415 Congress St. Properties V. URS Group, Inc.

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STATE OF MAINE BUSINESS AND CONSUMER COURT Cumberland, ss Location: Portland Docket No.: BCD-CV-)1-0~ tr N\ H 415 CONGRESS STREET PROPERTIES, LP, and HARPERS DEVELOPMENT, LLC, Plaintiffs, v. Curi) - 11 . ' 4 I OJ-O!! ) ) ) ) ) ) ) ) URS GROUP, INC., URS CORPORATION, and T.F. PROPERTIES, INC., Defendants ) ) ) ) ) ) ) ORDER ON DEFENDANTS URS GROUP INC. AND URS CORPORATION'S MOTION FOR SUMMARY JUDGMENT Defendants URS Group, Inc. (URS Group) and URS Corporation (URS Corp.) (collectively, the "URS Defendants") have moved for summary judgment on Counts I, II, and III of Plaintiffs Harpers Development, LLC (Harpers) and 415 Congress Street Properties, LP's (415 Congress) complaint. For the reasons stated within, the court grants the motion in part and denies the motion in part. BACKGROUND The following facts are undisputed, except where noted. This case arises out of a Property Condition Assessment ("PCA") performed by URS Corp. for Harpers on a building located at 415 Congress Street in Portland, Maine ("the building"). (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F. ~ ~ 1; 1.) URS Corp. provides, among other things, professional architecture and engineering services to its clients. (Defs.' Supp. S.M.F. ~ 7; Pl.'s Opp. S.M.F. ~ 7.) Harpers is a leading, experienced real estate developer in the State of Maine. (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F. 2004. (S.M.F. ~ 2.) 415 ~ Congress is a Maine limited partnership formed on September 21, 3.) Harpers has no ownership interest in 415 Congress; they are entirely separate entities. (Defs.' Supp. S.M.F. ~ 6; Pl.'s Opp. S.M.F. ~ 6.) Defendant T.F. Properties, Inc. (T.F. Properties) sold the building to 415 Congress. (Defs.' Supp. S.M.F. S.M.F. ~ ~ 2; ~ 9; Pl.'s Opp. 9.) On March 5, 2004, Harpers contracted with Defendant T.F. Properties, Inc. (T.F. Properties) to purchase the building, and later they entered into a Reinstatement of a First Amendment to the Purchase and Sale Agreement. (Defs.' Supp. S.M.F. S.M.F. ~ ~ 20, 25.) ~~ 20, 25; Pl.'s Opp. In November 2004, Harpers assigned all of its "right, title and interest in and to any and all architectural plans, engineering work, [and] inspection reports" acquired by Harpers "in connection with the acquisition or development of' the building to 415 Congress, "together with any and all rights and claims relating thereto." (Pl.'s A.S.M.F. Supp. S.M.F. ~ 20; Pl.'s Opp. S.M.F. ~ 20.) ~ 12.) 1 Defs.' T.F. Properties then sold the building to 415 Congress on November 22, 2004. (Defs.' Supp. S.M.F. ~ 9; Pl.'s Opp. S.M.F. ~ 9.) URS Corp. and Harpers entered into an "Agreement for Professional Services" (the "Agreement") on February 5, 2004. (Defs.' Supp. S.M.F. ~ 15; Pl.'s Opp. S.M.F. ~ 15.) The Agreement contains provisions entitled "Risk Allocation," "No Consequential Damages," "No Third Party Rights," and "No Assignment," and the parties do not dispute the content of these provisions. (Defs.' Supp. S.M.F. ~~ 16-19; Pl.'s Opp. S.M.F. ~~ 16-19.) The Agreement contemplates that the scope of services it covers will be set forth in separate written work orders. (Defs.' Ex. 4, Art. I.) The parties dispute whether Harpers hired URS Corp. to perform 1 The URS Defendants both deny and object to this statement of material fact. The URS Defendants' denial is really however, more in the nature of a qualification than an outright denial. The URS Defendants point out that the Agreement for Professional Serviced executed between Harpers and URS Corp. prohibits any party from relying on the PCA unless URS gives its consent, but does not challenge the purported assignment. (Defs.' Reply a "professional" PCA, but do not dispute that at least one of the URS Defendants did in fact ~ 8; conduct the PCA. 2 (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F. ~ 8.) The work order to perform the PCA on the building was executed on October 4, 2004, between Harpers and URS Corp. (Defs.' Supp. S.M.F. ~ 34; Pl.'s Opp. S.M.F. ~ 34.) URS Corp. performed a site visit of the building on October 13, 2004. (Defs.' Supp. S.M.F. ~ 36; Pl.'s Opp. S.M.F. (Defs.' Supp. S.M.F. ~ 37; ~ 36.) 