Bighorn Lumber Co. v. United States

49 Fed. Cl. 768, 2001 U.S. Claims LEXIS 129, 2001 WL 789074
CourtUnited States Court of Federal Claims
DecidedJuly 12, 2001
DocketNo. 00-568C
StatusPublished
Cited by3 cases

This text of 49 Fed. Cl. 768 (Bighorn Lumber Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bighorn Lumber Co. v. United States, 49 Fed. Cl. 768, 2001 U.S. Claims LEXIS 129, 2001 WL 789074 (uscfc 2001).

Opinion

OPINION

MILLER, Judge.

This case is before the court on cross-motions for summary judgment. Plaintiff seeks from the Government legal fees incurred after intervening in a lawsuit brought by a third party to enjoin performance of plaintiffs timber harvest contract with the Government. Argument is deemed unnecessary.

FACTS

On May 17,1994, the United States Forest Service (the “Forest Service”) awarded the Banner Timber Sale Contract No. 02-003055 to Bighorn Lumber Company, Inc. (“plaintiff’). On June 10, 1994, Friends of the Bow and other environmental groups sued in the United States District Court for the District of Colorado to enjoin performance of the contract. Friends of the Bow u United States, No. 94-Z-1370 (D. Colo., filed June 13, 1994). On June 22, 1994, the federal district court granted the injunction and thereby halted the harvest. As of December 22,1995, with the injunction still in effect, the court granted plaintiffs motion to intervene in the Friends of the Bow litigation. On July 26, 1996, the district court lifted the injunction. The contract containing the language at issue was executed on September 5, 1996.

In September 1998 the parties executed a Release from Liability Statement (“release”). Plaintiff signed the release in exchange for an agreement by the Forest Service to change the termination date of the contract and the periodic payment determination dates. The release provided that, in the event the Forest Service was compelled to suspend, modify or cancel the contract for environmental reasons, plaintiff would be entitled to recover out-of-pocket expenses. The release specifically excluded attorneys’ fees from otherwise reimbursable out-of-pocket expenses.

On July 20, 1999, plaintiff submitted a claim to the contracting officer for recovery of out-of-pocket expenses associated with the Friends of the Bow litigation. This submission was made pursuant to provision CT6.01 of the contract, which provided:

CT6.01 — Interruption or Delay of Operations (6/90)

Purchaser agrees to interrupt or delay operations under this contract, in whole or in part, upon the written request of Contracting Officer:

[770]*7701) To prevent serious environmental degradation or resource damage that may require contract modification under CT8.3 or termination pursuant to CT8.2;

2) To comply with a court order, issued by a court of competent jurisdiction; or

3) Upon determination of the appropriate Regional Forester, Forest Service, that conditions existing on this sale are the same as, or nearly the same as, conditions existing on sale(s) named in such an order as described in (b).

Purchaser agrees that in event of interruption or delay of operations under this provision, that its sole and exclusive remedy shall be (1) Contract Term Adjustment pursuant to BT8.21, or (2) when such an interpretation or delay exceeds 30 days during Normal Operating Season, Contract Term Adjustment pursuant to BT8.21, plus out-of-pocket expenses incurred as a direct result of interruption or delay of operations under this provision. Out-of-pocket expenses do not include lost profits, replacement cost of timber or any other anticipatory losses suffered by Purchaser.

On October 8, 1999, the contracting officer issued a decision on plaintiffs claim that allowed recovery of some costs associated with the delay in contract performance. Performance bond premiums, interest on the engineering services deposit, and interest on the down payment were deemed reimbursable out-of-pocket expenses. The contracting officer refused to reimburse plaintiff for attorneys’ fees incurred in the Friends of the Bow litigation, on the ground that they were not out-of-pocket expenses within the meaning of provision CT6.01. Plaintiff now seeks recovery of these attorneys’ fees in the amount of $30,032.00.

DISCUSSION

1. Summary judgment

Summary judgment is proper when no genuine issues of material fact are in dispute and the moving party is entitled to judgment as a matter of law. See RCFC 56(c). Having cross-moved, each party bears the burden of demonstrating entitlement to judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The parties’ cross-motions involve issues of contract interpretation, which are particularly well-suited for resolution by summary judgment. See, e.g., Textron Defense Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed.Cir.1998).

2. Interpreting the relevant contractual language

Courts look to the language of the contract when resolving contract disputes. Textron, 143 F.3d at 1468. Where the contract “provisions are clear and unambiguous, they must be given their plain and ordinary meaning.” Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed.Cir.1993).

Provision CT6.01 of the contract gives rise to the question of whether “out-of-pocket expenses incurred as a direct result of interruption or delay of operations under this provision” include attorneys’ fees that plaintiff incurred during its intervention in the Friends of the Bow litigation. Plaintiff argues that its attorneys’ fees were out-of-pocket expenses directly related to the interruption and delay of the Banner Timber Sale and that, consequently, they should be recoverable. Plaintiff advances several arguments in support of that conclusion.

1) The rule of ejusdem generis

In the context of legal instruments, the ejusdem generis rule

is that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest context, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.

See Black’s Law Dictionary 517 (7th ed.1999); Bristol-Myers Squibb Co. v. United States, 48 Fed.Cl. 350, 358 (2000). The rule of ejusdem generis limits general terms which follow specific ones to matters similar to those specified. See Emery Air Freight Corp. v. United States, 205 Ct.Cl. 49, 499 F.2d 1255, 1261 (1974). Because its out-of-pocket expenses for attorneys’ fees do not represent a loss related to the timber or [771]*771lumber and thus are not similar in kind or character to the list of cost categories excluded in CT6.01, plaintiff argues that its attorneys’ fees are recoverable.

The rule of ejusdem generis is inapplicable to the language in question. In provision CT 6.01, the specific follows the general and not vice versa: “[0]ut-of-pocket expenses” is the general term, and “lost profits, replacement cost of timber or any other anticipatory losses” are the specific terms. A “reverse ejus-dem

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Bluebook (online)
49 Fed. Cl. 768, 2001 U.S. Claims LEXIS 129, 2001 WL 789074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bighorn-lumber-co-v-united-states-uscfc-2001.