Johnson Bros. Corp. v. WSP USA, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JOHNSON BROS. CORP.,

Plaintiff,

Vv. Case No. 6:21-cv-200-JA-EJK

WSP USA, INC. and CDM

SMITH, INC.,

Defendants.

ORDER

This case is before the Court on Defendant CDM Smith, Inc.’s motion for

summary judgment (Doc. 139), Plaintiffs response (Doc. 152), and CDM’s

reply (Doc. 166). Having reviewed the parties’ submissions, the Court will

grant the motion in part and deny it in part.

I. BACKGROUND

This dispute stems from problems encountered during the design and

construction of the Veterans Memorial Bridge, which spans a river in Volusia

County, Florida. (Doc. 140 4 1; Doc. 143 { 1; Doc. 153 at 2). In February 2013,

the County contracted with Defendant WSP USA, Inc. for design and

engineering services on the bridge project. (Doc. 76-1 at 39; Doc. 140 { 3; Doc.

148 4 3; Doc. 153 at 2). Three years later, in February 2016, the County |

entered into a contract with Plaintiff whereby Plaintiff became the general

contractor for construction of the bridge. (Doc. 76-3 at 64; Doc. 140 4 4; Doc.

148 § 2; Doc. 153 at 5). Shortly thereafter, in March 2016, the County

contracted with CDM for Construction, Engineering, and Inspection (CEI)

services on the project. (Doc. 76-2 at 34; Doc. 140 § 5; Doc. 143 4 7; Doc. 153 at

3).

Whenever Plaintiff encountered a problem during the project that

affected Plaintiffs work to the point that Plaintiff wanted reimbursement from

the County, Plaintiff submitted an official Notice of Intent to File Claim □□□□□

to the County regarding the problem. (See, e.g., Doc. 76-4 at 2). Over the course

of the project, Plaintiff submitted multiple NOIs. (Doc. 76 23; Doc. 140 § 7;

Doc. 143 44] 138-15; see Doc. 153 at 9).

Initially in this lawsuit, Plaintiff sued only the County, (see Docs. 1, 9,

13, 36, & 70), alleging that the County “rejected or failed to respond to” claims

raised in various NOIs, (Doc. 13 4 10-11; Doc. 36 9 10-11; Doc. 70 44 10-

11). The County filed a third-party complaint against WSP for indemnification,

breach of contract, and negligence. (See Doc. 45). Eventually, Plaintiff settled

with the County, and under the settlement agreement, the County assigned to

Plaintiff rights to sue WSP and CDM for damages related to the project. (Doc.

76-49 §§ 2.1, 8.1). Plaintiff then sued WSP and CDM in Plaintiffs own right

and as the County’s assignee. (See Doc. 76). Recently, Plaintiff settled with

WSP, (see Doc. 208), and in settling, Plaintiff “resolved in their entirety” some

of the claims against CDM, (Doc. 209 at 1-2).

Plaintiff now asserts claims against CDM in connection with nine NOIs:

NOls 3, 8, 18, 18, 20, 26, 35, 44, and 47. Ud. at 2). NOI 3 involves a prohibition

on jetting, (Doc. 76 § 23a)—a method of installing piling (structural support

for bridges) that uses pressurized jets of water to loosen soil, (Doc. 137-4 at 4—

5). NOI 8 involves broken piling. (Doc. 76 § 23b). NOIs 13, 18, and 44 involve

cracking in four piers. (Id. {J 23c—d, 23m). NOI 20 involves delays related to

the project’s erection plan, (id. 23e)—a plan that sets out the sequence of

construction operations for a project while accounting for safety and structural

stability during construction, (see Doc. 156-1 at 15-16, 22; see also Doc. 137-4

at 19~22). NOIs 26 and 35 involve problems with the construction of pier caps

and a fishing pier, respectively. (Doc. 76 {{ 23g, 23j). And NOI 47 seeks

interest due under the Local Government Prompt Payment Act (the Act), (id.

] 2383p). See Fla. Stat. § 218.735.

For each NOI, Plaintiff brings breach-of-contract and contractual-

indemnification claims as the County’s assignee and a negligence claim in its

own right under Florida common law. (See Doc. 76 § 26; see, e.g., id. J] 56—76

(the three counts against CDM related to NOI 3)). As the County’s assignee,

Plaintiff also asserts general-indemnification claims. ([d. {§ 694—706). Among

the damages that Plaintiff seeks are lost opportunity costs, which represent

the investment loss that Plaintiff allegedly suffered when, instead of investing

money “in its corporate business,” it spent that money on the project because

of delays, inefficiencies, and extra work caused by Defendants’ conduct. (Doc.