3 Tony DiNicola, an architect, performed the PCA. Pl.'s Opp. S.M.F. architecture in Maine. (Pis.' A.S.M.F. ~ 5; ~ 37.) DiNicola has never been licensed to practice Defs.' Reply S.M.F. draft PCA on October 19, 2004. (Defs.' Supp. S.M.F. ~ 45; ~ 5.) URS Corp. completed a Pl.'s Opp. S.M.F. ~ 45.) URS Corp. delivered the draft PCA via e-mail to Harpers on October 20, 2004. (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F. ~ 46.) ~ 46; Harpers reviewed the report and informed URS Corp.: "This looks very good! It is ready to print.'' (Defs.' Supp. S.M.F. ~ 47; Pl.'s Opp. S.M.F. ~ 47.) URS Corp. corrected several typos in the report and sent a clean, final copy to Harpers on October 28, 2004. (Defs.' Supp. S.M.F. ~50; Pl.'s Opp. S.M.F. ~50.) The PCA's statement of the condition of the fa<;ade of the building forms the basis of Plaintiffs' claims against the URS Defendants. (See Compl. Opp. S.M.F. ~ 70.) ~ 24; Defs.' Supp. S.M.F. ~ 70; Pl.'s In their statements ofmaterial facts, Plaintiffs and URS Defendants cite to different exhibits for the language of the report regarding the fa<;ade. The URS Defendants cite to the draft, dated October 19, 2004, and sent to the Plaintiffs on October 20, 2004; There is some dispute as to what party was in fact hired. (SeeDefs.' Supp. S.M.F. 1111 8, 10-12; Pis.' Opp. S.M.F. 1111 8, 10-12.) The URS Defendants asserts that URS Group and URS Corp. are separate and distinct entities. (Defs.' Supp. S.M.F. 11 10.) The URS Defendants also claim that URS Group had no involvement in any transaction or occurrence that is the subject of the plaintiffs' complaint. (Defs.' Supp. S.M. F. 11 11.) Accordingly, the URS Defendants contend that there is no contract between either plaintiff and URS Group. (Defs.' Supp. S.M.F. 11 12.) Plaintiffs aver that there is no record evidence to support separate corporate entities, and the record evidence suggests Plaintiffs were doing business with URS Group. (Pis.' Opp. S.M.F.1111 10-12.) 2 3 The URS Defendants state that they "performed the PCA on October 13, 2004," but Plaintiffs properly deny the statement and point out that the record citations only support that the site visit or inspection occurred that day. (Defs.' Supp. S.M.F. 11 S6; Pls.' Opp. S.M.F. 11 56.) Plaintiffs cite to the final report, dated and sent on October 28 2004. (See Defs.' Supp. S.M.F. ~~53-55; Pl.'s Opp. S.M.F. ~53-55.) The parties do not dispute, however, the content of the PCA regarding the fa<;ade, which is identical in both versions: ¢ "There are several places in the masonry fa<;ade where repainting of mortar joints or minor repairs need to be made, including a vertical crack in the pilaster at the northeast corner of the building. This repair work needs to be carried out in the short term, to prevent additional water intrusion and freeze/thaw action." (Defs.' Exh. 14 at 1-4; Defs.' Exh. 15 at 1-4.) ¢ "The copper flashing at the top side of the major ledge/ cornice is in poor condition. This has already been replaced at the northeast corner of the building, along with repainting of mortar joints and replacement of sealant joints, motivated by water intrusion at the fifth floor level wetting and damaging the plaster interior finish. Also, some of the limestone detailing on the underside of this ledge/ cornice has deteriorated due to freeze/thaw action. While restoration of the deteriorated limestone is a cosmetic issue, the work started on the northeast corner needs to continue, to include replacement of the copper flashing and repainting/replacement of deteriorated mortar and sealant joints at all the rest of this m~or ledge/ cornice, in order to arrest further limestone deterioration." (Defs.' Exh. 14 at 1-4; Defs.' Exh. 15 at 1-4.) ¢ "There is some deterioration of the top of the stone medallion at the center of the Congress Street fa<;ade. This needs to be repaired." (Defs.' Exh. 14 at 1-5; Defs.' Exh. 15 at 1-5.) (See Defs.' Supp. S.M.F. ~~ 53-55; Pl.'s Opp. S.M.F. ~ 53-55.) The fa<;ade defects claimed by Plaintiffs in this action relate to the terra cotta exterior of the building, which includes the areas around the windows and at the building's cornices and ledges. (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F. ~ 70.) ~ 70; 415 Congress continued to experience water infiltration problems related to the fa<;ade after it acquired the building and