Pierce Associates, Inc. v. The Nemours Foundation

Henry W. Sawyer, III (argued), Drinker, Biddle & Reath, Burt M. Rublin, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., for appellant and cross-appellee Pierce Associates, Inc.

Heron, Burchette, Ruckert & Rothwell, Washington, D.C., for appellant and cross-appellee Federal Ins. Co.

George Anthony Smith (argued), Smith, Currie & Hancock, Atlanta, Ga., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee and cross-appellant The Nemours Foundation.

John Anthony Wolf (argued), Ober, Kaler, Grimes & Shriver, Baltimore, Md., Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for appellees and cross-appellants Gilbane Building Co. and The Aetna Cas. & Sur. Co.

Before SLOVITER and HUTCHINSON, Circuit Judges, and DEBEVOISE, District Judge*.

DEBEVOISE, District Judge.

The Nemours Foundation ("Nemours") owns the Alfred I. duPont Institute Children's Hospital in Wilmington, Delaware. In January 1980 Nemours entered into a general contract with Gilbane Building Company ("Gilbane") for completion of the interior of the Hospital. The Aetna Casualty & Surety Company ("Aetna") became surety on a performance bond which named Gilbane as principal and Nemours as obligee.

Gilbane entered into a number of subcontracts, including a $35.9 million fixed-price subcontract with Pierce Associates, Inc. ("Pierce") pursuant to which Pierce agreed to perform the mechanical work on the project (the heating, ventilation, air-conditioning, plumbing and fire-protection systems). Federal Insurance Company ("Federal") became surety on a performance bond which named Pierce as principal and Gilbane as obligee.

Disputes arose about performance under the general contract and under the subcontracts, and complex multi-party litigation ensued. During pretrial proceedings there were various changes in the parties' positions and realignments of adversaries which resulted in a trial at which Nemours and its general contractor Gilbane (joined by its surety Aetna) were plaintiffs seeking damages against Gilbane's subcontractor Pierce and Pierce's surety Federal.

After a 79 day trial the jury found in favor of Nemours and Gilbane on all their claims against Pierce and Federal and found against Pierce on its counterclaims. On September 15, 1986 final judgment was entered awarding $26,017,411 in damages and pre-judgment interest to Nemours and $3,018,372 in damages and pre-judgment interest to Gilbane. The total judgment amount of $29,035,783 was on account of the following items:

                          Against Pierce and Federal
For Nemours on account of Pierce's breach of its subcontract with   $19,045,982
  Gilbane and Pierce's negligence and on account of Federal's
  obligation on its performance bond (plus pre-judgment interest)
For Gilbane on account of Pierce's breach of the subcontract with     2,066,699
  it and on account of Federal's obligation on its performance
  bond
For Gilbane on account of interest on the award of $2,066,699 at        951,673
  the rate of 13 1/2 % from April 18, 1983 to the date of judgment
                                                                    -----------
                                                                    $22,064,354
                        For Nemours Against Pierce Only
On certain indemnity claims                                         $ 3,375,000
Pre-judgment interest on indemnity claims                             1,554,118
Punitive damages                                                      1,000,000
Attorney's fees and consultant's costs                                1,042,311
                                                                    -----------
                                                                    $ 6,971,429

After resolution of their post-trial motions for judgment n.o.v. or for a new trial Pierce and Federal filed a notice of appeal from the final judgment on January 26, 1988. Subsequently this Court remanded the case for adjudication of a Rule 60(b) motion which Pierce and Federal had filed challenging the rate of post-judgment interest in the final judgment. The district court granted the motion on April 4, 1988 and reduced the post-judgment interest rate from 10.5% to 5.63%. On April 15, 1988, the district court denied a second Rule 60(b) motion filed by Pierce and Federal which challenged the imposition of post-judgment interest on pre-judgment interest. Nemours, Gilbane and Aetna appeal from the order granting the reduction of post-judgment interest. Pierce and Federal appeal from the order denying the motion for relief from the award of post-judgment interest on pre-judgment interest.1

