Schuff Steel Company v. Bosworth Steel Erectors, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SCHUFF STEEL COMPANY,

Plaintiff,

v.

BOSWORTH STEEL ERECTORS, et al.,

Defendants.
Civil Action No. 18-cv-0435 (TSC)
BOSWORTH STEEL ERECTORS,

Counter-Plaintiff,

v.

SCHUFF STEEL COMPANY,

Counter-Defendant.

MEMORANDUM OPINION

Plaintiff Schuff Steel Company (“Schuff”) has sued Defendant Bosworth Steel Erectors,

Inc. (“Bosworth”) and Defendant Travelers Casualty and Surety Company of America

(“Travelers”), alleging two causes of action: (1) breach of contract against Bosworth and (2)

breach of performance bond against Bosworth and Travelers. Compl., ECF No. 1. Bosworth

filed two counterclaims against Schuff, which it later amended, alleging breach of contract and

unjust enrichment/quantum meruit. First Am. Counterclaim, ECF No. 19. Travelers has moved

for summary judgment against Schuff on Count 2 of the Complaint. ECF No. 56. Bosworth has

also moved for summary judgment against Schuff on Count 1 and its counterclaims. ECF No.

57. Schuff has filed cross-motions for summary judgment against Travelers on Count 2, and

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against Bosworth on Count 1 and Bosworth’s counterclaims. ECF Nos. 67, 69. For the reasons

set forth below, the court will GRANT Travelers’ motion for summary judgment against Schuff;

DENY Schuff’s motion for summary judgment against Bosworth; DENY Schuff’s motion for

summary judgment against Travelers; and DENY Bosworth’s motion for summary judgment

against Schuff.

I. BACKGROUND

On July 14, 2018, the D.C. United Major League Soccer team notched their first win in

front of 20,504 fans in their newly constructed stadium. See Emily Giambalvo, DC United

debuts Audi Field, and Wayne Rooney, in a convincing win over Vancouver, Wash. Post, July 14,

2018. The stadium—which had only been substantially completed two days earlier—is made up

of approximately 5,000 tons of structural steel, to which vast precast concrete step and seat

structures are fastened. Schuff Mot. for Summ. J. against Travelers (“Schuff-Travelers MSJ”),

Statement of Facts ¶¶ 2, 47 ECF No. 68-1 (“Schuff-Travelers SOF”).

Schuff was subcontracted to detail, fabricate, and erect the steel framing and precast

sections by the stadium’s general contractor—Turner Construction Company (“Turner”)—two

years earlier. Id. ¶ 3. Schuff, in turn, sub-subcontracted the work of erecting and installing those

sections to Bosworth, in a contract valued at $7,975,000 (the “Subcontract”). Id. ¶ 4. The

Subcontract—executed on September 11, 2017—required Bosworth to erect the precast concrete

structures within 16 weeks, complete the steel erection within 25 weeks, and to lift and install the

stadium’s scoreboard. Id., Ex. N., Schuff-Bosworth Subcontract at 12 § 3, 15 § 29(a)(i), ECF

No. 68-15. Time was of the essence, as the Subcontract indicated, with DC United’s opening

game less than a year away. Schuff-Travelers MSJ at 18-19. Indeed, Bosworth began its work

in June of 2017, several months before the Subcontract was executed. Schuff-Travelers SOF ¶ 7.

Speed, however, was not to come at the expense of safety. Bosworth agreed to numerous safety
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requirements, including several related to lifting heavy objects with cranes. Subcontract, Attach.

4, Safety Requirements § 26, Cranes and Derricks. Specifically, Bosworth was required to

submit a plan to Turner considering potential hazards and contingencies for any lift exceeding

75% of a crane’s rated capacity—a “critical lift.” Id. § 26(b)-(c). A critical lift could not take

place until Turner, Schuff, Bosworth, and other “appropriate parties” met to discuss and approve

that critical lift plan. Id.

The Subcontract also contemplated the possibility of default, indicating that Bosworth

would be “in material breach . . . should it (a) refuse or fail to property execute the work . . . [or]

(c) fail to properly perform any and all obligations set forth” in the Subcontract. Subcontract at

4-5 § 14. Following a written notice of default from Schuff, Bosworth would have two working

days to commence to cure any alleged defect or deficiency. Id. § 14(a). Should Bosworth fail to

do so, Schuff had the right to terminate the Subcontract and use Bosworth’s “materials,

implements, equipment, appliances, or tools . . . to complete the work.” Id. § 14(a)(3). The

Subcontract allowed Schuff to terminate without the standard two-day notice “[i]n the event of

an emergency affecting the safety of persons or property.” Id. § 14(b).

The Subcontract also required Bosworth to obtain a surety bond for full performance of

the Subcontract in a form acceptable to Schuff. Travelers Mot. for Summ. J. against Schuff

(“Travelers MSJ”), Statement of Facts ¶¶ 2-3, ECF No. 56-2 (“Travelers SOF”). Travelers

issued a bond, naming Bosworth as Principal and Schuff as Obligee, which Schuff accepted. Id.

¶¶ 4-5. The bond provided that, should Bosworth default, Travelers was to have “a reasonable

period of time” to either (1) take over the Subcontract, (2) obtain bids from qualified contractors

to complete the Subcontract, or (3) waive its right to perform or complete the Subcontract and

determine, “with reasonable promptness under the circumstances,” whether to pay or deny

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Bosworth’s remaining liability under the Subcontract. Id., Ex. 2, Subcontract Performance Bond

at 1, ECF No. 56-4 (“Bond”).

