Settlement Releases Waive Only Vicarious “Pass-Through” Claims—Independent Inspection-Duty Claims Against a Non-Settling Party Survive

1. Introduction

West Virginia hired Bizzack Construction, LLC (“Bizzack”) to build highway infrastructure, including several bridges. After Bridge 1 experienced a major pier-stability failure (Pier 4 moved inches within an embankment), Bizzack sued two project participants: TRC Engineers, Inc. (“TRC”), the prime consultant/lead designer and construction inspection manager, and AECOM Technical Services, Inc. (“AECOM”), TRC’s subconsultant responsible for Bridge 1 design.

During litigation, Bizzack settled with AECOM. The district court then granted TRC summary judgment, holding that the settlement released (waived) Bizzack’s claims against TRC. The Sixth Circuit vacated, holding that the settlement waived only “pass-through” claims premised on AECOM’s conduct and did not extinguish claims based on TRC’s own alleged failures—especially TRC’s distinct construction management and inspection duties.

2. Summary of the Opinion

The Sixth Circuit reviewed summary judgment de novo and held:

• The settlement agreement released only “Pass-Through Claims”—claims against TRC for damages allegedly caused by AECOM’s acts or omissions based on TRC’s subconsultant agreement with AECOM. It expressly did not release claims arising from TRC’s own acts or omissions.
• The district court erred by treating the complaint as the sole source of Bizzack’s theories at summary judgment. Under Sixth Circuit practice, courts must consider the “course of the proceedings,” including evidence and clarified theories developed during discovery.
• On the record, Bizzack preserved negligence and breach-of-contract theories against TRC tied to TRC’s construction support inspection services—duties AECOM did not perform.
• Because the district court did not reach the merits of those surviving theories, neither side was entitled to summary judgment at this stage. The Sixth Circuit vacated and remanded.

3. Analysis

3.1 Precedents Cited

A. Summary-judgment standard and evidentiary framing

• Puskas v. Delaware County, 56 F.4th 1088 (6th Cir. 2023): Cited for de novo review of summary judgment. The panel uses it to underscore that it independently assesses whether genuine disputes of material fact exist.
• Hieber v. Oakland County, 136 F.4th 308 (6th Cir. 2025): Reinforces that courts draw reasonable inferences in favor of the nonmovant. This matters because TRC’s “all claims were released” theory required reading the settlement expansively against Bizzack; the panel instead read the agreement’s carve-out as preserving TRC-actor claims.

B. West Virginia settlement/contract construction principles (release scope)

• Levine v. Rockwool Int'l A/S, 888 S.E.2d 903 (W. Va. 2023): Provides two pillars: (1) settlement agreements are construed like contracts; (2) West Virginia favors settlements and enforces them if fairly made and lawful. The court uses Levine to justify enforcing the release “as written,” rather than enlarging it beyond its terms.
• Hull Prop. Grp., LLC v. Quarrier St LLC, 915 S.E.2d 11 (W. Va. Ct. App. 2025) and VanKirk v. Green Constr. Co., 466 S.E.2d 782 (W. Va. 1995): These cases anchor the “plain language” rule: unambiguous contract language is enforced according to the parties’ manifested intent. They support the conclusion that the release’s explicit carve-out for TRC’s own conduct must be honored.
• Multiplex, Inc. v. Raleigh Cnty. Bd. of Educ., 709 S.E.2d 561 (W. Va. 2011): Settlement agreements ordinarily cover only matters within the parties’ contemplation at execution. The panel leverages this to reject the idea that settling with AECOM silently extinguished independent inspection-based claims against TRC.
• Woodrum v. Johnson, 559 S.E.2d 908 (W. Va. 2001): Supplies the fairness/expectation principle: when parties release one defendant with a clearly expressed expectation to proceed against others, courts should give effect to that expectation. The panel uses Woodrum (and its logic) to read the settlement as preserving TRC-actor claims.

C. Federal pleading vs. summary judgment—“course of the proceedings”

• Doe v. Univ. of Ky., 111 F.4th 705 (6th Cir. 2024): Central procedural precedent: district courts should not limit themselves to complaint allegations when deciding summary judgment; the nonmovant may rely on evidence beyond pleadings. The panel uses it to deem the district court’s complaint-only approach error.
• Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008) and Carter v. Ford Motor Co., 561 F.3d 562 (6th Cir. 2009): These cases articulate and refine the “course of the proceedings” test: a claim clarified in summary-judgment briefing can provide sufficient notice if it stays within the scope of what was pleaded and not expressly disavowed. The panel uses them to validate Bizzack’s inspection-duty theories supported by contract documents and discovery testimony.

D. West Virginia elements of negligence and contract

• Camden-Clark Mem'l Hosp. Corp. v. Marietta Area Healthcare, Inc., 922 S.E.2d 324 (W. Va. 2025): Sets out negligence elements (duty, breach, proximate cause/damages). The panel uses it to frame what remains for the district court on remand.
• Jones v. Logan Cnty. Bd. of Educ., 881 S.E.2d 374 (W. Va. 2022): Duty is a question of law. The panel applies this to conclude TRC owed a duty arising from its agreement to provide construction inspection services.
• Boyce v. Monongahela Power Co., 894 S.E.2d 913 (W. Va. 2023): Negligence/proximate cause are typically fact questions when evidence conflicts or multiple reasonable conclusions exist—supporting remand rather than merits resolution by the appellate court.
• Aikens v. Debow, 541 S.E.2d 576 (W. Va. 2000): Used to connect duty to the parties’ contractual undertaking in a negligence framework (especially salient in professional services settings).
• Sneberger v. Morrison, 776 S.E.2d 156 (W. Va. 2015): Provides breach-of-contract elements (contract, breach, damages), again framing what must be decided on remand.