We conclude as follows: (i) The award of $19,045,982 in favor of Nemours against Pierce must be reversed for the reason that Nemours has neither a contract claim nor a negligence claim against Pierce. (ii) The award of $19,045,982 in favor of Nemours against Federal must be reversed for the reason that Federal's liability is dependent upon and derivative of Pierce's liability. (iii) The award of $2,066,699 for contract damages in favor of Gilbane and against Pierce and Federal will be reversed to the extent it represents delay liquidated damages and affirmed to the extent it represents recovery of $269,699 in back charges. (iv) The award of pre-judgment interest on $269,699 in favor of Gilbane and against Pierce will be reversed and remanded for recomputation of interest in accordance with applicable Delaware law. (v) The awards in favor of Nemours and against Pierce on the indemnity claims and interest thereon and for punitive damages, attorneys' fees and consultants' costs will be reversed. (vi) To the extent that they are still applicable, the district court's orders granting Pierce's and Federal's motion to reduce post-judgment interest and denying Pierce's and Federal's motion for relief from the award of post-judgment interest on pre-judgment interest will be affirmed.

The court has jurisdiction under 28 U.S.C. Sec. 1291.II. The Background

These appeals do not challenge the sufficiency of the evidence. Rather, they challenge the legal sufficiency of the claims submitted to the jury and concern legal rulings of the trial court. The facts upon which these rulings were based are not in dispute.

As recited above, in January 1980 Nemours entered into a general contract with Gilbane to complete the interior of its Children's Hospital. This contract includes the American Institute of Architects' "General Conditions of the Contract of Construction" (1976 ed.) (the "AIA General Conditions"). Article 1.1.2 of the AIA General conditions states:

Nothing contained in the Contract Documents shall create any contractual relationship between the Owner [Nemours] or the Architect and any Subcontractor or Sub-subcontractor.

Gilbane in turn entered into a number of subcontracts. The largest was its $35.9 million fixed-price subcontract with Pierce, executed in June 1980 which called for Pierce to perform the mechanical work on the project. Gilbane entered into other subcontracts including a $19.7 million subcontract with Dynalectric Company ("Dynalectric) for electrical work and an $8.6 million subcontract with Honeywell, Inc. ("Honeywell") for installation of the building management systems.

Section 1 of the Gilbane-Pierce subcontract provided that Pierce would "furnish all materials and perform all work as described in Section 2 hereof for Phase 5B: A.I. duPont Institute for the Nemours Foundation Hospital Building ... all in accordance with the Drawings and Specifications ... and subject in every detail to the supervision and satisfaction of [Gilbane] and of [Nemours] or his duly authorized representative."

The subcontract provided in Section 6 that "[Pierce] agrees to be bound to [Gilbane] by the terms and conditions of this Agreement, the Drawings and Specifications, the General Contract and the General Conditions for construction ..., and to assume toward [Gilbane] all the obligations and responsibilities that [Gilbane], by these documents, assumes toward [Nemours]." The General Conditions, of course, contained the provision that nothing contained in the "Contract Documents" shall create any contractual relationship between Nemours and any subcontractor.

A number of provisions in the subcontract, particularly those found in Section 7, imposed upon Pierce specific obligations vis-a-vis Nemours. For example: Section 7(a) requires Pierce to "furnish Shop Drawings, Erection Drawings, Details, Samples, etc.," for Nemours' approval. Section 7(b) bestowed upon Nemours the right to agree on lump sum pricing of changes to Pierce's work. Section 7(c) gave Nemours the right to inspect and condemn Pierce's work and required Pierce to "make good" the condemned work at its own expense. Section 7(e) required Pierce to "indemnify and save harmless" Nemours from any expenses, liability or loss arising from patent, copyright or trademark infringement.

After the terms of the Gilbane-Pierce subcontract were agreed upon, Gilbane sent it to Nemours for approval. By letter dated September 9, 1980 Nemours approved the subcontract and also stated, "[b]y this approval, The Nemours Foundation does not waive, and expressly reserves all of its rights and remedies under said contract and nothing herein shall be deemed or construed to create any contractual relationship between The Nemours Foundation and said subcontractor." At the foot of the letter Gilbane executed the following: "Receipt and Acceptance acknowledged this 19th day of September, 1980."