A. The Scoreboard Lift and Bosworth’s Termination

Bosworth was scheduled to lift the stadium scoreboard into place on September 21, 2017.

Schuff-Travelers SOF ¶ 17. Schuff claims Bosworth repeatedly assured Schuff management that

the scoreboard lift would not be a critical lift and told Turner that the lift would be only 50-65%

of the crane’s capacity. Id. ¶¶ 14-15. Indeed, by the morning of the lift, Bosworth had not filed

a critical lift plan. Id. ¶ 13.

As the scoreboard began to rise on the morning of September 21, so did the suspicions of

Turner’s on-site Project Safety Manager, Cameron Bichler, that the scoreboard lift was in fact a

critical lift. Id. ¶ 16. Bichler entered the area, seeking to speak with the crane operator about its

capacity, but left after being cursed at by several Bosworth employees and asked to leave. Id.,

Ex. RR, Bichler Email at 3 (Sept. 21, 2017, 1:40 PM), ECF No. 68-45. 1 After further

investigation, Bichler determined that the lift was at least at 90% of the crane’s capacity, and

Bosworth was instructed to stop the lift and return the scoreboard to the ground. Id. Turner

banned Bosworth’s safety manager from the project site, and Bosworth subsequently fired him.

Schuff-Travelers SOF ¶ 17.

Bosworth prepared a new lifting plan that day, intending to reattempt the lift at 7:00 AM

on September 22. Bosworth Mot. for Summ. J. (“Bosworth MSJ”), Statement of Facts

(“Bosworth SOF”), Ex. E, Hurst Email at SCHUFF0002688, ECF No. 57-2. Schuff submitted

1
Normally, the court cannot consider hearsay on a motion for summary judgment. Gleklen v.
Democratic Cong. Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000). But because
neither party objected to consideration of this email on hearsay or any other grounds, and
because it likely falls under one of the hearsay exceptions, the court will consider it.

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that plan to Turner on Bosworth’s behalf that evening. Id. at SCHUFF0002685. By 6:25 AM on

the morning of the 22nd, Turner’s safety team had not yet approved the plan. Id., Ex. F. Golden

Email at 1. Accordingly, the lift was cancelled. Id., Ex. EE, Thompson Dep. at 118:3-7.

Schuff and Bosworth proffer different versions of what occurred between September 22

and September 26. Bosworth claims it worked diligently with Schuff to incorporate and revise

the scoreboard lifting plan based on comments from Turner. Bosworth SOF ¶ 17. Schuff then

submitted the revised plan to Turner at 7:40 AM on September 26. Id. ¶ 18. Bosworth alleges

that during that time, Schuff began taking surreptitious steps to take over the project from

Bosworth in violation of the Subcontract. Those steps included making housing arrangements

for Schuff managers and supervisors to come to Washington, id. ¶ 21, preparing hazard analyses

for Bosworth’s scope of work, id. ¶¶ 22-23, compiling onboarding materials for new Schuff

employees, id. ¶¶ 24-25, preparing an “Action Item List” identifying “the discrete tasks and

responsible Schuff employee to accomplish the termination and takeover of Bosworth’s

remaining scope of work,” id. ¶¶ 26-28, and representing to internal and external stakeholders

and vendors that Schuff would be taking over Bosworth’s contracts and equipment rentals and

that Bosworth had been terminated, id. ¶¶ 29-35, 37.

Schuff tells a different story. It claims that by September, Bosworth had fallen behind

schedule on the project. Schuff Mot. for Summ. J. against Bosworth (“Schuff-Bosworth MSJ”),

Statement of Facts ¶ 20, ECF No. 70-1 (“Schuff-Bosworth SOF”). And that after the failed lift,

there were only discussions, not plans, that Bosworth might reattempt the scoreboard lift. Id. ¶

50. Schuff alleges that while Bosworth did eventually resubmit a plan to Schuff, the final plan

submitted to Turner was independently created and submitted by Schuff. Id. ¶ 51. Schuff does

not dispute that it took the actions Bosworth claims, but characterizes them as preparation for the

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possibility of having to take over the Subcontract after providing notice of default, to ensure

there would be minimal disruption to an already-behind project schedule. Schuff-Bosworth SOF

¶ 20. Schuff does agree, however, that it was considering allowing Bosworth to reattempt the

scoreboard lift. Id. ¶ 57.

At 3:00 PM on September 26, Schuff and Bosworth representatives met at the site to

discuss terminating Bosworth from the project. Schuff-Bosworth SOF ¶¶ 52-53. Schuff and

Bosworth discussed what would be required to reach a mutually amicable resolution, including

the possibility of reattempting the scoreboard lift and a financial settlement. Id. ¶¶ 54-55.

Bosworth’s Vice President of Operations testified that while Bosworth rejected Schuff’s initial

settlement offer, the intention of all parties was to spend the week determining a settlement

figure. Id., Ex. D, V. Bosworth Dep. at 360:8-361:7. A journal entry from Schuff’s Eastern

Region Vice President also indicates that Schuff told Bosworth that it would be terminated for

convenience if it complied with certain “points,” including undertaking the scoreboard lift and

several other tasks. Bosworth SOF, Ex. Z, Farrell depo Ex. 6. Bosworth’s CEO John Bosworth

expressed that he did not intend to move forward with the scoreboard lift. Schuff-Bosworth

SOF, Ex. II, J. Bosworth Dep. at 94:12-95:1. In any event, it is undisputed that Bosworth knew

that it was to demobilize and depart the stadium site by September 29, 2017. Bosworth SOF

¶ 57.

