D. Federico Co. v. New Bedford Redevelopment Authority (In re D. Federico Co.)

13 B.R. 323, 1981 Bankr. LEXIS 3125
CourtDistrict Court, D. Massachusetts
DecidedAugust 19, 1981
DocketBankruptcy No. 79-2289-HL; Adv. Nos. 80-0124 to 80-0126
StatusPublished
Cited by1 cases

This text of 13 B.R. 323 (D. Federico Co. v. New Bedford Redevelopment Authority (In re D. Federico Co.)) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D. Federico Co. v. New Bedford Redevelopment Authority (In re D. Federico Co.), 13 B.R. 323, 1981 Bankr. LEXIS 3125 (D. Mass. 1981).

Opinion

MEMORANDUM AND FINDINGS ON DAMAGES

HAROLD LAVIEN, Bankruptcy Judge.

The Plaintiff in these three cases, D. Federico Co., Inc., a general contractor, was [324]*324awarded five public contracts by the Defendant, the New Bedford Redevelopment Authority (hereinafter, the Authority) involving the construction of storm drainage, sanitary sewers, water mains, curbs, sidewalks, new pavement, pavement resurfacing and other related work. The contracts presently before the Court are the South Terminal Urban Renewal Project (hereinafter, South Terminal Project), North Terminal Urban Renewal Project (hereinafter, North Terminal Project), and West End Urban Renewal Project (hereinafter, West End Project).

The trial on these three cases was bifurcated. This Court’s decision on liability was rendered on February 3, 1981. See Memorandum on Prospective Liability (D. Federico Co., Inc. v. New Bedford Redevelopment Authority [February 3, 1981, D.Mass., Lavien, B. J.]), 8 B.R. 888. That decision left as issues for the damages portion of the trial the figures as to final measurements and the corresponding final payments, with accrued interest, to be paid to the Plaintiff. Also to be determined was the amount of set-off the Authority was to be allowed for two items which the Plaintiff did not perform on the West End Project, namely, locating ten water service gates and installing four fire alarm pedestals. The amount of this set-off was subsequently stipulated to by the parties as $1,400, and I so find.

The evidence on damages claimed by the Plaintiff focused on three claims: first, for final measurements and payments, including retainages, on each project; second, for the quantity of borrow used on the South Terminal Project in excess of the amount shown for that line item by the Defendant’s resident engineer; and, third, for payment of the field office line item contained in the bid and contract for each of the three projects. In addition, Plaintiff is entitled to interest.

I. Final Measurements and Payments

The Plaintiff contends that payment should be based on figures prepared for each project by Anton Brockelman, resident engineer of the Authority. It was Brockel-man’s responsibility as the Authority’s resident engineer to monitor job progress, and prepare monthly pay estimates, and final punch lists and measurements. Brockelman testified that he was directed in December 1978 by the Authority’s Executive Director to have final measurements prepared on all three projects by the time his position with the Authority was to terminate, the 31st of January, 1979. The figures set out in Exhibit D2 for the West End Project, set out in Exhibit D3 for the South Terminal Project and captioned “final”, and set out in Exhibit D5 for the North Terminal Project and captioned “semi-final” were prepared by Brockelman in response to the Executive Director’s order and, the Plaintiff asserts, should be binding on the Authority as its own work product.1 That the figures were not in final form was due to the termination of the entire engineering staff in early 1979 before their work was completed and checked. The Authority caused whatever confusion existed and must suffer the consequences.

The Authority states that it is ready to compensate the Plaintiff for work actually performed except that as a practical matter, it does not know exactly what that work was. It is the Authority’s position that it has never accepted Brockelman’s South Terminal and North Terminal figures 2 and, therefore, it cannot be bound to these figures. The Authority asserts that Brockelman’s figures are inflated. It focuses its attack on eight line items in Brockel-man’s South Terminal document and eight line items in Brockelman’s North Terminal document. In addition, the Authority in[325]*325troduced evidence that certain items were not billed under the proper line items, and evidence of discrepancies between figures found on Brockelman’s work papers and the final figures he listed.

The Authority had a contractual obligation to provide the Plaintiff with a punch list, final inspection, and final measurements. Moreover, the Authority was aware from at least 1977 that it was in dispute with the Plaintiff and, yet, neither Brockel-man nor any other engineer was retained on the payroll long enough to compute final measurements, and the Authority did nothing for two years after the discharge of its engineers and, in fact, even through the time of trial, to engage competent personnel to conclude the contracts. While Brock-elman’s reports were not fully verified measurements,3 except where there is evidence to support a variation of a specific amount from Brockelman’s figure on a line item, the Court adopts the statement in the Authority’s brief that it “reluctantly” accepts those Brockelman line item figures that it did not attack during the trial.

As to the challenged line items, the Court was left at the conclusion of the evidence with very few additional numbers to those prepared by Brockelman and, thus, could neither determine that Brockelman was in the main accurate or, in the alternative, determine the specific numbers for specific line items that should be substituted for Brockelman’s numbers. For this reason, the Court sua sponte suggested to the parties, after both sides had concluded their evidence and rested, that they jointly take field measurements or a representative sample of disputed, but easily measured, line items.

Unfortunately, the parties subsequently could only agree on joint measurement of three line items and even this agreement later fell apart as to two of the three. Each party then, at the Court’s further request, took independent measurements on certain line items each had selected.

The evidence presented to the Court as a result of these field measurements was typical of the problems facing the Court in ascertaining the facts in this proceeding. The evidence presented on the number of concrete foundations (line item # 64 of the North Terminal Project) installed by the Plaintiff demonstrates how what should have been a simple counting requiring no expertise becomes muddled. The plans show that 55 concrete foundations are Required as street light bases. The Defendant introduced photographs showing that only one street light foundation was installed on a section of street where the plans called for six concrete foundations for lights. The reasonable conclusion is that the Plaintiff installed no more than 50 of the required 55 street light foundations. However, the defendant’s witness, Norman Daigle, testified that he actually counted 52 street light foundations.

Despite confusing evidence of this nature, the Court must make findings, and so, after careful review of the record, as it is, the Court makes the findings below as to final measurements and payments on the disputed line items. Since the Court’s ultimate responsibility in this portion of the trial is to determine the precise dollar amount owing between the parties, these findings on final measurements must be translated into dollar amounts. As a point of departure, the dollar figures shown for “Total Value of Work Done to Date” reported by the Authority’s resident engineer (Brockelman) on Exhibit D2 for the West End project, on Exhibit D3 for the South Terminal project, and on Exhibit D5 for the North Terminal project, are adopted.

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Cite This Page — Counsel Stack

Bluebook (online)
13 B.R. 323, 1981 Bankr. LEXIS 3125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-federico-co-v-new-bedford-redevelopment-authority-in-re-d-federico-mad-1981.