throughout 2005. (Defs.' Supp. S.M.F. ~ 72; Pl.'s Opp. S.M.F. ~ 72.) In March 2006, a piece of the terra cotta ledge/cornice area fell to the street below as a result of water penetration into the terra cotta that experienced freeze/thaw cycles. (Defs.' Supp. S.M.F. ~~ 73, 77; Pl.'s Opp. S.M.F. ~~ 73, 77.) Harpers and 415 Congress initiated this litigation by filing a seven-count complaint in Cumberland County Superior Court on October 21, 2010. Three counts were brought against 4 URS Group: 1) breach of contract (Count I), 2) negligence (Count II), and 3) unjust enrichment (Count III). The case was transferred to the Business and Consumer Court on January 26, 2011. Plaintiffs filed an amended complaint adding URS Corp. as a defendant on April 13, 2011, as to Counts I, II, and III. The court held oral argument on Defendants' motion on November 1, 2011. ANALYSIS Summary judgment is proper where there exist no genuine issues of material fact such that the moving party is entitled to judgment as a matter oflaw. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, ~ 4, 770 A.2d 653, 655. A genuine issue is raised "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, ~ 8, 828 A.2d 778, 781 (quotations omitted). A material fact is a fact that has "the potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ~ 6, 750 A.2d 573, 575. "If material facts are disputed, the dispute must be resolved through fact-finding." Curtis v. Porter, 2001 ME 1'58, ~ 7, 784 A.2d 18, 22. A party wishing to avoid summary judgment must present a prima facie case for the claim or defense that is asserted. Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME 29, ~ 9, 868 A.2d 220, 224-25. At this stage, the facts are reviewed "in the light most favorable to the nonmoving party." Lighifoot v. Sch. Admin. Dist. No. 35, 2003 ME 24, I. ~ 6, 816 A.2d 63, 65. Statute of Limitations The URS Defendants contend that the claims against them are time barred by both the general and the design professional statute of limitations. Plaintiffs counter that the shorter four-year statute oflimitations for design professionals does not apply because neither URS nor DiNicola is a registered architect in Maine. Plaintiffs also contend that they have met the sixyear general statute oflimitations and their action is not time-barred. 5 A. Design Professional Statute of Limitations The statute of limitations for design professionals states that "[a]ll civil actions for malpractice or professional negligence against architects or engmeers duly licensed or registered under Title .32 shall be commenced within 4 years after such malpractice or negligence is discovered . . 14 M.R.S. § 752-A (2010). Title .32 M.R.S. § 220(1) (2010) prohibits architects from practicing within the state "unless the person is duly licensed by the board." The practice of architecture is defined as: rendering or offering to render service to clients by consultations, investigations, technical submissions and a coordination of structural factors concerning the aesthetic or structural design and administration of construction contracts or any other service in connection with the designing or administration of construction contracts for buildings located inside the State that have as their principal purpose human occupancy or habitation. !d. The four-year statute of limitations with section 7 52-A only applies to professional negligence claims against architects registered within the state. Because Mr. DiNicola admittedly has never been a licensed architect in Maine (Defs.' Reply S.M.F. ~ 5), the statute of limitations for desie:n professionals does not aoolv. ........ B. .&. ~ .l ,; General Statute of Limitations According to the general statute of limitations, "[a]ll civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards, ... except as otherwise specially provided." 