170-9 at 48). Plaintiff also seeks to recover—through its indemnification

claims, (e.g., Doc. 76 4 670)—the attorney fees that the County incurred in

defending against Plaintiffs claims. And in most of its breach-of-contract

claims, Plaintiff mentions liquidated damages. (F.g., id. 59).

Plaintiff supports its claims with evidence from lay and expert

witnesses. The lay witnesses include Mr. James Charles and Mr. Tadd

Kasbeer. Mr. Charles worked for Plaintiff as an assistant project manager for

the bridge project and based on that experience describes the parties’ conduct

during the project. (Doc. 154 6-40). Mr. Kasbeer worked as Assistant

County Engineer and County Engineer for the project and describes the

County’s communications with CDM about the project and this litigation. (Doc.

155 2-8, 6-10). The experts include Mr. Edwin Mackiewicz, Mr. William

Nickas, Dr. Randall Poston, and Mr. Peter Wade. Plaintiff offers Mr.

Mackiewicz as an expert on CEI customs and practices. (Doc. 156 9 □□□□□□□

Plaintiff offers Mr. Nickas and Dr. Poston as engineering experts. (See Docs.

158 & 159). And Mr. Wade is Plaintiffs damages expert. (See Doc. 160).

Defendants filed Daubert! motions regarding the experts, (see Docs. 137

& 138), which the Court granted in part and denied in part, (see Doc. 204).

1 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1998).

WSP also filed a motion for partial summary judgment, (see Doc. 142), which

the Court granted in part and denied in part, (see Doc. 205). CDM’s motion for

summary judgment overlaps, to an extent, with the Daubert motions and

WSP’s motion for partial summary judgment.

II. LEGAL STANDARD

Summary judgment shall be granted if the moving party “shows that

there is no genuine dispute as to any material fact” and the moving party “is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court

“view[s] the facts and draw[s] all reasonable inferences in favor of’ the

nonmoving party. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir.

2013). The moving party bears the burden of demonstrating that no genuine

issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). This burden “may be discharged by ‘showing’—that is, pointing out to

the [C]ourt—that there is an absence of evidence to support the nonmoving

party’s case.” Id. at 325. When presented with a “properly supported motion

for summary judgment, [the nonmoving party] must come forward with

specific factual evidence, presenting more than mere allegations.” Gargiulo v.

G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). The Court’s role is not “to

weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986). “In essence,...the inquiry...is...whether the

evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Id.

at 251-52.

III. DISCUSSION

The issues raised by CDM’s motion for summary judgment are manifold.

(See Doc. 139). First, the Court examines the issue of sovereign immunity.

Next, the Court addresses the negligence claims against CDM. Then, the

Court turns its attention to the County-assigned claims. Finally, the Court

discusses issues related to Plaintiffs damages.

A. Sovereign Immunity

Florida has waived sovereign immunity in tort for the state’s agencies

and subdivisions, including “corporations primarily acting as instrumentalities

or agencies of... counties,” Fla. Stat. § 768.28(2), and has established rules

for suing agents of the state. See id. passim. The general rule is that an “agent

of the state or of any of its subdivisions may not be held personally liable in

tort or named as a party defendant in any action for... damage suffered as a

result of any” conduct that the agent undertook (or failed to undertake) “in the

scope of [the agent’s] simpioyment® Id. § 768.28(9)(a). When this general rule

applies, the “exclusive remedy” for the damage “is by action against the

governmental entity, or the head of such entity in her or his official capacity,

or the constitutional officer of which the... agent is an employee.” Jd. And

recovery is capped at $200,000 or, when multiple agencies or subdivisions are

liable for the same incident, at a combined maximum of $300,000. Id.

§ 768.28(5)(a). The general rule does not apply if in committing the tort, the

“agent acted in bad faith or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights, safety, or property.” Id.

§ 768.28(9)(a).2

CDM asserts that it is entitled to sovereign immunity for all the

negligence claims against it because it was an agent of the state acting within

the scope of its employment—and without bad faith, malicious purpose, or

wanton and willful disregard—when it engaged in the alleged misconduct

related to the bridge project. (Doc. 139 at 12-18). Accordingly, CDM continues,

it cannot be named as a defendant in this action, and Plaintiffs recovery must

be capped at $300,000. Ud. at 16-17, 19-20).

