UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) PHILADELPHIA INDEMNITY INSURANCE ) COMPANY, A/S/O 1441 RHODE ISLAND ) AVENUE CONDOMINIUM ASSOCIATION, ) ) Civil Action Plaintiff, ) No. 15-765(EGS) ) v. ) ) LEND LEASE (U.S.) CONSTRUCTION, ) INC., ) ) Defendant. ) ___________________________________)

MEMORANDUM OPINION

In January 2014, a water sprinkler burst inside the

condominium property located at 1441 Rhode Island Avenue, NW in

the District of Columbia. The insurer of the 1441 Rhode Island

Avenue Condominium Association ("Association"), plaintiff

Philadelphia Indemnity Insurance Company ("Philadelphia

Indemnity"), compensated the Association for its losses.

Philadelphia Indemnity, as subrogee of the Association, then

filed this action against defendant Lend Lease (U.S.)

Construction, Inc. ("Lend Lease") for negligence due to its

alleged faulty construction of the condominium building.

On March 18, 2016, the Court ordered limited discovery on

the question of whether the Association should be deemed a

successor of the building's original owner, Fairfield D.C.

1 Limited Partnership ("Fairfield"). See Philadelphia Indem. Ins.

Co. v. Lend Lease (U.S.) Constr., Inc.,

(D.D.C. 2016) ("March 18 Order"). The parties subsequently

engaged in discovery on this limited issue. Lend Lease now moves

for summary judgment on the ground that Philadelphia Indemnity's

insured – the Association – is a successor of Fairfield, and

therefore, Philadelphia Indemnity's action is barred by the

waiver-of-subrogation clause contained in the contract between

Lend Lease and Fairfield. See generally Def.'s Mot. for Summ.

J., ECF No. 22. As set forth below, because a genuine dispute of

material fact remains as to whether the Association is a

successor to Fairfield, Lend Lease's motion for summary judgment

is DENIED.

I. BACKGROUND

The following facts are undisputed unless otherwise noted. 1

1 Lend Lease appended its statement of undisputed material facts to its memorandum in support of its motion for summary judgment. Def.'s Mot. for Summ. J., Statement of Material Facts, ECF No. 22. In opposing Lend Lease's motion, Philadelphia Indemnity did not file a "separate concise statement" of "all material facts" that remain in dispute as required by Local Civil Rule 7(h)(1), but did assert certain facts with citations to the record in its opposition.

2 A. The Contract

On June 19, 2002, Lend Lease 2 entered into a contract with

Fairfield to construct a nine-story apartment building and

refurbish an adjacent townhouse located at 1441 Rhode Island

Avenue, NW. See Def.'s Mot. for Summ. J. Ex. A, Standard Form

Agreement Between Owner and Contractor ("Standard Form

Agreement") and General Conditions of the Contract for

Construction ("General Conditions Contract") (collectively,

"Contract"), ECF No. 22-3; Def.'s Statement of Material Facts

("Def.'s SMF") ¶ 1, ECF No. 22; Pl.'s Opp. to Def.'s Mot. for

Summ. J. ("Pl.'s Opp.") at 2, ECF No. 23.

The General Conditions Contract contains a waiver of

subrogation clause that provides that the Owner and Lend Lease

"waive all rights" against one another "for damages caused by

fire or other causes of loss to the extent covered by property

insurance." General Conditions Contract ¶ 11.4.7. The General

Conditions Contract also specifies that the waiver-of-

subrogation applies to insurance policies purchased after the

construction period. Id. ¶ 11.4.5. Finally, the General

Conditions Contract includes a clause expressly stating that the

contract "shall not be construed to create a contractual

2 The contract was entered into by Bovis Lend Lease, Inc., a general contractor whose corporate name has since changed to Lend Lease (U.S.) Construction, Inc. See Def.'s SMF ¶ 1.

3 relationship of any kind . . . between any persons or entities

other than the Owner and Contractor." Id. § 1.1.2. It creates an

exception to this provision through the "Successors and Assigns"

provision that states:

The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents.

General Conditions Contract § 13.2.1. The first page of the

Standard Form Agreement identifies Fairfield as the "Owner."

Standard Form Agreement at 1.