14 M.R.S. § 752. A "year" means a calendar year. Tesseo v. Brown, 1998 ME 155, ~ 6, 712 A.2d 1059, 1060. "The general test for determining when a cause of action accrues is when a plaintiff 'received a judicially recognizable injury."' Johnston v. Dow & Coulombe, 686 A.2d 1064, 1065-66 (Me. 1996) (quoting Bozzuto v. Ouellette, 408 A.2d 697, 699 (Me. 1979) (citation omitted)). In a breach of contract action, the cause of action accrues at the date of the breach. Gile v. Albert, 2008 ME 58, 6 ~ 8, 94.3 A.2d 599, 601. '"[A] cause of action sounding in tort accrues when the plaintiff sustains harm to a protected interest."' Johnston, 686 A.2d at 1066 (quoting Chiapetta v. Clark Assocs., 521 A.2d 697, 699 (Me. 1987)). The URS Defendants argue that the test for accrual of Plaintiffs' cause of action should be when the property assessment was performed, i.e. on October 13, 2004, relying on Johnston v. Dow & Coulombe, 686 A.2d 1064 (Me. 1996). In Johnston, the plaintiffs alleged that a surveying firm negligently prepared a surveying plan. Id. at 1065. The plaintiffs claimed that their cause of action did not accrue until abutting landowners succeeded in a quiet title action against them. Id. at 1065. The Law Court disagreed and held that the plaintiffs "suffered an injury at the time of the performance of the survey, and the statute of limitations began to run at that time." 4 Id. at 1066. What Johnston indicates for this case is simply that the statute of limitations began running, not when either or both Plaintiffs discovered the asserted deficiencies in the PCA, but when the PCA was rendered. In this case, the URS Defendants performed the site visit for the PCA on October 13, 2004, outside the six-year period, but did not finalize and render the resulting report until October 28, 2004, within the six-year limitations period. Because a cause of action accrues in contract on the date of the breach, it is clear that the breach, if any, would have occurred when the URS Defendants submitted the finalized report. Likewise, the breach of duty of care alleged in the Plaintiffs' negligence claim cannot have occurred before the date on which the finalized PCA report was presented to Harpers-how the assessment was conducted on October 13 obviously influenced the content of the final PCA report, but the asserted negligence consists of the alleged deficiencies in the final report. The Law Court also addressed the statute of limitation for land surveyors and stated that: "We have never held that the date of discovery triggered the running of the statute oflimitations in an action for the alleged negligence of surveyors and decline to do so in this case." Johnston v. Dow & Coulombe, 686 A.2d 1064, 1067 (Me. 1996). The 4 Court refused to expand the discovery rule in the case ofland surveyors. Id. at 1066. 7 Accrual of all three claims, on October 28, 2004, falls within the general statute of limitations and thus is not time barred. II. Claims Against URS Group The URS Defendants assert that URS Group is a stranger to these transactions and summary judgment should be granted in URS Group's favor. Plaintiffs assert that there is an issue of material fact as to whether URS Group was involved in these transactions and claim they need time for more discovery to uncover URS Group's relationship to URS Corp. and to what extent URS Group was involved in the transaction at issue. Plaintiffs are suing the URS Defendants for an allegedly inaccurate and incomplete PCA. 5 (Amend. Compl. ~~ 20, 24.) Thus, the contract at issue is the contract for the PCA, which was executed between Harpers and URS Corp. Plaintiffs admit that there was no written agreement between Harpers and URS Group, but deny that there was no agreement between the two, seemingly implying that there is an oral agreement between Harpers and URS Group. (Pl.'s Opp. S.M.F. ~ 12.) In support, Plaintiffs cite to two documents in the record: the cover letter to the final draft of the PCA, and the invoice for the PCA sent to Harpers. (Defs.' Exh. 15 at 2; Defs.' Exh. 22 at 9.) The cover letter, signed by DiNicola, was attached to the final draft of the PCA that URS sent to Harpers. The cover letter is signed by URS Corporation and DiNicola, but the cover letter is on the letterhead of URS Group. (Defs.' Exh. 15 at 2.) The invoice for the PCA does not identify whether the invoice is from URS Corp. or URS Group; it just has "URS" in the upper corner of the page. (Defs.' Exh. 22 at 9.) At the bottom of the invoice, however, is contact information for "Harley A. Morgan at 207 879-7686 or via email at Harley_Morgan@urscorp.com" for any questions regarding the bill." s Plaintiffs suggest that the work order/contract for the PCA is not governed by the Agreement between Harper and URS Corp. (Pis.' Opp'n MSJ 9), but that suggestion is unavailing. The work order for the PCA plainly states that it is "[i]n accordance with the Agreement for Professional Services between [Harpers] and [URS Corp.] ... dated February 5, 2004." (Defs.' Exh. 9 at 1.) 