Regardless of whether CDM acted with bad faith, malicious purpose, or

wanton and willful disregard, CDM is not entitled to summary judgment on

the issue of sovereign immunity because genuine issues of material fact

remain regarding whether CDM was an agent of the state under the statute. A

2 Part of the sovereign-immunity statute deals with Florida Department of

Transportation projects and applies to “professional firm[s] that provide[] monitoring

and inspection services of the work required for state roadway, bridge, or other

transportation facility construction projects.” Fla. Stat. § 768.28(10)(e). Although

CDM mentions section 768.28(10)(e) in its motion, (see Doc. 189 at 13-19), it clarifies

in its reply that the part of the sovereign-immunity statute at issue is section

768.28(9)(a), which “has nothing to do with” the Florida Department of

Transportation, (Doc. 166 at 5).

private corporation qualifies as an agent of the state under the statute only

when a state-governmental entity exercises (or has the right to exercise)

sufficient control over the corporation. See Plancher v. UCF Athletics Ass’n,

175 So. 3d 724 (Fla. 2015). The “determination is a fact[-]intensive one that

turns on the nature and degree of control exercised by the state over the

private entity.” Posen Consir., Inc. v. Lee County, 921 F. Supp. 2d 1350, 1359

(M.D. Fla. 2013) (citing Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997)). Signs of

sufficient control include that a state-governmental entity created the

corporation, perpetuates its existence, constrains its operations, and controls

its board of directors, budget, and other key aspects of its structure. See

Plancher, 175 So. 3d at 726-29; see also Fluid Dynamics Holdings, LLC v. City

of Jacksonville, 752 F. App’x 924, 926 (11th Cir. 2018) (applying “Plancher’s

control test” and finding sufficient control over an organization when a city

appointed and confirmed the organization’s board members, approved its

budget, had “unique powers over [its] revenues,” and had the authority to

“delineate[ its] powers”). When a corporation instead acts “as an autonomous

and self-sufficient entity,” it is not “primarily acting as an instrumentality on

behalf of the state” for sovereign-immunity purposes. Shands Teaching Hosp.

& Clinics, Inc. v. Lee, 478 So. 2d 77, 79 (Fla. Ist DCA 1985) (emphasis

omitted).

CDM is not entitled to summary judgment on the issue of sovereign

immunity under section 768.28(9)(a) because the record evidence does not

show that the County controlled CDM’s operations to such an extent that

CDM primarily acted as an instrumentality of the state rather than as an

autonomous and self-sufficient entity. CDM’s strongest argument is that its

contract with the County required CDM to “act as an extension of the County’s

staff’ for the project, (Doc. 76-2 at 35), and gave the County “control over CDM

in the conduct of CDM’s duties” concerning the project. (See Doc. 139 at 15—

16). But Plancher’s control test asks the Court to look beyond a particular

project to examine the corporation in general—its creation, overall operations,

and structure, including its board and its budget. See 175 So. 3d at 726-29.

CDM does not even mention these topics in its motion or reply. (See Docs. 139

& 166). Because a genuine issue of material fact remains as to whether the

County sufficiently controlled CDM to make CDM an agent of the state for

sovereign-immunity purposes, CDM is not entitled to summary judgment on

the sovereign-immunity issue.

B. Negligence Claims

CDM maintains that it is entitled to summary judgment on Plaintiffs

negligence claims because CDM did not owe Plaintiff a duty and did not

proximately cause Plaintiffs damages. (Doc. 189 at 2-10). See Clay Elec.

Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (listing duty and

proximate causation among the elements of negligence under Florida law). The

Court discusses duty and proximate causation in turn.

1. Duty

CDM asserts that for it to have owed Plaintiff a duty absent contractual

privity, CDM must have exercised control over Plaintiff such that the misuse

of that control foreseeably caused Plaintiff damages. (Doc. 139 at 3 (citing A.

R. Moyer, Inc. v. Graham, 285 So. 2d 397, 402 (Fla. 19738), and its progeny)). In

CDM’s view, Plaintiff cannot show that CDM controlled Plaintiffs work on the

project because the County retained ultimate decision-making power for “all

aspects of [Plaintiff]’s work.” Ud. at 4-5). However, a plaintiff contractor may

show that the defendant “ha[d] the requisite control ... even without ultimate

decision-making power” so long as the defendant performed supervisory duties

and shared a close nexus with the plaintiff. Grace & Naeem Uddin, Inc. v.

Singer Architects, Inc., 278 So. 3d 89, 92-93 (Fla. 4th DCA 2019). Here, there

is evidence that CDM sufficiently controlled Plaintiffs work.

CDM’s contract with the County required CDM to “act as an extension of

the County’s staff,” “observe [Plaintiff]’s work to determine the progress and

quality of the work,” “administer, monitor, and inspect the construction” so

that the project would be “constructed in conformity with” the construction

contract, observe nonconformities “and direct [Plaintiff] to correct” them, “keep

detailed accurate records of [Plaintiff]’s daily operations,” “provide daily

surveillance of’ Plaintiffs quality-control activities, and furnish various other

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services related to on-site inspection, sampling and testing, and engineering

for the project. (Doc. 76-2 at 35-38). Mr. Charles confirms in an affidavit that

CDM in fact “routinely monitored” Plaintiffs work on the project. Ud. 4 11).