B. Sale of Property to 1441 LLC and Completion of Construction

In 2003, "about three quarters of the way into the

project," Fairfield informed Lend Lease that it intended to sell

the property to 1441 Rhode Island, LLC ("1441 LLC"), a limited

liability company formed by Neil Gehani, Robert Berry, and

Enrico Plati for the purpose of purchasing the property. Def.'s

SMF ¶¶ 5-6, 8; Pl.'s Opp. at 2; Def.'s Mot. for Summ. J. Ex. B,

Deposition of Kenneth O'Grodnick ("O'Grodnick Dep.") 13:15-20,

ECF No. 22-4.

Fairfield and 1441 LLC entered into the initial Purchase

and Sale Agreement on September 12, 2003. See Def.'s SMF ¶ 8;

Pl.'s Opp. at 5. There is no evidence that any of the members of

4 1441 LLC received a copy of the Contract between Fairfield and

Lend Lease either prior to or after the sale. See Pl.'s Opp. Ex.

6, Deposition of Robert Berry ("Pl.'s Berry Dep.") 114:19-22,

ECF No. 23-6; Pl.'s Opp. Ex. 9, Deposition of Neil Gehani 40:22-

41:2, 42:5-6, ECF No. 23-9; Def.'s Mot. for Summ. J. Ex. R,

Deposition of Lawrence Bogard 17:11-17, ECF No. 22-20.

Fairfield and 1441 LLC closed on the property at the end of

February 2004. See Def.'s SMF ¶ 9 (stating that property closing

occurred on February 28, 2004); Pl.'s Opp. at 4 (stating that

1441 LLC became the deeded owner of the property on February 26,

2004). 1441 LLC's involvement with the property began prior to

closing, when construction was "nearly complete." See Def.'s SMF

¶ 10. The parties dispute the level of involvement 1441 LLC had

in the property during this period. According to plaintiff, 1441

LLC's involvement was "limited" to exercising "what ever rights

Fairfield and Defendant saw fit to grant [it]," which only

included participation in the "punch list process" 3 and nothing

more. Pl.'s Opp. at 10-11. Lend Lease, on the other hand,

contends that 1441 LLC took an "active role" in inspecting the

property "in an effort to identify any 'imperfections' it wanted

Lend Lease to fix." Def.'s SMF ¶¶ 9, 12-18. For example,

3 This is the process by which an owner "identifies any deficiencies" in the construction that the general contractor is required to fix before receiving final payment. Def.'s SMF ¶¶ 10, 19-20. 5 according to Lend Lease, as part of the punch-list process, a

representative from 1441 LLC inspected each of the 157

condominium units in the building and, together with a

representative from Fairfield, signed a "New Construction

Interior Acceptance Letter" to confirm inspection and note any

outstanding deficiencies. Def.'s SMF ¶¶ 12-18.

The Contract included a one-year warranty that was made to

Fairfield. Def.'s SMF ¶ 25. Fairfield subsequently assigned its

warranty rights to 1441 LLC. Id. ¶ 26; Pl.'s Opp. at 11

(agreeing that "1441 LLC acquired Fairfield's one-year warranty

from [Lend Lease] by assignment"). The parties dispute the

mechanism through which that one-year warranty was assigned.

Plaintiff points to a copy of an agreement titled Assignment of

Warranties and Other Contractual Rights ("Assignment

Agreement"). Pl.'s Opp. at 11 (citing Def.'s Mot. for Summ. J.

Ex. E, ECF No. 22-7). Lend Lease asserts that the assignment of

warranty rights was made through a Public Offering Statement

issued in connection with forming the condominium. Def.'s SMF ¶

26.

The one-year warranty provision in the Contract obligated

Lend Lease to "require each Subcontractor to assume the

obligations [of the one-year warranty] at Subcontractor's sole

cost and expense with respect to work performed by each

Subcontractor." General Conditions Contract § 12.2.2.1. Because

6 1441 LLC was in the process of purchasing the building, all of

Lend Lease's subcontractors issued their standard one-year

warranties to 1441 LLC instead of Fairfield. Def.'s SMF ¶ 28;

Pl.'s Opp. at 11 (acknowledging that, "between December 18, 2003

and May 5, 2004, subcontractors issued one-year warranties on

Defendant form warranties listing the Property owner as B&P

Development, LLC" and that "B&P Development, LLC is a place

holder for 1441 LLC"). In addition, 1441 LLC paid Lend Lease

$40,846.71 for an extended warranty from each subcontractor.