8 (Defs.' Exh. 22 at 9.) Plaintiffs' statements of material facts do not address an oral contract between URS Group and Harpers or between URS Group and 415 Congress, and Plaintiffs admit that URS Group received no payment from Harpers or 415 Congress in connection with these transactions. (Defs.' Supp. S.M.F. ~ 14; Pis.' Opp. S.M.F. ~ 14.) Based on the record evidence cited by Plaintiffs, even when viewed in the light most favorable to them, Plaintiffs have not generated an issue of material fact as to whom Plaintiffs contracted with for the PCA. The written agreements for the professional services and the work order are between Harpers and URS Corp.; URS Group received no payment for the PCA; and other than the unsupported suggestion of an oral agreement between URS Group and Harpers, Plaintiffs' statements of material facts do not address or support any such agreement and summary judgment on Count I in favor of URS Group is warranted. Further, because the negligence asserted is the negligence in the performance of the PCA, summary judgment in favor ofURS Group on Count II also is appropriate. Finally, in Count III, Plaintiffs allege that they 1) conferred a benefit upon the URS Defendants in the form of payment of money 2) with the URS Defendants' knowledge, S) the URS Defendants accepted and retained the benefit received form Plaintiffs under such circumstances as to make it inequitable for URS to retain it without having given consideration of equal value in exchange, and 4) as a result, the Plaintiffs have suffered pecuniary harm. (Amend. Compl. ~~ SS-36.) On this count, summary judgment appropriate m favor of URS Group because IS Plaintiffs admit that URS Group received no payment from either 415 Congress or Harpers in connection with the building. (Defs.' Supp. S.M.F. ~ 14; PI's Opp. S.M.F. ~ 14.) Because the only benefit that Plaintiffs claim they conferred on the Defendants is payment of money, the 9 admission of no payment to URS Group is fatal to their unjust enrichment claim and summary judgment in URS Group's favor is appropriate. As discussed at oral argument on this motion, the court will grant summary judgment in favor of URS Group because Plaintiffs have not generated an issue of material fact as to their involvement. URS Group's dismissal from the suit is without prejudice, and Plaintiffs are free to inquire during discovery as to the direct involvement of URS Group in the PCA. If Plaintiffs develop a basis-equating to a prima facie case against URS Group, see Reliance Na'l Indem. v. Knowles Indus. Svcs., supra, 2005 ME 29 at~ 9, 868 A.2d at 224-25 -they may move for an order revising this Order and reinstating the claims against URS Group. See M.R. Civ. P. 54(b)(1) (non-final order adjudicating claims is subject to revision at any time before entry of final judgment). III. Claims Against URS Corp. A. Counts I and II- Breach of Contract and Negligence As noted, Plaintiffs are suing the URS Defendants for an allegedly inaccurate and incomplete PCA. (Amend. Compl. ~~ 20, 24.) 415 Congress is not a named party to the PCA, but Harpers transferred to 415 Congress all ofits "right, title and interest in an to any and all architectural plans, engineering work, inspection reports" acquired by Harpers in connection with the acquisition or development of' the building "together with any and all rights and claims relating thereto" in November 2004. (Pls.' A.S.M.F. ~ 12; Defs.' Reply S.M.F. ~ 12.) Defendants contend that the assignment of rights from Harpers to 415 Congress was ineffective because the Agreement between URS Corp. and Harpers prohibits assignment and third-party beneficiaries. (Defs.' MSJ 10-11.) Plaintiffs counter that these provisions only prevent the assignment of duties or obligations, not the assignment of rights. (Pls.' Opp'n MSJ 10-13; Pls.' A.S.M.F. ~ 12.) 