Basin Paving Co. v. Mike M. Johnson, Inc.

107 Wash. App. 61
CourtCourt of Appeals of Washington
DecidedMay 29, 2001
DocketNo. 19224-5-III
StatusPublished
Cited by8 cases

This text of 107 Wash. App. 61 (Basin Paving Co. v. Mike M. Johnson, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Basin Paving Co. v. Mike M. Johnson, Inc., 107 Wash. App. 61 (Wash. Ct. App. 2001).

Opinion

Sweeney, J.

A contractor may recover for a changed condition when it “could not reasonably have been anticipated by either party to the contract.” Bignold v. King County, 65 Wn.2d 817, 821-22, 399 P.2d 611 (1965). Mike M. Johnson, Inc., (MMJ) was awarded the contract for the Town of Lind’s wastewater and water system project. MMJ [63]*63encountered more subsurface rock than it expected based on boring tests conducted on behalf of Lind. The trial court summarily dismissed MMJ’s cross-claims against Lind for additional compensation based on a “changed condition.”

We agree with the trial court that there was no changed condition because: (1) all subsurface conditions were labeled unclassified; (2) the presence of rock was foreseeable based on the contract’s language and the boring tests; (3) the contract made complete reliance on the test data unreasonable; and (4) MMJ admitted that the presence of more subsurface rock than was indicated in the test data was foreseeable. We therefore affirm.

FACTS

The Town of Lind requested bids for its 1996 wastewater and water system project. Emcon Northwest, Inc., was the project engineer. In anticipation of the project, Lind had boring tests performed at 50-foot intervals along the project site and drawings made based on the boring tests. The bulk of the project was excavation.

MMJ was awarded the contract. The contract references excavation and the boring tests in several different sections. It provided, in relevant part:

All excavation is unclassified and payment for rock excavation is not authorized. Prospective bidders are advised to examine the pipeline routes carefully and to their own satisfaction determine the likelihood of encountering rock formations. Boring results obtained by Northwest Rock Contractors (Mark Johnson) are shown on the Sewer Line Profile and Appendix A. The test drilling information is included for the use of prospective bidders to help evaluate the cost of unclassified excavation. EMCON is not responsible for the accuracy of the included boring information.

Clerk’s Papers (CP) at 33.

The information shown on the included Plans is to be used by the Contractor to assist him to properly evaluate the amount and character of the work that might be required. Such [64]*64information is given, however, as being the best factual information available without assumption of responsibility as to its accuracy or for any conclusions that the Contractor might draw therefrom. The Contractor shall promptly and before such conditions are disturbed notify the Engineer in writing of: 1) subsurface or latent physical conditions at the site differing materially from those indicated in this Contract; or 2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and from those generally recognized as inherent in the work of the character provided for in this Contract.

CP at 36.

All excavation in this Schedule of work shall be considered as “unclassified excavation” and shall consist of excavating and removing all formations and materials, natural or man-made, irrespective of nature or condition, encountered within the limits of the defined trenches and other necessary areas of excavation.
Prospective Bidders are advised to examine the site and make their own determination regarding rock formations (see test borings).

CP at 53.

All excavation in this Schedule of work shall be considered as “unclassified excavation” and shall consist of excavating and removing all formations and materials, natural or man-made, irrespective of nature or condition, encountered within the limits of the defined trenches and other necessary areas of excavation. Payment for rock excavation is not provided.

CP at 56.

MMJ encountered more rock than it anticipated from the boring tests. The project was finished late. Claims arose among MMJ, its subcontractors, and Lind. MMJ cross-claimed against Lind, claiming MMJ is entitled to additional compensation for the changed conditions. Lind moved for summary judgment. The court summarily dismissed MMJ’s claims for additional compensation based on changed conditions.

[65]*65DISCUSSION

Changed Condition. MMJ contends that the contract specifically contained a “changed condition” clause which anticipated the additional compensation it wants for changed conditions. It contends the amount of rock present was a changed condition because it differed from the amount shown in the drawings based on the boring tests.

We review an order granting summary judgment de novo. And in doing so we engage in the same inquiry as the trial court—is there a genuine issue as to any material fact, and is the moving party entitled to judgment as a matter of law? We consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).

Excavation contracts may allow a contractor to receive additional compensation for unforeseen conditions:

“ ‘[W]here plans or specifications lead a public contractor reasonably to believe that conditions indicated therein exist, and may be relied upon in making his bid, he will be entitled to compensation for extra work or expense made necessary by conditions being other than as so represented.’ ”

Dravo Corp. v. Municipality of Metro. Seattle, 79 Wn.2d 214, 218, 484 P.2d 399 (1971) (quoting Md. Cas. Co. v. City of Seattle, 9 Wn.2d 666, 670, 116 P.2d 280 (1941)).

Recovery is, however, limited to when the “condition complained of could not reasonably have been anticipated by either party to the contract.” Bignold, 65 Wn.2d at 821-22; Donald B. Murphy Contractors, Inc. v. State, 40 Wn. App. 98, 103, 696 P.2d 1270 (1985); see also Hensel Phelps Constr. Co. v. King County, 57 Wn. App. 170, 174-76, 787 P.2d 58 (1990) (quantum meruit doctrine applies only when changed condition was unforeseeable to contractor); Modern Builders, Inc. v. Manke, 27 Wn. App. 86, 94, 615 P.2d 1332 (1980) (same). “[A] finding that the contractor should have anticipated the condition will bar recovery.” Bignold, 65 Wn.2d at 822.

[66]*66Applying this rule has led Washington courts to deny contractors’ claims when they encountered differing levels of underwater hardpan,1 wet and soft soil that required a more expensive means of tunneling,2 and more and larger boulders in a dredging operation to construct a marina.3

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Bluebook (online)
107 Wash. App. 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/basin-paving-co-v-mike-m-johnson-inc-washctapp-2001.