U.S. Bancorp v. Viox Services, Inc, No. 3:2013cv05063 - Document 22 (W.D. Wash. 2014)
Court Description: ORDER denying 16 Motion for Summary Judgment by Judge Benjamin H Settle.(TG)
Download PDF
<![CDATA[
U.S. Bancorp v. Viox Services, Inc Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 U.S. BANCORP, a Delaware corporation d/b/a U.S. Bank, 9 Plaintiff, 10 v. 11 VIOX SERVICES, INC., an Ohio 12 corporation, 13 CASE NO. C13-5063 BHS ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 14 15 This matter comes before the Court on Defendant Viox Services, Inc.’s (“Viox”) 16 motion for summary judgment (Dkt. 16). The Court has considered the pleadings filed in 17 support of and in opposition to the motion and the remainder of the file and hereby denies 18 the motion for the reasons stated herein. 19 I. PROCEDURAL HISTORY 20 On January 30, 2013, Plaintiff U.S. Bancorp (“U.S. Bank”) filed a complaint 21 against Viox for breach of contract and breach of indemnity agreement. Dkt. 1. 22 ORDER - 1 Dockets.Justia.com 1 On November 27, 2013, Viox filed a motion for summary judgment. Dkt. 16. On 2 December 30, 2013, U.S. Bank responded. Dkt. 16. On January 3, 2013, Viox replied. 3 Dkt. 21. 4 5 II. FACTUAL BACKGROUND On January 1, 2006, the parties entered into an Independent Contractor 6 Agreement. Dkt. 17, Declaration of Scott Schauermann (“Schauermann Dec.”), Exh. 1 7 (“ICA”). The agreement states that U.S. Bank “hereby retains [Viox] to act as an 8 independent contractor for purposes of performing custodial and maintenance services for 9 the Bank . . . .” Id., Art. I. The scope of the “custodial and maintenance services” were 10 to be “consistent with the [Viox’s] professional expertise, as required by the Bank” and 11 such “services shall include, without limitation, the items identified in Exhibit A.” Id., 12 Art. 2, ¶ 2.1. The agreement covered U.S. Bank’s locations in Ohio, Kentucky, 13 Tennessee, Indiana, and Illinois. Id. at 1. 14 The parties dispute the scope of services covered by the ICA. Viox contends that 15 the ICA “did not include preventative maintenance, repaving, filling holes, fixing 16 structural defects in the pavement, or any other major services related to the parking lot 17 and ATM drive through areas of the U.S. Bank locations covered by the contract.” Dkt. 18 16 at 2. On the other hand, U.S Bank contends that these services were required by the 19 contract because the explicit services set forth in Exhibit A to the ICA were without 20 limitation. Dkt. 18 at 3. Moreover, U.S. Bank contends that, “as part of [Viox’s] 21 custodial and maintenance duties since 2008, Viox performed . . . regular preventative 22 ORDER - 2 1 maintenance inspections . . . for the purpose of identifying maintenance needs and/or 2 hazards that required attention.” Dkt. 18 at 3. 3 On October 6, 2008, the parties entered into a third amendment to the ICA. This 4 amendment added stores in the state of Washington, including U.S. Bank’s branch in 5 Olympia, Washington (“Olympia Branch”). Schauermann Dec., Exh. 4. The amendment 6 did not alter the scope of the services provided by Viox. 7 In July 2009, the parties entered into a fourth amendment to the ICA. In addition 8 to other provisions, this amendment addressed changes to Viox’s scope of work. 9 Specifically, Viox contracted to maintain cement and blacktop pavement by agreeing to 10 “patch or fill holes and cracks as appropriate to service levels.” Schauermann Dec., Exh. 11 6 (“Amendment 4”), Schedule-A, §§ 4.2.1.1 & 4.2.1.2. This agreement had a “transition 12 period” from the date of signature to January 1, 2010. Id. § B.14. 13 On September 24, 2009, during the “transition period,” Sirena Denbow suffered 14 injuries when she tripped on an empty post hole situated in the Olympia Branch ATM 15 drive-through area. Ms. Denbow required surgery on her hand as a result of her injuries. 16 On August 14, 2012, Ms. Denbow and U.S. Bank entered into a $10,000 settlement 17 agreement to resolve a lawsuit that Ms. Denbow filed against U.S. Bank. U.S. Bank 18 tendered the claim to Viox under the indemnification provision of the ICA, but Viox did 19 not accept the claim or respond to the demand for reimbursement of the settlement 20 amount and associated fees. 21 22 ORDER - 3 1 III. DISCUSSION 2 A. Standard 3 Summary judgment is proper only if the pleadings, the discovery and disclosure 4 materials on file, and any affidavits show that there is no genuine issue as to any material 5 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 6 The moving party is entitled to judgment as a matter of law when the nonmoving party 7 fails to make a sufficient showing on an essential element of a claim in the case on which 8 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 9 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, 10 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. 