entitled to Summary Judgment Against AECOM’s
Negligence Claim.
PSI moves for summary judgment against AECOM’s negligence claim, arguing
that AECOM failed to provide expert testimony establishing that PSI breached the
relevant standard of care in the geotechnical industry. AECOM responds by pointing to
an expert report. Neither party briefs whether that expert report (or his deposition
testimony) is admissible under Federal Rule of Evidence 702, so the Court does not address
the admissibility issue here. And because AECOM’s expert report facially satisfies its
burden to offer an expert opinion on the appropriate standard of care in this context, PSI’s
motion fails at this juncture.
Under Florida law, where a plaintiff brings a negligence claim against a professional
who was carrying out his profession when he purportedly violated his duty to the plaintiff,
the plaintiff must show that the defendant failed to adhere to “the standard of care used by
40
similar professionals in the community under similar circumstances.” Moransais v.
Heathman, 744 So. 2d 973, 976 (Fla. 1999), receded from on other grounds in Tiara
Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399, 407 (Fla.
2013). In claims for professional negligence, if the standard of care is not “so obvious as to
be apparent to persons of common experience,” Florida law requires “expert testimony . . .
to ascertain what skills and means and methods are recognized as necessary and customarily
followed in the [professional] community.” O’Grady v. Wickman, 213 So. 2d 321, 324
(Fla. 4th DCA 1968); see also U.S. ex rel. J&A Mech., Inc. v. Wimberly Allison Tong &
Goo, No. 6:05-CV-1207-ORL-31DAB, 2006 WL 3388450, at *3 (M.D. Fla. Nov. 21,
2006) (Presnell, J.) (same). Neither party disputes that expert testimony is required in this
context, as an ordinary person would not know the appropriate standard of care required
in analyzing the RFP and advising AECOM on the scope of engineering services to satisfy
the RFP’s requirements.
Although exceedingly brief, AECOM provides an expert report which provides
standards sufficient for a factfinder to know what “means and methods are recognized as
necessary and customarily followed in the [engineering] community.” O’Grady, 213 So. 2d
at 324. AECOM’s expert concluded that “PSI had an obligation to address all of the
Geotechnical requirements set forth in the RFP in its Proposal,” including “the cost and
provision of pilot holes.” (Doc. 89-2 at 1.) Second, AECOM’s expert concluded that “PSI
41
had an obligation to assure that pilot holes were included in the scope of work, regardless
of whether or not they intended to include it in the PSI proposal.” (Id.) Third, AECOM’s
expert concluded that, if “PSI intended to exclude the pilot holes, it should have specifically
stated the exclusion in its Proposal.” (Id.)
These opinions are framed as obligations or imperatives. Although likely
insufficient to satisfy Rule 702 based only on this report, the expert sets out a standard by
which the factfinder could determine if PSI failed to satisfy the standard of care of
professionals in its industry.
PSI argues that these opinions are insufficient because they are cursory. Admittedly
they are. But they are sufficient to inform the factfinder of what standard PSI must meet
to satisfy its duty of care. The only case PSI cites where a court found the expert’s opinions
too cursory to satisfy Florida’s standard the expert merely stated that the defendant’s
performance was “deficient.” U.S. ex rel. J&A Mech., Inc., 2006 WL 3388450, at *3. But
“deficient” provides no standard of care by which a factfinder could determine a breach. In
contrast, AECOM’s expert provides industry-specific tests by which the factfinder may, at
trial, determine whether PSI breached its standard of care.
PSI also argues that AECOM cannot state a claim for professional negligence
because its expert does not conclude that PSI breached its standard of care. (Doc. 88 at 22-
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23.) But PSI does not cite any case requiring that an expert provide both a standard of care
and conclude that the standard of care was breached.
Finally, PSI replies that the disclosure of these expert opinions fails to satisfy Federal
Rule of Civil Procedure 26(a)’s requirements. The Court is inclined to agree that the report
lacks the necessary information, but PSI waived its Rule 26(a) argument by failing to raise
it in the initial motion. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999)
(“Defendant, however, raised this issue for the first time in his reply brief. Defendant,
therefore, has waived this claim.”); In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009)
(“Arguments not properly presented in a party’s initial brief or raised for the first time in
the reply brief are deemed waived.”).
Although the Court may only consider admissible evidence when adjudicating a
motion for summary judgment, see Snover v. City of Starke, 398 F. App’x 445, 449 (11th
Cir. 2010), neither party offers a reason—other than PSI’s waived Rule 26 argument—why
the report would be inadmissible. The Court declines to decide the admissibility of an
expert report without arguments from the parties but notes that the report lacks any
mention of the expert’s qualifications, the bases for his opinions, or the methodology
applied in arriving at them. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311
(11th Cir. 1999) (noting that the district court’s “gatekeeper role ...is not intended to
supplant the adversary system or the role of the jury”).
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C. First Cost Damages
PSI also argues that it is entitled to summary judgment against all of AECOM’s
claims. PSI’s logic is as follows: if the PHP was within its own scope of services for
AECOM, it must also have been within AECOM’s scope of services for Kiewit. Thus,
AECOM was always responsible for the pilot borings. Furthermore, Tampa was always
going to pay for the PHP as it was a part of the RFP. PSI concludes then that because
Tampa was always planning to pay for the PHP, the PHP was a “first cost,” preventing
AECOM from recovering those costs as damages against PSI. This argument fails.