Pursuant to the requirements of the subcontract Pierce furnished Gilbane a performance bond naming Pierce as principal, Federal as surety and Gilbane as obligee. Two provisions are pertinent to the present case. The bond provides, "No right of action shall accrue on this bond to or for the use of any person or corporation other than the Obligee named herein or the heirs, executors, administrators or successors of the Obligee." Immediately after that provision there appears the following: "Provided, however, that this Performance Bond issued on behalf of the named Principal may not be assigned to any party other than the Owner, The Nemours Foundation, without the consent of the Sureties." The bond was never assigned to Nemours.

Gilbane and its subcontractors commenced performance under their respective contracts. Serious delays ensued, the causes of which were the subject of vigorous disagreement. The delays and disputes over contract plans and specifications, design revisions, job progress schedules, progress payments and change orders resulted in Nemours withholding payments. In response, in April 1983 Pierce suspended performance under the subcontract. Although the other subcontractors asserted claims against Gilbane and Nemours, they stayed on the job.

To meet the situation created by Pierce's abandonment of the job, Nemours hired contractors to correct and finish Pierce's work under the direction of Turner Construction Company ("Turner"). Gilbane and its other subcontractors coordinated with Turner and the completion contractors to finish the Hospital. Substantial completion took place by December 1984 twenty-one months late.

Not surprisingly, litigation ensued. It was carried on while the Hospital was being completed and thereafter. On April 5, 1983 Gilbane filed a complaint against Nemours and its architect and engineer alleging breach of contract, breach of warranty and negligence. Gilbane sought compensation for delay damages suffered by it and its subcontractors.

It would appear that at that time Gilbane and certain of its subcontractors, including Pierce, were working in tandem. On the day Gilbane filed its complaint against Nemours, Pierce and the electrical contractor, Dynalectric, filed similar breach of contract actions against Gilbane and its surety, Aetna, seeking compensation for delay, for changed and added work and for monies wrongfully withheld. Honeywell, the management systems subcontractor, filed a similar complaint against Gilbane sometime later.

In Gilbane's action, counterclaims were filed against it by Nemours and its architect and engineer. In the subcontractors' actions, Gilbane filed counterclaims for indemnification and contribution and also impleaded Nemours and its architect and engineer. Nemours, in turn, filed counterclaims against Gilbane.

Nemours also filed breach of contract and negligence claims directly against Gilbane's subcontractors and their sureties, alleging that it was a third party beneficiary of the subcontracts and of the surety bonds. Pierce and Dynalectric moved to dismiss Nemours' claims against them on the ground that there was no third party beneficiary relationship between Nemours and them, and Nemours could not recover on a negligence theory for purely economic loss. On March 15, 1984 the district court denied the motions.2 Pierce and Dynalectric then answered Nemours' claims and filed counterclaims against it.

Up to that point and for some time thereafter the positions of Gilbane and its subcontractors, despite the claims asserted against each other, appeared to be in substantial alignment. That is to say, they attributed responsibility for the delays and other difficulties to Nemours and its architect and engineer. In March 1985 Gilbane settled with Nemours and its architect and engineer, joining with them in asserting claims against Pierce. Pursuant to the settlement, Gilbane received $4,025,000, of which Nemours paid $3,375,000, Nemours' architect paid $300,000, and its engineer paid $350,000. Gilbane in turn paid the aggregate sum of $3,669,000 to settle the delay claims asserted by Dynalectric, Honeywell and other smaller subcontractors, retaining $356,000 for itself. The settlement agreement further provided that Gilbane would be entitled to share with Nemours on a 50-50 basis the first $8,000,000 of any possible recovery from Pierce.

A recital in the settlement agreement stated that the parties to it were of "the strong opinion and belief" that the primary causes of the delays to the completion of the project and of the damages incurred by them were attributable to Pierce's breaches of contract, negligence and, in the opinion of Nemours, fraud on Pierce's part. Gilbane promised in the settlement agreement to cooperate with Nemours in its action against Pierce by forsaking any claim or defense based on Nemours' action, to seek commitments from its subcontractors in their settlement agreements to cooperate with Nemours in a similar fashion, and to refrain from settling with Pierce or Federal without Nemours' written consent.

In order to reflect the realignment of the parties resulting from the settlement, the district court designated Nemours and Gilbane as co-plaintiffs and Pierce and Federal as the defendants. On November 4, 1985 the district court denied Pierce's motion to dismiss Nemours' claim seeking indemnification for the $3,375,000 which Nemours had paid in settlement.