Bosworth and Schuff representatives met at least twice on the morning of September

27th. The first meeting, an impromptu gathering around a pickup truck, focused on how to make

Schuff’s takeover of Bosworth’s work “as orderly as possible.” Schuff-Bosworth SOF, Ex. II, J.

Bosworth Dep. at 96:6-15. A second meeting at 11:00 AM became more heated. After a Schuff

representative tendered a new settlement offer, Bosworth’s CEO became irate, declaring “you’re

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not going to fuck me to tears” on this project. Id. at 100:7-12. Following this outburst,

Bosworth’s CEO left the site, attended a lunch in D.C., and flew back to Bosworth headquarters

in Texas. Id. ¶ 64.

Two hours later, at 1:20 PM, Schuff issued a “Notice of Default and Intent to Terminate

Subcontract” to Bosworth, deeming Bosworth’s failure to submit a critical lift plan for the

scoreboard a “material default of its obligations” because it “created an emergency affecting the

safety of persons and the Project.” Id., Ex. CC, Default Not., ECF No. 70-30. The notice also

cited other problems in the construction process, including “[f]ailure to properly staff the Project

at the appropriate levels, . . . general lack of planning/coordination of activities, . . . failure to

install the West canopy deck correctly, . . . [and] [d]elays caused by Bosworth as a result of all of

the foregoing.” Id. at 2. The notice concluded, “this termination will become effective two

working days from receipt of this notice” unless Bosworth provided “more qualified manpower,

a detailed recovery schedule, [a] plan to address the serious safety situation and appropriate

remedial actions, and a specific plan including adequate assurances acceptable to Schuff to

address each and every item contained in this Notice.” Id. at 3.

Bosworth’s Vice President of Operations responded to the notice by requesting an

additional working day to continue settlement discussions. Schuff-Bosworth SOF, Ex. HH, V.

Bosworth Email, ECF No. 70-35. Schuff did not respond to this email, id., Ex. D, V. Bosworth

Dep. at 360:14-18, but a Schuff Vice President sent Bosworth’s Vice President of Operations a

text message on the evening of the 27th, indicating that if Bosworth and Schuff reached a

settlement, the termination would be changed to one for convenience, rather than default, id., Ex.

II, V. Bosworth-D. Farrell Text Messages, ECF No. 70-36. Between September 27th and

September 29th, Bosworth’s crews began to demobilize, completing in-progress tasks and

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beginning to clean up debris. Bosworth SOF ¶ 69; Id., Ex. LL, Ritchey Dep. 151:3-21; Id., Ex.

MM., Avery Dep. 223:1-12.

Schuff sent Bosworth a “Notice of Failure to Cure Default” at 3:11 PM 2 on September

29, indicating that Bosworth had “failed to adequately address or sufficiently remedy the

material defaults identified in the default notice.” Bosworth SOF, Ex. BB, Not. of Failure to

Cure Default, ECF No. 57-2. The letter also alleged that Bosworth had “demobilized and

abandoned the project.” 3 Id. Bosworth responded at 5:46 PM with a letter denying that it had

demobilized and claiming that Schuff had violated the Subcontract’s default provisions by failing

to allow it two working days to commence to cure. Id., Ex. CC, Bosworth Default Response at

1, ECF No. 57-2. Bosworth also included what would have been its “substantive response to the

Notice of Intent letter,” in which it objected to the characterization of the scoreboard lift as an

emergency and rebutted the other issues Schuff presented in its Notice of Default. Id. at 2-3.

B. The Surety Bond

Schuff notified Travelers of Bosworth’s default at 6:13 PM on Friday, September 29.

Travelers SOF ¶ 29. Schuff stated that it was “forced to continue with the work while Travelers

is investigating this matter” to mitigate damages and avoid impacts to the “general contract.” Id.,

Ex. 15, Schuff’s Sept. 29, 2017 Not. to Travelers, ECF No. 56-17. The following Wednesday,

October 4, Travelers began investigating the claim, speaking with the claim underwriters, and

2
Bosworth and Schuff both use Central Daylight Time in reference to the Notice. The court will
convert the time to Eastern Daylight Time for uniformity with the other pleadings and this
court’s Opinion.
3
Schuff alleges that Bosworth had fully demobilized from the site at 3:02 PM. Schuff-Travelers
SOF ¶ 27. Schuff made this claim as part of its Statement of Facts in support of Summary
Judgment against Travelers, however, and therefore Bosworth did not have the opportunity to
dispute it.

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identifying the reasons for Bosworth’s default. Schuff-Travelers SOF, Ex. GG, Travelers’

Claims Notes at 5-6, ECF No. 68-34. On October 5, Travelers contacted Bosworth’s CEO for

further information as to why the termination was for default, rather than convenience. Id. at 5.

Travelers responded to Schuff by letter on October 6, acknowledging that Bosworth had

defaulted per the terms of the Bond and requesting correspondence, plans, specifications, and

other documents related to the Subcontract, as well as those related to the scoreboard lift.

Travelers SOF, Ex. 16, Travelers’ Oct. 6, 2017 Letter at 1-2, ECF No. 56-18. Travelers also

indicated that it was “unable to verify that Schuff has acted in accordance with the bonded

contract in . . . taking over Bosworth’s equipment and scope of work or in retaining an outside

subcontractor to complete and supplement the work.” Id at 2. The letter made clear that

Travelers’ response was not “consent or authorization” for Schuff to elect to self-perform the

remainder of the Subcontract, and Schuff’s continuing to complete Bosworth’s scope of work

“may operate to prejudice [Travelers’] rights under the Performance Bond.” Id.

