UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

GREAT AMERICAN INSURANCE ) 

COMPANY OF NEW YORK ) 

a/s/o SERENITY LAKE SENIOR, LLC ) 

and SERENITY LAKE SENIOR, LLC, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) CASE NO.: 2:14-cv-55 

 ) 

SUPERIOR CONTRACTING ) 

CORPORATION d/b/a AMERICAN ) 

NATIONAL INSULATION, FIRE PROS, ) 

INC., C.D. BARNES ASSOCIATES, ) 

INC. and ECONOMIDES ARCHITECTS, ) 

LLC ) 

 ) 

 Defendants. ) 

ECONOMIDES ARCHITECTS’ 

BRIEF IN SUPPORT OF MOTION TO DISMISS 

 Defendant Economides Architects, LLC (“Economides Architects”), respectfully submits 

this brief in support of its Rule 12(b)(6) Motion to Dismiss the Complaint filed against it by 

Plaintiffs Serenity Lake Senior, LLC (“Serenity Lake”) and Great American Insurance 

Company of New York (“Great American”). 

I.) Introduction 

Plaintiffs have filed a lawsuit for property damage allegedly caused when water pipes for 

a fire suppression system froze and burst on January 21, 2012, discharging water into a building 

at the Serenity Lake complex in Gary, Indiana. They have sued a multitude of defendants – the 

subcontractor who allegedly designed and installed the sprinkler system (Fire Pros), the 

subcontractor who allegedly designed and installed the insulation (ANI), the alleged general 

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contractor (Barnes), and the architect (Economides Architects). The Complaint against 

Economides Architects should be dismissed for failure to state a claim because Serenity Lake 

and Economides Architects expressly agreed in their written contract that Economides Architects 

was not responsible for the design of or drawings for the fire suppression system, and that 

Economides Architects was not responsible for the conduct (or alleged misconduct) of the 

contractor or the subcontractors. Specifically, the parties’ written agreement expressly states 

the following: 

[ECONOMIDES ARCHITECTS’] SERVICES DO NOT INCLUDE the 

following ... Fire Suppression design and drawings if needed. 

* * * 

CONSTRUCTION: The Architect shall not have control over or charge of 

and shall not be responsible for construction means, techniques, sequences, or 

procedures, or for safety precautions and programs in connection with the 

Work, since these are solely the Contractor’s responsibility. The Architect 

shall not be responsible for the Contractor’s schedules or failure to carry out 

the Work in accordance with the Contract Documents. The Architect shall not 

have control over or charge of acts or omissions of the Contractor, 

Subcontractors, or their agents or employees, or of any other persons 

performing portions of the Work. 

(Emphasis in original.) Indeed, as Plaintiffs’ own complaint alleges, such services for the fire 

suppression system were to be provided by the contractor Barnes and the subcontractors ANI and 

Fire Pros. Accordingly, Plaintiffs have no claim against Economides Architects, and the 

Complaint against it should be dismissed in its entirety pursuant to Rule 12(b)(6). 

II.) Legal Standard for Dismissal Under Rule 12(b)(6) 

Economides Architects respectfully submits that the Complaint should be dismissed 

pursuant to Rule 12(b)(6). “A motion to dismiss under Rule 12(b)(6) challenges the sufficiency 

of the complaint for failure to state a claim upon which relief may be granted.” GE Capital 

Corp. v. Lease Resolution Corp., 128 F.3d 1074 (7th Cir. 1997). 

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Dismissal of a complaint is appropriate if “it appears to a certainty on the face of the 

complaint that the complaining party is not entitled to any relief.” Waste, Inc. Cost Recovery 

Group v. Allis Chalmers Corp., 51 F. Supp. 2d 936, 939 (N.D. Ind. 1999); Gessert v. United 

States, 703 F.3d 1028, 1033 (7th Cir. 2013). “[A]ll well-pleaded allegations are presumed to be 

true. Furthermore, a court must view those allegations in the light most favorable to the plaintiff, 

and accept as true all reasonable inferences to be drawn from those allegations.” Waste, Inc., 51 

F. Supp. 2d at 939 (internal citations omitted); Richmond v. Nationwide Cassel L.P., 52 F.3d 

640, 644 (7th Cir. 1995). 