Def.'s SMF ¶ 30; Pl.'s Opp. at 5 ("Prior to the expiration of

the one-year warranties under the contract between Fairfield and

Defendant, 1441 LLC purchased an extended warranty on April 14,

2004.").

On April 9, 2004, Fairfield made the final payment for

under the Contract to Lend Lease. Def.'s SMF ¶¶ 32-33; Pl.'s

Opp. at 5.

C. Formation of the Condominium Association and Dissolution of 1441 LLC

In March 2004, 1441 LLC filed a Condominium Declaration

that ultimately formed the 1441 Rhode Island Avenue Condominium

and the related Condominium Association. Def.'s SMF ¶ 34; Pl.'s

Opp. at 6. The Condominium Bylaws were also filed at this time.

Pl.'s Opp. at 2. The Declaration and Bylaws together "conveyed

all of 1441 LLC's rights and responsibilities to the Unit Owners

7 Association." Id. Subsequently, the Association purchased

property-damage insurance from plaintiff Philadelphia Indemnity.

Id. at 2-3.

Both Mr. Gehani and Mr. Berry purchased condominium units

in the building and, when the Association created a Board in

July 2004, Mr. Gehani was elected as one of its five founding

members. Def.'s SMF ¶¶ 35-36; Pl.'s Opp. at 6. According to the

Association's representative, Mr. Gehani was elected in part

because the Association thought it useful to have someone

associated with 1441 LLC on the Board. Def.'s SMF ¶ 37; Pl.'s

Opp. at 6 (conceding there was managerial overlap between 1441

LLC and the Association, but characterizing that overlap as

"deminimis"). After Mr. Gehani sold his unit and resigned from

the Board in the spring of 2006, he was immediately replaced by

Mr. Berry, who served on the Board until June 2010. Def.'s SMF

¶¶ 36-39.

Because 1441 LLC had been created for the purpose of

marketing, selling, and delivering the condominium units and

then transitioning the property – and because those condominiums

were sold "very, very quickly" – 1441 LLC's business was wrapped

up by 2005. Def.'s SMF ¶¶ 55-56; Def.'s Mot. for Summ. J. Ex. D,

Deposition of Neil Gehani 58:20-59:20, ECF No. 22-6. By January

28, 2006, 1441 LLC had been involuntarily dissolved. Def.'s SMF

¶ 56.

8 D. The Association's Management of the Building

As a member of the Association's Board, Mr. Berry served as

the "middle man or intermediary" between the Board and Lend

Lease when repairs needed to be made in accordance with the

warranties. Def.'s SMF ¶ 40. In so doing, Mr. Berry testified

that he sometimes acted on behalf of 1441 LLC and at other times

acted on behalf of the Board. Id. Indeed, even in 2009 – several

years after 1441 LLC had been dissolved – Mr. Berry continued to

communicate with Lend Lease and its subcontractors on behalf of

both the Board and 1441 LLC. Id. ¶¶ 49-50.

Within one year of completion of construction, three leaks

were found in the building. Id. ¶ 41. In each of those

instances, Mr. Berry requested repairs in accordance with the

warranties assigned to or purchased by 1441 LLC, and Lend Lease

agreed to coordinate and oversee the repair work done by its

subcontractors. Id. ¶ 42. In each instance, neither 1441 LLC nor

the Association paid for any of the repair work. Id. Likewise,

when additional repair work was required in 2005 and 2006 with

respect to water heaters and water pumps, Mr. Berry contacted

Lend Lease and its subcontractors who addressed the problems in

accordance with the extended warranties purchased by 1441 LLC.

Id. ¶¶ 43-46.

In January 2014, a water sprinkler line burst on the

property, allegedly causing water to flow into multiple units

9 and the common area. See Complaint ¶¶ 7-11. According to an

engineer hired by Philadelphia Indemnity to examine the site,

the water intrusion stemmed "from inadequate insulation

surrounding the sprinkler system pipe and/or other protective

devices to maintain the temperature above freezing." Id. ¶ 9. As

a result of the burst pipe, the Association incurred losses in

the amount of $107,552.74, which were paid by Philadelphia

Indemnity. Id. ¶ 11.