And he further states that CDM twice ordered Plaintiff to stop work and that

CDM affected Plaintiffs payment (by revising Plaintiffs payment applications,

“(r]lecommending and certifying the amounts of payments to be issued by [the]

County” to Plaintiff, and delaying payment). (Doc. 154 14—16).

Mr. Charles also describes a close connection between CDM and Plaintiff

during the project given that they “regularly attended” project meetings and

inspections together and “frequently observed the [p]roject together.” □□□□

10-11). Thus, there is evidence that CDM performed supervisory duties

related to the project and shared a close nexus with Plaintiff, which creates a

genuine factual dispute as to whether CDM controlled Plaintiffs work

sufficiently to establish a duty under Florida law. See Grace & Naeem, 278 So.

3d at 93 (finding sufficient control when the defendant acted as the County’s

“eyes and ears” for the project, exercised a great deal of power over the

plaintiffs payment, and “had the authority to recommend work stoppage’).

Accordingly, CDM is not entitled to summary judgment on the negligence

claims against it based on the duty element of the claims.

Z. Proximate Causation

CDM contends that Plaintiff cannot establish proximate causation for

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any of the negligence claims against CDM because the undisputed record

evidence shows that Plaintiff, WSP, and the County—not CDM—proximately

caused Plaintiffs damages. (Doc. 139 at 7-10). The Court finds CDM’s position

unpersuasive for two reasons.

First, CDM must support its position with legal authority. See United

States v. Markovich, 95 F.4th 1367, 1379 (11th Cir. 2024) (holding that a

defendant forfeited his position when he “cite[d] no legal authority to support

it”). But the proximate-causation portion of CDM’s motion is devoid of any

citation to legal authority except one brief citation to the Act. (See Doc. 139 at

7-10).2 Thus, CDM fails to support its position.

Second, a reasonable factfinder could conclude from the record that CDM

proximately caused Plaintiffs damages. The Florida Supreme Court has

defined “proximate cause” in the negligence context as “[a] reasonably close

causal connection between the [defendant’s negligent] conduct and the

[plaintiffs] resulting injury.” Clay Elec., 873 So. 2d at 1185 (quoting Prosser

and Keaton on the Law of Torts 164—65 (W. Page Keeton ed., 5th ed. 1984)).

Here, Mr. Mackiewicz’s statements support that CDM engaged in negligent

conduct related to the NOIs at issue when CDM deviated from CEI customs

3 This portion of the motion is replete with references to the factual record, (see

id.), but these factual references do not provide legal authority.

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and practices. (E.g., Docs. 156, 156-1, 156-2, & 156-3).4 There is evidence, for

example, that CDM did not act as a reasonable CEI professional would have

when interpreting contract documents, reviewing design changes, or

participating in the permitting process. (See Doc. 156 { 15). And there is

evidence that CDM failed to perform its services in a timely manner, failed to

give adequate consideration to “the time and cost impact[s] of plan revisions,”

and failed to “facilitate dispute resolution to resolve disputes before they

[could] cause impacts and delays on the [p]roject.” (/d.).

As for the resulting injury, the record contains evidence that Plaintiff

suffered economic damages from the delays caused by CDM’s negligent

conduct. (See, e.g., Doc. 154 § 39; Doc. 160-1 at 6, 55). Because a reasonable

factfinder could find a “reasonably close causal connection” between CDM’s

negligent conduct and Plaintiffs resulting injury, Clay Elec., 873 So. 2d at

1185, CDM is not entitled to summary judgment on the negligence claims

against it based on the proximate-causation element of the claims. See also

Colon v. Twitter, Inc., 14 F.4th 1213, 1224 (11th Cir. 2021) (“In the absence of

a freakish and improbable chain of events leading to injury, the question of

foreseeability as it relates to proximate causation generally must be left to the

4In its reply, CDM argues that “the Court should disregard” as “inadmissible

legal opinion” Mr. Mackiewicz’s statements about CEI customs and practices. (Doc.

166 at 4). As the Court stated in its order on CDM’s motion to exclude Mr.

Mackiewicz’s statements, “Mr. Mackiewicz will be permitted to opine on CEI customs

and practices.” (Doc. 204 at 7).

13

factfinder to resolve.” (internal quotation marks omitted) (quoting Ruiz v.

Tenet Hialeah Health Sys., Inc., 260 So. 3d 977, 982 (Fla. 2018))).

To recap, because genuine issues of material fact remain as to duty and

proximate causation, CDM is not entitled to summary judgment on the

negligence claims. The Court now turns to the County-assigned claims.