10 "An assignment of a right is a manifestation of the assignor's intention to transfer it by virtue of which the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance." Contracts § .317(1) (1981). Restatement (Second) of Maine law recognizes the assignment of contractual rights as permissible, "unless the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract." Chadwick-BaRoss, Inc. v. Martin Marietta Corp., 48.3 A.2d 711, 715 (Me. 1984) (quoting Restatement (Second) of Contracts § 317(2)(a)). The provisions of the Agreement upon which Defendants rely to challenge the assignment of rights are as follows: ARTICLE XIII- No Third Party Rights. This Agreement shall not create any rights or benefits to parties other than Client and URS. No third party shall have the right to rely on URS opinions rendered in connection with the Services without the written consent ofURS and the third party's agreement to be bound to the same conditions and limitations as Client. ARTICLE XIV- Assignments. Neither party to this Agreement shall assign its duties and obligations hereunder without the prior written consent of the other party. (Defs.' Supp. S.M.F. ~~ 18-19; Pls.' Opp. S.M.F. ~~ 18-19.) Based on these two provisions, Defendants argue the intention of the parties was to prevent any other party from relying on the PCA or gaining any rights in the contract. Plaintiffs counter that the assignment of rights and claims allowed 415 Congress to step into the shoes of Harpers, and that 415 Congress is now the party to the contract. On its face, the assignment provision at Article XIV applies only to assignments of duties and obligations, and does not prohibit an assignment of rights. Similarly, on its face, Article XIII says that the Agreement, presumably in and of itself standing alone, does not create any rights in third parties-it therefore is silent on the effect of an assignment of rights. 11 The court views both provisions as ambiguous at least and also is cognizant of Plaintiffs' argument that both provisions should be construed against URS Corp. as the drafter. Thus, the court declines to grant summary judgment toURS Corp based on the two provisions. As to the merits of the breach of contract claims and the negligence claims as asserted by 415 Congress and Harpers against URS Corp, issues of fact preclude awarding summary judgment. B. Count III -Unjust Enrichment In their Amended Complaint, Plaintiffs allege that they 1) conferred a benefit upon the URS Defendants in the amount of the fee paid to URS Corp. for the PCA 2) with the URS Defendants' knowledge, 3) the URS Defendants accepted and retained the benefit received form Plaintiffs under such circumstances as to make it inequitable for URS to retain it without having given consideration of equal value in exchange, and 4) as a result, the Plaintiffs have suffered pecuniary harm. (Amend. Compl. ~~ 33-36.) With regards to the unjust enrichment claim brought by Plaintiffs against URS Corp., the Law Court has said: The remedy of "unjust enrichment describes recovery for the value of the benefit retained when there is no contractual relationship, but when, on the grounds of fairness and justice, the law compels performance of a legal and moral duty to pay." Paflhausen v. Balano, 1998 ME 47, ~ 6, 708 A.2d 269, 271. The existence of a contractual relationship, "precludes recovery on a theory of unjust enrichment." June Roberts Agency, Inc. v. Venture Properties, Inc., 676 A.2d 46, 49 n.1 (Me. 1996). Nadeau v. Pitman, 1999 ME 104, ~ 14, 731 A.2d 863, 866-67. Thus, the contract between Harpers and URS Corp. precludes Harpers from recovering on an unjust enrichment theory, and summary judgment in their favor is appropriate. See id. Further, because 415 Congress's breach of contract claim is in essence Harpers' breach of contract claim, 415 Congress also is precluded from proceeding on an unjust enrichment theory. 