E. The Instant Action

Philadelphia Indemnity filed suit for breach of contract

and negligence against Lend Lease in D.C. Superior Court on

April 20, 2015. See Compl., ECF No. 1-2. 4 Lend Lease removed the

action to this Court and moved for judgment on the pleadings,

asserting that Philadelphia Indemnity's negligence claim was

barred by the waiver-of-subrogation clause in the construction

contract entered into by Fairfield and Lend Lease. See Notice of

Removal, ECF No. 1; Philadelphia Indem. Ins. Co. v. Lend Lease

(U.S.) Constr., Inc.,

(D.D.C. 2016). The

Court denied Lend Lease's motion after finding that the record

was insufficient to determine whether the Association should be

4 Philadelphia Indemnity conceded that its contract claim failed because it was "not a contracting party in this case." See Philadelphia Indem. Ins. Co. v. Lend Lease (U.S.) Constr., Inc.,

, 191 and n.1 (D.D.C. 2016).

10 deemed a successor of Fairfield and therefore bound by the

construction contract. Philadelphia Indem., 170 F. Supp. at 194.

In particular, the Court noted that the record did not indicate:

(1) when defendant completed construction; (2) when full payment was received; (3) whether the Association assumed any responsibility for payments to defendant; (4) when the Property passed from Fairfield to 1441 LLC; (5) when the property was conveyed to the Association; (6) what, if any, knowledge the entities who purchased the property from Fairfield had about the Contract; and (7) if there was any overlap in management between Fairfield and the Association.

Id.

The parties subsequently engaged in discovery limited to

the question of whether the Association could be considered a

successor of Fairfield. Lend Lease now moves for summary

judgment, again arguing that Philadelphia Indemnity's action is

barred by the waiver-of-subrogation clause because Philadelphia

Indemnity's insured – the Association – is a successor of the

first two owners of the building.

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment should be granted "if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a); Celotex Corp. v. Catrett,

(1986).

The "mere existence of some alleged factual dispute between the 11 parties will not defeat an otherwise properly supported motion

for summary judgment"; rather, "[o]nly disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment." Anderson

v. Liberty Lobby, Inc.,

,

,

(1986).

In order to establish that a fact cannot be genuinely

disputed, the moving party must identify "those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact." Celotex,

(internal quotation

marks omitted). Once the moving party meets its burden, the

nonmoving party must come forward with specific facts that would

present a genuine issue for trial. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp.,

(1986). A party

asserting that a fact is "genuinely disputed" must support that

assertion by "citing to particular parts of materials in the

record" or "showing that the materials cited [by the opposing

party] do not establish the absence . . . of a genuine dispute."

Fed. R. Civ. P. 56(c)(1). "If a party . . . fails to properly

address another party's assertion of fact," the court may

"consider the fact undisputed for purposes of the motion." Fed.

R. Civ. P. 56(e); see also Local Civ. R. 7(h).

12 When faced with a motion for summary judgment, the district

court may not make credibility determinations or weigh the

evidence; instead, the evidence must be analyzed in the light

most favorable to the non-movant, with all justifiable

inferences drawn in its favor. Anderson,

. A genuine

dispute exists if "the evidence is such that a reasonable jury

could return a verdict for the nonmoving party." Anderson v.

Liberty Lobby, Inc.,

(1986); see also Moore v.

Hartman,

(D.C. Cir. 2009) (a non-moving party

must show that "sufficient evidence supporting the claimed

factual dispute" exists such that a jury or judge must "resolve

the parties' differing versions of the truth at trial"). In the

end, the district court's task is to determine "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." Anderson,

-

52.

III. ANALYSIS

The Contract's waiver-of-subrogation clause could bar

Philadelphia Indemnity's claims resulting from the Association's

losses only if the Association is deemed a successor of

Fairfield, the original party to the Contract.

Lend Lease now asserts that, based on the discovery

undertaken, there is no genuine dispute of material fact as to

13 whether the Association is a successor to Fairfield.

Specifically, Lend Lease argues that (1) 1441 LLC is a successor

or assignee of Fairfield; and (2) the Association is a successor

of 1441 LLC. Accordingly, Lend Lease claims that the Contract's

waiver-of-subrogation clause applies to the Association and bars

Philadelphia Indemnity's negligence claim. Philadelphia

Indemnity counters that its negligence claim is not governed by

the Contract's provisions and that, in any event, the

Association is not Fairfield's successor and therefore not bound

by the terms of the Contract.