 However, “although the complaint’s factual allegations are accepted as true at the 

pleading stage, allegations in the form of legal conclusions are insufficient to survive a Rule 

12(b)(6) motion. Accordingly, ‘[t]hreadbare recitals of the elements of the cause of action, 

supported by mere conclusory statements, do not suffice.’” McReynolds v. Merrill Lynch & Co., 

694 F.3d 873, 885 (7th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 679 

(2007)). 

Moreover, “it is a well-settled rule that when a written instrument contradicts allegations 

in the complaint to which it is attached, the exhibit trumps the allegations.” Home Repair, Inc. v. 

Universal Restoration Servs., 90 Fed. Appx. 142, 145 (7th Cir. 2003) (quoting Northern Ind. 

Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F. 3d 449, 454 (7th Cir. 1998)). 

In evaluating a motion to dismiss under FRCP 12(b)(6), the court considers “the 

complaint itself, documents attached to the complaint, documents that are critical to the 

complaint and referred to in it, and information that is subject to proper judicial notice.” 

Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). While it is the general rule 

under Rule 12(d) that when “matters outside the pleadings are presented to and not excluded by 

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the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 

56,” there is a well-recognized exception to that rule. Specifically, it is “well-settled in [the 7th

Circuit] that `documents attached to a motion to dismiss are considered part of the pleadings if 

they are referred to in the plaintiff’s complaint and are central to his claim. Such documents may 

be considered by a district court in ruling on the motion to dismiss.’ . . . While [this is a] narrow 

[exception], this exception is `aimed at cases interpreting, for example, a contract.’” 188 LLC v. 

Trinity Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002). And, “[t]he purpose of the exception 

is to prevent parties from surviving a motion to dismiss by artful pleading or by failing to attach 

relevant documents.” Id. (emphasis added). 

III.) Complaint Allegations and the Economides Architects Contract 

Plaintiffs have alleged the following in their Complaint1 (attached hereto as Exhibit A) 

and/or such appears in the Owner-Architect Agreement with Economides Architects that is 

otherwise a part of the pleadings (attached hereto as Exhibit B to the Economides Affidavit):

1.) Serenity Lake operates a large Senior Citizen Independent Living Complex at a 

facility located in Gary, Indiana – the “Serenity Premises.” (Complaint ¶2.) Great American 

Insurance provided property insurance for property damage occurring at that facility and, when it 

paid insurance proceeds for the property damage described in the Complaint, it became 

subrogated to Serenity Lake’s rights for recovery of such damages. (Complaint ¶¶’s 1, 24, 

and 25.) 

2.) A wet sprinkler system for fire suppression had been installed in the facility 

during construction of the facility. (Complaint ¶14.) 

 

1

 The Complaint was filed on January 21, 2014, in Lake County Superior Court, but removed on Diversity of 

Citizenship grounds to this Court on February 20, 2014. 

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3.) On January 21, 2012, the fire suppression system’s water pipes froze and burst, 

discharging large amounts of water into the interior of a building at the Serenity Lake facility – 

allegedly because the fire suppression system’s pipes were not properly insulated against the 

cold temperature. (Complaint at ¶¶’s 22 and 23.) 

4.) Plaintiffs allege that Economides Architects was the architect for the Serenity 

Lake facility. (Complaint ¶16.) Although Plaintiffs artfully fail to attach it to the Complaint, 

there was a written contract that established and defined this relationship referenced by Plaintiffs, 

making it critical to the complaint. (Economides Affidavit at Exhibit 1.) 

5.) The written contract with Economides Architects was signed by the owner of the 

Serenity Lake project on November 22, 2005, and pursuant to that contract, Economides 

Architects indeed had agreed to provide certain architectural services for the design of the 

facility. (Economides Affidavit at Exhibit 1, passim.) 

6.) However, the parties to the Owner-Architect Agreement had expressly agreed to 

exclude certain services from the Economides Architects’ scope of work, as follows: 

SERVICES DO NOT INCLUDE the following; therefor, if required, shall be 

billed to the Owner: 

* * *

* Fire Suppression design and drawings if needed.