C. County-Assigned Claims

CDM challenges all County-assigned claims on grounds related to

Plaintiffs settlement with the County and then focuses on the breach-of-

contract claims and the County-assigned claims related to NOI 44.5 (Doc. 139

at 25-27). The Court discusses Plaintiffs settlement with the County, the

breach-of-contract claims, and the NOI 44 claims in turn.

1. Plaintiff's Settlement with the County

Pursuant to Plaintiffs settlement agreement with the County, the

County assigned to Plaintiff its rights to sue Defendants and paid Plaintiff

almost six million dollars; in exchange, Plaintiff broadly released the County

from liability related to the bridge project. (Doc. 76-49 §§ 1.0, 2.1, 8.1-8.2). The

settlement agreement allocates the County’s total payment to Plaintiff among

various NOIs no longer at issue in this case, (id. § 2.5), and treats the County’s

assignment of rights as consideration for Plaintiffs promise not to pursue

“additional damages against the County due to design deficiencies and other

5 CDM’s motion addresses NOIs 44 and 45 together. (Doc. 139 at 26-27). But

NOI 45 is no longer at issue. (Doc. 209 at 1).

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issues,” (id. § 2.1). Consistent with the assignment, the settlement agreement

reflects the intent of the County and Plaintiff “not ...to release, waive, or

affect in any way any claims [that the County or Plaintiff] may have against

WSP and/or CDM.” (Id. § 2.5). The settlement agreement also provides that

Plaintiff “shall be able to continue to assert in [this lawsuit] or otherwise the

County’s third-party complaint as well as any additional claims [that Plaintiff]

may have against WSP, CDM[,] or any other third party associated with the

[p]roject.” (Ud. § 2.6). Indeed, the settlement agreement contains repeated

assurances that “nothing in [it] shall be construed as any form of release by

[Plaintiff] or [the] County against WSP, CDM[,] or any other third party

associated with the [p]roject.” Ud. §§ 2.1—2.3, 2.6).

CDM contends that all County-assigned claims must fail because

Plaintiff cannot show that the County suffered damages in this case. (Doc. 139

at 25; Doc. 168 at 9). CDM provides three reasons for its position. (Doc. 139 at

25). First, “the County, as the owner of the bridge[,] is responsible for any and

all costs claimed by [Plaintiff] to build it.” Ud.). Second, “[t]he County did not

suffer any damages related to the NOIs at issue in this action because none of

the money [that] the County paid [Plaintiff] as part of their settlement was

allocated to” those NOIs. (/d.). And third, “the County never can or will suffer

any damages for the ... NOIs because [Plaintiff] released the County from any

such liability or exposure.” (/d.). CDM does not support its position with legal

15

authority. (See id.). See Markovich, 95 F.4th at 1379. In any event, none of its

reasons are persuasive.

As to CDM’s first reason, CDM fails to explain why the County could not

recover against CDM for construction costs incurred as a result of CDM’s

breach of its contractual duties. These duties include “adher[ing] to the

standard of care applicable to a consultant with the degree of skills and

diligence normally employed by a licensed professional in his field or practice

performing the same or similar services or [wlork.” (Doc. 76-2 at 16). There is

evidence that CDM breached this duty. (E£.g., Doc. 156 F415, 17, 19, 21-24). If

CDM’s breach caused the County damages, the County could sue, see Domante

v. Dish Networks, LLC, 974 F.3d 1342, 1347 (11th Cir. 2020), so Plaintiff can

sue as the County’s assignee, see Nationwide Mut. Fire Ins. Co. v. Pinnacle

Med., Inc., 753 So. 2d 55, 57 (Fla. 2000).

As to CDM’s second reason, although the County did not give Plaintiff

money for the NOIs now at issue in this case, it gave Plaintiff valuable

consideration in the form of an assignment of rights so that Plaintiff would not

pursue “additional damages against the County” related to the project. (Doc.

76-49 § 2.1). Cf. Lake Sarasota, Inc. v. Pan Am. Sur. Co., 140 So. 2d 139, 142

(Fla. 2d DCA 1962) (“The consideration required to support a contract need not

be money or anything having monetary value, but may consist of either a

benefit to the promisor or a detriment to the promisee.”). Such “additional

16

damages’ could stem from the NOIs now at issue in this case, which were not

among the NOIs for which payment was allocated in the settlement

agreement. (See Doc. 76-49 § 2.5).

