Citations
- 785 F. Supp. 2d 1258
Full opinion text
MEMORANDUM OPINION AND ORDER
MARK E. FULLER, District Judge.
This action arises out of the construction of a helicopter hangar at Defendant Bell Aerospace Services, Ine.’s (“Bell Aero”) facilities in Ozark, Alabama (“the Project”). Bell Aero was the owner of the Project and Defendant Barge, Waggoner, Summer & Cannon, Inc. (“BWSC”) was the project engineer (collectively, “Defendants”). Plaintiff Glenn Construction Company, LLC (“Glenn Construction”) was hired as the general contractor for the Project on February 2, 2007. Mike Wolfe (‘Wolfe”) is the co-owner and president of Glenn Construction. Glenn Construction brings claims for breach of contract, negligence, wantonness, fraud, and intentional interference with contractual relations. This cause is now before the Court on seven motions. Three are motions for summary-judgment: (1) Bell Aero’s first motion for summary judgment, (Doc. # 32), filed on November 9, 2010; (2) Bell Aero’s alternative motion for summary judgment, (Doc. # 54), filed on January 14, 2011; and (3) BWSC’s motion for summary judgment, (Doc. #49), filed on January 14, 2011. Glenn Construction has filed two additional motions: a motion to strike two affidavits by BWSC’s non-retained experts, (Doc. # 80), filed on February 28, 2011 and a motion to supplement its evidentiary submissions, (Doc. #78), filed on February 16, 2011. On February 28, 2011, BWSC opposed the motion to supplement and moved to strike it. (Doc. # 82). Finally, BWSC filed a motion to strike the affidavit of Mac Brittingham (“Brittingham”)— Glenn Construction’s previously undisclosed retained expert witness — on February 14, 2011. (Doc. # 75).
JURISDICTION AND VENUE
This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. § 1332 (diversity). Venue is proper in this district pursuant to § 1391(a)(2). The parties do not dispute personal jurisdiction.
FACTS AND PROCEDURAL HISTORY
1. Facts
This action arises out of a $6,000,000 contract (“the Contract”) between Glenn Construction and Bell Aero for the construction of the helicopter hangar at Bell Aero’s facilities in Ozark, Alabama.
A. The Formation of the Contract and Relevant Provisions
In 2005, Bell Aero contacted BWSC regarding the Project and began preparing for the bidding process. Bell Aero selected BWSC to serve as the engineer on the Project. According to Bell Aero, prior to submission of its bid, Glenn Construction had a complete copy of the Project Manual. (Doc. # 55, at 2 (citing Doe. # 56 Ex. 2. Wolfe Dep. 92:11-17)). The Instruction to Bidders section of the Project Manual permitted bidders to “access the site to conduct such investigations and tests as each [bjidder deems necessary for submission of his bid with prior approval of OWNER or ENGINEER.” (Doc. #57 Ex. 41). Glenn Construction did not do any such investigations or tests prior to bidding on the Project. (Doc. # 56 Ex. B, Wolfe Dep. 95:11-96:23). The Instruction to Bidders section also stated that “[t]he submission of a bid will constitute an incontrovertible representation by the Bidder ... that the Contract Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the work.” (Doc. # 57 Ex. 41).
On January 4, 2007, Glenn Construction submitted its bid for the Project. (Doc. # 66 Ex. 12). On February 2, 2007, Bell Aero awarded the $ 6,000,000 Contract for the Project to Glenn Construction and a notice to proceed was prepared that same day. (Doc. # 66 Ex. 13). Glenn Construction received the notice to proceed and began work on February 7, 2007. (Doc. # 66 Ex. 14). Pursuant to the notice to proceed, Glenn Construction was to complete the Project within 226 days making September 21, 2007 the date of completion. (Doc. #57 Ex. 4). Additionally, the Contract contained General Conditions, drawings, and Specifications, which were also found in the Project Manual.
i. BWSC’s Responsibilities as Engineer
The Contract described the engineer as the owner’s “representative” on the Project, (Doc. # 57 Ex. 1, General Conditions § 9.01), and the owner was to communicate with the contractor through the engineer. (Id. § 8.01). Under the Contract, the engineer had several responsibilities related to supervising the Project and rendering impartial, binding decisions on various matters. For example, the engineer was to make site visits at “intervals appropriate to the various stages of construction as [it] deems necessary,” (Id. § 9.02(A)). The engineer’s responsibilities also included issuing, “with reasonable promptness,” written clarifications or interpretations of the requirements of the Contract as it “may determine necessary.” (Id. § 9.04). Such decisions were binding on both the owner and the contractor. (Id.). The engineer was also permitted to “authorize minor variations” in the Project and such decisions were again binding on both the owner and the contractor. (Id. § 9.05). The engineer could recommend change orders which the parties “shall execute.” (Id. § 10.03). Furthermore, the engineer was to act as an impartial “interpreter and judge” on disputes' — referred to as “claims” under the Contract — about the Contract’s price or time limits. (Id. § 9.09(B)). Its decisions on such claims were “final and binding upon OWNER and CONTRACTOR” unless the decision was appealed or a party provided written notice within thirty days and filed suit within sixty days. (Id. § 10.05(B)). Finally, the engineer was also responsible for reviewing applications for payment and either “indicating] in writing a recommendation of payment and presenting] the application to OWNER or returning] the [application to CONTRACTOR indicating in writing” why the application was rejected. (§ 14.02(B)(2)).
ii. Provisions for Making Changes to the Project
Section 3.04 explains that “the Contract documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: (i) a Written Amendment; (ii) a Change Order[;] or (iii) a Work Change Directive.” (Id. § 3.04(A)). Engineering or technical changes are to be made by a change order or a work change directive. (Id. §§ 1.01(9), 1.01(49)). However, § 9.5 states that the engineer “may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.” (Id. § 9.05(A) (emphasis added)). Such minor variations may be made by a field order, (id.), which is defined as “[a] written order issued by ENGINEER which requires minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times.” (Id. § 1.01(21)).