A trial by jury commenced on March 31, 1986. The results are reflected in the final judgment described in Part I above.

It must first be determined whether the district court erred as a matter of law by holding that Nemours was a third party beneficiary of the Gilbane-Pierce subcontract.3 Since this issue involves only a question of law the standard of review is plenary. This being a diversity of citizenship case brought pursuant to 28 U.S.C. Sec. 1332, this and the other substantive issues are controlled by Delaware law.

"It is well settled in Delaware that a third-party may recover on a contract made for his benefit.... But in order for there to be a third party beneficiary, the contracting parties must intend to confer the benefit." Ins. Co. of North America v. Waterhouse, 424 A.2d 675, 679 (Del.Super.1980). The intent to confer a third party beneficiary benefit is to be determined from the language of the contract. Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 336 A.2d 211, 215 (Del.1975); Royal Indemnity Co. v. Alexander Industries, Inc., 8 Storey 548, 58 Del. 548, 211 A.2d 919, 920 (1965.)

Thus in the present case an intent to confer third party beneficiary status on Nemours must be gleaned from the language of the Gilbane-Pierce subcontract. The language of a contract, however, cannot be divorced from the context in which it was written. Here, we are dealing with a general contract and a subcontract in the construction industry.

Typically when major construction is involved an owner has neither the desire nor the ability to negotiate with and supervise the multitude of trades and skills required to complete a project. Consequently an owner will engage a general contractor. The general contractor will retain, coordinate and supervise subcontractors. The owner looks to the general contractor, not the subcontractors, both for performance of the total construction project and for any damages or other relief if there is a default in performance. Performance and the payment of damages are normally assured by the bond of a surety on which the general contractor is principal and the owner is the obligee.

The general contractor, in turn, who is responsible for the performance of the subcontractors, has a right of action against any subcontractor which defaults. Performance and payment of damages by a subcontractor are normally assured by the bond of a surety on which the subcontractor is principal and the general contractor is the obligee.

Thus the typical owner is insulated from the subcontractors both during the course of construction and during the pursuit of remedies in the event of a default. Conversely, the subcontractors are insulated from the owner. The owner deals with and, if necessary, sues the general contractor, and the general contractor deals with and, if necessary, sues the subcontractors.

These typical construction contract relationships have long been recognized:

[Contracts between a principal building contractor and subcontractors] are made to enable the principal contractor to perform; and their performance by the subcontractor does not in itself discharge the principal contractor's duty to the owner with whom he has contracted. The installation of plumbing fixtures or the construction of cement floors by a subcontractor is not a discharge of the principal contractor's duty to the owner to deliver a finished building containing those items; and if after their installation the undelivered building is destroyed by fire, the principal contractor must replace them for the owner, even though he must pay the subcontractor in full and has no right that the latter shall replace them. It seems, therefore, that the owner has no right against the subcontractor, in the absence of clear words to the contrary. The owner is neither a creditor beneficiary nor a donee beneficiary; the benefit that he receives from performance must be regarded as merely incidental.

A contractor entered into a contract with the Government, the latter promising to pay the cost plus a fixed fee and assenting to the letting of subcontracts. In such a case it is clear, in the absence of evidence of a different intention, that the subcontractor is not a beneficiary of the Government's promise to the contractor to pay the cost, even though the amount payable to the subcontractor is reckoned as part of the cost. The Government made no promise to pay anything to the subcontractors. For similar reasons, the Government is not a beneficiary of a subcontractor's promise to the contractor, even though the performance promised may enable the contractor to perform his contractual duty to the Government.

4 Corbin on Contracts Sec. 779D (1951 ed.) at 46, 47.

These typical construction relationships are also recognized in Delaware law. In Cannon the Delaware Supreme Court referred to the "buffer zone" which a general contract creates between the owner and a subcontractor, although in that case it found that the language of the subcontract evidenced an intent to extinguish the buffer zone. 336 A.2d at 216.

There is nothing to prevent a departure from the typical pattern, and, as was the case in Cannon, a contractor and subcontractor may agree to confer upon an owner rights which are enforceable directly against the subcontractor. However, an intent to do so must be found in the contract documents. Thus in the present case it must be determined whether the Gilbane-Pierce subcontract evidences an intent on the part of both Pierce and Gilbane to depart from the typical owner-general contractor and general contractor-subcontractor relationships to confer upon Nemours a direct right of action against Pierce.

