LEGAL NEWS


Mixing Concrete, Like Baking a Cake, is Fraught with Problems When the Recipe is Not Followed T h er e a f t er,


By Garret Murai, Wendel, Rosen, Black & Dean LLP


“Mixing concrete, like baking a cake,


is fraught with problems when the recipe is not followed.” – Justice Kenneth Yegan, State Ready Mix, Inc. v. Moffatt & Nichol, California Court of Appeal for the Second District, Case No. B253421 (2015). I love it when jurists aren’t afraid to


mix in a little humor in their opinions. (For more judicial humour go to https:// lib.law.washington.edu/content/guides/ judhumor.) But “[t]he law,” as a framed needlepoint


in one of my colleague’s offices says, “is se- rious business.” And, the State Ready Mix case involved one of the thorniest prob- lems in construction litigation: What to do when you’re sued and you


think someone else is to blame. The answer is pretty straightforward


if you have a contract with that “someone else” – you sue them for breach of con- tract and, if you negotiated it, indemnity. The path is far less clear though when that “someone else” is someone with whom you don’t have a contract.


The State Ready Mix Case In 2012, Bellingham Marine,


Inc.


(“Bellingham”) hired Major Engineering Marine, Inc. (“Major”) to construct a trav- el lift pier at Channel Islands Harbor in Oxnard, CA. Bellingham hired engineer- ing firm Moffatt & Nichol (“Moffatt”) to prepare the plans and Major hired material supplier State Ready Mix, Inc. (“State”) to supply the concrete. The plans prepared by Moffatt required


that the concrete have an air entrainment of two to four percent and that the cured concrete attain a compressive strength of 5,000 PSI in 28 days. State submitted a concrete mix design


which provided for the addition of an air entrainment chemical to achieve the spec- ifications developed by Moffatt. Although not within Moffat’s contractual responsi- bilities, Moffatt reviewed and approved the design mix at the request of Major.


18 July/August 2015 to another party:


State delivered seven


truckloads


of pre-mixed con- crete to the job site. However, there was a prob- lem. Twenty-eight days after the con- crete was cast, lab tests revealed that the concrete had a compressive strength of only 3,600 PSI. Upon investigation, it was determined


that State encountered a mechanical fail- ure with their chemical dispensing equip- ment, manually added the air entrainment chemical to the concrete and, in doing so, “overdosed” the concrete by 6.5 times the amount necessary to attain the air en- trainment provided in the plans. As a result, Major had to demolish and


rebuild the affected portion of the pier and later sued State. State, in turn, sued Mof- fatt. But because State did not a have a con- tract with Moffatt, it sued Moffatt under the legal theories of implied equitable in- demnity and contribution on the ground that Moffatt had failed to use reasonable care in reviewing and approving State’s de- sign mix. Moffatt successfully challenged State’s claims and State later appealed.


The Court of Appeal Opinion The Court of Appeal affirmed. As to


State’s equitable indemnity claim, the Court of Appeal explained that equitable indemnity does not arise simply because one party (Moffatt) may have negligently performed its contract with another party (Bellingham) but,


that party (Moffatt)


must have violated an independent legal duty owed to the party seeking equitable indemnity (State). And Moffatt, the Court found, owed no independent legal duty to State under what is known as the Biankan- ja factors, named after the case Biankanja v. Irving, 49 Cal.2d 647 (1958), in which a court looks at the following factors when determining whether a party owes a duty


1. The extent to which the transac- tion was intended to affect plaintiff;


2. The foreseeability of harm to the plaintiff;


3. The degree of certainty that the plaintiff suffered injury;


4. The closeness of the connection


between the defendant’s conduct and the injury suffered;


5. The moral blame attached to the defendant’s conduct; and


6. The policy of preventing future harm.


The Court of Appeal found that State’s


equitable indemnity claim failed under each of Biankanja factors because, for among other reasons, Moffatt’s review of the concrete design mix,


in addition to


being gratuitous, was for the benefit of Bellingham not State; Moffatt could not have foreseen that State would have “over dosed” the concrete; and it was State’s de- viation from the design mix, not Moffatt’s approval of the design mix, which caused the concrete not to meet the specifications. Moreover, explained the Court, ap-


plying the logic of Aas v. Superior Court, 24 Cal.4th 627 (2000), which held that a homeowner could not sue in tort for construction defects unless such defects caused actual damages (aka the economic loss rule), because Moffatt did not have a contractual relationship with either State or Major and the defective concrete did not injure a person or damaged other prop- erty, the economic loss rule barred State’s claims against Moffatt. Finally, with respect to State’s contri-


bution claim, the Court explained that contribution is a “creature of statute, ” specifically California code of Civil Pro- cedure section 875, and only comes into existence following a judgment declaring more than one defendant jointly liable to the plaintiff. And, here, no judgment was obtained against Moffatt because the trial court properly dismissed State’s claims.


California Constructor the


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