iii. Provisions Regarding Unforeseen Conditions
Furthermore, it was “the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents.” (Id. § 3.01(B)). At the same time, § 4.03 explained what the contractor is to do upon discovering a subsurface or physical condition that “is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents.” (Id. § 4.03(A)). If the contractor discovered such a condition, it was required to notify the owner and engineer “before further disturbing the subsurface or physical conditions or performing any Work in connection therewith.” (Id.),
iv. Provisions Regarding Closeout Procedures for Final Payment
Once the contractor provided notice that the Project was complete, the engineer had to make a final inspection and notify the contractor in writing of all deficiencies. (Id. § 14.06). The parties refer to this written notice as a “punch list” — i.e. a list of things that the engineer determines needs to be fixed. The contractor was to fix the items on the punch list prior to seeking final payment. Section 14.07 provided that — once the contractor had completed the items on the punch list to the engineer’s satisfaction and had provided certain documents — the contractor could apply for final payment. Similarly, the application for final payment must be accompanied by all documentation called for by the Contract Documents, consent of the surety to final payment, and either lien waivers from the subcontractors or an all-bills-paid affidavit from the contractor. (Id. § 14.07(A)(2), (3)). Once the engineer was satisfied that the work was completed and all of the contractor’s obligations under the Contract were fulfilled, it would either recommend that the owner make final payment or it would return the application to the contractor with its reasons for refusal. (Id. § 14.07(B)). In the latter situation, the contractor was to make “the necessary corrections” and resubmit the application. (Id.). The owner had to make final payment within 30 days of receiving the engineer’s recommendation for payment.
B. BWSC’s Alleged Prior Knowledge of Problems with the Foundation i. The Underground Stream
One of the major problems during the Project involved an underground stream located on the property. Soon after construction began, the site work contractor discovered underground water, initially believed to be an isolated pocket. (Doc. # 66 Ex. 9, Wolfe Aff. at 2). It was later discovered that the water was actually an underground stream. (Id.). BWSC had been involved with several projects on the property in question since 1997. (Doc. #56 Ex. 3, Mott 22:1-25:5). Glenn Construction claims that BWSC knew of the underground stream before the Project began because of its prior work at the location. Glenn Construction claims that BWSC had geotechnical reports and a topographical map prior to the Project that showed the underground stream. (Doc. # 66, at 7; id. Exs. 10-11; see also Doc. #56 Ex. 3, Mott Dep. 24:2-9, 25:7-11). Wolfe, one of the owners of Glenn Construction, stated that a contractor who had previously worked on a BWSC project at the same location had encountered similar water issues on the previous project and had informed BWSC of them. (Id. (citing Doc. # 66 Ex. 9, Wolfe Aff. at 4)). BWSC contends that it “did not have knowledge of the existence of the underground stream until it was discovered by [Glenn Construction] during the [P]roject.” (Doc. # 50, at 2 (citing Doc. # 56 Ex. 2, Cole Dep. 157:1-158:25, 160:3; Ex. 3 Mott Dep. 25:12-26:9)).
ii. The Anticipated Column Loads
Glenn Construction contends that BWSC miscalculated the anticipated column loads for the foundations which allegedly caused significant delays on the project. The column load is the “outward force pushing the columns horizontally at the point where they connect to the foundation.” (Doc. # 66, at 4). Glenn Construction claims that BWSC knew of the miscalculation prior to submitting the Project to bid. In July 2006, Ted Persing (“Persing”), a structural engineer at BWSC, instructed Michael Cole (“Cole”), the Project Coordinator at BWSC, to include in the Requests for Proposals that “the largest anticipated column load is approximately 70” kps. (Doc. # 66 Ex. 1). In September of 2006, Persing received estimated column loads for a metal building of the same size and shape as the Project’s hangar. (Doc. # 66 Ex. 2). However, Glenn Construction claims that these were “generic designs” that “did not contain several features specific to the Project that would add additional ... loads, including sprinkler and fire suppression systems and a ten ton crane.” (Doc. # 66, at 4). According to Glenn Construction, BWSC included these generic loads into the Requests for Proposals without recalculating them “to reflect the increase caused by these additional features.” (Id.). On December 18, 2006, BWSC issued final construction plans establishing that it was “solely responsible” for the design of the foundation, including the columns. (Id. (citing Doc. # 66 Ex. 4».
Glenn Construction claims that BWSC knew of the miscalculated loads. On January 8, 2007, a bidder and potential contractor e-mailed BWSC stating that its own metal building manufacturer had calculated an approximate column load of 164 kps for one of the columns — over twice as much as originally calculated. (Doc. # 66 Ex. 5). The bidder confirmed this load calculation two weeks later and asked BWSC to review the loads and determine whether the foundations needed to be redesigned. (Doc. # 66 Ex. 6). Despite this information, the drawings given to the bidders reflected only a 76 kps load. These same drawings were later incorporated into the Contract. (Doc. # 66 Ex. 7). Eventually, as discussed farther below, BWSC revised these drawings during the Project to reflect increased column loads.
C. Problems with the Metal Hangar Designs
While BWSC was solely responsible for the design and construction of the foundation, Glenn Construction contracted with a metal building manufacturer — OSI Building Systems, Inc. (“OSI”) — to design and build the metal hangar. (Doc. # 50, at 5). According to Glenn Construction, BWSC represented at a pre-bid meeting that it “would send a structural engineer to whomever the metal building subcontractor was to review metal building submittals on site.” (Doc. # 66, at 6 (citing Doc. # 56 Ex. 2, Cole Dep. 139:1-141:2); Doc. #66 Ex. 9, Wolfe Aff. at 1-2). Cole, BWSC’s coordinator on the Project, admitted that such a practice would be atypical but that it would expedite the schedule by allowing the engineers to review the materials together and avoid “lag time for deliveries.” (Doc. # 56 Ex. 2, Cole Dep. 139:20-140:4; see also Doc. # 66 Ex. 9, Wolfe Aff. at 1-2). BWSC claims that its intent throughout the Project was to expedite the review of submittals, including by “sending engineers to the site of the metal building manufacturer.” (Doc. # 50, at 3 (citing Doc. # 56 Ex. 3, Mott Dep. 33:14-34:11)).
In order to design and fabricate the hangar, OSI needed a set of drawings. BWSC instructed Glenn Construction to have its subcontractors access BWSC’s website and download drawings as needed. (Doc. # 66 Ex. 9, Wolfe Aff. at 5). BWSC provided the website address, username, and password required to access the drawings and “advised [Glenn Construction] to forward it to all subcontractors and suppliers for their use.” (Id.). However, the drawings posted by BWSC on the website and downloaded for use by OSI “were obsolete and not identical to the printed sets provided to Glenn Construction.” (Id.). However, because both drawings were stamped “ISSUED FOR CONSTRUCTION, Dated 12/18/2006,” Cole admitted that it was impossible to discern from the scanned drawings on the website that they were not final. Wolfe testified that the miscalculation of the loads and posting of obsolete drawings combined to significantly delay the Project. (Doc. # 66 Ex. 9, Wolfe Aff. at 5-6).