The overall structure of the contractual relationships in this case falls into the traditional mold. Nemours as owner entered into a general contract with Gilbane. Gilbane's obligations were assured by a performance bond issued by Aetna. Gilbane entered into a number of subcontracts, including the one with Pierce. Each subcontractor's obligations were assured by a performance bond, a performance bond issued by Federal in the case of Pierce. If indeed Gilbane intended that the subcontract create an obligation running directly from Pierce to Nemours, it is curious that it accepted (in fact, prescribed) a performance bond which provided that no right of action would accrue on it to or for the use of any person other than Gilbane.

The language of the Gilbane-Pierce subcontract suggests that Gilbane and Pierce contemplated that Pierce was to be obligated to Gilbane, not to Nemours.

The subcontract is between Pierce, as subcontractor, and Gilbane as the contractor. Section 6 specified Gilbane as the entity to which Pierce was to be responsible: "The Subcontractor agrees to be bound to the Contractor by the terms and conditions of the Agreement ... and to assume toward the Contractor all the obligations and responsibilities that the Contractor, by these documents, assumes toward the Owner." (Emphasis added.)

Section 7(f) of the subcontract provides that if Pierce fails to perform, Gilbane may provide labor, equipment or materials or may terminate Pierce and complete the work itself. Section 38E of the Special conditions provides that the subcontractor's payment and performance bond shall name Gilbane as obligee.

Exhibit A to the general contract, which of course is evidence of Gilbane's intent, provides that "[t]he Contractor shall have sole and total responsibility for completing the [general] contract ... and is responsible to the Owner for the full, proper, and timely performance of all work under the contract." (Emphasis added.) Article 4.3.2 of the General Conditions provides that "[t]he Contractor shall be responsible to the Owner for the acts and omissions of his employees, Subcontractors and their agents and employees...." (Emphasis added.)

Of significance is the incorporation of the standard AIA General Conditions of the Contract for Construction into both the general contract and the subcontract. Article 1.1.2 of the General Conditions provides:

Nothing contained in the Contract Documents shall create any contractual relationship between the Owner or the Architect and any Subcontractor or Sub-subcontractor.

Nemours urges that in light of the definition of "Contract Documents" in Article 1.1.1, the Article 1.1.2 language serves only to preclude the general contract from creating a contractual relationship between Nemours as owner and Pierce as subcontractor but does not preclude the subcontract from creating such a relationship. Article 1.1.2 provides that "[n]othing contained in the Contract Documents shall create any contractual relationship between the Owner ... and any Subcontractor...." (Emphasis added.) As defined in Article 1.1.1, however, "Contract Documents" does not include the subcontract and, therefore, Nemours argues, there is no prohibition against the subcontract creating a third party beneficiary relationship between Nemours and Pierce.

If the Article 1.1.2 language appeared only in the general contract, Nemours' argument might be persuasive. However, there was repeated incorporation of the General Conditions and its Article 1.1.2 language into the subcontract.

At page 1A of the subcontract it is provided that all work thereunder shall be in accordance with "General Conditions of the Contract for Construction, in (sic) Specifications, (AIA Document A201--1976 Edition)". In Section 6, referred to above, Pierce as subcontractor agrees to be bound by the General Contract and the General Conditions for Construction. Section 7(g) provides that "[t]he Terms and Provisions herein contained and the General Conditions For Construction (AIA Document A201--1976 Edition) ... shall supersede all previous communications, representations, or agreements, either oral or written, between the parties hereto with respect to the subject matter hereof."

This repeated incorporation of the General Conditions and its Article 1.1.2 no contractual relationship language is a strong indication of an intent on Gilbane's and Pierce's part to maintain the separate owner-general contractor and general contractor-subcontractor relationships.