As to CDM’s third reason, Florida law permits the simultaneous

assignment of a claim and release of that claim. See Wachovia Ins. Servs., Inc.

v. Toomey, 994 So. 2d 980, 986 (Fla. 2008). What matters is the intent of the

contracting parties. See id. A defendant cannot “escape liability by relying on a

document executed by others when those parties did not intend to release [the

defendant] from liability.” Jd. at 987. Here, the County and Plaintiff clearly

intended that Plaintiff would assert County-assigned claims related to the

project against Defendants. (See Doc. 76-49 §§ 2.1-2.3, 2.5-2.6). Accordingly,

Plaintiff's release of the County from liability does not bar Plaintiff from suing

Defendants as the County’s assignee.

CDM has not established that Plaintiffs settlement agreement with the

County prohibits Plaintiff from pursuing its County-assigned claims.

Accordingly, CDM is not entitled to summary judgment on this issue.

2. Breach-of-Contract Claims

Under Florida law, the “elements of a breach[-]of[-]contract action are (1)

a valid contract[,] (2) a material breach[,] and (8) damages.” Beck v. Lazard

Freres & Co., LLC, 175 F.3d 918, 914 (11th Cir. 1999) (citing Abruzzo v.

Haller, 603 So. 2d 1338, 1840 (Fla. 1st DCA 1992)). CDM advances two

17

arguments regarding the breach-of-contract claims. (Doc. 139 at 26). First,

CDM argues, Plaintiff cannot establish a material breach because “the County

found no deficiencies in CDM’s performance of its scope of work.” (/d.). And

second, says CDM, Plaintiff cannot establish damages for the reasons that

CDM asserts related to Plaintiffs settlement with the County. (U/d.). The Court

rejects both arguments as conclusory. (See id.). See Carrizosa v. Chiquita

Brands Intl, Inc., 47 F.4th 1278, 1335 (11th Cir. 2022) (“[A] conclusory

argument is insufficient.”). Additionally, the Court rejects the second

argument for the reasons explained above concerning the settlement. And the

Court rejects the first argument because a factual dispute remains as to

whether CDM’s performance under its contract with the County was deficient.

(See, e.g., Doc. 76-2 at 16 (requiring CDM to “adhere to the standard of care

applicable to a consultant with the degree of skills and diligence normally

employed by a licensed professional in his field or practice performing the

same or similar services or [w]lork”); Docs. 156, 156-1, 156-2, & 156-3

(supporting that CDM did not act as a reasonable CEI professional)).

Accordingly, CDM is not entitled to summary judgment on the breach-of-

contract claims.

3. NOI 44

With respect to the NOI 44 claims, Plaintiffs contract with the County

required Plaintiff to follow specific procedures for submitting NOIs and

18

seeking extensions of time regarding NOIs. (Doc. 76-3 at 20-22). And CDM

maintains that Plaintiffs County-assigned claims related to NOI 44 are legally

barred because Plaintiff did not comply with and was not excused from these

procedural requirements as to NOI 44. (Doc. 139 at 26—27). The entirety of

CDM’s argument—aside from a single, unsupported sentence lamenting the

“absurd|[ity]” of bringing a claim on the County’s behalf that “the County itself

denies exists,” (id. at 27)—is that earlier in this action, when the County

moved to dismiss the NOI 44 claims, (Doc. 40 at 7—10), the Court denied the

motion, (Doc. 69 at 7). (See Doc. 1389 at 26—27; see also Doc. 166). The Court

explained at that time that Plaintiffs compliance with and excusal from the

contract’s procedural requirements were issues more appropriate for summary

judgment. (Doc. 69 at 4—6). Now that this case has reached the summary-

judgment stage, however, CDM does not explain what, if anything, entitles it

to enforce requirements contained in a contract between the County and

Plaintiff. (See Docs. 1389 & 166). Elsewhere in its motion, CDM asserts that

only a contract’s parties and intended third-party beneficiaries can enforce a

contract’s obligations. (Doc. 139 at 2 (citing Rebman v. Follett Higher Educ.

Grp., Inc., 575 F. Supp. 2d 1272, 1276 (M.D. Fla. 2008))); see Caretta Trucking,

Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d 1028, 1030-31 (Fla. 4th DCA

1994). If so, CDM is not a party to Plaintiffs contract with the County, (see

Doc. 76-3 at 2, 64), and does not claim in its motion to be an intended third-

19

party beneficiary of that contract, (see Doc. 139; see also Doc. 166).

“[A]s a general rule,” parties—not courts—“are responsible for advancing

the facts and argument entitling [the parties] to relief.” United States v.

Sineneng-Smith, 590 U.S. 371, 375-76 (2020) (quoting Castro v. United States,

540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in the

judgment)). Accordingly, the Court will not make CDM’s argument for CDM.

As it stands, that argument is unpersuasive, and CDM is not entitled to

summary judgment as to NOI 44.