(Economides Affidavit at Exhibit 1, at page 3.) 

7.) Indeed, the Owner-Architect Agreement does not state anywhere that Economides 

Architects was responsible for the design of a fire suppression system, or of insulation for the 

pipes or plumbing of such a system. (Economides Affidavit at Exhibit 1, passim.) 

8.) The parties’ written agreement further states the following exclusion 

or disclaimer: 

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CONSTRUCTION: The Architect shall not have control over or charge of 

and shall not be responsible for construction means, techniques, sequences, or 

procedures, or for safety precautions and programs in connection with the 

Work, since these are solely the Contractor’s responsibility. The Architect 

shall not be responsible for the Contractor’s schedules or failure to carry out 

the Work in accordance with the Contract Documents. The Architect shall not 

have control over or charge of acts or omissions of the Contractor, 

Subcontractors, or their agents or employees, or of any other persons 

performing portions of the Work. 

(Economides Affidavit at Exhibit 1, at pages 4-5.) 

9.) The exclusion of design services relating to the fire suppression system was 

reiterated in the design drawings provided by Economides Architects in furtherance of the 

Owner-Architect Agreement, as follows: 

16. A LICENSED FIRE PROTECTION CONTRACTOR IS RESPONSIBLE 

FOR ENGINEERING A COMPLETE, CODE-COMPLIANT SYSTEM, 

DRAWINGS AND SHOP DRAWINGS AND SUBMITTING THEM FOR 

APPROVAL AND PERMITS. 

(Economides Affidavit, at Exhibit 2.) 

10.) Plaintiffs specifically allege in their Complaint that Serenity Lake and/or its 

contractor Barnes contracted with two entities for such “design and build” services for the fire 

suppression system – ANI and Fire Pros: 

 13. BARNES hired ANI and FIRE PROS to serve as insulation and 

sprinkler design build subcontractors for the construction of the SERENITY 

PREMISES. 

 14. FIRE PROS installed a wet sprinkler system in the third floor (top 

floor) ceiling of the SERENITY PREMISES. 

15. ANI installed insulation in the attic of the SERENITY PREMISES 

and third floor ceiling under and over portions of the wet sprinkler system piping 

in such a manner that it prevented heat from the third floor ceiling from properly 

warming the pipes, while installing insufficient insulation. 

* * * 

17. After completion of their insulation work, FIRE PROS failed 

to confirm that the correct amount of insulation level existed above the 

sprinkler pipes. 

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18. FIRE PROS contracted with SERENITY to perform maintenance 

and inspection services on the sprinkler system at the SERENITY PREMISES. 

19. Between the time of the construction and January 21, 2012, FIRE 

PROS performed inspections of the sprinkler system but failed to discover the 

improperly insulated pipe in the sprinkler system as required by the National Fire 

Protection Association and otherwise [referring to certain provisions previously 

alleged in the Complaint to exist in the Indiana Building Code]. 

20. FIRE PROS approved the sprinkler system and its installation and 

activated it and certified that it was ready for service. 

21. During the time of the construction and January 21, 2012, 

BARNES performed inspections of the SERENITY PREMISES including the 

attic, insulation, and fire protection systems, but failed to discover the improperly 

insulated pipe in the sprinkler systems required by the National Fire Protection 

Association and otherwise. 

(Complaint at ¶¶’s 13-15 and 17-21.) 

11.) Despite the clear terms of their written agreement, and despite these allegations in 

their own Complaint against the other defendants, Plaintiffs have nonetheless alleged in the 

Complaint that Economides Architects somehow was “responsible for designing and specifying 

the sprinkler system’s insulation system to avoid freezing and bursting of the same.” (Complaint 

at ¶16.) In their sole Count against Economides Architects, they allege that Economides 

Architects was negligent, and that such negligence caused the fire suppression pipe to freeze and 

burst, as follows: 

54. At all relevant times, Economides owed Serenity a duty to perform 

architectural services in a manner to protect Serenity's sprinkler system from 

reasonably foreseeable damage. 

