Golf Landscaping, Inc. v. Century Construction Co.

696 P.2d 590, 39 Wash. App. 895
CourtCourt of Appeals of Washington
DecidedDecember 17, 1984
DocketNo. 12167-7-I
StatusPublished
Cited by12 cases

This text of 696 P.2d 590 (Golf Landscaping, Inc. v. Century Construction Co.) 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
Golf Landscaping, Inc. v. Century Construction Co., 696 P.2d 590, 39 Wash. App. 895 (Wash. Ct. App. 1984).

Opinion

Durham, C.J.

— Century Construction Company (Century) appeals from a judgment awarding damages to Golf Landscaping, Inc. (Golf), for unabsorbed overhead and lost profits incurred as a result of Century's breach of a landscaping subcontract with Golf. Century argues that the trial court applied an improper method of calculating unabsorbed overhead, and that the evidence did not support an [897]*897award for lost profits.

Century was retained by the Navy as general contractor for the Jackson Park housing project in Bremerton. On April 16, 1976, Century entered into a subcontract for the landscaping work with respondent Golf Landscaping, Inc. The contract required that Golf follow the progress of the job, and provided that work would commence upon 7 days' notice. Golf was to complete the work within 120 days, although the contract did not specify a starting date. Because of delays in preparing the jobsite, Golf was not able to fully commence performance until January 1977. The work was not completed until September 9, 1977, again largely due to delay occasioned by Century's failure to coordinate work among the other subcontractors, and its failure to adequately prepare the jobsite.

On February 13, 1981, Golf brought this action for breach of contract against Century, alleging that Century breached its obligation not to hinder or delay Golf's performance of the landscaping subcontract. Golf alleged several distinct items of damage arising from the delay, including unabsorbed overhead and lost profits.

Following a lengthy trial, the trial court found that Century breached its implied duty not to hinder or delay Golf's performance of the subcontract. In its findings of fact and conclusions of law, the court found that Century was responsible for the 109-day delay experienced by Golf, and that Golf was capable of performing within the original 120-day period set forth in the subcontract. Although the court did not award all of Golf's claimed damages, the court held that Golf incurred unabsorbed overhead expenses of $22,267.68 and lost profits of $18,000. The court purported to calculate Golf's unabsorbed overhead under a formula articulated by the Board of Contract Appeals in Eichleay Corp., 60-2 B.C.A. (CCH) ¶ 2688, aff'd, 61-1 B.C.A. (CCH) ¶ 2894 (Armed Servs. 1960). The lost profits award was based upon the court's finding that Golf could have obtained $150,000 worth of other contracts but for the delay.

[898]*898Century appeals from both the award for unabsorbed overhead and lost profits. In addition, Century argues that the court's finding that it was responsible for the entire delay is not supported by substantial evidence.

Century first contends that the trial court erred by calculating Golf's claim for unabsorbed overhead under the so-called Eichleay formula. Century argues that the circumstances of this case do not fit the factual assumptions underlying the Eichleay formula. Century also contends that, in any event, Golf failed to prove that it actually incurred additional overhead expenses. These arguments cannot be meaningfully addressed without an understanding of the underlying justifications for recovery of home office overhead expenses occasioned by construction delays.

It is well settled that overhead expenses are a legitimate component of the damages caused by delay in performing a construction contract. See, e.g., Guy James Constr. Co. v. Trinity Indus., Inc., 644 F.2d 525, 532 (5th Cir. 1981); Luria Bros. v. United States, 369 F.2d 701, 709-10 (Ct. Cl. 1966). There are, however, two distinct theories for awarding home office overhead as damages for construction delays. The first theory assumes a situation in which a contractor is forced to incur additional home office expenses because of delays in performing a particular contract. See, e.g., Manshul Constr. Corp. v. Dormitory Auth., 79 A.D.2d 383, 389, 436 N.Y.S.2d 724, 729 (1981). The second theory is based upon the concept of "unabsorbed" or "underabsorbed" overhead. This concept permits recovery of a contractor's fixed overhead costs that continue throughout the delay period. If the contractor is forced to postpone future projects because of the delay, he or she is left with fewer projects to absorb the overhead expenses that accrue during the delay. If the contractor cannot mitigate damages by reducing overhead, a compensable loss results.1 See generally Note, Home Office Overhead as [899]*899Damages for Construction Delays, 17 Ga. L. Rev. 761, 765-75 (1983).

Golf's overhead claim is of the latter type. Thus, Golf asserts that because of the delay, there were a reduced number of other contracts to which its fixed overhead expenses could be charged.

Golf computed its unabsorbed overhead claim according to a formula derived from the 1960 decision by the Board of Contract Appeals, Eichleay Corp., supra. The Eichleay formula attempts to allocate to the delayed project a portion of the contractor's total home office expenses incurred during the delayed project's actual period of performance. This allocation is based upon a ratio of the delayed contract's value (measured in actual billings) to the value of all contracts performed during the performance period. This ratio is then applied to the contractor's total overhead during the performance period, yielding the portion of the total overhead allocable to the delayed contract. The allocable overhead is then divided by the number of days required to perform the delayed contract, yielding the daily overhead rate for the delayed project. Finally, the overhead rate is multiplied by the number of delay days to obtain the unabsorbed overhead attributable to the delay.2

Century challenges the use of the Eichleay formula in this case on two grounds. First, Century argues that the [900]*900Eichleay formula is based upon the assumption that fixed costs (overhead) accrue unabated during the delay period. Century asserts that the evidence at trial showed that Golf's overhead fluctuated with the volume of its work. In so doing, Century points to testimony in the record indicating (1) that Golf's employees work part time as needed, (2) that the salary of Golf's president, Fred Leenstra, was not continuous during the delay period, and (3) that a large part of the home office expense was for work performed by the Fred Leenstra Company, a separate entity that worked alongside Golf.

Even if Century's factual allegations are correct, they do not necessarily invalidate the trial court's use of the Eichleay formula. It is true that a claim for unabsorbed overhead by definition is based upon the alleged continuation of fixed expenses through the delay period. See Robert McMullan & Son, Inc., 76-1 B.C.A. (CCH) ¶ 11,728 (Armed Servs. 1976); 17 Ga. L. Rev. at 793-94. However, the distinction between "fixed" and "variable" costs is extremely difficult to draw with precision. See Salt City Contractors, Ltd., 80-2 B.C.A. (CCH) ¶ 14,713 (Veterans Admin. 1980). Accordingly, it is unrealistic to require a plaintiff to completely segregate fixed and variable costs before recovery for unabsorbed overhead is permitted. See P. Trueger, Accounting Guide for Government Contracts 134 (7th ed. 1982).

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Bluebook (online)
696 P.2d 590, 39 Wash. App. 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golf-landscaping-inc-v-century-construction-co-washctapp-1984.