12 IV. Damages Lastly, Defendants argue that should any count of Plaintiffs' complaint survive the motion for summary judgment, any recovery should be limited to those laid out in the Agreement. (Defs.' MSJ 17-19.) The Agreement contains the following risk allocation and consequential damages clauses: ARTICLE V- Risk Allocation. The liability ofURS, its employees, agents and subcontractors (referred collectively in this Article as "URS"), for Client's claims ofloss, injury, death, damage, or expense, including, without limitation, Client's claims of contribution and indemnification, express or implied, with respect to third party claims relating to services rendered or obligations imposed under this Agreement, including all Work Orders, shall not exceed in the aggregate: ( 1) The total sum of $250,000 for claims arising out of professional negligence, including errors, omissions, or other professional acts, and including unintentional breach of contract ... (2) The total sum of $1,000,000 for claims arising out of negligence, breach of contract, or other causes for which URS has any legal liability, other than as limited by (1) above). ARTICLE VII- Consequential Damages. Neither Party shall be liable to the other for consequential damages, including, without limitation, loss of use or loss of profits, incurred by one another or their subsidiaries or successors, regardless of whether such damages are caused by breach of contract, willful misconduct, negligent act or omission, or other wrongful act of either of them. (Defs.' Supp. S.M.F. ~~ 16-17; Pls.' Opp. S.M.F. ~~ 16-17.) It seems likely that the $250,000 cap applies, but because there are issues as to whether URS Corp. rendered "professional services" or committed an "unintentional breach of contract," summary judgment on the effect of the dollar caps is premature. Likewise, the provision precluding consequential damages is enforceable, but because the Plaintiffs' claimed losses may include the value of physical deterioration or damage, which 13 likely would be deemed direct damages in the context of this case, Defendant URS Corp. has not shown it is entitled to summary judgment on damages against Plaintiff 415 at least. Further, Defendants have argued that the economic loss doctrine bars Plaintiffs from recovering in tort for purely economic losses. The economic loss doctrine is customarily applied in the products liability context, but even assuming it applies here, the facts do not necessarily support it. Physical damage or loss usually renders the economic loss doctrine inapplicable even where it would otherwise apply. 415 Congress claims losses from the further physical damage or deterioration that it says would not have occurred but for URS Corp.'s negligence, and Defendant URS Corp. has not shown it is entitled to summary judgment on that ground. However, Harpers has quite clearly not suffered any loss-at least not yet-as a result of anything URS Corp. did or did not do in connection with the PCA. At oral argument, Harpers' counsel explained that Harpers has joined as a co-plaintiff with 415 Congress because Harpers may be liable to 415 Congress if Harpers' assignment of its rights under the PCA to 415 Congress does not stand up. This does not equate to any existing affirmative claim by Harpers-the only cognizable claim Harpers would have, even if it is found liable to 415 Congress for making an invalid assignment, might be a contribution/indemnification claim against URS Corp. Thus, Defendant URS Corp. will be granted summary judgment on Harpers' damages claims against it based on the absence of any damage or loss to Harper as a result of the PCA. CONCLUSION Based on the foregoing, it is hereby ordered as follows: 1. Defendant URS Group's Motion for Summary Judgment Is GRANTED against both Plaintiffs on Counts I, II, and III, subject to possible reinstatement as indicated above. 14 2. Defendant URS Corp.'s Motion for Summary judgment is GRANTED as to all claims by Plaintiff Harpers Development and is also granted as to Plaintiff 415 Congress Street with respect to Count III. Pursuant to M.R. Civ. P. 79, the clerk is hereby directed to incorporate this Order and ~//~ Judgment by incorporation in the docket. Dated November 10, 2011 A.M. Horton Justice, Business and Consumer Court Entered on the Docket: l \ ¢ ) L/ ¢. II · ~ Copies sent via Mail_ Electromcally- 15 BUSINESS AND CONSUMER COURT 415 Congress Street Properties, LP et al v. URS Group, Inc. et al BCD-CV-2011-03 Counsel ofRecord Attorney N arne Party Name Timothy Bryant, Esq. 415 Congress Street Properties, LP Thomas McKeon, Esq. Harpers Development, LLC Brett Leland, Esq. Daren Garcia, Esq. William Porter, Esq. URS Group, Inc. and URS Corp. " " " Leslie Lowry, Esq. T.F. Properties, Inc. "

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