As Wolfe testified, “[i]t takes 12-16 weeks to fabricate a metal building once plans are approved.” (Id. at 6). On March 5, 2007, Glenn Construction notified BWSC that the OSI drawings would be available for BWSC’s review on March 13, 2007. (Id.). However, despite BWSC’s pre-bid promise to review the drawings on site, Cole informed Wolfe that BWSC would not do so unless Glenn Construction paid for the cost of sending the engineer. (Id.). On March 13, 2007, OSI completed the design based on the obsolete drawings downloaded from the website. (Id.). BWSC received OSI’s drawings through the mail on March 14, 2007. (Doc. # 66 Ex. 16). BWSC determined that the drawings were incorrect and provided comments within 24 hours. (Id.).
On March 22, 2007, BWSC received a second submittal from OSI. (Id.). Wolfe claims that BWSC promised to return their comments the “next day.” (Doc. # 66 Ex. 9, Wolfe Aff. at 6). However, BWSC again returned the submittal on April 3, 2007 with instructions to “revise and resubmit.” (Doc. # 66 Ex. 16). During an April 4, 2007 conference call, the parties realized that scanned drawings OSI used were obsolete. (Doc. # 66 Ex. 9, Wolfe Aff. at 7; see also id. Exs. 17-18). The following day, Glenn Construction submitted a revised schedule indicating that the time for completing the metal hangar had been pushed back by two months. (Doc. # 66 Ex. 9, Wolfe Aff. at 7).
Finally, on April 19, 2007, OSI mailed submittals based on the correct drawings to BWSC, who received them the next day. (See id.; Doc. # 66 Ex. 16). At this time, Glenn Construction stated its belief that the planned installation of a twenty-foot crane would be impossible because “[t]he combination of the loading requirements and a height limitation on the building would not allow a 20-foot crane lift height.” (Doc. # 66 Ex. 9, Wolfe Aff. at 7-8). On May 1, 2007, BWSC disapproved OSI’s designs, in part, because they could not meet the twenty-foot crane height requirement. (Doc. # 66 Ex. 9, Wolfe Aff. at 9). Later in May, BWSC suggested changing the slope of the hangar building to accommodate the crane height requirements; however, Glenn Construction alleges that such a change would require OSI to completely redesign the hangar. (Id.). “On May 9, 2007, OSI notified BWSC [that] ... the hangar could not be built even as originally designed by BWSC.” (Id. at 10; see also Doc. # 66, at 15). On May 13, 2007, BWSC again told OSI to “revise and resubmit” their drawings. (Doc. # 66, at 15). Eventually, Bell Aero approved a crane height of less than twenty feet. (Wolfe Aff., Ex. 9, at 8). OSI notified Glenn Construction that the fourth and final design package would be ready for review on May 18, 2007. (Id.). That day, BWSC sent engineer Michael Petrin (“Petrin”) to review the documents in Montgomery, Alabama. (Doc. # 69 Ex. 4, Ashley Dep. 27:7-28:8).
D. Problems with the Foundation’s Pedestals
As previously discussed, BWSC included anticipated column loads for the foundations of approximately 70 kps in the Contract. However, on May 17, 2007, the day before BWSC approved OSI’s final drawings for hangar, Dan Bartholomew (“Bartholomew”) — BWSC’s structural engineer of record for the Project — issued a revised set of structural drawings that listed anticipated column loads as high as 141 kps. (Doc. # 66 Ex. 8). The underground stream limited how deep the foundation could go into the ground. According to Glenn Construction, the shallower depth and the increased loads increased the requirements for the pedestals bearing the loads, including the pedestal size and the amount of reinforcing steel needed. (Doc. # 66, at 17). These changes particularly affected two types of pedestals: the type P-3 pedestals located along the side walls of the hangar and designed to bear the majority of the loads and the type P3B pedestals located under the corners of the hangar supporting the hangar doors. Additionally, the new drawings added new P-3B pedestals that did not appear in the original drawings from December of 2006. (Id.).
With respect to the P-3 pedestals, Glenn Construction alleges that it’s reinforcing subcontractor could not fit the reinforcing bars required by the revised drawings into the space indicated. (Doc. # 66 Ex. 9, Wolfe Aff. at 11). When Glenn Construction sought clarification from BWSC’s on-site representative, the representative allegedly acknowledged an apparent engineering design problem and contacted the BWSC structural engineer. (Id.). According to Glenn Construction, after a ten-minute phone call and without checking structural design calculations, BWSC’s representative conceded that the designs were defective and told Glenn Construction to deviate from the new designs. (Id.). BWSC provided the reinforcing subcontractor with a revised plan for the P-3 pedestals; however, Glenn Construction informed BWSC that its drawings did not show which direction to orientate the hook on the dowels used in the reinforcements. (Id.). Glenn Construction also informed BWSC that its drawings were not done to scale and did not accurately show dimensions. (Id.). On July 5, 2007, Glenn Construction issued a formal Request for Information seeking clarification as to the reinforcing bars’ placement in the drawings for the P-3 pedestals. (Doc. # 66 Ex. 22). That same day, Bartholomew issued two new revised drawings for the P-3 pedestals.
On July 11, 2007, Glenn Construction issued a Request for Information regarding problems with the P-3B pedestals. (Doc. # 66 Ex. 25). BWSC engineer Eriks Jekabsons (“Jekabsons”) issued a response instructing Glenn Construction to remove two of the reinforcement bars. (Id.). That same day, Glenn Construction issued another Request for Information about the positioning of the anchor bolts in the revised drawings, and Jakabsens responded that the drawings were “for illustrative purposes only” and directed Glenn Construction to “field adjust to accommodate [the] anchor bolts.” (Doc. # 66 Ex. 26). The following day, Glenn Construction issued another Request for Information asking BWSC to run the reinforcement data through a three-dimensional (“3D”) software program. Glenn Construction claimed that the program would show BWSC the impossibility of fitting the designs into the space. (Doc. # 66 Ex. 27). Glenn Construction told BWSC that “the drawings are inadequate to. accurately locate the reinforcements” and asked BWSC to revise them. (Id.). Jekabsons again responded that the drawings were “for illustrative purposes only.”