55. Economides breached its duty through one or more of the 

following acts or omissions: 

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a. Carelessly and negligently failing to design the insulation system 

plans and specifications for the sprinkler pipes; 

b. Carelessly and negligently failing to clearly communicate in its 

designs and specifications the installation of insulation for the 

sprinkler pipes; 

c. Carelessly and negligently failing to notify others that the insulation 

for the sprinkler pipes was improperly performed; 

d. Carelessly and negligently violated applicable sprinkler, fire, 

plumbing, building [sic]; 

e. Failed to require coordination between its design and the sprinkler 

contractors design; and/or 

f. Otherwise acted negligently. 

56. As a direct and proximate result of one or more of the foregoing 

negligent acts or omissions by Economides, a pipe in the fire protection system at 

the Serenity Premises burst and Serenity suffered damages. 

(Complaint at Count VII, and ¶¶’s 54-56.) 

IV.) Legal Argument 

Indiana law recognizes that an architect only has a duty to “perform with reasonable care 

the duties for which it contracted ... and is liable for failing to exercise professional skill and 

reasonable care in preparing plans and specifications according to its contract.” Greenhaven 

Corp. v. Hutchcraft & Associates, Inc., 463 N.E.2d 283, 286 (Ind.App. 1984) (emphasis 

added). Similarly, it has been held that “[a]n architect does not owe a fiduciary duty to its 

employer; rather, the architect’s duties to its employer depend upon the agreement it has entered 

into with that employer.” Strauss Veal Feeds, Inc. v. Mead & Hunt, Inc., 538 N.E.2d 299, 303 

(Ind.App. 1989) (holding that it was erroneous for the trial court to impose a duty on the 

architect to advise its employer that a state environmental agency might disapprove of the 

employer’s operations that were the subject of the design work, because advising the employer 

of such risks was beyond the scope of the parties’ architectural services contract). 

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Indeed, while Indiana courts find instructive the principle that there is “implied in every 

contract between an architect and his employer an agreement that plans and specifications 

prepared by the architect will be suitable for the purposes for which they are prepared,” and that 

this “includes the architect’s duty to draw plans and specifications that conform to building 

codes, zoning codes, and other local ordinances,” Id. at 285 (citations omitted), Indiana law is 

clear that the scope of the architect’s duties may be modified by agreement, and that such an 

agreement defines the scope of the architect’s duties to its employer. Id. (“[A]n architect’s 

duties to his employer depend upon the agreement he has entered into with that 

employer.”) (emphasis added). 

Moreover, an architect is not a guarantor or an insurer of the work. “Absent a special 

agreement, an architect does not imply or guarantee a perfect plan. . . . [And] in the absence of 

such an agreement, we do not believe any alleged failure to notice construction deficiencies or 

incompletions required the trial court to find, as a matter of law, that [the architect] breached the 

contract with respect to its inspection obligations. To hold otherwise would essentially transform 

[the architect] into an insurer of [the contractor’s] work, which the contract between [the 

employer] and [the architect] prohibits.” Farah, LLC v. Architura Corp., 952 N.E.2d 328 

(Ind.App. 2011) (enforcing language in the contract that disclaimed any responsibility of the 

architect to be responsible for the contractor’s failure to perform the work in accordance with the 

contract documents, and disclaimed any control over or responsibility for the acts or omissions 

of the contractor(s) performing the work). And, an “architect is not a warrantor of his plans or 

specifications. The result may show a mistake or defect, although he may have exercised the 

reasonable skill required.” Mayberry Café, Inc. v. Glenmark Constr. Co., 879 N.E.2d 1162, 

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1173 (Ind.App. 2008) (enforcing the terms of the architect services agreement that excluded 

responsibility for the alleged deficiencies). 

Despite the clear language of the parties’ Owner-Architect Agreement entirely excluding 

the design and drawing of a fire suppression system from the scope of Economides Architects’ 

responsibilities, the Plaintiffs nonetheless allege that Economides Architects is somehow 

responsible for such and that it negligently failed to discharge those responsibilities. These 

arguments fail as a matter of law and Economides Architects’ Motion to Dismiss pursuant to 

Rule 12(b)(6) should be granted. 