Schuff responded on October 20, stating that “in order to mitigate potential damages for

all involved, Schuff is self-performing the erection.” Id., Ex. 18, Schuff Oct. 20, 2017 Letter at

1, ECF No. 56-21. In response to Travelers’ request for documents, Schuff provided only the

Subcontract and a letter sent on October 17 to Bosworth (which is not included in the record).

Id. Travelers nonetheless continued to investigate the claim. Schuff-Travelers SOF, Ex. GG,

Travelers’ Claims Notes at 3-5.

On November 15, Travelers emailed Schuff, repeating its request for additional

documentation “necessary for us to complete an investigation of Schuff’s claim.” Travelers

SOF, Ex. 19, Travelers’ Nov. 15, 2017 Letter at 1, ECF No. 56-22. Travelers also asked to visit

the stadium construction site in the last week of November. Id. Finally, Travelers offered to

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meet with Schuff at its offices to “understand the basis of Schuff’s claim and for the most

efficient exchange of information” necessary to complete its investigation “as soon as possible.”

Id.

Schuff agreed to a visit “solely for [Travelers] to collect information / observe the

progress on the project” on November 20, 2017. Schuff-Travelers SOF, Ex. EE, Donahue-Carey

Email, ECF No. 68-32. Schuff permitted one Travelers representative and one Bosworth

representative to attend and arranged for the visit to be chaperoned by the Schuff on-site project

executive, warning that it would not allow “any debate or deposition questioning of” the

executive. Id. Schuff also indicated that its subcontract on the stadium was “scheduled to be

substantially complete by the 1st week of January.” Id., Ex. DD, Donahue-J. Bosworth Email,

ECF No. 68-31. Only thereafter would Schuff turn to reconciling the remaining contractual

expenditures and the breadth of its claim against the Bond.

Schuff and Travelers agree that Travelers’ visit lasted no more than 30 minutes, although

each blames the other for the meeting’s brevity. Compare Travelers’ SOF ¶ 38 (“Schuff finally

agreed to allow a limited site visit to occur on November 29, 2017, which meeting [sic] lasted no

more than thirty minutes.”), with Schuff-Travelers SOF ¶ 40 (“Travelers’ site visit was ‘not very

long, maybe—no more than 30 minutes’ and in the course of the site visit ‘there was really no in-

depth questions or answers’ asked by the Travelers representative.”) (quoting Id., Ex. J, J. Avery

Dep. at 239:19-240:11, ECF No. 68-11). Thereafter, Travelers monitored Schuff’s progress on

the stadium via online webcam. Id. ¶¶ 42-43.

On January 2, 2018, Travelers sent a third letter to Schuff, again requesting documents,

adding requests for dated “shop drawing submittal logs, . . . fabrication schedules and steel

delivery dates, . . . and copies of all correspondence between Schuff and Bosworth with regard to

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timely completion of the Work.” Id., Ex. II, Travelers Jan. 2, 2018 Letter, ECF No. 68-36.

Schuff responded via email two weeks later, stating that “much of what you have requested can

be obtained directly from your principal, Bosworth Steel Erectors,” and that Schuff would need

to review Travelers’ new requests. Id., Ex. JJ, Sherman-Donahue Email at 1, ECF No. 68-37.

Schuff stated that it would provide more information the following week, and that it was nearing

completion on a “proposed close-out reconciliation” with Bosworth. Id. Schuff provided the

requested documents on February 22, 2018. Id., Ex. KK, Schuff Document Submission, ECF

No. 68-38.

C. Procedural Background

On February 26, 2018, Schuff sued Bosworth and Travelers. Compl., ECF No. 1. Count

1 of the Complaint alleges one count of breach of contract against Bosworth and seeks damages

of at least $1 million. Id. ¶¶ 28-30, 41A. Count 2 alleges that Bosworth and Travelers are jointly

and severally liable to Schuff for breach of the Bond, id. ¶¶ 31-40, and, contending that Travelers

has not paid its claim under the Bond, seeks at least $1 million in damages. Id. ¶¶ 37-38.

Travelers denies liability as to Schuff’s claims on the Bond. Travelers’ Answer, Affirmative

Defenses ¶ 6, ECF No. 8. Bosworth filed two counterclaims against Schuff for breach of

contract and unjust enrichment. First Am. Counterclaim ¶¶ 29-54, ECF No. 19. After discovery

closed—and after Schuff’s motion for judgment on the pleadings was denied without prejudice,

ECF No. 17; Mar. 3, 2020 Min. Order—Travelers moved for summary judgement on Count 2,

the only claim against it, ECF No. 56. Bosworth also moved for summary judgment on Count 1

and its counterclaims. ECF No. 57. Schuff cross-moved for summary judgment against

Travelers on Count 2, ECF No. 67, and against Bosworth on Count 1 and Bosworth’s

counterclaims, ECF No. 69.

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 II. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). A fact is

material if “a dispute over it might affect the outcome of a suit under governing law; factual

disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment

determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is genuine if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson, 477

U.S. at 248). A movant for summary judgment must identify the evidence “which it believes

demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). The opponent must present its own evidence beyond the pleadings

showing that there are genuine factual issues for trial. Id. at 324. “When parties file cross-

motions for summary judgment, each motion is viewed separately, in the light most favorable to

the non-moving party, with the court determining, for each side, whether a judgment may be

entered in accordance with the Rule 56 standard.” Howard Town Ctr. Dev., LLC v. Howard

Univ., 267 F. Supp. 3d 229, 236 (D.D.C. 2017) (internal quotation omitted). “Both motions must

be denied if the court finds that there is a genuine dispute of material fact.” 10A Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure § 2720 (4th ed.).

