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Hawkins Constr. Co. v. Peterson Contrs., Inc.

United States District Court, D. Nebraska

September 4, 2013

HAWKINS CONSTRUCTION COMPANY, a Nebraska corporation; Plaintiff,
v.
PETERSON CONTRACTORS, INC., an Iowa Corporation; GROUND IMPROVEMENT ENGINEERING, L.L.C., an Iowa Limited Liability Company; GEOPIER FOUNDATION COMPANY, a Georgia corporation; TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation; ZURICH AMERICAN INSURANCE COMPANY, an Illinois corporation; and AXIS SURPLUS INSURANCE COMPANY, an Illinois corporation; Defendants

Page 946

For Hawkins Construction Company, a Nebraska corporation, Plaintiff: Edward H. Tricker, Monica L. Freeman, LEAD ATTORNEYS, WOODS, AITKEN LAW FIRM - LINCOLN, Lincoln, NE; Kari A. F. Scheer, Todd W. Weidemann, LEAD ATTORNEYS, WOODS, AITKEN LAW FIRM - OMAHA, Omaha, NE.

For Peterson Contractors, Inc., an Iowa Corporation, Travelers Casualty and Surety Company of America, a Connecticut corporation, Defendants, Counter Claimants: Thomas R. Olson, LEAD ATTORNEY, OLSON, WELLE LAW FIRM, West St. Paul, MN.

For Ground Improvement Engineering, L.L.C., an Iowa Limited Liability Company, Defendant: Austin L. McKillip, LEAD ATTORNEY, CLINE, WILLIAMS LAW FIRM - LINCOLN, Lincoln, NE; Richard P. Jeffries, LEAD ATTORNEY, CLINE, WILLIAMS LAW FIRM - OMAHA, Omaha, NE.

For Geopier Foundation Company, a Georgia corporation, Defendant: Craig F. Martin, LEAD ATTORNEY, LAMSON, DUGAN LAW FIRM, Omaha, NE; David J. Welder, Michael G. Norris, LEAD ATTORNEYS, PRO HAC VICE, NORRIS, KEPLINGER LAW FIRM, Overland Park, KS.

For Zurich American Insurance Company, an Illinois corporation, Defendant: Angela Probasco, LEAD ATTORNEY, KUTAK, ROCK LAW FIRM - OMAHA, Omaha, NE; Bradley J. Baumgart, Larry Fields, LEAD ATTORNEYS, PRO HAC VICE, KUTAK, ROCK LAW FIRM - MISSOURI, Kansas City, MO.

For Axis Surplus Insurance Company, an Illinois corporation, Defendant: Jason M. Taylor, Mark F. Wolfe, LEAD ATTORNEYS, PRO HAC VICE, TRAUB, LIEBERMAN LAW FIRM - CHICAGO, Chicago, IL; Randall L. Goyette, LEAD ATTORNEY, BAYLOR, EVNEN LAW FIRM, Lincoln, NE.

For Hawkins Construction Company, a Nebraska corporation, Counter Defendant: Edward H. Tricker, Monica L. Freeman, LEAD ATTORNEYS, WOODS, AITKEN LAW FIRM - LINCOLN, Lincoln, NE; Todd W. Weidemann, LEAD ATTORNEY, WOODS, AITKEN LAW FIRM - OMAHA, Omaha, NE.

For Peterson Contractors, Inc., an Iowa Corporation, Third Party Plaintiff: Thomas R. Olson, LEAD ATTORNEY, OLSON, WELLE LAW FIRM, West St. Paul, MN.

For Hartford Fire Insurance Company, Third Party Defendant: Monica L. Freeman, LEAD ATTORNEY, WOODS, AITKEN LAW FIRM - LINCOLN, Lincoln, NE; Kari A. F. Scheer, Todd W. Weidemann, LEAD ATTORNEYS, WOODS, AITKEN LAW FIRM - OMAHA, Omaha, NE.

Page 947

MEMORANDUM AND ORDER

Joseph F. Bataillon, United States District Judge.

This matter is before the court on Zurich American Insurance Company's (" Zurich" ) motion to dismiss for failure to state a claim, Filing No. 45; Axis Surplus Insurance Company's (" Axis" ) motion to dismiss for failure to state a claim, Filing No. 47; Ground Improvement Engineering's (" GIE" ) motion to dismiss for failure to state a claim, Filing No. 55; Geopier Foundation Company's (" Geopier" ) motion to dismiss for failure to state a claim, Filing No. 62; and Hawkins Construction Company's (" Hawkins" ) motion to strike the reply brief, Filing No. 72.

BACKGROUND

Hawkins entered into a Prime Contract with the Nebraska Department of Roads (" NDOR" ) for construction and reconstruction of United States Highway 75/United States Highway 34. The Prime Contract required Hawkins to build and design an Intermediate Foundation Improvement (" IFI" ). Hawkins was required to design and build an IFI to increase the allowable bearing capacity and improve global stability beneath a Mechanically Stabilized Earth wall (" MSE Wall" ) to be placed on the Project. Filing No. 1 at ¶ 11. Hawkins entered into a subcontract with Peterson Contractors, Inc. (" PCI" ) to build the foundation. PCI signed and agreed to indemnify Hawkins. PCI also entered into a performance bond and a payment bond, with a penal sum of $279,400. PCI obtained the bond from defendant Travelers Casualty and Surety (" Travelers" ). Hawkins also required PCI to obtain a commercial general liability policy and an umbrella policy in the amount $3,000,000. PCI then entered into an agreement with Geopier and also GIE, noted as the Sub-Consultant Agreement. Hawkins alleges

Page 948

that PCI, GIE and Geopier breached their duty of care and failed to properly design and perform their work on the project, and in fact NDOR rejected the work done by them. The NDOR demanded removal and replacement of the work. Following PCI's failure to cure, Hawkins' personnel had to remediate the work.

Hawkins sent Travelers a claim for damages. Travelers refused to make payment for the removal and replacement of the deficient and defective work. Likewise, following a request by Hawkins, neither Zurich nor Axis accepted or denied ...


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