A.) Economides Architects had no duty to design any aspect of the fire 

 suppression system, including insulation for its sprinkler pipes. 

 In sub-paragraphs (a), (b), and (d) of paragraph 55 of its Complaint, Plaintiffs allege that 

Economides Architects acted negligently in the following ways: 

a. Carelessly and negligently failing to design the insulation system 

plans and specifications for the sprinkler pipes; 

b. Carelessly and negligently failing to clearly communicate in its 

designs and specifications the installation of insulation for the 

sprinkler pipes; 

* * * 

d. Carelessly and negligently violated applicable sprinkler, fire, 

plumbing, building [sic][.] 

Each of these allegations, though, is premised on the assertion that Economides 

Architects had some sort of duty to design the fire suppression system in the first place. 

However, the Owner-Architect Agreement makes it unambiguously clear and explicit that 

Economides Architects had no such duty. Specifically, the parties expressly agreed that such 

services were entirely excluded from Economides Architects’ responsibilities: 

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“SERVICES DO NOT INCLUDE the following; therefor, if required, shall 

be billed to the Owner: 

* * *

* Fire Suppression design and drawings if needed.” 

(Economides Affidavit at Exhibit 1, at page 3.) To now assert that Economides Architects had 

some sort of duty to design some sub-element of such a system – the insulation for the sprinkler 

pipes – and communicate such in designs and specifications and/or to ensure that it was code 

compliant is a complete distortion and disregard of this exclusion in the parties’ contract. These 

assertions cannot stand in light of Indiana’s long-standing law to the contrary. Mayberry Café, 

879 N.E.2d at 1173; Strauss Veal Feeds, 538 N.E.2d at 303; Greenhaven, 463 N.E.2d at 286. 

Accordingly, this Court should enforce the valid, clear, and unambiguous provisions of 

the Owner-Architect Agreement, and dismiss the allegations against Economides Architects of 

negligence premised on sub-paragraphs (a), (b), and (d) of paragraph 55 of the Complaint. 

B.) Economides Architects had no duty to control or coordinate the work of 

Barnes, FirePro, and/or ANI 

In sub-paragraphs (c) and (e) of paragraph 55 of its Complaint, Plaintiffs allege that 

Economides Architects acted negligently in the following ways: 

c. Carelessly and negligently failing to notify others that the insulation 

for the sprinkler pipes was improperly performed; 

* * * 

e. Failed to require coordination between its design and the sprinkler 

contractors design[.] 

Each of these allegations too is premised on the assertion that Economides Architects had 

some sort of duty to control or coordinate the conduct of the contractor Barnes, the fire 

suppression sub-contractor Fire Pros, and/or the insulation sub-contractor ANI. Again, though, 

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the Owner-Architect Agreement makes it unambiguously clear and explicit that Economides 

Architects had no such duty. Here, the parties expressly agreed that Economides Architects had 

no such responsibilities: 

CONSTRUCTION: The Architect shall not have control over or charge of and 

shall not be responsible for construction means, techniques, sequences, or 

procedures, or for safety precautions and programs in connection with the Work, 

since these are solely the Contractor’s responsibility. The Architect shall not be 

responsible for the Contractor’s schedules or failure to carry out the Work in 

accordance with the Contract Documents. The Architect shall not have control 

over or charge of acts or omissions of the Contractor, Subcontractors, or their 

agents or employees, or of any other persons performing portions of the Work. 

(Economides Affidavit at Exhibit 1, at page 3.) 

These disclaimers of responsibility were further made clear in the designs and 

drawings the Economides Architects did prepare, as follows: 

16. A LICENSED FIRE PROTECTION CONTRACTOR IS RESPONSIBLE 

FOR ENGINEERING A COMPLETE, CODE-COMPLIANT SYSTEM, 

DRAWINGS AND SHOP DRAWINGS AND SUBMITTING THEM FOR 

APPROVAL AND PERMITS. 

(Economides Affidavit at Exhibit 2.) 