Federal courts must decide the “threshold” issue of their own jurisdiction, including

standing. Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94-95 (1998). A court may

consider if a plaintiff has standing at any time. Steffan v. Perry, 41 F.3d 677, 697 n.20 (D.C. Cir.

1994). A plaintiff carries the burden of establishing that they have the requisite constitutional

and prudential standing to sue. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). At the summary judgment stage, the plaintiff must “set forth by affidavit or other
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evidence ‘specific facts’” supporting their claim to standing. Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992) (quoting Fed. R. Civ. P. 56(e)).

III. ANALYSIS

A. Schuff and Bosworth’s Claims under the Subcontract

Schuff and Bosworth each moved for summary judgment against the other on the

respective claim and counterclaims arising from the Subcontract. Both contend that, as a matter

of law, undisputed facts compel the success of their causes of action and the failure of those

raised against them. Schuff further argues that Bosworth lacks standing to bring its

counterclaims. Having reviewed the record, the court finds that each party’s claims involve

genuine issues of material fact, and whether Bosworth has standing depends in turn upon the

resolution of those claims. As a result, the court will deny both motions for summary judgment.

1. Schuff’s Claim Against Bosworth
Schuff claims that Bosworth breached the Subcontract by failing both to perform its

contractual duties and to remedy its defective performance. Compl. ¶¶ 28-30. The alleged

failures to perform include the cancelled critical lift and various other defects in staffing,

timeliness, and quality control. Id. ¶ 13. The alleged failure to remedy occurred when Bosworth

did not commence to cure those defects during the two-day notice period beginning September

27, 2017. Id. ¶¶ 15-16. Schuff’s Motion for Summary Judgment against Bosworth insists that

undisputed facts now validate both of those assertions. Schuff-Bosworth MSJ at 8-24.

The relevant facts are far from undisputed, however. With respect to the scoreboard’s

critical lift, for example, Bosworth asserts that it had “cured or commenced to cure any . . .

deficiencies,” by cooperatively completing and submitting to Schuff a new plan in the days

following the cancelled lift. Bosworth Opposition to Schuff’s Mot. for Summ. J. and Reply in

Support of Mot. for Summ. J. at 29 (“Bosworth Opp. and Reply”), ECF No. 74. Schuff

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disagrees, characterizing that communication between the parties as merely discussing the

possibility of Bosworth subsequently performing the lift. Compare Bosworth SOF ¶¶ 12-18,

with Schuff-Bosworth SOF ¶¶ 3-4, and Schuff-Bosworth MSJ at 21 & n.10. And according to

Bosworth, the other failures were not cured only because Schuff instructed Bosworth to

demobilize rather than cure them, an assertion Schuff also denies. Compare Bosworth SOF

¶¶ 53, 63, and Bosworth Opp. and Reply, Statement of Facts at 4, ¶¶ 8-9, (“Bosworth Supp.

SOF”), ECF No. 74-1, with Schuff-Bosworth SOF ¶¶ 24-25. Likewise, Bosworth presents—and

Schuff disputes—other facts that, according to Bosworth, confirm Schuff’s instructions to

demobilize, such as Schuff’s preparations to staff and supply the project itself, compare

Bosworth SOF ¶¶ 21-34, 44, 64-66, with Schuff-Bosworth SOF ¶¶ 5-11, 16, 31-34, as well as

Schuff’s internal communications, compare Bosworth SOF ¶¶ 47-51, with Schuff-Bosworth SOF

¶¶ 14-15, 18-22. These disputed facts create genuine issues as to whether and why Bosworth

failed to perform or remedy.

In addition, the parties dispute at least two important facts related to whether Schuff’s

termination of Bosworth for default was procedurally valid. First, Bosworth asserts that the

September 27, 2017 Notice of Default was not an opportunity to cure any of the claimed

defaults, whereas Schuff maintains that it was. Compare Bosworth SOF ¶¶ 59, 63, with Schuff-

Bosworth SOF ¶¶ 12, 19, 27, 30. Second, in response to Bosworth’s argument that Schuff failed

to provide the contractually required two working days to cure or commence to cure any noticed

defaults, Schuff contends that no such notice was required because the September 21, 2017

attempt at lifting the scoreboard amounted to an “emergency affecting the safety of persons or

property.” See Schuff-Bosworth MSJ at 17 (quoting Subcontract § 14(b)). But the Subcontract

does not define the term “emergency,” and the parties marshal substantial and conflicting

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evidence as to whether the cancelled lift so qualifies. Compare Schuff-Bosworth SOF ¶¶ 35, 40,

44, 45, with Bosworth Supp. Facts at 1-3, ¶¶ 2-6, and id. at 8, ¶ 12. Here, too, then, the weight of

evidence on either side of the disputed facts calls into genuine issue whether Bosworth actually

breached the Subcontract.

Because these genuine issues of material fact persist, Schuff’s claim of breach against

Bosworth is not appropriate for resolution by summary judgment.

2. Bosworth’s Counterclaims Against Schuff
i. Counterclaim I: Breach of Contract

Bosworth’s primary counterclaim is that Schuff breached the Subcontract in two respects.

First, Schuff failed to pay the full amount that it owed Bosworth for work covered by the base

Subcontract, work performed pursuant to a change order process, and extra work necessitated by

deficiencies in the materials Schuff provided to Bosworth. First Am. Counterclaim at 13, ¶¶ 32-

36. Second, Schuff violated its duty of good faith and fair dealing by acting “arbitrarily, in bad

faith and with ill motive towards Bosworth.” Id. at 15-16, ¶¶ 44-46.