As set forth below, the Court finds that, while the

Contract's broad waiver-of-subrogation clause would encompass

negligence claims, genuine factual disputes preclude a

definitive finding as to whether 1441 LLC is a successor or

assignee of Fairfield based on the record created by the

parties. Moreover, because the Court finds that a genuine

dispute of material fact exists as to whether 1441 LLC is a

successor or assignee of Fairfield, the Court need not reach the

question of whether the Association is a successor of 1441 LLC.

Accordingly, the Court denies Lend Lease's motion for summary

judgment.

14 A. The Waiver-of-Subrogation Clause Applies To Negligence Claims.

As a threshold matter, the parties dispute whether the

waiver-of-subrogation clause applies to Philadelphia Indemnity's

negligence claim at all.

In interpreting a contract, "Maryland adheres to the

principle of the objective interpretation of contracts." John L.

Mattingly Const. Co. v. Hartford Underwriters Ins. Co.,

(2010) (citations and internal quotation marks

omitted). 5 A court's task in determining the meaning of a

contract is necessarily "focused on the four corners of the

agreement."

(citations and internal quotation marks

omitted). "'When the clear language of a contract is

unambiguous, the court will give effect to its plain, ordinary,

and usual meaning, taking into account the context in which it

is used.'"

(quoting Sy-Lene of Washington, Inc. v. Starwood

Urban Retail II, LLC,

(2003)).

Two clauses in the Contract relate to subrogation actions. 6

First, the Contract contains a clause through which Lend Lease

5 Both parties apply Maryland law to plaintiff's claims, and defendant expressly acknowledges that Maryland law applies pursuant to the terms of the Standard Agreement. See Standard Agreement § 14.6.2 (the Contract "shall be construed under the laws of the State of Maryland"). Accordingly, the Court shall apply Maryland contract law in resolving defendant's motion.

6 "'Subrogation' . . . is defined as '[t]he substitution of one party for another whose debt the party pays, entitling the 15 and the "Owner" of the property agree to "waive all rights" for

losses that are otherwise covered by insurance:

The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other . . . for damages caused by fire or other causes of loss to the extent covered by property insurance . . . .

General Conditions Contract ¶ 11.4.7. Second, another clause

extends this waiver to losses covered by insurance policies

purchased after the completion of construction:

if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Subparagraph 11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance.

General Conditions Contract ¶ 11.4.5.

Lend Lease argues that the subrogation waiver in Article

11.4.5 bars Philadelphia Indemnity's negligence claim because

"(i) at the time of the incident, the property was insured

through a policy obtained by the Association that is separate

paying party to rights, remedies, or securities that would otherwise belong to the debtor.'" John L. Mattingly Const. Co. v. Hartford Underwriters Ins. Co.,

(2010) (quoting Black's Law Dictionary 1563-64 (9th ed. 2009)). "In the insurance context, [a]n insurer asserting a subrogation right is usually viewed as 'standing in the shoes' of the insured so that the insurer's rights are equal to, but no greater than, those of the insured."

(citation and internal quotation marks omitted). 16 from the policy obtained by Lend Lease that was in place during

the project from 2002 through 2004 and (ii) the water leak is a

'cause of loss' covered under the Association's policy." Def.'s

Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") at 16-17, ECF

No. 22.

Philadelphia Indemnity responds that "regardless of the

contractual status of the parties," the subrogation waiver here

does not encompass its negligence claim. Pl.s Opp. at 14. In

support of this argument, Philadelphia Indemnity relies on

Community Association Underwriters of America v. Rhodes

Development Group, Inc.,

(3d Cir. 2012), in

which the Court of Appeals for the Third Circuit held that the

waiver-of-subrogation clause did not preclude the insurer's

subrogation claims premised on defendants' alleged negligence.

Philadelphia Indemnity's reliance on Rhodes is misplaced.

There is no indication that the contract at issue in Rhodes

contained a "successors and assigns" clause; rather, the

defendant claimed that the plaintiff insurance company, who was

the subrogee of the condominium association, was an intended

third-party beneficiary of the construction contract and

therefore bound by the waiver-of-subrogation provision.

. Under established Third Circuit law, the court

found that the waiver-of-subrogation clause could only apply to

the association to the extent the association's claims arose

17 from its third-party status – i.e., to the extent the

association asserted contractual claims.

