MICHAEL F. SCHMIDT OBTAINED SUMMARY DISPOSITION IN $560,000 CONSTRUCTION PROPERTY DAMAGE CLAIM
Factory Mutual Insurance Company d/b/a FM Global Insurance Company, subrogee of Oakland University, v The Christman Company and Site Development, Inc., Oakland County Circuit Court. The plaintiff Factory Mutual filed suit to recover $560,839 alleged damages from an alleged water intrusion event during a renovation project of the Oakland Center Building at Oakland University in Rochester, Michigan. During discovery we established that the rain event was a 50 to 100-year storm. Factory Mutual settled with The Christman Company, the general contractor, and claimed that the responsible contractor was Site Development, Inc. We deposed the representatives of The Christman Company, who testified that Site Development was responsible for dewatering including for stormwater and that the standard was “as necessary.” They testified that the pump installed by Site Development was adequate. They agreed that the storm was an act of God. We further established through discovery and the deposition of the Director of Engineering of Oakland University that the stormwater capacity of Oakland County, Auburn Hills and Oakland University was only for a 10-year storm. We also deposed the plaintiff’s liability expert, Kirk Wolf of SEA, in a lengthy deposition. We then filed a motion for summary disposition. We argued that there was no negligence claim because the allegations were all in regard to breach of contract and there was no allegation of any misfeasance, only nonfeasance. In regard to breach of contract, we argued that there was no evidence of any breach of any contract provision or specification and that the multiple opinions of the plaintiff’s expert were not supported by the record. The trial court agreed with our arguments in an 18-page opinion and order granting summary disposition. The court specifically held that the negligence allegations were improper because they did not allege the violation of any duties separate and distinct from the duties arising out of the subcontract. The court further held there was no evidence to support the breach of contract allegations. The court held that the testimony of plaintiff’s expert could not be used to “conjure a question of fact.” The court noted that plaintiff’s expert could not identify any dewatering specification that was allegedly breached by Site Development, that he had no reason to dispute the Christman testimony regarding the dewatering efforts, admitted that the specs made no reference to rainwater, never determined the capacity of the storm drain system and admitted that the level of storm the dewatering system should have been designed to accommodate was never specified.