On July 23, 2007, Mott sent an email to BWSC employee’s expressing concern about producing a 3D drawing. (Doc. # 66 Ex. 29). Specifically, he was worried because, “[u]p until this point, [BWSC] had told [Glenn Construction] that it is not [BWSC’s] responsibility to do this” and because he could “see [Glenn Construction] saying that if BWSC had done this four weeks ago, there would not [have been] any delays with the rebar placement.” (Id.). That same day, Petrin responded and told Mott that he had “asked [BWSC’s] structural group to draw a plan and section (not a 3D drawing) showing all bars drawn to scale in the correct locations.” (Id.). Petrin assured Mott that the drawings were “intended for internal use” and not for issuance to Glenn Construction. (Id.). Petrin testified that he asked for these to-scale drawings to make sure that BWSC’s designs were possible. (Doc. # 69 Ex. 1, Petrin Dep. 161:7— 164:18). Glenn Construction never saw the internal drawings during the Project. On July 25, 2007, Glenn Construction again sent a Request for Information stating that its “drawings do not have dimensions for the proper placement of the reinforcement.” (Doc. # 66 Ex. 28).
Glenn Construction claims that BWSC admitted on July 27, 2007 that it was physically impossible to fit the required number and type of reinforcement bars in the space called for in the drawings. (Doc. # 66 Ex. 9, Wolfe Aff. at 13). BWSC then instructed Glenn Construction to stagger the reinforcing bars so that they would overlap each other. (Id.). BWSC, Glenn Construction, and Bell Aero held an on-site meeting. (Id). Neither of the two persons sent by BWSC were licensed structural engineers, but they told Glenn Construction to “field adjust” in placing the reinforcing steel. (Id.). Wolfe told BWSC that the structural engineer of record would need to approve any changes to the placement or permit someone to make that approval on his behalf. (Id). On August 14, 2007, Glenn Construction requested that the structural engineer of record, Bartholomew, inspect and approve the pedestal reinforcement. (Id at 15). BWSC agreed to send a representative to inspect the pedestals. (Id). On August 17, 2007, BWSC sent Robert Caster (“Caster”), an employee of BWSC’s consulting structural engineer PSI, instead of Bartholomew. (Id). Glenn Construction alleges that Castor twice falsely represented that he was a licensed professional structural engineer in Alabama. (Id).
On August 20, 2007, Glenn Construction outlined the continuing problems with the reinforcement bars to BWSC, stating in pertinent part:
We are at a work stoppage on the P3 & P3B pedestals due to continuing conflict with embedded items, anchor bolts and reinforcement. We have repeatedly requested accurately dimensioned or scalable drawings to properly [do] the reinforcement in these pedestals. BWSC has refused to provide these drawings .... Had BWSC taken the time to review the ‘detail drawings’ as requested they would have seen enormous conflict with these items and corrected them weeks ago. These are structural issues that can only be resolved by the structural engineer of record. This delay and obvious failure to cooperate has caused extensive delay of this project that continues today.
(Doc. # 68 Ex. 2). That same day, Glenn Construction sent a letter to Bell Aero requesting assistance on the problems with the P3 and P3-B pedestals. (Doc. #68 Ex. 3). Glenn Construction explained that, as per the Contract and building codes, BWSC needed to provide dimensioned drawings and that Glenn Construction could not place the reinforcements without these drawings.
Four days later, BWSC informed Glenn Construction that its “senior professional structural engineers [had] reviewed] the plans multiple times and ... determined that there [were] no design problems with the plans.” (Doc. # 66 Ex. 9, Wolfe Aff. at 16). Glenn Construction then “requested a copy of any and all reports issued by the consulting structural engineer PSI.” (Id.). BWSC refused to provide the reports but agreed to inspect the pedestals and provide comments on any deficiencies. (Id.). Glenn Construction then told BWSC that it would be ready for installation of the pedestals on September 5, 2007 if BWSC would have a structural engineer available that day. (Id.). On September 5, 2007, BWSC sent a licensed structural engineer to the site. The structural engineer told Glenn Construction to remove specific types of reinforcing bar assemblies and to place them into different locations than indicated on the drawings. (Id. at 17). Glenn Construction contends that it was generally able to proceed with its work on these pedestals unimpeded from that day forward. (Id.).
E. Glenn Construction’s Subcontractors
Glenn Construction also alleges that BWSC interfered with its subcontractors. For example, Glenn Construction contends that “BWSC directed the site work contractor to tear out and raise a storm water 'inlet” even though it had been installed according to the plans and specifications. (Id. at 21). Glenn Construction protested this action. (Id. at 21). Glenn Construction also alleges that BWSC directed the site work contractor to perform extra work that should have been covered by a change order. (Id. at 20). According to Glenn Construction, BWSC later changed its mind. (Id.).
According to Glenn Construction, BWSC and Bell Aero pressured it into firing its concrete contractor, Skipper Construction Company (“Skipper Construction”). BWSC allegedly later hired that contractor. Bell Aero points out that Skipper Construction and another subcontractor, Team Building Construction, were not licensed as required by Alabama law. See Alabama’s General Contractor’s Practice Act (“AGCPA”), Alabama Code § 34-8-1 et. seq.; Doc. # 57 Exs. 39-40. Wolfe stated that Skipper Construction provided him “with a false contractor’s number” while Team Building “did little or no actual work on the [P]rojeet.” Wolfe testified that he did not check with the Alabama Licensing Board for General Contractors to see if Skipper Construction was licensed, nor did he get any references from Skipper Construction. (Doc. 57 Ex. 3, Wolfe Aff. 228:11-229:15). Bell Aero further points out that Glenn Construction’s subcontractors also delayed the Project and that Glenn Construction back-charged Skipper Construction for $415,548.62 for delays and defective work. (Doc. # 55, at 5; id. Ex. 45).
F. Glenn Construction’s Alleged Claim Submission and Completion of the Project
In the midst of the problems associated with the Project, Glenn Construction contends that it submitted its first claim on July 6, 2007 requesting that BWSC approve an increase the Contract price and an extension of the Contract time. This claim described the allegations regarding the underground stream, the posting of obsolete drawings to the website, the revised drawings for the foundations, and BWSC’s failure to provide to-scale drawings. (Doc. # 68 Ex. 10). However, on August 7, 2007, BWSC requested additional information to determine the extent of damages. (Id. Ex. 11). Glenn Construction replied on August 14, 2007 and stated that damages had increased since the claim’s filing. (Id. Ex. 12). Nearly a month later, on September 25, 2007, BWSC responded again to the July 6, 2007 claim and again asked Glenn Construction for more documentation. (Id. Ex. 42). Wolfe testified that, on September 27, 2007, all three parties “agreed to table any claims process to allow construction to proceed.” (Doc. # 66 Ex. 9, Wolfe Aff. at 18).
