Polk County District Court. File No. CX-01-614.
Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.
A party who, without good cause, fails to serve a necessary expert-identification affidavit within 180 days after initiation of a negligence claim against a professional cannot benefit from the statutory 60-day period available to cure postdemand deficiencies under Minn. Stat. § 544.42, subd. 6(c) (2004); Minn. Stat. § 544.42, subds. 2(2), 4, and Minn. Stat. § , subd. 6(c) (2004), read together, mandate dismissal of the claim.
The opinion of the court was delivered by: Lansing, Judge
In this dispute over the construction of a floodwater impoundment system, the contractor challenges two district court orders: its grant of summary judgment dismissing a counterclaim against the project engineer and its decision to cap damages. Because we find no error in the district court's dismissal of the contractor's counterclaim for failure to serve an expert-identification affidavit as required by Minn. Stat. § 544.42, subds. 2 and 4 (2004), we do not reach the damages issue, and we affirm.
Middle River-Snake River Watershed District contracted with Dennis Drewes, Inc., to work on the Angus Oslo flood-impoundment project. After submitting its initial bid, Drewes inspected the project site several times and examined soil reports accompanying the project proposal. These soil reports, prepared by Midwest Testing Laboratory, indicated that the soil was "moist" and therefore ideal for construction. At the time of bidding, the site appeared undisturbed by farm operations, and the contract did not refer to ongoing farming operations.
The contract, in compliance with statutory requirements, appoints a project engineer, J.O.R. Engineering, Inc., and describes the project engineer's role. J.O.R. is not, however, a party to the contract. The contract sets forth specifications for the work, provisions for changed conditions, and responsibilities of the parties. It requires the contractor to achieve an overall compaction of 95% and prohibits lifts greater than twelve inches in height.
The contract explicitly addresses the work alterations and changed site conditions that relate to this litigation. If the contractor discovers a materially different site condition that affects its work, the contract requires it to provide written notice to the engineer and the other party before performing the affected work, particularly if the contract adjustment requires additional compensation. After acknowledging that the engineer shall have the right to modify specifications as circumstances may require, the contract provides that "[i]n this event, . . . no change shall be made that will . . . increase the total cost by more than ten percent (10%) of the total contract price." The contract explains the engineer's authority and responsibilities, including its involvement in developing the plan's specifications and monitoring the site, but notes in several places that the engineer's review of the work and specifications does not relieve Drewes of its contractual obligations.
After beginning work on the project, two independent problems arose. First, the soil was wetter than anticipated. Second, a neighboring farmer, who had a lease with the watershed district, disked the project site. The combined effect of the disking and the wet soil made it more difficult to obtain the required compaction and caused Drewes to use lifts greater than twelve inches in height. Drewes, however, did not notify either J.O.R. or the watershed district of the changed conditions before working on the affected areas.
Upon discovering that neither the compaction nor the lift heights complied with the contract's specifications, the watershed district filed a declaratory action to determine the rights and responsibilities of the parties under the contract. In its answer to the complaint, Drewes asserted multiple counterclaims against the watershed district. Drewes also impleaded J.O.R. as an "additional defendant on the counterclaim," alleging three causes of action: negligence, estoppel, and tortious interference with its contract. The watershed district moved for summary judgment on Drewes' counterclaims. J.O.R. also moved for summary judgment because, among other reasons, Drewes failed to serve a mandatory expert-identification affidavit.
The district court initially denied J.O.R.'s and the watershed district's summary-judgment motions, but the motions were twice renewed. In the first renewal, the watershed district grouped them with a motion in limine to cap damages. The district court granted the motion to cap damages but again denied summary judgment against Drewes. Shortly before the second renewal, Drewes and the watershed district resolved their "respective claims against each other" and stipulated to dismissal. The stipulation preserved Drewes' claim against J.O.R. Following the second renewal, initiated by J.O.R., the district court granted summary judgment for J.O.R. for three reasons: (1) Drewes failed to comply with the ...