City of Sioux Falls v. Azurro, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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CITY OF SIOUX FALLS, * CIV 22-4052
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Plaintiff, *
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vs. *
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AZZURO,INC.; *
SHORT ELLIOTT HENDRICKSON,INC., *
and BONNO KOERS; * ORDER
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Defendants, *
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and *
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SHORT ELLIOTT HENDRICKSON,INC., *
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Third-Party Plaintiff, *
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vs. *
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UNISON SOLUTIONS,INC., *
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Third-Party Defendant. *
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The Plaintiff City of Sioux Falls has asserted a variety of claims against the Defendants for
the performance failure of a new digester gas-conditioning system for the City water reclamation
facility. The City hired Short Elliott Hendickson,Inc.(SEH)to provide engineering services for the
project. SEH in turn recommended Defendant Azzuro's biological emission control system for the
project. The City made a pre-suit settlement with Unison Solutions (Unison). SEH filed a Third
Party claim against Unison. Unison then filed its Motion to Dismiss.
Unison Solutions invites an empty chair at the trial with its Motion to Dismiss. SEH says
it has claims against Unison in addition to the claims against SEH by Plaintiff City of Sioux Falls.
The additional claims by SEH are for "damages related to the misrepresentation, negligence, breach
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of contractywarranty of Unison." (Doc. 19, SEH Response to Unison Motion to Dismiss.) Unison
replies that this is a red herring as "any damages suffered by SEH as a result of its "independent"
elaims against Unison are limited to the liability SEH has to the City,in connection with the projeet."
(Doc. 24, Unison Reply.) But SEH's Third-Party Complaint is broader than is claimed by Unison.
Paragraph 19 of the Third-Party Complaint states:
19. Unison and/or Azzuro are liable to SEH for all damages, costs, fees or other
amounts incurred by SEH that are eaused by the misrepresentations, negligenee,
breach of contract, breach of warranty, and other misconduet of Unison/Azzuro,
including, but not limited to, any amounts owed to the Plaintiff and any and all
amounts incurred in defending and responding to the claims related to the Projeet.
Paragraphs 11 to 14 claim indemnification or contribution. The prayer ofthe Third Party Complaint
follows along and "prays that SEH recover from Unison all amounts found to be owed to the
Plaintiff, SEH's own damages...." (Doc. 8 at 4).
The First Party Defendants are entitled to a reduction in the amount ofthe settlement made
on behalf of Unison or in accordanee with the jury determination as to Unison's comparative fault,
whiehever amount is greater. Schick v. Rodenburg, 397 N.W.2d 464, 465 (S.D. 1986); City of
Spearfish v. Duininck, 2016 WL 4133517, 7-8 ,(2016 D.S.D.)
The Court need not address whether the trial could be held with Unison not present if the
only claim against SEH was whatever damages are awarded against SEH in favor of the Plaintiff
City as that is not all of the elaims by SEH against Unison. Accordingly,
IT IS ORDERED that the Motion to Dismiss by Unison, Doc. 14, is denied.
Dated this idday of Deeember,2022.
BY THE COURT:
iwrence L. Piersol
ATTEST: United States District Judge
JTHEW WJEHEEEN,CLERK
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