According to Glenn Construction, it substantially completed the Project on February 28, 2008 and attempted to schedule an inspection of the hangar building. (Doc. #66 Ex. 9, Wolfe Aff. at 18). BWSC declared substantial completion on March 14, 2008. (Doc. # 68 Ex. 4). Three days later, BWSC certified Glenn Construction’s application for all remaining payments under the Contract except for $6,933.33 needed to fully complete the Project and the five percent retainage of $302,750.62. (Doe. #68 Ex. 5). By approving this application, BWSC “certified ... that to the best of [BWSC’s] knowledge, information and belief the Work has progressed as indicated, the quality of the Work is in accordance with the Contract Documents, and the Contractor is entitled to payment of the AMOUNT CERTIFIED.” (Id.). By this point, the total Contract price had increased to $6,061,945.89 and BWSC had approved payments totaling $5,752,261.74, including those requested in this application. (Id.). The parties had also increased the Contract time by 15 days and gave Glenn Construction credit for an additional 14 days for delays at the beginning of the Project. (Doc. 55, at 5; Doc. # 57 Ex. 5). Thus, the Project was deemed 98.89% complete. (Doc. # 68 Ex. 5). However, BWSC had not yet ruled on Glenn Construction’s alleged claim for additional increases in time and price.
On June 18, 2008, Glenn Construction issued an application for final payment, seeking payment of the balance of the Contract and the retainage. (Doc. #68 Ex. 15). On July 7, 2008, BWSC sent a letter to Bell Aero advising it not to process any paperwork from Glenn Construction without BWSC’s review. (Id. Ex. 16). BWSC claimed that Glenn Construction’s application was deficient because Glenn Construction had failed to (1) complete items on the punch list, (2) provide submittal documents, (3) provide its subcontractors’ lien waivers, and (4) provide an all-bills-paid affidavit. On September 3, 2008, Glenn Construction requested a final decision on its July of 2007 claims and allegedly submitted additional claims. (Id. Ex. 20). Glenn Construction and BWSC corresponded back and forth over the next several months whereby BWSC sought additional documentation and Glenn Construction insisted that it had complied with the Contract’s requirements for submittals of claims. (Id. Exs. 21-29). According to Defendants, Glenn Construction did not follow the Contract’s claim procedure because it refused to provide the proper supporting data. On January 12, 2009, BWSC informed Glenn Construction that it had not filed a cognizable claim under the Contract because of the lack of supporting data. However, it went ahead and denied the alleged claims. Glenn Construction contends that it was not aware of any decision as to the claims until early February 2009.
II. Procedural History
Glenn Construction filed suit on March 25, 2009. On November 9, 2010, Bell Aero filed its first motion for summary judgment. (Doc. # 32). On January 14, 2011, BWSC and Bell Aero filed two more motions for summary judgment. (Docs.# 49, 54). Glenn Construction responded on February 7, 2011 and included an affidavit by Mac Brittingham (“Brittingham”), a retained expert. (Docs.# 66-68). BWSC moved to strike Brittingham’s affidavit. (Doc. # 75). On February 16, 2011, Glenn Construction filed a motion to supplement its evidentiary submission for its response to summary judgment. (Doc. # 78). BWSC opposed this motion to supplement and moved to strike it. (Doc. # 82). Finally, on February 28, 2011, Glenn Construction moved to strike the affidavits of two of BWSC’s non-retained experts. (Doc. # 80).
SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed. R. Civ. Pro. 56(a). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. 2548; see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir.1993) (“For issues, however, on which the non-movant would bear the burden of proof at trial, ... ‘[t]he moving party may simply show[ ] — that is, point[ ] out to the district court — that there is an absence of evidence to support the non-moving party’s case.’ ”) (quoting U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir.1991)).
Once the moving party has met its burden, the non-movant must “go beyond the pleadings” and show that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Fed. R. Civ. Pro. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”). To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis added). A plaintiff must present evidence demonstrating that he can establish the basic elements of his claim. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party’s favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a).
DISCUSSION
I. BWSC’s Motion for Summary Judgment
A. Fraud
Glenn Construction brings the following fraud claims: (1) BWSC fraudulently suppressed the existence of the underground stream; (2) BWSC fraudulently misrepresented the provision of structural engineering services; (3) BWSC fraudulently misrepresented the turnaround of submittal approvals; (4) BWSC fraudulently misrepresented that its original metal building designs were adequate; and (5) BWSC misrepresented that its foundation design were adequate. (Doc. # 1, at 50-52 ¶¶ 221-229).
i. Fraudulent Suppression of the Underground Stream’s Existence
Under Alabama law, a plaintiff must prove five elements to establish a claim for fraudulent suppression:
(1) that the defendant had a duty to disclose an existing material fact; (2) that the defendant suppressed that existing material fact; (3) that the defendant had actual knowledge of the fact; (4) that the defendant’s suppression of the fact induced the plaintiff to act or to refrain from acting; and (5) that the plaintiff suffered actual damage as a proximate result.
State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 323-24 (Ala.1999) (citations omitted); see also Ala.Code § 6-5-102 (“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud.”). BWSC contends that Glenn Construction cannot establish the third element — namely, that BWSC had actual knowledge of the underground stream prior to Glenn Construction’s discovery of it. See Glass v. S. Wrecker Sales, 990 F.Supp. 1344, 1350 (M.D.Ala.1998) (Albritton, J.) (“An action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.”) (citing McGarry v. Flournoy, 624 So.2d 1359 (Ala.1993)). Glenn Construction, on the other hand, argues that it has presented sufficient admissible evidence to create a genuine issue of material fact as to whether BWSC had actual knowledge of the underground stream pri- or to Glenn Construction’s discovery of it. Specifically, Glenn Construction points to the following facts: (1) BWSC had been involved in several projects on the property in question since 1997; (2) BWSC was aware of and had several geotechnical reports done on that property before December of 2006; (3) BWSC had a topographical map prior to 2005 which showed the presence of an old stream within the Project’s location; and (4) a contractor who had previously worked with BWSC on a project at the site informed Wolfe that he had encountered similar issues with underground water and had advised BWSC of it.
