C B Structures, Inc. v. Potomac Electric Power Co.

122 F. Supp. 3d 247, 2015 U.S. Dist. LEXIS 106424, 2015 WL 4876360
CourtDistrict Court, D. Maryland
DecidedAugust 13, 2015
DocketCase No. PWG-14-2327
StatusPublished
Cited by9 cases

This text of 122 F. Supp. 3d 247 (C B Structures, Inc. v. Potomac Electric Power Co.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C B Structures, Inc. v. Potomac Electric Power Co., 122 F. Supp. 3d 247, 2015 U.S. Dist. LEXIS 106424, 2015 WL 4876360 (D. Md. 2015).

Opinion

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

The parties entered into a purchase order (“Contract”) for Plaintiff C B Structures, Inc. (“C B Structures”) to construct pole barns, which are “shed-like building[s] with no foundation and siding made of corrugated steel or aluminum,” for Defendant Potomac Electric Power Co. (“Pep-eo”) to use “to house its fleet of trucks” (the “Project”). Jt.'Stmt. l & n. 1, ECF No. 35. The Contract included a “Premium” of $68,220.00, Ex. 1, Jt. Rec. 1, ECF No. 36, and a Proposal Letter that C B. Structures submitted to Pepeo’s engineering consultant stated that “ ‘[f]or a premium of $68,220.00,’ ” C B Structures would “‘substantially complete the buildings by 12-3112,’” Jt. Stmt. 2 (quoting Proposal Ltr.). When Pepeo refused to pay the Premium because C B Structures did not complete the Project by December 31, 2012, C B Structures filed suit for breach of contract, and Pepeo counter-claimed for breach of contract and recoupment. Compl., ECF No. 2; Am. Counter-CL, ECF No.-13. The parties have filed cross-motions for summary judgment on the narrow issue of the meaning of Premium as used in the Contract between the parties. ECF Nos. 31, 32.1 Although the use [249]*249of “Premium” in the Contract itself is ambiguous, the undisputed extrinsic evidence clearly shows that Premium refers to an advance mobilization cost and not an incentive conditioned on the completion of the Project by the end of 2012. On that basis, I will grant C B Structures’ motion and deny Pepco’s motion.

I. THE CONTRACT

The Contract provides:

This contract shall be governed by PHI [Pepeo] Standard Terms and Conditions for Service Contracts V.8 with Safety Attachment A .Rev. 5 ■ [“Standard Terms”].
Install New Pole Barns This purchase order is for DoubleTree Structures [“DoubleTree,” a division of C B Structures] to provide structural design, calculations, drawings, seals, submittals, material and construction according to [the] attached -proposal- for Forestville Service 'Center.

Jt. Rec. 1. It then includes an itemized list, with prices for each item, such as “Vehicle Canopy Structure # 1 $124,295.00” and “Conduit, Trenching, Trench repair $13,800.00”; one line item is “Premium $68,220.00.” Id.

The parties do not identify the “attached proposal,” and it does not appear to bé a part of the Joint Record Extract. The record doés include the Standard Terms, which provide: :

Contraed. The Contract shall consist of the Purchase Order, including any documents attached to or identified on the PO, any contract amendments or modifications, and any PHI-approved Contract Change Authorizations.
In the event of & conflict among terms contained in documents attached to, or identified in, the PO, such conflict shall be resolved in the following descending order of precedence:
(i) PHI prepared pre-bid and bid clarification-minutes
(ii) PHI accepted portions of Contractor’s Proposal
(iii) These Terms and Conditions
(iv) Attachments to these Terms and Conditions

Ex. 20, Jt. Rec. 59. None of these documents appearing in the record refers to the Premium or otherwise illuminates its meaning.

The record does include what the parties refer to as a “Proposal Letter,” Ex. 2, Jt. Rec. 5. Yet, the parties refer to it as extrinsic evidence, PL’s Mem. 9; Def.’s Opp’n & Cross-Mot. 19-20, rather than an attachment to the Contract, - suggesting that it is not the “attached proposal” or another document that constituted part of the Contract, as Contract is defined in the Standard Terms. See SG Homes Assocs., LP v. Marinucci, 718 F.3d 327, 335 (4th Cir.2013) (stating that a document referenced in a writing “ ‘is to be interpreted as part of the writing’ ”) (quoting Ray v. William G. Enrice & Bros., Inc., 201 Md. 115, 93 A.2d 272, 279 (1952)). Written by DoúbleTree’s general manager to Pepco’s engineering consultant, Birdsall Services Group (“Birdsall”), (who in turn forwarded it to Pepeo) with regard to the Project for Pepeo, the Proposal Letter states:

Per our original proposal and preliminary schedule, C.B. Structures intends to be substantially complete with the Forestville buildings in February and 100% complete by March 31,2013,' at the original price quoted. ■ That is a comfortable schedule that allows for typical [250]*250weather delays and normal working hours.
We have more than enough resources available to be able to complete the project by December 31, 2012. However, in an effort to provide the most competitive price possible we did not factor the necessary premium, expenses for early completion into our original price.
For a premium, of $68,220.00, we will substantially complete the buildings by 12-31-12.
This premium will allow us to: authorize all the necessary overtime; bring on temporary staff as needed; cover overtime premiums charged by subs and suppliers; cover costs for temporary heat and/or special materials/mixes.
This completion time is barring any major weather delays or any approval delays from owner/government agencies and excludes any placing of asphalt.

Jt. Rec. 5 (emphasis added).

II. THE PARTIES’ POSITIONS

The parties have completed stage 1 discovery as identified in the Discovery Order that I issued, EOF No. 11-1, and, although they dispute various material facts regarding which they -will seek additional discovery, at this juncture they ask the Court to resolve a single matter.of law: the meaning of Premium as used in the Contract. Jt. Stmt. 10. As C B Structures sees it, the Contract language is unambiguous and “does not condition Pepco’s payment of the ‘Premium’ of $68,220 on completion of C B Structures’ work prior to the end of 2012.” PL’s Mem. 6. Rather, in C B Structures’ view, “the total contract amount to be paid CB Structures as stated in the Purchase Order includes the amount of the $68,220 premium.” Id. at 7. In other words, it is C B Structures’ position that the $68,220 Premium was an increase in the price that C B Structures originally quoted to Pepeo before Pepeo asked that it accelerate the completion date by three months, which would cause C B Structures to incur additional mobilization expenses that it would not incur if it had longer to complete the construction. In a nutshell, the Premium was an addition to the purchase price, not a bonus conditioned upon completion by a date certain. Additionally, C B Structures contends that “[e]ven if the language of the Contract is determined to be ambiguous, the undisputed extrinsic evidence in this case when interpreted according to the rules of contract interpretation,” and construed against Pepeo as the drafter, “proves that C B Structures was not required to complete its work by December 31, 2012 as a condition precedent to payment of the Premium.” Id. at 7-8. Not so, says Pepeo.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
122 F. Supp. 3d 247, 2015 U.S. Dist. LEXIS 106424, 2015 WL 4876360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-b-structures-inc-v-potomac-electric-power-co-mdd-2015.