United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr. United States District Judge
matter is before the court on BlueScope Buildings of North
America, Inc. d/b/a Varco Pruden Buildings'
(“VP”) Motion to Dismiss for failure to state a
claim asserted pursuant to Rule 12 (b)(6) of the Federal
Rules of Civil Procedure. VP seeks to dismiss several claims
asserted by Plaintiff Sherman Construction Company, Inc.
(“Sherman”) in its “First Supplemental
FACTUAL AND PROCEDURAL HISTORY
case arises out of the construction of a University of South
Carolina indoor sports practice facility
(“Project”). Sherman, as the general contractor,
entered into a contract with the University of South Carolina
to construct a metal building large enough to house a
football field and all of its necessary accouterments.
Sherman, in turn, entered into a subcontract with Defendant
MarKim Erection Co. Inc. (“MarKim”) to erect a
pre-engineered metal building. MarKim then entered into an
agreement with VP for VP to provide pre-engineered metal
building components for the Project. At the crux of its
complaint, Sherman asserts that MarKim and VP failed to
deliver building components that complied with applicable
specifications and are suing for the alleged damages
resulting therefrom. Additionally, Defendant NGM Insurance
Co., issued a subcontract performance bond in favor of
Sherman, as obligee, to secure MarKim's performance under
their subcontract. MarKim and VP's alleged failure to
provide the contracted for components, along with NGM's
failure to perform under the performance bond, resulted in
the current litigation.
filed a complaint in the Richland County Court of Common
Pleas on July 8, 2015. The case was then removed to the
Federal District Court for the District of South Carolina on
August 12, 2015. (ECF No 1). In response to Sherman's
initial complaint, VP filed a motion to dismiss for failure
to state a claim. (ECF No. 9). This Court terminated that
motion as moot in light of Sherman's filing of an amended
complaint. (ECF No. 39). In response to Sherman's amended
complaint, VP filed another motion to dismiss for failure to
state claim. (ECF No. 38). This Court then granted
Sherman's motion to amend its complaint (ECF No. 54) and
Sherman filed the First Supplemental Complaint on December
17, 2015. (ECF No. 55). The Court then terminated VP's
second motion to dismiss as moot in light of Sherman's
filing of the First Supplemental Complaint. (ECF No. 68).
Consequently, VP filed a third motion to dismiss for failure
to state a claim on January 4, 2016. (ECF No. 58). Sherman
filed a response on January 21, 2016, and therefore this
matter is ripe for determination. (ECF No. 62).
ruling on a 12(b)(6) motion to dismiss, a judge must accept
as true all of the factual allegations contained in the
complaint.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(quotations and citations omitted). Additionally, the court
must draw all reasonable inferences in favor of the
plaintiff. Id. To survive the motions, the complaint
must allege facts sufficient to state a claim
“plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). However, the
complaint “need only give the defendant fair notice of
what the claim is and the grounds upon which it rests.”
Kolon Indus., 637 F.3d at 440. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
moved to dismiss five of the claims asserted by Sherman in
the First Supplemental Complaint: (1)
“Negligence”; (2) “Intentional Interference
with Contract”; (3) “Equitable Indemnity”;
(4) “Declaratory Judgment”; and (5)
“Assignment of Claims from Downs Construction”.
Along with its Motion to Dismiss, VP has filed a Memorandum
in Support and several attachments. Although both parties
expend several pages discussing the Courts ability to analyze
a purchase order attached to VP's motion to dismiss, this
Court has determined that any reliance upon the purchase
order is unnecessary in determining this motion. Therefore, the
Court will look solely to the Complaint in determining the
sufficiency of the claims challenged.
Sherman's Negligence and Interference
Supplemental Complaint, Sherman alleges that VP is liable in
tort for negligence and intentional interference with
contract. (ECF No. 55 pp. 15-16, 18-19). VP has moved to
dismiss these claims, arguing that both are barred by South
Carolina's economic loss doctrine.
Carolina's economic loss rule provides that when a
buyer's expectations in a sale are frustrated because the
goods do not work properly, the remedies are limited to those
prescribed by contract law. Palmetto Linen Serv., Inc. v.
U.N.X., Inc., 205 F.3d 126, 128 (4th Cir. 2000). The
economic loss rule works to bar negligence actions when the
duties between the parties are created solely by contract.
Id. at 129. Therefore, “in most instances, a
negligence action will not lie when the parties are in
privity of contract.” Tommy L. Griffin Plumbing
& Heating Co. v. Jordan, Jones & Goulding, Inc.,
320 S.C. 49, 55, 463 S.E.2d 85, 88 (1995). However, when
there is a special relationship between the alleged
tortfeasor and the injured party not arising in contract, a
breach of that duty of care will support a tort action.
Id. The existence of such a duty “will depend
on the facts and circumstances of each case.”
Id. at 55-56, 463 S.E.2d at 89. South Carolina
courts have allowed negligence actions to proceed against
engineers and lawyers based on their professional duties to
the injured parties. Palmetto Linen, at 129.
Conversely, South Carolina has not allowed tort claims to
proceed when the relationship between the parties is merely
that of vendor-vendee. Id.
Sherman has specifically asserted that along with VP's
supply of metal building components, “VP has a special
relationship with Sherman as defined under South Carolina
Law.” (ECF No. 55 ¶ 74). Additionally, Sherman has
stated that VP supplied “pre-engineered” building
components and filed an affidavit supplied by its
“Engineering Services Manager.” (ECF No. 62 p.
11). These admissions related to engineering services, when
construed in favor of Sherman, could support an inference
that any tort claims, including negligence and intentional
interference with contract, fall within the “special
relationship” exception to the economic loss rule.
VP vehemently contends these assertions and argues that there
is no special relationship between the parties. VP insists
that its relationship with Sherman is merely that of a
vendor-vendee and any causes of action must be limited to
those provided for in contract by the U.C.C. However, this
Court “must accept as true all of the factual
allegations contained in the complaint.” E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011). Therefore, Sherman has ...