Tort/Negligence – Contribution & Indemnity – Accepted Work Doctrine — Civil Practice – Service of Process

New Bern Riverfront Development, LLC v. Weaver Cooke Construction, LLC (Lawyers Weekly No. 11-05-1097, 11 pp.) (J. Rich Leonard, J.) E.B.N.C.

Holding: Where this court has found that the plaintiff-debtor sufficiently pled claims for professional negligence and common-law negligence against defendant National Erectors Rebar, Inc., the debtor’s claims subject National to potential tort liability. Therefore, based upon the debtor’s allegations, National may allege claims for contribution and implied-in-law indemnity against other subcontractors.

The court denies the crossclaim defendants’ and third-party defendant’s (movants’) motions to dismiss National’s crossclaims and third-party complaint.

National alleges that the movants were actively negligent with respect to work performed on the debtor’s project and contends that such negligence is the cause of damages allegedly arising from the underlying tort. National’s implied-in-law indemnity claims are sufficiently pled to survive the movants’ motion to dismiss.

Third-party defendant JMW Concrete Contractors attempts to rely on the completed and accepted work doctrine in its motion to dismiss. However, JMW alleges only that its work was accepted by the general contractor.

The completed and accepted work doctrine establishes the general rule that an independent contractor is not liable for injuries to third parties occurring after the contractor has completed work and it has been accepted by the owner. Since JMW only alleges that it work was accepted by the general contractor – not the owner – JMW’s reliance on the completed work doctrine is misplaced.

Although the debtor did not timely serve JMW, the court extends the time for service based on several complicating factors, including removal from state to federal court and the death of JMW’s sole proprietor.

The motions to dismiss are denied.