Again, BWSC contends that “there is absolutely no admissible evidence that BWSC had any knowledge of the underground stream prior to its discovery during construction.” (Doc. # 50, at 10; Doc. #76, at 12). Although BWSC does not explain it as such, it appears that the contractor’s statements about previously discovering and advising BWSC of underground water is inadmissible hearsay that this Court cannot consider on summary judgment because it is not reducible to admissible form at trial. See Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir.1996) (“[The plaintiff] cannot use inadmissible hearsay to defeat summary judgment when that hearsay will not be reducible to admissible form at trial.”); see also Macuba v. DeBoer, 193 F.3d 1316, 1325 (11th Cir.1999) (holding that the district court impermissibly considered inadmissible hearsay because it would not be admissible at trial under an exception to the hearsay rule). However, BWSC fails to explain or argue why the remaining pieces of evidence are inadmissible.
Upon consideration of these first three pieces of evidence, this Court is satisfied that a reasonable jury could find that BWSC possessed documents — either the geotechnical reports or the cited topographical map — showing the underground stream’s existence because of its prior work on other projects in the location. Thus, a reasonable jury could find that BWSC had actual knowledge of the underground stream. See e.g., Roland v. Cooper, 768 So.2d 400, 406 (Ala.Civ.App.2000) (holding that documents in the defendant’s possession which demonstrated the fact he allegedly suppressed were sufficient to create a genuine issue of material fact). In other words, if a jury finds that BWSC possessed these documents, it could also find that BWSC had actual knowledge of the underground stream. On the other hand, a reasonable jury could find that BWSC had no actual knowledge of the underground stream. Such a genuine issue of material fact precludes this Court from granting BWSC summary judgment on this claim. Thus, BWSC’s motion for summary judgment, (Doc. # 49), is due to be DENIED with respect to the claim of fraudulent suppression regarding the underground stream’s existence.
ii. The Remaining Fraud Claims
Alabama law provides causes of action for both fraud, also called legal fraud, and promissory fraud. Under Alabama law, “fraud is the false representation of a material existing fact inducing reliance and causing damages.” Green Tree Acceptance, Inc. v. Doan, 529 So.2d 201, 206 (Ala.1988) (citing Ala.Code §§ 6-5-101 (1975) et seq.) (per curium) (emphasis in original). Thus, to establish a prima facie case of fraudulent misrepresentation under Alabama law, a plaintiff must show “(1) that [the defendant] made a false misrepresentation, (2) that the misrepresentation involved a material [existing] fact, (3) that the [plaintiff] relied on the misrepresentation, and (4) that the misrepresentation damaged the [plaintiff].” AmerUs Life Ins. Co. v. Smith, 5 So.3d 1200, 1207 (Ala.2008); accord Eley v. Travelers Ins. Co., No. 2:09-cv-958-MEF, 2011 WL 671681, at *9, 2011 U.S. Dist. LEXIS 16528, at *29-30 (M.D.Ala. Feb. 18, 2011) (Fuller, C.J.); AstraZeneca LP v. State, 41 So.3d 15, 26 (Ala.2009). There is no requirement of fraudulent intent when bringing a claim for fraud based upon misrepresentation of a material existing fact. Ala. Code § 6-5-101 (“Misrepresentations of material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”) (emphasis added); accord Eley, 2011 WL 671681 at *9, 2011 U.S. Dist. LEXIS 16528 at *28; Burlington N.R.R. Co. v. Warren, 574 So.2d 758, 766-67 (Ala.1990); Cooker v. Washington Cnty. Bd. of Educ., 646 So.2d 38, 42 (Ala.Civ.App.1993).
Promissory fraud, on the other hand, occurs by the failure to perform a promise — ie. the failure to perform some promised future act. See, e.g. Eley, 2011 WL 671681 at *12 n. 12, 2011 U.S. Dist. LEXIS 16528 at *39 n. 12; Scott v. United of Omaha Life Ins. Co., 749 F.Supp. 1089, 1093 (M.D.Ala.1990) (Hobbs, J.); Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1370-71 (C.A.Ala. 1983). In order to establish promissory fraud, a plaintiff must also prove “that at the time the promise was made, there was an intent not to perform the promised act.” Green Tree Acceptance, 529 So.2d at 206 (citing Ala.Code § 6-5-102; Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 519 (Ala.1983)). Furthermore, the mere failure to fulfill the promise is insufficient to establish an intent to deceive. See, e.g., Scott, 749 F.Supp. at 1093 (“[U]nder Alabama law the failure to perform a promise is not itself sufficient to support a charge of fraud. Absent any evidence from the plaintiff that the representation was made with the intent to deceive, the fraud count fails.”) (citations omitted); Brown-Marx, 703 F.2d at 1370 (“[U]nder Alabama law failure to fulfill promises does not give rise to actionable fraud unless it is alleged and proved that the representations were made with intent to- deceive and with no intent at the time the representations were made to carry them out. Failure to perform a promise is not of itself adequate evidence of intent to support an action for fraud.”) (citations omitted).
a. Fraudulent Misrepresentation of the Turnaround of Submittal Approvals: BWSC’s Pre-Bid Statement Regarding the Review of the Hangar Submittals
Here, BWSC argues that its representation during the pre-bid meeting that it would send a structural engineer to review metal building submittals on site is a claim for promissory fraud. (Doc. # 50, at 11). This Court agrees that this representation was not made regarding a material existing fact, but rather was a promise to perform a future act. See, e.g., Penmont, LLC v. Blue Ridge Piedmont, LLC, 607 F.Supp.2d 1266, 1273 (M.D.Ala.2009) (Thompson, J.) (holding that the defendant’s statement that it would return a non-refundable earnest purchase deposit if a commercial real-estate transaction did not go through was promissory fraud). BWSC further argues that Glenn Construction cannot establish an intent to deceive at the time this misrepresentation was made. (Doc. # 50, at 11; Doc. # 76, at 12-13). Glenn Construction correctly points out that “[t]he question of the defendant’s intention in making the alleged representation is ordinarily a question of fact for the jury.” (Doc. # 66, at 48) (quoting Hillcrest Ctr., Inc. v. Rone, 711 So.2d 901, 905 (Ala.1997) (citations omitted)).