Plaintiffs’ assertions to the contrary cannot stand in the face of these valid, clear, and 

expressly agreed upon disclaimer provisions, and cannot stand in the face of long-established 

Indiana law to the contrary. Farah, 952 N.E.2d 328; Mayberry Café, 879 N.E.2d at 1173. 

Accordingly, this Court should enforce the parties’ Owner-Architect Agreement, and 

dismiss the allegations against Economides Architects of negligence premised on sub-paragraphs 

(c) and (e) of paragraph 55 of the Complaint. 

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C.) Plaintiffs’ bald allegation of general negligence is conclusory and cannot 

 defeat this dismissal motion.

Finally, in sub-paragraph (f) of paragraph 55 of its Complaint, Plaintiffs throw out the 

bald and general allegation that Economides Architects somehow “[o]therwise acted 

negligently.” This assertion too fails as matter of law in light of the parties’ clear and 

unambiguous contract terms, as explained above. Home Repair, 90 Fed. Appx. at 145 (quoting 

Northern Ind. Gun & Outdoor Shows, 163 F. 3d at 454) (“it is a well-settled rule that when a 

written instrument contradicts allegations in the complaint to which it is attached, the exhibit 

trumps the allegations.”). And, this bald, general, and conclusory allegation is insufficient to 

defeat a Rule 12(b)(6) motion, as the courts in this circuit have long held. McReynolds, 694 F.3d 

at 885 (quoting Twombly, 550 U.S. at 679) (“[t]hreadbare recitals of the elements of the cause of 

action supported by mere conclusory statements, do not suffice’”). 

Accordingly, this Court should dismiss the negligence allegations against Economides 

Architects premised on sub-paragraph (f) of paragraph 55 of the Complaint. 

V.) Conclusion 

Plaintiffs’ allegations of negligence against Economides Architects cannot stand. Each 

allegation is premised on the existence of an asserted duty that completely disregards or 

contradicts the parties’ clear and unambiguous written agreement. The parties’ Agreement 

should be enforced, and the Complaint against Economides Architects should be dismissed 

pursuant to Rule 12(b)(6) for failure to state a claim, and for all other appropriate relief.

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Respectfully submitted, 

 /s/ James M. Hinshaw 

James M. Hinshaw, Atty. #16744-49 

BINGHAM GREENEBAUM DOLL LLP 

2700 Market Tower 

10 W. Market Street 

Indianapolis, IN 46204-4900 

(317) 635-8900 

(317) 236-9907 (fax) 

jhinshaw@bgdlegal.com

 Attorney for Defendant, 

Economides Architects, LLC 

CERTIFICATE OF SERVICE 

 I hereby certify that on March 20, 2014, a copy of the foregoing was filed electronically. 

Notice of this filing will be sent to the following parties by operation of the Court’s electronic 

filing system. Parties may access this filing through the Court’s system. 

Ricardo A. Hall 

Spangler, Jennings & Dougherty, P.C. 

rhall@sjdlaw.com 

Attorney for Great American Insurance 

Company of New York 

Court L. Farrell 

clf@bpc-law.com

Bruce P. Clark 

Bruce P. Clark & Associates 

bpclaw@bpc-law.com 

Attorneys for Defendant Fire Pros Inc. 

James M. Portelli 

Moore & Portelli 

jportelli@mooreandportelli.com 

Attorney for C D Barnes Associates Inc. 

Thomas J. Finn 

Leahy Eisenberg & Fraenkel Ltd 

tjf@lefltd.com 

Attorney for Defendant Fire Pros Inc.

Patrick M. Miller 

Faegre Baker Daniels LLP 

patrick.miller@faegrebd.com 

Attorney for Superior Contracting 

Corporation d/b/a ANI

 I hereby certify that I have served a copy of the above and foregoing via certified mail, 

return receipt requested, to the following counsel of record on this 20th day of March, 2014. 

Margaret A. Lynch 

Masco Corporation 

21001 Van Born Road 

Taylor, MI 48180 

Attorney for Superior Contracting 

Corporation d/b/a ANI /s/ James M. Hinshaw 

15194589 

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