As an initial matter, whether Schuff owes Bosworth for the extra work it performed turns

on disputed questions of fact. To be sure, the Subcontract provides that “there will be no

compensation for extra work done without written authorization from Schuff,” Subcontract ¶ 11,

and Bosworth has largely failed to provide evidence of prior written authorization for the extra

work at issue, see Schuff-Bosworth MSJ at 26-27; Schuff-Bosworth SOF ¶¶ 77-85. But that

language does not necessarily end the inquiry. Under longstanding D.C. law, a provision

requiring written authorization for extra work “in a written contract does not prevent the parties

from making separate parol agreements regarding extras.” Shapiro v. Bimblich, 101 A.2d 890,

892 (D.C. 1954). And it does not preclude Schuff from waiving that provision’s requirements,

even by implication. 13 Williston on Contracts § 39:14 (4th ed.) (describing “the general

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principle of contract law that either party to a contract may waive virtually any contractual

provision or right in its favor”); see, e.g., Blake Const. Co. v. C. J. Coakley Co., 431 A.2d 569,

577 (D.C. 1981) (considering whether contractor had impliedly waived the requirements of

certain “explicit provisions” in a subcontract, but holding that, “on this record,” it had not); L. J.

Robinson, Inc. v. Arber Const. Co., 292 A.2d 809, 812 (D.C. 1972) (contractor impliedly waived

right to reject goods from subcontractor by failing to object to repeated deliveries).

The nature of Schuff’s interactions and communications with Bosworth are essential to

determining whether there were separate parol agreements or waiver here. But the parties

contest several critical details. On the one hand, Bosworth asserts that the parties had settled on

a “standard business practice” of contemporaneously documenting construction issues requiring

extra work and their cost, then submitting that documentation to Schuff for payment—a process

they had engaged in for months before executing the Subcontract, and which even afterward

Schuff continued to honor for pre-execution extra work. Bosworth Supp. SOF at 5, ¶¶ 1-3; id. at

8, ¶ 11; id. at 9, ¶¶ 14-15. Bosworth also points to several instances in which Schuff personnel

directed Bosworth to perform extra work without the full written authorization contemplated by

the Subcontract. Id. at 6-8, ¶¶ 6-9. On the other hand, Schuff (1) disputes that Bosworth’s

“standard business practice” was the agreed-upon process for this project, (2) disputes that

Bosworth properly complied with that practice by contemporaneously documenting and timely

submitting extra work, and (3) claims that some of the extra work was not actually necessary and

that Schuff—had it been timely notified—would have directed Bosworth to not complete it.

Schuff Reply in Support of Mot. for Summ. J. (“Schuff Reply”), Statement of Facts at 1-6, ¶¶ 1-

6 (“Schuff Supp. SOF”), ECF No. 77-1. These disputed facts are material to whether Schuff

“acquiesced” to an alternative extra work billing process, Blake Const. Co., 431 A.2d at 577,

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such that a separate parol agreement or waiver of the Subcontract’s written-authorization

requirement could be implied.

Assessing Schuff’s good faith and fair dealing similarly requires a fact-based analysis. If

a “party to a contract evades the spirit of the contract, willfully renders imperfect performance,

or interferes with performance by the other party, he or she may be liable for breach.” C & E

Servs., Inc. v. Ashland, Inc., 498 F. Supp. 2d 242, 262 (D.D.C. 2007) (quoting Allworth v.

Howard Univ., 890 A.2d 194, 201 (D.C. 2006)). Bosworth argues that Schuff so breached when

it “dangled a termination for convenience as a carrot to compel Bosworth to perform certain

work before leaving the Project on September 29,” then proceeded to proceeded to terminate

Bosworth for default instead. Bosworth MSJ at 16.

But whether Schuff actually engaged in that conduct—and, consequently, whether it

engaged in bad faith or unfair dealing—depends on disputed facts. The parties disagree, for

instance, on whether there is sufficient evidence that Dave Farrell, Schuff’s Eastern Region Vice

President of Operations, promised a termination for convenience if Bosworth complied with

Schuff’s requests. Compare Bosworth SOF ¶¶ 51-52 (relying on Farrell’s journal entry), and

Bosworth Supp. SOF at 4, ¶ 7, with Schuff-Bosworth SOF at 10-11, ¶ 17 (questioning the

contemporaneity of the entry), and id. at 13-14, ¶¶ 22-23 (same), and id. at 38-40, ¶¶ 54-61

(disputing whether term “termination for convenience” was actually used). See also Schuff-

Bosworth SOF, Ex. II, V. Bosworth-D. Farrell Text Messages, ECF No. 70-36 (text message

from Dave Farrell to Bosworth’s Vice President of Operations, suggesting that a settlement

would result in termination for convenience). The parties also contest whether Bosworth

ultimately performed any of the “certain work,” or “points,” that Schuff requested. Compare

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Bosworth SOF ¶ 69, with Schuff-Bosworth SOF at 24, ¶ 34. These competing factual assertions

preclude summary judgment.

ii. Counterclaim II: Unjust Enrichment/Quantum Meruit

Bosworth also seeks recovery for its unpaid change order work and extra work via a

counterclaim of unjust enrichment or quantum meruit. First Am. Counterclaim ¶¶ 47-54.

Although Bosworth cannot recover under this second counterclaim if it succeeds on the first,

D.C. law permits Bosworth to alternatively seek relief through this cause of action. See

McWilliams Ballard, Inc. v. Broadway Mgmt. Co., 636 F. Supp. 2d 1, 9 n.10 (D.D.C. 2009).

