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Parker Excavating, Inc. v. Lafarge West, Inc.

United States District Court, D. Colorado

May 3, 2016

PARKER EXCAVATING, INC., a Colorado corporation, Plaintiff,
LAFARGE WEST, INC., a Delaware corporation, MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation, FIDELITY AND DEPOSIT COMPANY OF AMERICA, a Maryland corporation, NICK GUERRA, ALF RANDALL, in his individual capacity, and ROBERT SCHMIDT, in his individual capacity, Defendants.



This case is before me on Defendants Lafarge West, Inc. (“Lafarge”) and Fidelity and Deposit Company of America’s (“Fidelity”) (collectively the “Moving Defendants”) Motion for Partial Summary Judgment [Doc # 82]. After consideration of the motion, all related pleadings, and the case file, I grant the motion in part and deny it in part as set forth below.

I. Background

This background section is based primarily on the Moving Defendants’ Motion [Doc # 82], Plaintiff Parker Excavating, Inc.’s (“Parker Excavating”) Response [Doc # 136], and the Moving Defendants’ Reply [Doc # 146]. In addition, I considered Parker Excavating’s Partial Response to Defendants’ Motions for Summary Judgment[, ] Joint Overview[, ] and Response to Statement of Facts [Doc # 129] despite the fact that this separate filing was unauthorized and lacks clarity in its attempt to address multiple issues raised in three separate motions for summary judgment, as well as other briefs and exhibits submitted in connection with other pending summary judgment motions to the extent necessary for consistency and completeness.

For purposes of the Moving Defendants’ motion, the following facts are undisputed unless otherwise noted:

Lafarge was the prime contractor for Pueblo County on a road construction project in Pueblo County, Colorado known as the South McCulloch Boulevard Roadway/Drainage Improvement Project (the “Project”) until early December of 2011. At that time, Defendant Martin Marietta Materials, Inc. (“Martin Marietta”) took over the role of prime contractor pursuant to an asset exchange agreement it entered into with Lafarge. Defendant Nick Guerra (“Guerra”) was initially an employee of Lafarge but later became an employee of Martin Marietta.

Parker Excavating was a subcontractor on the Project and also supplied certain equipment to Lafarge and Martin Marietta for use on the Project. Under Parker Excavating’s subcontract, Lafarge agreed to increase the retainage it would hold during the course of the Project in lieu of requiring Parker Excavating to post a bond.

In the summer of 2011, Greg Parker of Parker Excavating contacted a County Commissioner for Pueblo County and complained about actions by Defendant Alf Randall (“Randall”), an employee of Pueblo County, relating to the Project. Parker purportedly expressed his belief that these actions were either due to the fact that Parker Excavating was a Native American company or were the result of a previous dispute. The previous dispute referred to by Parker relates to a project known as the William White Project which Randall and Parker Excavating had also both been involved with and which had also resulted in litigation. During the William White Project, Parker asserts that Randall told him that he did not believe in affirmative action.

By letter dated July 13, 2011, Guerra informed Parker that his communications with the County Commissioner “circumvented the proper dispute resolution procedure as outlined in your subcontractor agreement.” Guerra directed Parker to sign a letter of apology to both Randall and Defendant Robert Schmidt (“Schmidt”), who was also an employee of Pueblo County at the time, and an acknowledgment of Guerra’s July 3, 2011 letter or face termination of the Subcontract. Parker signed the three letters.

On November 3, 2011, Parker Excavating wrote a letter to Defendant Nick Guerra (“Guerra”) to inform him of “perceived discrimination” on the part of the Pueblo County Public Works Department (“PCPW”). The letter also detailed “difficulties” that Parker Excavating claimed to have experienced on the Project as a result of PCPW’s actions or lack thereof.

On December 6, 2011, Randall wrote a letter to Lafarge listing a number of deficiencies in the traffic control work on the Project. On December 7, 2011, Parker Excavating responded to Randall’s letter and alleged discrimination by Pueblo County against Parker Excavating.

Parker Excavating first learned of Martin Marietta’s involvement on the Project when Parker got a call from Guerra telling him that Parker Excavating needed to post a bond. After becoming prime contractor on the Project, Martin Marietta asserts that its policy was to enforce Lafarge’s bonding policy which was to require all subcontractors to post a bond for work greater than a specified dollar amount and to make no exceptions. Parker Excavating asserts, however, that Martin Marietta was to follow all agreements that Lafarge had made regarding bonding requirements including Lafarge’s agreement to increase the retainage it would hold during the course of the Project in lieu of requiring Parker Excavating to post payment and performance bonds. The evidence in the record on this issue arguably supports the positions of both parties.

In a letter to Parker Excavating dated December 12, 2011 on Martin Marrietta letterhead but with a Lafarge signature block, Guerra stated that while Parker Excavating’s subcontract with Lafarge “allowed supplementing the bond with retention since [Parker Excavating] was unable to bond the [P]roject, ” Martin Marietta was requiring a bond on all subcontracts in excess of $20, 000. In this letter, Guerra further stated that since Parker had verbally told him that Parker Excavating would be unable to bond the remaining value of the Project, Parker Excavating would have to vacate the Project at a time to be determined. The record contains an identical letter from Guerra to Parker Excavating dated December 15, 2011 but with a Martin Marietta signature block.

Although Lafarge may have still been involved with the Project to some degree, the evidence establishes that Martin Marietta terminated Parker Excavating from the Project on December 17, 2011. According to Geurra, the decision to terminate Parker Excavating’s Subcontract was made by him, Dave Smith, and Ted Lowder and others based on the fact that Martin Marietta’s integration team would not accept the terms of the Subcontract regarding the bond. Parker Excavating did not perform any work on the Project after December 17, 2011 but left “eight specialty signs” at the Project at the request of Martin Marietta. It is unclear what happened to these signs.

Parker Excavating has pending claims against Lafarge for retaliation under § 1981 (First Claim for Relief); breach of the subcontract (Fourth Claim for Relief); breach of equipment rental agreements (Fifth Claim for Relief); unjust enrichment (Sixth Claim for Relief); conversion (Eighth Claim for Relief); civil theft (Ninth Claim for Relief); and malicious, willful, and wanton breach of contract (Eleventh Claim for Relief). Parker Excavating also has a claim against Lafarge and Fidelity on the bond Fidelity issued for the Project.

Parker Excavating seeks to recover consequential damages including (1) damage to its reputation; (2) loss of goodwill; (3) damage to future bonding capacity; (4) the consequences of the wrongfully terminated contract, including unnecessary labor and costs incurred due to the harassment on the Project; (5) lost pay; (6) lost profits; (7) time and expenses of defending Parker Excavating’s name and reputation; (8) inconvenience; and (9) other compensatory damages to be proven at trial. Parker Excavating is relying primarily ...

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