D. Damages

In its motion, CDM raises four damages issues: attorney fees, first costs,

lost opportunity costs, and liquidated damages. (Doc. 139 at 20—25). The Court

addresses these issues in turn.

L. Attorney Fees

CDM contends that Plaintiff cannot seek indemnification from it for the

attorney fees that the County incurred in defending against Plaintiffs claims.

(See Doc. 139 at 23-24). CDM makes two main points here. (/d.). First, says

CDM, it had insufficient opportunity to defend against Plaintiffs underlying

claims against the County because the County settled with Plaintiff only five

days after the County first sought indemnification from CDM and up to that

point the County had given CDM no indication that CDM had

underperformed. (/d.). And second, CDM maintains that Plaintiff “cannot

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establish that the County was not at fault with respect to” the underlying

claims. (Id. at 24).

On the first point, when a person settles a lawsuit brought by a third

party and then sues a defendant for indemnification, Florida law requires the

person to “prove its ‘actual or potential liability’ to th[e] third party” before the

person can recover from the defendant. Coquina Invs. v. TD Bank, N.A., 760

F.3d 1300, 1316 (11th Cir. 2014) (quoting GAB Bus. Servs., Inc. v. Syndicate

627, 809 F.2d 755, 760-61 (11th Cir. 1987)). Proof of potential liability suffices

when the person “inform[s] the defendant of a proposed settlement’—giving

the defendant the “opportunity to review or participate in the settlement’—

“and the defendant fail[s] to object.” Jd. Otherwise, proof of actual liability is

required. Id. Here, the County settled with Plaintiff, and now Plaintiff,

standing in the County’s shoes, seeks attorney fees from CDM through the

indemnification claims. Thus, Plaintiff must establish the County’s liability to

Plaintiff—either actual or potential liability depending on whether CDM had

sufficient opportunity to participate in the settlement between the County and

Plaintiff. See Coquina Invs., 760 F.3d at 1316.

CDM does not mention the actual-versus-potential-liability distinction in

its motion. (See Doc. 139). Nor does CDM directly address its opportunity to

participate in the County’s settlement with Plaintiff; CDM’s motion is silent as

to CDM’s awareness of and involvement in the settlement. (See id.). In any

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event, regarding CDM’s opportunity to defend the underlying claims, a

reasonable factfinder could conclude from the record that CDM had sufficient

opportunity. According to Mr. Kasbeer’s affidavit, for example, CDM was

aware of Plaintiffs NOIs during the project, was “immediately notified” of the

complaint that Plaintiff filed against the County in this case, (see Doc. 1), and

“[a]t all relevant times” could have provided the County with defense counsel,

paid the County’s legal costs, or otherwise participated in the County’s

defense. (Doc. 155 J] 6, 8, 10). Viewing the record in the light most favorable

to Plaintiff, the Court cannot conclude based on CDM’s first point that

Plaintiff cannot recover the County’s attorney fees through the indemnification

claims.®

On the second point, “[u]nder Florida law, agreements to indemnify

parties against their own wrongful acts are not favored and will be enforced

only if they express such an intent in clear and unequivocal terms.” Gibbs v.

Air Canada, 810 F.2d 1529, 1534 (11th Cir. 1987) (citing Charles Poe Masonry,

6 CDM cites Northbrook Property & Casualty Co. v. City National Bank, 591

So. 2d 1026, 1028 (Fla. 3d DCA 1991), for the proposition that when an indemnitor

does not have a sufficient opportunity to defend, an indemnitee cannot recover

attorney fees “where the indemnification clause in [the] contract is not invoked until

years into the litigation.” (Doc. 139 at 23). The Court does not read Northbrook as

establishing such a broad proposition. Northbrook stated the general rule that

“recovery of legal expenses is a proper component of an indemnity claim” before

explaining that the “general rule d[id] not apply” given the peculiar facts of the case.

591 So. 2d at 1028. Northbrook is thus distinguishable. At any rate, as explained

above, a factual dispute remains as to whether CDM had a sufficient opportunity to

defend.

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Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla.

1979)). CDM’s contract with the County sweeps broadly with respect to

indemnification, requiring CDM to indemnify the County “from and against all

claims of every kind and nature” resulting from CDM’s negligent performance

of the contract. (Doc. 76-2 at 20—21). But the contract does not require CDM to

indemnify the County for claims that are “the result of the sole negligence of

the County.” (Ud.). Thus, the contract expressly covers indemnification

situations in which the County is negligent but the underlying claims are not

“the result of’ the County’s “sole negligence.” (Id.). The Court will not rewrite

the contract. See Beach Resort Hotel Corp. v. Wieder, 79 So. 2d 659, 663 (Fla.

1955).