Bosworth contends that it was induced into providing services, materials, and supplies to Schuff

through the Subcontract, which Schuff improperly terminated. As a result, Bosworth asserts that

it has been damaged, and Schuff has been unjustly enriched, by the value of the change order

work and extra work Bosworth performed. First Am. Counterclaim ¶¶ 47-54.

Under D.C. law, unjust enrichment and quantum meruit are theoretically distinct claims,

but require similar factual premises. As the D.C. Circuit has explained, quantum meruit

rests on a contract implied in fact, that is, a contract inferred from the conduct of
the parties. This cause of action has four requirements: “1) valuable services
rendered by the plaintiff; 2) for the person from whom recovery is sought; 3) which
services were accepted and enjoyed by that person; and 4) under circumstances
which reasonably notified the person that the plaintiff, in performing such services,
expected to be paid.”

U.S. ex rel. Mod. Elec., Inc. v. Ideal Elec. Sec. Co., 81 F.3d 240, 246 (D.C. Cir. 1996) (quoting

Providence Hospital v. Dorsey, 634 A.2d 1216, 1218 n.8 (D.C. 1993)). By contrast, unjust

enrichment “rests on a contract implied in law” and “is possible in the absence of any contract,

actual or implied in fact.” Id. at 247 (citing Bloomgarden v. Coyer, 479 F.2d 201, 210 (D.C. Cir.

1973). It “requires a showing that ‘a person retains a benefit . . . which in justice and equity

belongs to another.’” Id. (citing 4934, Inc. v. District of Columbia Dep’t of Emp. Servs., 605

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A.2d 50, 55 (D.C. 1992)). “Because of the similarities between these causes of action, evidence

to support recovery under a contract implied in fact [quantum meruit] will often be of the same

sort necessary to prove an unjust enrichment claim.” Id.

Here, Bosworth’s key contentions for its counterclaim of unjust enrichment or quantum

meruit are that Schuff (1) improperly terminated the contract (2) without providing due

compensation to Bosworth. But as explained in the previous sections, supra, both of those

contentions involve genuine issues of material fact. For the same reasons, this counterclaim is

not appropriately resolved by summary judgment.

3. Bosworth’s Standing to Raise Counterclaims
Schuff asserts that Bosworth lacks standing to bring its counterclaims because

Bosworth’s indemnification agreement with Travelers assigned its “legal rights to the damages

and claims asserted in Bosworth’s Counterclaim[s]” to Travelers. Schuff-Bosworth MSJ at 6.

Those rights include standing to sue. See, e.g., Lans v. Digit. Equip. Corp., 252 F.3d 1320, 1324

(Fed. Cir. 2001) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975) (applying D.C. Circuit law

to hold that assignment of rights includes standing to sue)).

Whether Bosworth has standing turns on the outcome of Schuff and Bosworth’s

competing claims. The Bond contemplates that Travelers’ obligations would only arise if (1)

Bosworth was in default under the Subcontract, (2) Bosworth had been declared by Schuff to be

in default, and (3) Schuff had complied with its obligations under the Subcontract. Bond at 1.

The Indemnity Agreement states that a declaration of Bosworth’s default by Schuff or actual

breach or abandonment of the Subcontract would constitute a default. Schuff-Bosworth SOF,

Ex. O, Gen. Agreement of Indem. at § 1. If, as Schuff argues, Bosworth was in default or

properly declared to be in default, and Schuff was in compliance with the Subcontract, then

Bosworth’s rights would be assigned to Travelers. But if Bosworth was not in default, or

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Schuff’s declaration of default was procedurally defective, then the triggering conditions would

not be met, and Bosworth would retain standing to bring its counterclaims. The same is true if

Schuff materially breached the contract, as Bosworth claims, before the (declaration of) default.

See Rosenthal v. Sonnenschein Nath and Rosenthal, LLP, 985 A.2d 443, 452 (D.C. 2010) (a

party’s material breach excuses the nonbreaching party’s contractual obligations).

In sum: Both Schuff’s Count 1 claim against Bosworth and Bosworth’s counterclaims

against Schuff involve genuine issues of material facts. And because Bosworth’s standing turns

on the resolution of those issues, it likewise does not supply grounds for granting summary

judgment. Therefore, the court will deny Bosworth’s Motion for Summary Judgment, ECF No.

57, and deny Schuff’s Motion for Summary Judgment against Bosworth, ECF No. 69.

B. Schuff and Traveler’s Claims

Schuff and Travelers have cross-moved for summary judgment on Count 2 of Schuff’s

Complaint: breach of the performance bond. Travelers alleges that Schuff’s decision to self-

perform the Subcontract without allowing Travelers the contractually provided “‘reasonable

period of time’ to elect an option to choose a performance option” is a material breach of the

Bond that discharges Travelers’ obligations. Travelers SOF ¶ 30. Schuff argues that Travelers

unreasonably delayed acting on Schuff’s bond claim, and that Schuff fully complied with all the

Bond’s conditions.

Under District of Columbia law, “[n]otice provisions in insurance contracts are of the

essence of the contract.” Travelers Indem. Co. of Ill. v. United Food & Comm. Workers Int’l

Union, 770 A.2d 978, 991 (D.C. 2001) (quoting Greycoat Hanover F St. Ltd. P’ship v. Liberty

Mut. Ins. Co., 657 A.2d 764, 768 (D.C. 1995)). Notice provisions guarantee that the insurer is

able “to make prompt investigation and prepare to defend any action that may be brought.” Id.