11 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must 12 present specific, significant probative evidence, not simply “some metaphysical doubt”). 13 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists 14 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or 15 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 16 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 17 626, 630 (9th Cir. 1987). 18 The determination of the existence of a material fact is often a close question. The 19 Court must consider the substantive evidentiary burden that the nonmoving party must 20 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477 21 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual 22 issues of controversy in favor of the nonmoving party only when the facts specifically ORDER - 4 1 attested by that party contradict facts specifically attested by the moving party. The 2 nonmoving party may not merely state that it will discredit the moving party’s evidence 3 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. 4 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, 5 nonspecific statements in affidavits are not sufficient, and missing facts will not be 6 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990). 7 B. Viox’s Motion 8 The parties agree that the ICA is governed by Ohio law, but dispute whether the 9 ICA contains ambiguous terms. In Ohio, a term or provision is ambiguous when it 10 “cannot be determined from the four corners of the agreement or where contract language 11 is susceptible to two or more reasonable interpretations.” United States Fid. & Guar. Co. 12 v. St. Elizabeth Med. Ctr., 129 Ohio App. 3d 45, 56 (1998) (citing Potti v. Duramed 13 Pharmaceuticals, Inc., 938 F.2d 641 (6th Cir. 1991)). “[I]f a term cannot be determined 14 from the four corners of a contract, factual determination of intent or reasonableness may 15 be necessary to supply the missing term.” Inland Refuse Transfer Co. v. Browning– 16 Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 322 (1984). 17 In this case, the Court finds that there is an ambiguity in the contract regarding the 18 scope of services. The term “custodial and maintenance services” is susceptible to at 19 least two reasonable interpretations: one interpretation including pavement repair and one 20 interpretation not including pavement repair. Viox, however, provides two arguments in 21 support of its position that pavement repair was not included in the scope of services. 22 First, Viox argues that by specifically adding pavement repair in Amendment 4 shows ORDER - 5 1 that the service was not included in the ICA’s original scope of services. Dkt. 21 at 2–3. 2 In other words, Viox is arguing that specifically listing a service in a subsequent 3 amendment to a contract is conclusive evidence of the intent of the parties at the time of 4 the original contract. There is no authority for this proposition. Moreover, Viox has 5 failed to convince the Court that a party to a contract should be held to have waived a 6 reasonable interpretation of a general term in an original contract when the party amends 7 the contract to provide a more specific list of included services. For example, the original 8 scope of work included “General Building Repairs,” which was further specified as 9 “Minor Building Repairs.” ICA, Exhibit A at 1. Amendment 4 includes nine pages of 10 specific services under the heading of “Building Services & Maintenance” that U.S. Bank 11 deemed “necessary to maintain [U.S. Bank’s] buildings . . . .” Amendment 4, Schedule 12 A-4, § 2. Under Viox’s proposition, the general “Minor Building Repairs” would 13 exclude most, if not all, of the specific tasks set forth in Amendment 4. This is neither 14 the law nor a reasonable interpretation of the term “custodial and maintenance services.” 15 Therefore, the Court declines to accept Viox’s position. 16 Second, Viox argues that the terms “without limitation” and “as required by the 17 Bank” do not create additional duties. Viox contends that these terms “cannot be 18 construed to mean that [Viox] was required to perform services not delineated in Exhibit 19 A to the ICA” because such an interpretation would “creat[e] an open ended universe of 20 affirmative obligations on the part of [Viox].” Dkt. 21 at 3. The law, however, limits 21 Viox’s hypothetical universe to “reasonable interpretations” of “custodial or maintenance 22 services.” St. Elizabeth Med. Ctr., 129 Ohio App. 3d at 56. If each party submits a ORDER - 6 1 reasonable interpretation, then the factfinder must determine the proper scope of the 2 ambiguous term. Inland Refuse, 15 Ohio St.3d at 322. This is the case before the Court, 3 and U.S. Bank has shown that a material question of fact exists for trial. 4 5 IV. ORDER Therefore, it is hereby ORDERED that Viox’s motion for summary judgment 6 (Dkt. 16) is DENIED. 7 Dated this 16th day of January, 2014. A 8 9 BENJAMIN H. SETTLE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