Under Florida law, the first cost doctrine proscribes a party from obtaining damages
that put it in a better place than it would have been if a contract was performed as agreed
or if a tort never occurred. See Sch. Bd. of Broward Cnty. v. Pierce Goodwin Alexander &
Linville, 137 So. 3d 1059, 1072 n.9 (Fla. 4th DCA 2014) (noting that the rule applies in
both contract and negligence cases); Soriano v. Hunton, Shivers, Brady & Assocs., 524 So.
2d 488, 489 (Fla. 5th DCA 1988). Thus, the doctrine prevents a plaintiff from recovering
contract damages “above and beyond the value of the original ‘benefit of the bargain,”
Salomon Constr. & Roofing Corp. v. James McHugh Constr. Co., No. 1:18-CV-21733-
UU, 2019 WL 5256980, at *3 (S.D. Fla. Mar. 22, 2019) (Ungaro, J.), and prevents tort
victims from obtaining a windfall.
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An early adopter of the rule provides a helpful example. See Lochrane Eng’g, Inc.
v. Willingham Realgrowth Inv. Fund, Ltd., 552 So. 2d 228 (Fla. 5th DCA 1989). An
engineer who is hired to consult on a project and opines that one-thousand units is
sufficient is not necessarily liable to the client for an additional two-hundred units if the
client later learns that twelve-hundred units are necessary. See id. at 232-33. The client’s
original project would necessarily be twelve-hundred units regardless of the engineer’s
negligence in advising that one-thousand units sufficed, so the need for the additional two-
hundred units was not caused by the engineer’s mistake. See id. at 233. The engineer might
still be liable for any damages his mistake caused, such as the hassle the client suffers in
redesigning the project. See id. On the other hand, an owner who engages a contractor to
perform a service for a fixed price is not precluded by the first cost doctrine from obtaining
damages when the contractor fails to perform as specified in the contract. See id. at 232.
The reason for the rule being that the owner might have selected a different contractor for
a different price, whereas the original owner would still need to fund the additional two-
hundred units (absent any opportunity cost or similar damages attributable to the engineer’s
mistake). Cf Sch. Bd. of Broward Cnty., 137 So. 3d at 1070-71 (observing that the first
cost doctrine’s role “is to assure that a party entitled to damages is not placed, because of
the breach, in a position better than which he would have occupied had the contract been
performed as agreed” (quotation and alteration omitted)).
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PSI fails to show how this rule applies here. L AECOM prevails at trial for breach
of contract, it would be entitled to damages that place AECOM in the same place that it
would have been had the contract been performed. See Sch. Bd. of Broward Cnty., 137
So. 3d at 1070 (“[I]t is well-settled that the purpose of damages is to restore an injured
party to the same position that he would have been in had the other party not breached the
contract.” (quotation omitted)). Specifically, AECOM would not have needed to pay the
third-party contractor to perform the PHP—it would just have paid the contract price.
And if AECOM prevails at trial for negligence or negligent misrepresentation, it would be
entitled to damages that place AECOM where it would have been had PSI not been
negligent. See Torres v. Sarasota Cty. Pub. Hosp. Bd., 961 So. 2d 340, 345 (Fla. 2d DCA
2007). The Court will not speculate as to what actions AECOM would have taken had
PSI not allegedly negligently misrepresented whether the PHP was covered by its scope of
services and price or what AECOM might have done had PSI not been allegedly negligent
in believing its proposed scope of services covered all the RFP requirements or in advising
the same to AECOM. But a reasonable finder of fact could conclude that AECOM might
have raised its fee before entering a contract with Kiewit or not entered the contract at all.
As such, PSI fails to show that the PHP is a first cost AECOM would have necessarily
incurred.
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IV. CONCLUSION
The Court concludes that the contract obligated PSI to perform the PHP and thus
that AECOM is entitled to partial summary judgment regarding that obligation. The
Court also concludes that PSI fails to show it is entitled to summary judgment on
AECOM’s damages, summary judgment on AECOM?’s negligent misrepresentation
claim, summary judgment on AECOM’s negligence claim, or partial summary judgment
on PSI’s breach of contract or unjust enrichment claims. But PSI is entitled to summary
judgment against AECOM’s breach of contract for suspension of performance claim.
Accordingly, the following is ORDERED:
1. AECOM’s Motion for Partial Summary Judgment (Doc. 83) is
GRANTED.
2. PSI’s Motion for Partial Summary Judgment (Doc. 88) is GRANTED-IN-
PART and DENIED-IN-PART. Specifically, the Court DENIES
summary judgment on the basis that the contract did not require the Pilot
Hole Program; DENIES summary judgment on the basis that AECOM’s
damages are barred under the first cost doctrine; DENIES summary
judgment on AECOM’s negligent misrepresentation claim; DENIES
summary judgment on AECOM’s negligence claim; and DENIES partial
summary judgment on the counterclaims for breach of contract and unjust
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enrichment. But the Court GRANTS summary judgment for PSI against
AECOM’s claim for breach of contract for suspension of performance.
ORDERED in Tampa, Florida, on December 29, 2021.
al □ imball Mizelle
United States District Judge
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