No Delaware court appears to have construed general contracts or subcontracts which contain Article 1.1.2 of the AIA General Conditions or comparable language. Decisions in other jurisdictions, however, have held that this provision (or like language) prevents an owner from maintaining a breach of contract action against a subcontractor on a third party beneficiary theory, or prevents a subcontractor from maintaining a breach of contract action against an owner on such a theory. Thus the buffer is preserved by Article 1.1.2 or its equivalent. E.C. Ernst, Inc. v. Manhattan Constr. Co. of Texas, 551 F.2d 1026 (5th Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978) (subcontractor asserted it was a third party beneficiary under the general contract); Honey v. George Hyman Construction Co., 63 F.R.D. 443 (D.D.C.1974) (insurer subrogated to rights of owner asserted it was a third party beneficiary of the subcontract between the general contractor and the subcontractor); Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716 (Ala.Civ.App.1979), cert. denied, 376 So.2d 726 (Ala.1979) (owner sought to recover from a subcontractor on a third party beneficiary theory).

In Honey the general contract included a General Condition which provided that "[n]othing contained in the specifications or drawings shall be construed as creating any contractual relationship between any subcontractor and the Owner." The General Condition did not specifically preclude a subcontract from creating a contractual relationship between owner and subcontractor, but the court held nevertheless that incorporation of the General Condition by reference in the subcontract "clearly indicates that [the subcontractor] intended to avoid any contractual obligation to [the owner]." 63 F.R.D. at 450.

Similarly in Federal Mogul Corp. the general contract included a General Condition of the Contract for Construction which provided that "[n]othing contained in the contract documents shall create any contractual relation between any subcontractors and the owners." Here too the General Condition did not specifically preclude a subcontract from creating a contractual relationship between owner and subcontractor, but again the court held that by virtue of its incorporation in the subcontract "the language of the instant documents expressly pre-empts the creation of third party contract rights in [the owner]." 376 So.2d at 724. See also dicta in G & P Electric Co. v. Dumont Construction Co., 194 Cal.App.2d 868, 15 Cal.Rptr. 757, 763 (1961).

Nemours' principal argument in support of its third party beneficiary theory is that the Gilbane-Pierce subcontract contains numerous provisions which evidence an intent that Nemours be benefited by Pierce's performance. The description of Pierce's work in Section 1 provides that it shall be subject to the supervision and satisfaction of the contractor and the owner. There are a number of other provisions which impose obligations on Pierce vis-a-vis Nemours, such as an obligation to furnish Shop Drawings, Erection Drawings, etc. for Nemours' approval, the requirement that Pierce indemnify and save harmless Nemours from any expense, liability or loss arising from patent, copyright or trademark infringement.

In every construction subcontract the owner is the one which ultimately benefits from its performance. However, this does not create a third party beneficiary relationship.

Nemours relies heavily on Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., supra, in which the court held that in the circumstances of that case the various provisions of the subcontract benefiting the owner demonstrated an intent by the parties to the subcontract that the owner be a third party beneficiary of the subcontract. The result in that case turned on the ascertainment of the parties' intent. What distinguishes the present case from Cannon is Pierce's and Gilbane's expressed intent that there be no third party beneficiary relationship between Pierce and Nemours. For the same reason Sears, Roebuck and Co. v. Jardel Co., 421 F.2d 1048 (3d Cir.1970) (applying Pennsylvania substantive law) is inapplicable.

Until the execution of the settlement agreement between Nemours and Gilbane, the actions of all three parties affirmed the absence of a contractual relationship between subcontractor and owner. In its September 9, 1980 letter to Gilbane approving the Gilbane-Pierce subcontract, Nemours wrote "nothing herein shall be deemed or construed to create any contractual relationship between The Nemours Foundation and said subcontractor [Pierce]." During the period when disputes about performance of the contract had developed Nemours looked to Gilbane and Gilbane alone with respect to completion of Pierce's work under the subcontract. The manner in which the contract litigation was instituted and initially prosecuted and defended evidenced the understanding of Nemours, Gilbane and Pierce that no contractual relationship existed between Nemours and Pierce.

We conclude that the subcontract does not manifest an intent by Pierce and Gilbane to confer third party beneficiary status upon Nemours. In fact, the subcontract evidences an intent to preclude such a status. Nemours and Gilbane were but two of three parties in a relationship carefully structured by contract (the general contract and the subcontract). Pierce was the third party in that relationship. By means of the settlement agreement Nemours and Gilbane, in effect, sought to change that relationship to give Nemours a previously non-existent direct cause of action against Pierce. Without Pierce's participation that was not possible. Contractual rights cannot be so casually disregarded.