Here, Lend Lease does not argue that the Association is a

third-party beneficiary, but rather, a contractual party

pursuant to the "successor and assigns" clause. See Def's Reply

at 7, ECF No. 24. Moreover, the plain language of the Contract

makes clear that the waiver-of-subrogation clause extends more

broadly than to just contractual claims: "The Owner and

Contractor waive all rights . . . for damages caused by fire or

other causes of loss to the extent covered by property

insurance[.]" General Conditions Contract § 11.4.7 (emphasis

added). Other courts have found that similar clauses bar all

claims, including negligence claims, made in connection with a

covered loss. See, e.g., S.C. Nestel, Inc. v. Future Const.,

Inc.,

(Ind. Ct. App. 2005) (contract in

which parties agreed to "waive all rights against each other . .

. for damages caused by fire or other perils to the extent

covered by property insurance" barred recovery regardless of

"whether the theory of recovery [wa]s negligence or breach of

contract"); Town of Silverton v. Phoenix Heat Source Sys., Inc.,

(Colo. App. 1997) (rejecting argument that

subrogation-of-waiver clause that applied to "all rights . . .

for damages caused by fire or other perils to the extent covered

18 by property insurance" did not bar product-liability causes of

action).

Consequently, if the Association is deemed to be a

successor to Fairfield, Philadelphia Indemnity's negligence

claim would be barred because the loss it suffered was covered

by property insurance it provided. See Compl. ¶ 11 (alleging

that Philadelphia Indemnity paid the Association "for the losses

it suffered from the flood").

B. Genuine Disputes Of Material Fact Exists As To Whether 1441 LLC Is A Successor to or Assignee of Fairfield.

Given that plaintiff's negligence claim is encompassed by

the waiver-of-subrogation clause, the Court must next decide

whether 1441 LLC is a successor to or assignee of Fairfield and,

if so, whether the Association is a successor to 1441 LLC.

Under Maryland law, a "successor" in the non-labor

contractual context is defined as "one who takes the place that

another has left, and sustains the like part or character."

Safer v. Perper,

(D.C. Cir. 1977) (citation and

internal quotation marks omitted). See also Crown Oil & Wax Co.

of Delaware v. Glen Const. Co. of Virginia,

(1990) (adopting the formulation of "successor" set forth by the

Safer court). Whether an entity is a successor of another is a

case-by-case fact-oriented determination. Safer,

. As this Court explained in its March 18 Order, the factors

19 to be considered in determining successorship are: (1) the

nature of the relationship between the original contracting

party and the new owner; (2) whether there was any overlap

between the two entities; and (3) whether the original party's

obligations were completely discharged prior to the successor

assuming interest in the property. Philadelphia Indem.,

(citing Safer,

).

Likewise, an "assignee" is defined as an entity to which

"an assignment has been made . . . by the party having the

right." Black's Law Dictionary. An "assignment generally

operates to transfer to the assignee all of the right, title and

interest of the assignor in the subject of the assignment and

does not confer upon the assignee any greater right than the

right possessed by the assignor." James v. Goldberg,

(1970). Moreover, "an assignee must expressly assume"

any correlative duties or burdens with the rights assigned in

order to be liable for such duties or burdens. See Pumphrey v.

Kehoe,

(1971); P/T Ltd. II v. Friendly Mobile

Manor, Inc.,

(Md. Ct. App. 1989).

To establish that the Association is a successor to

Fairfield, Lend Lease must first show that 1441 LLC – the

developer that purchased the building from Fairfield – is a

successor to or assignee of Fairfield. Lend Lease asserts that

1441 LLC is a successor to or assignee of Fairfield because 1441

20 LLC took a series of actions "that Fairfield would have or could

have taken had it remained the owner." Def.'s Mem. in Supp. of

Mot. for Summ. J. ("Def.'s Mem.") at 10, ECF No. 22. In

particular, Lend Lease points to (1) 1441 LLC's involvement in

the property prior to the completion of construction; and (2)

the assignment of warranties to 1441 LLC, 1441 LLC's purchase of

extended warranties, and 1441 LLC's claims under those

warranties. Id. at 10-12.

Philadelphia Indemnity disputes that 1441 LLC's involvement

with the building prior to the completion of construction has

any "bearing" on the issue of whether 1441 LLC is a successor to

Fairfield. Pl.'s Opp. at 5, 10-12. Plaintiff further adds that

Lend Lease "places far too much emphasis on 1441 LLC and/or the

Association invoking [warranty] rights they were specifically

assigned and/or purchased." Id. at 12. The Court examines each

argument in turn.