However, the only evidence before this Court with respect to this promise is that BWSC refused to send their structural engineer to the metal building manufacturer unless Glenn Construction paid for it and that, when a structural engineer was sent months later, it was not the structural engineer of record. (Doc. # 66, at 6). “[T]he plaintiff must show more than that the defendant failed to fulfill the promised act.” Hillcrest, 711 So.2d at 905 (quoting Nat’l Sec. Ins. Co. v. Donaldson, 664 So.2d 871, 876 (Ala.1995)); see also Rhodes v. Unisys Corp., 170 Fed.Appx. 681, 683 (11th Cir.2006) (affirming summary judgment on a promissory fraud claim because the plaintiffs only evidence of an intent to deceive was an “attempt[] to rely on an inference of intent not to perform, which might be drawn from [the defendant’s] failure to perform, rather than providing any actual evidence of [the defendant’s] intent to deceive.”). Indeed, Glenn Construction makes no argument with respect to the promise to send a structural engineer on site to review the submittals for the metal hangar. Because there is no evidence before this Court sufficient to establish an intent to deceive regarding the promise to send a structural engineer on site to review the metal hangar submittals, BWSC is entitled to judgment as a matter of law as to this claim. Thus, BWSC’s motion for summary judgment, (Doc. # 49), is due to be GRANTED with respect to the claim of promissory fraud regarding the pre-bid promise to send a structural engineer to review the metal hangar submittals on site.
b. Fraudulent Misrepresentation of the Provision of Structural Engineering Services: Statements Made During Construction about Sending a Structural Engineer On Site to Inspect the Foundation
Glenn Construction also brings promissory fraud claims based upon BWSC’s several promises during construction to send a structural engineer on site to review the issues with the foundation. (Doc. # 66, at 48-49). In support of this claim, Glenn Construction points to BWSC’s email exchange regarding the production of internal drawings and Mott’s concern that Glenn Construction would rely upon them to claim that the weeks-long delays in the reinforcement bar placing was BWSC’s fault. {Id. at 48). Glenn Construction contends that “a jury could also infer from this exchange that BWSC did not intend to send a structural engineer to perform an [on-site] inspection at the time the promise was made.” {Id.; see also id. at 49 (“[T]he jury could infer that the drawing confirmed Glenn Construction’s complaints about the P-3 and P-3B pedestals, and that BWSC did not intend to send a structural engineer to the site because his visit [would] similarly confirm that the drawings kept from Glenn Construction were right (and BWSC’s initial plans were wrong), and that BWSC would be ‘liable’ to Glenn Construction for delays based on the confirmation.”)). BWSC contends that there is no genuine issue of material fact and that the undisputed evidence demonstrates its intent to expedite the Project. (Doc. # 76, at 13 (citing Doc. # 56 Ex. 3, Mott Dep. 33:14-34:11)).
However, this Court agrees with Glenn Construction that there is genuine issue of material fact as to whether BWSC intended to deceive Glenn Construction when it repeatedly promised to send a structural engineer to review the issues with the foundation on-site. Mott’s email expressed concern about rendering 3D, to-scale drawings because he could “see [Glenn Construction] saying that if BWSC had done this four weeks ago, there would not [have been] any delays with the rebar placement.” (Doc. # 66 Ex. 29). Indeed, Petrin responded to this concern by saying that the drawings would be kept internal and never given to Glenn Construction. {Id.). A jury could reasonably infer that BWSC did not want provide Glenn Construction with these drawings because they could potentially demonstrate that BWSC’s designs for the foundation were incorrect and that Glenn Construction was not at fault for the delay in placing reinforcement bars. Similarly, a jury could reasonably infer based on these emails that BWSC did not intend to send a structural engineer to perform an on-site inspection because that could also show Glenn Construction that the designs were defective and that Glenn Construction was not at fault for the delays. Because a reasonable jury could find that BWSC intended to deceive Glenn Construction when it repeatedly said it would send a structural engineer to review the foundation issues on site, BWSC is not entitled to summary judgment on these promissory fraud claims. Thus, BWSC’s motion for summary judgment is due to be DENIED with respect to the promissory fraud claim regarding the promises made during construction to send a structural engineer to review the foundations on site.
c. The Fraudulent Misrepresentation Claim Regarding the Adequacg of the Designs for the Hangar and the Foundation
With respect to the fraud claims regarding the adequacy of the BWSC’s designs for the metal building and the foundation, BWSC argues that it is entitled to summary judgment because Glenn Construction “has offered no evidence that BWSC had any knowledge that the structural design of the metal building and foundation were inadequate.” (Doc. # 50, at 11). However, whether the designs were adequate when BWSC made the representations relates to an existing fact and not a promise to perform some act in the future. As previously stated, a Plaintiff need not establish an intent to deceive when bringing a fraud claim based upon a material existing fact. Ala.Code § 6-5-101 (“Misrepresentations of material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”) (emphasis added); see also Eley, 2011 WL 671681 at *9, 2011 U.S. Dist. LEXIS 16528 at *28 (“[Fjraud under Alabama law need not include an intent to deceive or defraud.”) (citations omitted); Burlington, 574 So.2d at 766-67; Coaker, 646 So.2d at 42. Because Glenn Construction need not establish that BWSC knew that the designs were inadequate and because BWSC makes no further argument with respect to these claims, BWSC is not entitled to judgment as a matter of law. Thus, BWSC’s motion for summary judgment, (Doc. # 49), is due to be DENIED with respect to the representations concerning the adequacy of the designs for the metal hangar and the foundation.
B. Intentional Interference with Contractual Relations
The elements for a claim of intentional interference with a contractual relationship are as follows: (1) the existence of an enforceable contract; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage. Compare White Sands Grp., L.L.C. v. PRS II, LLC, 32 So.3d 5, 14 (2009) (describing the elements of a claim for tortious interference with a business relationship wherein the only difference is that the first element is “the existence of protectible business relationship”) with Hope for Families & Cmty. Serv. v. Warren, 721 F.Supp.2d 1079, 1177 (M.D.Ala.2010) (Watkins, J.) (explaining that tortious interference with a business relationship is a separate tort from tortious interference with a contractual relationship because the latter “presupposes the existence of an enforceable contract” but that “[o]therwise, the elements of both torts overlap”); see also MAC East, LLC v. Shoney’s, 535 F.3d 1293, 1297 (11th Cir.2008) (“[A] tortious interference claim can be maintained only when the defendant is independent of or a stranger to the relation or contract with which he allegedly interfered.”) (citing Tom’s Foods, Inc. v. Carn, 896 So.2d 443, 454 (Ala.2004)).