Thus to the extent that the judgment of the trial court rests upon Nemours' third party beneficiary claim it must be reversed.

Nemours sued Pierce on a negligence theory as well as on a third party beneficiary theory. The trial court instructed the jury that "If you find that Pierce was negligent and that its negligence was the proximate cause of the damages allegedly sustained by Nemours, you should award Nemours an amount that will fairly and adequately compensate it for such damage." Negligence was defined for the jury as Pierce's breach of "its duties to perform its work on the hospital project in a reasonable, careful and workmanlike manner" by ten specified acts or failures to act, such as failing to supply necessary manpower, failing to perform work in a careful and workmanlike manner, failing to submit necessary documentation, failing to properly schedule work, etc. The jury was told that the elements of damages on the negligence claim were (i) the cost of correcting or replacing alleged defective or non-conforming work installed by Pierce, (ii) the cost of completing the work left incomplete by Pierce, (iii) the extra cost of construction paid to other subcontractors as a result of the alleged breaches of contract by Pierce, and (iv) the cost of obtaining as-built drawings of Pierce's subcontract work. The jury found against Pierce on Nemours' negligence claim and the judgment awarded Nemours the same sum on account of both its contract and negligence claims--$13,040,910 plus pre-judgment and post-judgment interest.

On appeal Pierce contends that the trial court erred in failing to dismiss Nemours' negligence claim and allowing it to go to the jury. Pierce contends that under Delaware law, absent privity of contract, a party may not maintain a cause of action sounding in negligence to recover for purely economic loss, citing as authority the Delaware Superior Court case of Crowell Corp. v. Topkis Construction Co., 280 A.2d 730 (Del.Super.1971).

Nemours asserts that this issue has been raised for the first time on appeal. That is clearly not correct. Like the contentions of other parties in this case, Pierce's legal contentions have shifted from time to time, depending on the exigencies of the moment. However, Pierce raised the negligence issue in its March 1984 motion to dismiss the negligence claim, and it preserved the issue as a defense in the Final Pretrial order.

In 1985 in the context, perhaps ironically, of Nemours' motion to dismiss Pierce's counterclaim based on negligence the district court concluded that the Delaware Supreme Court would probably not follow Crowell and would "abandon privity as a prerequisite to bringing suit on a negligence theory to recover financial losses suffered in the construction context." Gilbane Bldg. Co. v. Nemours Foundation, 606 F.Supp. 995, 1005 (D.Del.1985). There have been significant developments in the law on this issue since the date of the Gilbane decision, and we arrive at a different conclusion from that of the district court.

No party in the present case disputes that Nemours' losses are purely economic and do not involve property damage or personal injury. It is necessary to decide whether the Delaware Supreme Court would follow the Crowell ruling that absent privity of contract a party may not recover in negligence for economic loss. Review on this issue is plenary.

Our role in this case is predictive. We must accord proper regard to decisions of intermediate state courts, but they are not conclusive. Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 118 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987).

In Crowell, decided in 1971, the owner of a building brought suit against an architect, a general contractor, and various subcontractors for damages arising from alleged construction defects in the building. The owner had no direct contractual relationship with the subcontractors, but sued them in tort "on allegations that they negligently breached the provisions of their contract with the general contractor and failed to do a workmanlike job thereby creating a defective building which was dangerous." The owner did not claim that the alleged negligence caused any accident, collapse or personal injury. Instead, the only damages the owner sought were its costs to correct the alleged construction defects.

Judge (now Chief Justice) Christie granted the subcontractors' motions for summary judgment, holding that "[t]he great weight of authority does not yet permit tort recovery under the circumstances here present in the absence of physical injury to a person or dramatic incident such as accident, collapse or explosion." Id. at 732. The court agreed with the subcontractors' contention that the owner should look to the general contractor for recovery of its alleged pecuniary loss. Id. at 731.

After Crowell, but still in the 1970's, two Delaware Supreme Court decisions in the construction setting allowed recovery of losses on a negligence theory. Oliver B. Cannon & Son, Inc. v. Dorr-Oliver, Inc., 336 A.2d 211 (Del.1975); Seiler v. Levitz Furniture Co., 367 A.2d 999 (Del.1976). Both of those cases, however, involved (i) property damage, not merely economic loss and (ii) privity of contract between the injured