(1) A Genuine Dispute Of Material Fact Exists As To Whether 1441 LLC's Involvement In The Property Prior To The Completion Of Construction Renders It A Successor.

The parties agree that 1441 LLC became involved in the

property prior to the completion of construction, see Def.'s SMF

¶¶ 8, 32 and Pl.'s Opp. at 6, but dispute the extent of that

involvement and whether it took Fairfield's place and sustained

its "like part of character." According to Philadelphia

21 Indemnity, even after 1441 LLC executed the Purchase and Sales

Agreement with Fairfield in September 2003, its "rights" were

"limited." Pl.'s Opp. at 10. Mr. Berry explained that 1441 LLC

was only "reluctantly given" permission to participate in the

punch-list process and attend inspections. Pl.'s Berry Dep.

107:3-7. Moreover, 1441 LLC "could not request any structural or

lay out changes in the construction process." Pl.'s Opp. at 10.

Indeed, Mr. Berry testified that, during this period, 1441 LLC

had limited authority to make any significant changes to the

property at all:

Q: [S]o In the time frame between when you – you and your partners – or members decide: All right, we're going – we're looking at this building, to the point that you actually purchased the building, did you guys have any ability or authority to request construction change orders from Lend Lease?

A: Officially, I – well, here, here's what we had permission to do: We had permission to observe the final finishes and to do punch lists. That, at first, was reluctantly given, but it was – it was given. . . . We insisted on things but it didn't necessarily happen. It was cleaned up buy it didn't – we had problems with the countertops and we had problems with the hardwood flooring. They did – without changing anything out, they did the best to clean things up.

Q: So my question though, is: During this period when, you know, you've decided to buy the building and before you actually purchased the building, could – did you have the authority and the ability to go 22 to Lend Lease and say, "Hey, look, you know, we want to change, you know, the floor design on Floor 9, and we want to turn it into eight units as opposed to 12 units?" Did you have the authority and ability to do that?

A: My partner – one of my partners, Enrico Plati, who has an architectural degree from Italy, wanted to do exactly that. And short of telling us to hand it on our nose, there was no way that was going to happen.

Pl.'s Berry Dep. 106:19-108:17.

Philadelphia Indemnity's insistence that this testimony

shows that 1441 LLC had "limited" rights as compared to

Fairfield with respect to the property – and therefore did not

"sustain the like part or character" as Fairfield after its

purchase – is further buttressed by the fact that Fairfield, and

not 1441 LLC, signed the final change order and negotiated the

final contract price. See Def.'s Mot. for Summ. J. Ex. O (change

order reflecting Fairfield as the "owner" of the property that

was signed on May 3, 2004), ECF No. 22-17; O'Grodnick Dep. 22:2-

23:18 (Lend Lease employee explaining that the change order

reflected the "final amount that's due" and "final completion

date" for the project "based on a negotiated settlement of the

owner contract").

On the other hand, evidence also shows that 1441 LLC became

extensively involved in the final stages of construction by

carefully inspecting each unit jointly with Fairfield prior to

23 accepting Lend Lease's work and requesting that "issues with the

garage, HVAC, plumbing, and landscaping" be addressed. Def.'s

SMF ¶¶ 11-22. Mr. Berry testified that 1441 LLC took "a more

active role" in the inspection process than the actual owner

Fairfield, and he suggested that Fairfield representatives only

attended the inspections to "cover themselves." Def.'s Mot. Ex.

F, Deposition of Robert Berry ("Def.'s Berry Dep.") 22:15-21,

23:14-23, ECF No. 22-8. Because the parties have put forward

conflicting evidence as to 1441 LLC's involvement in the

property prior to the discharge of Lend Lease's obligations

under the Contract, the Court finds that genuine disputes of

material fact exist as to the nature of the relationship between

Fairfield and 1441 LLC and the overlap between the two.

(2) A Genuine Dispute Of Material Fact Exists As To Whether 1441 LLC's Receipt of Warranty Rights Renders It A Successor or Assignee.