For all these reasons, CDM is not entitled to summary judgment on the

attorney-fees issue.

First Costs

The doctrine of first costs prevents a plaintiff “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.” AECOM Tech. Servs., Inc. v.

Pro. Servs. Indus., Inc., 580 F. Supp. 3d 1176, 1199 (M.D. Fla. 2021). In the

engineering context, when a plaintiff does not “derive an added benefit as a

result of’ out-of-sequence construction costs and additional engineering

expenses, the plaintiff may recover those expenditures. Soriano v. Hunton,

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Shivers, Brady & Assocs., 524 So. 2d 488, 490 n.2 (Fla. 5th DCA 1988); accord

Lochrane Eng’g v. Willingham Realgrowth Inv. Fund, 552 So. 2d 228, 233 (Fla.

5th DCA 1989) (discussing a situation in which an engineer advises a

landowner that a 1,000 square foot drain field is adequate, the landowner

installs a 1,000 square foot drain field based on the engineer’s advice, and

“later it is determined that a 1,200 square foot drain field was necessary” and

explaining that “if the cost of later installing the additional 200 feet of drain

field costs more than it would have cost if installed as part of the original

undertaking, the engineer would be liable for the difference as well as any

other consequential damages’).

CDM takes the position that in general, Plaintiff cannot recover first

costs and joins in the argument made by WSP in a previously resolved motion

that as to NOI 3 in particular, Plaintiffs damages are prohibited under the

doctrine. (Doc. 139 at 20-21; see Doc. 142 at 22-25). The Court agrees with

Plaintiff that “other than the damages” related to NOI 3, “CDM does not

discuss how or why the various damages sought by [Plaintiff] constitute first

costs.” (Doc. 152 at 14; see Doc. 189 at 20-21). Thus, if CDM is entitled to

summary judgment on this issue at all, it is entitled to it only as to NOI 3. See

Celotex, 477 U.S. at 323, 325. That said, the Court rejects CDM’s NOI 3

argument for the same reasons that it rejected WSP’s. (See Doc. 205 at 10-11).

Namely, there is evidence that the “prohibition on jetting employed by CDM”

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caused out-of-sequence construction costs and additional engineering expenses

not proscribed under the doctrine. (Doc. 154 J 39). See Soriano, 524 So. 2d at

490 n.2; Lochrane, 552 So. 2d at 233. Accordingly, CDM is not entitled to

summary judgment on the issue of first costs.

3. Lost Opportunity Costs

CDM challenges Plaintiffs claim for lost opportunity costs on essentially

the same grounds that WSP asserted in its motion for partial summary

judgment. (Compare Doc. 139 at 22, with Doc. 142 at 25-28; see also Doc. 152

at 14-15). Thus, the Court rejects CDM’s challenge for the reasons that it

rejected WSP’s. (See Doc. 205 at 11-12). Namely, the record reflects that Mr.

Wade’s calculation of Plaintiffs lost opportunity costs was based on Plaintiffs

financial data. (See Doc. 160 9{{ 7-15; Doc. 169-4 at 2; Doc. 170-9 at 48; Doc.

170-10 at 18; see also Doc. 203 at 2). There is evidence that CDM’s negligent

conduct caused Plaintiff damage. (See, e.g., Doc. 154 939 (Mr. Charles’s

statement that CDM’s prohibition on jetting “dealt a devastating blow to

[Plaintiff] in terms of both construction time and construction cost”)). And Mr.

Wade provides a “standard by which the amount of damages may be

adequately determined.” W.W. Gay Mech. Contractor, Inc. v. Wharfside Two,

Ltd., 545 So. 2d 1348, 1351 (Fla. 1989). (See, e.g., Doc. 170-9 at 48). To the

extent that CDM raises other arguments, they are unpersuasive because they

are conclusory and devoid of legal authority, see Markovich, 95 F.4th at 1379,

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and do not view the record in the light most favorable to Plaintiff, see Kidd,

731 F.3d at 1202. (See Doc. 139 at 22).

4. Liquidated Damages

CDM maintains that Plaintiff cannot recover liquidated damages. (Doc.

139 at 24-25). In response, Plaintiff states that it “is not seeking liquidated

damages in this case.” (Doc. 152 at 21). Given Plaintiffs position, the Court

will grant CDM summary judgment on the issue of liquidated damages.

IV. CONCLUSION

For the reasons explained above, it is ORDERED that CDM’s motion

(Doc. 139) is GRANTED in part and DENIED in part. The motion is

granted as to liquidated damages. The motion is otherwise denied.

DONE and ORDERED in Orlando;Fflorida, on July 2” 004

JOHN ANTOON II

Ny ited States District Judge

Copies furnished to: :

Counsel of Record

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