(quoting Lee v. Travelers Ins. Co., 184 A.2d 636, 638 (D.C. 1962)). Thus, when a “policy
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expressly makes compliance with its terms a condition precedent to liability . . . , failure to

comply with the notice provision will release the insurer of liability.” Id.; see also Hunt Const.

Grp., Inc. v. Nat’l Wrecking Corp., 587 F.3d 1119, 1122 (D.C. Cir. 2009) (holding that a failure

to comport with a notice provision means that “the surety has no liability on the bond”).

Because notice provisions are of the “essence” of the surety contract, courts avoid

reading them in a manner that would result in the “nonsensical” outcome of foreclosing the

surety’s right to remedy the default itself. Hunt Const. Grp., 587 F.3d at 1121. In a case

involving a bond like the one here, the D.C. Circuit held that a surety’s liability to an obligee was

discharged, despite the absence of any “timely notice” provision in the bond, when the obligee

terminated its subcontract with the principal and then waited nine months to notify. W. Surety

Co. v. U.S. Eng. Const., LLC, 955 F.3d 100, 105 (D.C. Cir. 2020).

Schuff argues that no such discharge occurred because it “provided immediate notice to

Travelers of Bosworth’s default and termination of the Subcontract.” Schuff-Travelers MSJ at

36. Schuff contends that Travelers’ “reasonable period of time” to elect an option began when it

received that notice, and Schuff had no further duty to Travelers other than to mitigate damages

by forging ahead on construction as opening day approached. Id. at 18-19. Schuff argues that, if

anything, it exceeded the scope of what it was required to do by providing Travelers with the two

documents and allowing a site visit. Id. at 25-26. Schuff maintains that Travelers could have

elected any of its three options—takeover, soliciting bids, or proceeding to investigate whether to

grant or deny the claim—at any point after receiving notice; Travelers’ failure to do so was its

own fault.

Schuff’s reasoning undermines the fundamental basis for notice provisions in surety

contracts outlined above, which is to ensure that a surety’s bargained-for “right to remedy the

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default itself” is protected. Hunt Const. Grp., 587 F.3d at 1121. Just as the surety must have

reasonable notice so as to investigate a claim, so too must it have a reasonable period of time to

elect which remedial option to pursue. See W. Surety Co., 955 F.3d at 106 (remarking favorably

on the 11th Circuit’s holding that when an obligee engages in self-help “before the surety has an

opportunity to respond to the termination, the surety’s obligations under the bond are

discharged”) (quoting Int’l Fid. Ins. Co. v. Americaribe-Moriarty JV, 681 F. App’x 771, 776-77

(11th Cir. 2017)). By timely notifying Travelers and then immediately electing to self-perform,

Schuff presented Travelers with a choice between something or nothing, which is no true choice

at all.

Schuff’s last argument—that it was simply following its duty to mitigate damages by

self-performing—is misplaced. Schuff contends that the project could not afford even the

slightest delay because the stadium had to be ready by D.C. United’s opening day. Schuff-

Travelers MSJ at 19. But if this is true, then Schuff could have mitigated damages by promptly

responding to Travelers’ request for documents when Schuff received it on October 6, rather

than nearly five months later (and indeed, four days before filing suit). By immediately self-

performing after notice, Schuff did not just reduce Traveler’s reasonable period of time in which

to elect a remedial option, it foreclosed it.

It is undisputed that Schuff immediately began self-performing upon notifying Travelers

of its bond claim. That immediate performance prevented Travelers from electing a remedial

option, let alone a reasonable one. The court may thus find as a matter of law that Travelers did

not breach the performance bond, as Schuff claims in Count 2. The court will therefore grant

Travelers’ motion for summary judgment (ECF No. 56) as to Count 2 of the Complaint and deny

Schuff’s motion for summary judgment (ECF No. 67) as to Count 2 of the Complaint.

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 1. Remaining Matters
Schuff seeks to recover on Count 2 of its Complaint against Travelers and Bosworth

under a theory of joint and several liability. Compl. ¶ 32. Schuff’s motion for summary

judgment, however, did not address Bosworth’s liability on Count 2, and Bosworth’s motion for

summary judgment addressed only Count 1 and its own counterclaims. One count—breach of

the performance bond—against one Defendant—Bosworth—thus remains unaddressed.

Federal Rule of Civil Procedure 56(f) contemplates summary judgment independent of

any party’s motion. The court may consider or grant summary judgment “[a]fter giving [the

parties] notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f); see also Pinson v.

United States Dep’t of Justice, 246 F. Supp. 3d 211, 230 n.20 (D.D.C. 2017) (considering

summary judgment absent a clear motion when the losing party was on notice that they had to

come forward with all their evidence) (quoting Athridge v. Rivas, 141 F.3d 357, 361 (D.C. Cir.

1998)).

Consequently, the court will order the parties to meet and confer and file a joint status

report indicating whether and how they would like to address this issue.

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 IV. CONCLUSION

For the foregoing reasons, the court will GRANT Travelers’ motion for summary

judgment against Schuff, ECF No. 56; will DENY Schuff’s motion for summary judgment

against Bosworth, ECF No. 69; will DENY Schuff’s motion for summary judgment against

Travelers, ECF No. 67; and will DENY Bosworth’s motion for summary judgment against

Schuff, ECF No. 57.

The court will also order the parties to meet and confer and file a joint status report

indicating whether and how they would like to address the issue of Count 2 against Bosworth.

A corresponding order will accompany this memorandum opinion.

Date: September 28, 2022

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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