Likewise, whether 1441 LLC's receipt of warranties from

both Lend Lease and its subcontractors – and 1441's subsequent

claims under those warranties – is sufficient to render 1441 LLC

a successor to or assignee of Fairfield is also genuinely

disputed. For example, Philadelphia Indemnity argues that the

warranties were assigned by Fairfield to 1441 LLC through the

Assignment Agreement. Pl.'s Opp. at 11. The Assignment Agreement

– which is not fully executed – purports to limit the rights and

obligations assigned by Fairfield to 1441 LLC under the

24 Contract. See Pl.'s Opp. at 11-12; Def.'s Mot. for Summ. J. Ex.

E, Assignment Agreement, ECF No. 22-7. Specifically, the

Assignment Agreement provides that the assignee – i.e., 1441 LLC

– "shall have no contractual or other obligations or liability

to [Lend Lease] under the Contract or otherwise . . . and

Contractor shall look solely to [Fairfield] for any such

obligations or liabilities." Id. (emphasis added). The parties

dispute the significance of this agreement. Compare Pl.'s Opp.

at 12 (arguing that the language in the assignment agreement

"demonstrates an understanding among the parties that unless

specifically assigned in writing, the terms of the construction

contract remain between Fairfield and Defendant"), with Def.'s

Reply in Supp. of Mot. for Summ. J. at 6 ("Because the

assignment is unexecuted, there thus exists no evidence showing

Fairfield and 1441 LLC intended to move forward with the limited

assignment of contractual rights[.]"), ECF No. 24.

Defendant, on the other hand, argues that the warranty

rights were passed from 1441 LLC to Fairfield through the Public

Offering Statement issued in connection with the formation of

condominiums and signed by Mr. Berry. Def.'s Mem. at 12-13. The

Public Offering Statement includes a provision indicating that

1441 LLC is the "successor" to Fairfield and, "[u]pon its

acquisition of the Property . . . was assigned and assumed all

of the rights and obligations of Fairfield." Def.'s SMF ¶ 26

25 (emphasis added); Def.'s Mot. Ex. K at 1-2, ECF No. 22-13.

Plaintiff suggests that this language should be interpreted to

refer only to 1441 LLC's acquisition of Fairfield's "property

ownership rights" – and not "any rights and obligations

Fairfield ha[d] under any contract in existence." Pl.'s Opp. at

12.

The source of 1441 LLC's warranty rights – and whether 1441

LLC also assumed the obligations set forth in the Contract

creating the warranties – is genuinely disputed. Although the

Assignment Agreement attached to Lend Lease's motion is not

signed by Fairfield or 1441 LLC, the mere fact that the

agreement is unexecuted does not make it invalid per se. See,

e.g., Porter v. Gen. Boiler Casing Co.,

,

(1979) (under Maryland law, the mere fact that a

contract is unsigned does not render is unenforceable,

particularly where the parties have demonstrated "mutuality of

assent" through their conduct to be bound by the contract's

terms). Instead, it requires the Court to evaluate the parties'

conduct to determine whether they intended to be bound by the

Contract's terms. Lend Lease argues that the language in the

Assignment Agreement is contradicted by the language in the

signed Public Offering Statement. Def.'s Mem. at 13. But Lend

Lease does not point to any evidence – other than the fact that

one document is signed and the other is not – conclusively

26 establishing that the parties intended for the terms set forth

in the Public Offering Statement to govern. To the contrary, Mr.

Berry testified that it was his understanding that "Fairfield .

. . was selling [1441 LLC] the building and we were assuming any

rights that they had." Def.'s Berry Dep. 34:3-7 (emphasis

added). As such, a factual dispute exists as to whether

Fairfield and 1441 LLC intended to create an assignment of

certain rights without also assigning the burdens associated

with the Contract. The answer to this factual question is

necessary to resolve whether 1441 LLC was Fairfield's successor.

See Am. Prop. Const. Co. v. Sprenger Lang Found.,

(D.D.C. 2011) (declining to grant summary judgment

where genuine dispute of material fact remained as to whether

the parties intended to be bound by the agreement at issue). 7

7 Philadelphia Indemnity also asserts that the Association cannot be bound by the Contract because the Contract is not "a restrictive covenant that runs with the Property binding all subsequent owners of the Property." Pl.'s Opp. at 15. Because Lend Lease nowhere suggests that the Association is bound by a restrictive covenant, the Court does not address this argument. 27 IV. CONCLUSION

For the reasons stated above, and as set forth in the

previously filed Order, Lend Lease's motion for summary judgment

is DENIED. The parties are directed to submit a joint status

report including, inter alia, a recommendation for further

proceedings by no later than November 17, 2017.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge October 11, 2017

28