Here, BWSC contends that it was not a “stranger” to the contractual relationship between Glenn Construction and Bell Aero and, thus, cannot be liable for tortious interference. (Doe. # 50, at 12-14). Glenn Construction contends that BWSC was a stranger to the Contract to the extent that it acted outside of its legal rights under the Contract. (Doe. # 66, at 51-54). Furthermore, Glenn Construction argues that BWSC intentionally interfered with its contractual relationships with its subcontractors when it provided designs directly to OSI over the website, directed Skipper Construction and the site work contractor to perform extra work that should have been covered in a change order, and directed the site work contractor to tear out a the properly installed storm water inlet. (Id. at 52).
i. The Claims for Intentional Interference with the Contractual Relations Between Glenn Construction and its Subcontractors
BWSC argues that Glenn Construction cannot bring tortious interference claims based on the contractual relationships with the subcontractors because such claims were not encompassed in the Complaint. (Doc. # 76, at 13). In support of this contention, BWSC argues the following:
[Count 3] alleges that BWSC interfered with Glenn Construction’s ‘performance’ of its Contract.... Glenn Construction was to tender such performance to the owner, Bell Aero. However, Plaintiffs [Response] Brief alleges that BWSC interfered with Glenn Construction’s Subcontractors performance to Glenn Construction. Plaintiff has not alleged a cause of action in its Complaint for tortious interference with those relationships.
(Id. at 13-14). “[I]f a plaintiff fails to plausibly allege a claim in [his] complaint, [ ]he may not amend [his] complaint through argument made in opposition to a defendant’s motion for summary judgment.” Webster v. Wynne, No. 2:08-cv-849, 2010 WL 5394752, at *7, 2010 U.S. Dist. LEXIS 136998, at *20 (M.D.Ala. Dec. 28, 2010) (Fuller, C.J.) (citing Gilmour, 382 F.3d at 1314).
However, a review of the Complaint here reveals that Glenn Construction did, in fact, sufficiently allege a claim for intentional interference with its contractual relations with its subcontractors. Count 3 itself lays out a claim for such tortious interference with the contractual relationships with the subcontractors based upon BWSC’s actions which allegedly led to Bell Aero denying payment to Glenn Construction. (Doc. # 1, at 53 ¶ 234 (“BWSC also acted so as to prevent the timely payments of monies that were due and owing by Bell Aero with the result that Glenn Construction has been made the subject of claims of subcontractors and Glenn Construction has been damaged in its relationship with said subcontractors and other valuable business contacts.”) (emphasis added)). Additionally, Count 3 incorporates all prior paragraphs in the Complaint. (Id. at 52 ¶ 230). These incorporated paragraphs includes sections entitled “Obsolete and Defective Structural Drawings Prepared by BWSC and Posted on BWSC Website” and “Interference with Subcontractors” which include the factual allegations underpinning these claims. (Id. at 9-16 ¶¶ 43-86; id. at 39-40 ¶¶ 195-199). As BWSC makes no further arguments regarding the claim of tortious interference with Glenn Construction’s contractual relationships with the subcontractors, this Court finds that BWSC’s motion for summary judgment, (Doc. # 49), is due to be DENIED with respect to the intentional interference claims regarding the contractual relations between Glenn Construction and its subcontractors.
ii. The Claims for Intentional Interference with the Contractual Relations Between Glenn Construction and Bell Aero
With respect to the tortious interference claims regarding Glenn Construction’s contractual relationship with Bell Aero, BWSC contends that it was not a stranger to the Contract. That BWSC be a stranger to the Contract is a necessary element of Glenn Construction’s prima facie case. See e.g., MAC East, 535 F.3d at 1297; Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1153 (Ala.2003). Glenn Construction cites to the case of Colonial Bank v. Patterson for the proposition that “when there exists a tripartite relationship between the parties, a party ... can be liable for tortuous interference when its conduct is not appropriate under its contract with the other two parties.” (Doc. # 66, at 51 (citing Colonial Bank v. Patterson, 788 So.2d 134, 138 (Ala.2000), overruled on other grounds by White Sands Grp., 32 So.3d at 14)). Glenn Construction thus argues that BWSC was a stranger to the Contract because BWSC did not act within its rights under the tripartite relationship.
Glenn Construction’s argument arises from a misunderstanding of Alabama law. The Alabama Supreme Court held in Colonial Bank that one cannot be liable for tortious interference “when tripartite relationships exist and disputes arise between two of the three parties” and the third party engages in conduct “that is appropriate under its contract with the other two parties.” 788 So.2d at 138 (citations omitted). However, it did not hold that the opposite was true — ie. that one whose conduct goes beyond its rights is'automatically a stranger to the contract between the two other members of the tri-partite relationship. Indeed, this same argument was rejected by the Eleventh Circuit in MAC East, which held that the district court erred in finding that, in a tri-partite relationship, the defendant “effectively became a non-party or stranger to the business relation between [the plaintiff] and [a third party]” when it engaged in an unauthorized course of conduct. 535 F.3d at 1297. The Eleventh Circuit explained that Alabama law recognizes multiple situations in which a party is not a stranger to a contract. MAC East, 535 F.3d at 1297 (“A defendant is not a stranger to a contract or business relationship when: (1) the defendant is an essential entity to the purported injured relations; (2) the injured relations are inextricably a part of or dependent upon the defendant’s contractual or business relations; (3) the defendant would benefit economically from the alleged injured relations; or (4) both the defendant and the plaintiff are parties to a comprehensive interwoven set of contract relations.”) (quoting Waddell, 875 So.2d at 1156); see also Edwards v. Prime, Inc., 602 F.3d 1276 (11th Cir.2010); Atlanta Mkt. Ctr. Mgmt. Co. v. McLane, 269 Ga. 604, 608, 503 S.E.2d 278 (“[I]n order for a defendant to be liable for tortious interference with contractual relations, the defendant must be a stranger to both the contract and the business relationship giving rise to and underpinning the contract.”) (cited with approval by Waddell, 875 So.2d at 1154-55).
Here, it is undisputed that BWSC was hired as the engineer on the Project by Bell Aero. Thus, the Contract between Bell Aero and Glenn Construction is “inextricably depende