E. Appellate restraint / remand discipline

• United States v. Houston, 792 F.3d 663 (6th Cir. 2015): Cited for the “court of review, not first view” principle—used to justify sending the unresolved merits issues back to the district court.

3.2 Legal Reasoning

1. Contractual release interpretation (West Virginia law): The panel treated the settlement as a contract governed by West Virginia rules of plain-language enforcement. The agreement released Bizzack’s claims against TRC only for “damages allegedly caused by AECOM’s acts or omissions” (the “Pass-Through Claims”), but it expressly preserved claims “arising from the acts or omissions of TRC.” The court operationalized this as a functional distinction between:
   • Vicarious/derivative exposure (TRC liable because AECOM erred), which was released; and
   • Independent TRC misconduct (TRC’s own inspection/management failures), which was not.
2. Separating design duties from construction inspection duties (record-based): The opinion emphasized that TRC’s agreement and fee proposal segregated (a) design/engineering and (b) construction management & inspection. Discovery testimony further supported that “AECOM [did not] perform any construction engineering inspection,” while TRC did. This factual separation defeated TRC’s attempt to characterize all claims as merely repackaged design-defect claims released by the AECOM settlement.
3. Procedural correction—what claims exist at summary judgment: The district court looked only to the complaint to decide what theories Bizzack asserted. The Sixth Circuit held that approach conflicts with summary-judgment practice: after discovery, a plaintiff may support or clarify theories through evidence and briefing, so long as they remain “within the scope” of the pleadings and were not expressly disavowed. Here, the complaint itself referenced “construction inspection support services,” and attached contract documents that differentiated TRC’s inspection obligations from AECOM’s design work.
4. Merits left open: The panel determined duty existed (as a matter of law) based on TRC’s contractual undertaking to manage “construction quality control, materials testing, and construction inspection.” But it declined to resolve breach and causation for negligence, and breach/damages for contract, because those issues were not addressed by the district court once it found waiver.
5. Comparative fault despite settlement: The court pointed to W. Va. Code Ann. § 55-7-13d(a)(1)-(2) to note that a factfinder may consider the fault of all contributors—including a settling party like AECOM—when allocating fault, even though AECOM is no longer in the case. This preserves a coherent pathway for TRC to argue apportionment without converting the settlement into a global release.

3.3 Impact

Although unpublished, the opinion has practical significance for multi-party construction and professional-services disputes in the Sixth Circuit (and for cases applying West Virginia law):

• Release drafting and settlement strategy: Parties can settle with a designer/subconsultant without unintentionally extinguishing independent claims against a construction manager/inspector—if the agreement clearly distinguishes derivative “pass-through” claims from direct “acts or omissions” claims. Conversely, defendants seeking “peace” must negotiate for explicit, broad releases (and pay for them).
• Clarity on vicarious vs. independent liability: The decision highlights that, in integrated projects, distinct scopes of work matter. A lead consultant can face liability for its own inspection failures even if design errors are attributable to a subconsultant.
• Summary judgment framing: District courts are reminded to evaluate the developed record and the parties’ litigation conduct—not merely the complaint—when identifying the live claims at summary judgment. Plaintiffs, for their part, must ensure their clarified theories remain within the pleadings’ scope and are supported by discovery evidence.
• Apportionment after settlement: By referencing West Virginia’s fault-allocation statute, the opinion reinforces that settling one actor does not remove that actor from the causal narrative at trial; it changes the procedural posture, not the physics of causation.

4. Complex Concepts Simplified

• “Pass-Through Claims”: Claims against one party (TRC) that are effectively based on another party’s wrongdoing (AECOM). Think “TRC is liable because AECOM messed up.” The settlement released only this derivative category.
• Vicarious responsibility: Liability imposed on a party for someone else’s acts (e.g., principal/agent or analogous relationships), not for its own misconduct.
• Construction support inspection services vs. design services: “Design” is creating the plans/calculations; “inspection/quality control” is monitoring construction, materials, and compliance with those plans/specs during building. The opinion treats these as separate professional obligations with separate potential breaches.
• “Course of the proceedings” test: At summary judgment, courts can recognize theories clarified through discovery and briefing if they fit within the complaint’s general scope and did not surprise the defendant. It prevents unfair “gotcha” pleading, but also prevents unfairly freezing a case in its earliest, least-developed form.
• Proximate cause and comparative fault after settlement: Even if AECOM settled, the factfinder may still consider AECOM’s share of fault when deciding whether TRC’s alleged inspection failures contributed and how damages should be apportioned.

5. Conclusion

The Sixth Circuit’s central contribution is a disciplined separation of (1) what a settlement release actually says and (2) what the developed record shows about distinct scopes of duty. Bizzack’s settlement with AECOM waived only derivative “Pass-Through Claims” tied to AECOM’s design acts or omissions; it did not extinguish claims based on TRC’s own construction management and inspection obligations. Procedurally, the court reinforced that summary judgment must be decided on the post-discovery record and the “course of the proceedings,” not by confining the plaintiff to the complaint’s earliest factual framing. The case returns to the district court to decide—on the merits—whether TRC breached its inspection duties and whether that breach caused compensable damages, with fault allocation potentially including the settling designer under West Virginia law.