H.H.O., Inc. v. United States

32 Cont. Cas. Fed. 73,393, 7 Cl. Ct. 703, 1985 U.S. Claims LEXIS 1007
CourtUnited States Court of Claims
DecidedApril 8, 1985
DocketNo. 113-83C
StatusPublished
Cited by23 cases

This text of 32 Cont. Cas. Fed. 73,393 (H.H.O., Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H.H.O., Inc. v. United States, 32 Cont. Cas. Fed. 73,393, 7 Cl. Ct. 703, 1985 U.S. Claims LEXIS 1007 (cc 1985).

Opinion

OPINION

YOCK, Judge.

This contract case is before the Court on the defendant’s motion for partial summary judgment to dismiss a portion of the plaintiff’s claim for lack of subject matter jurisdiction in accordance with RUSCC 12(b). In particular, the defendant asserts that the plaintiff, H.H.O., Inc., has brought a suit which partially lies in tort, rather than in contract, and thus such portion is not within the jurisdiction of this Court pursuant to the restrictions of the Tucker Act, 28 U.S.C. § 1491(a)(1).

As discussed below, this Court has determined that there are certain material facts in issue which indicate that the plaintiff may have a valid contract claim. However, the plaintiff’s Claim No. 1 alleges, in part, consequential damages which are not recoverable as a matter of law in this action. The plaintiff also alleges, in Claim No. 1, matters that are tortious in nature and thus beyond this Court’s jurisdiction. Therefore, the defendant’s motion for partial summary judgment is granted in part and denied in part. Jurisdiction will lie to hear the plaintiff’s contract claim, but the portion of the plaintiff’s Claim No. 1 which seeks consequential damages or is otherwise tortious in nature will be dismissed.

Facts

The plaintiff is a Washington state corporation engaged in the construction business, with its principal office in Kennewick, Washington. In 1980, the U.S. Forest Service awarded a road construction contract to the plaintiff, known as “Fishloop Opted Timber Sale Roads” (“Fishloop”). The contract called for road construction in the Wenatchee National Forest, Washington, including clearing, grubbing, excavation, embankment, developing a water supply, watering, development of a pit or quarry, application of a rock aggregate base to the road surface, and seeding and mulching. On July 4, 1980, the defendant’s contracting officer, Mr. William Voss, issued a Notice to Proceed with work under the contract. He also appointed Mr. Peter Weber, a Forest Service employee, as the contracting officer’s representative at the work site.

Thereafter, until November 1980, the project was supervised and performed for the plaintiff by Mr. Alva D. Nevills of Nevills Excavation. During such period, Mr. Nevills and his crew were primarily engaged in clearing trees, brush and slash from the project site. Mr. Weber, how[705]*705ever, became dissatisfied with certain aspects of the work undertaken by Mr. Nevills during the period August 28, 1980, to October 17, 1980, and ordered certain corrective work accomplished. During this period, Mr. Weber kept Mr. Voss advised of his actions. Finally, on October 17, 1980, Mr. Voss wrote a letter to the plaintiff which “criticized” the plaintiffs work thus far on the project and forwarded a copy of the letter to the plaintiffs bonding company, Balboa Insurance Co. (“Balboa”).

Although the plaintiffs complaint did not identify the specific claims comprising his single count complaint against the Government, the plaintiffs Pretrial Submission (as amended) was more specific and listed four separate claims, which were in turn broken down into several subparts. Claim No. 1 was entitled “Contracting Officer Voss’s Letter to Bonding Company.” Claim No. 2 was entitled “Construction Delay.” Claim No. 3 was entitled “Improper Deduction from Final Contract Price.” Claim No. 4 was entitled “Improper Withhold and Deduction of Nevills’ Claim.” The defendant’s instant motion for partial summary judgment relates only to Claim No. 1. In this regard, the plaintiff’s Pretrial Submission (as amended) lists the following elements of Claim No. 1:

1. Letter of credit expense...... $ 900.00
2. Loss of equipment rental..... 80,000.00
3. Lost wages — 4 full-time employees ..................... 40,000.00
4. Lost profit (this job)......... 25,000.00
5. Lost profit (other jobs)....... 50,000.00
6. Expenses, time loss attempting to reinstate bond;........ 5,500.00
7. Breach of contract conditions to properly inspect job and administer contract in good faith, to cooperate and to not interfere with Plaintiff’s performance by creating problems with Plaintiff’s bonding company;................... 100,000.00
TOTAL................. $301,400.00

On December 16, 1983, the plaintiff submitted the above amended language in an “Amendment to Pre-trial Submission.” Prior to such amendment, the plaintiff’s initial Pretrial Submission identified item 7 of Claim No. 1 as “Defamation of reputation.”

In its Claim No. 1, H.H.O. alleges that Mr. Voss’s forwarding of a copy of his October 17, 1980, letter to Balboa was unjustified, especially since it contained faulty information and caused Balboa to require the plaintiff to provide an additional $45,-000 irrevocable letter of credit in order for Balboa to continue its bonding of the plaintiff on the Fishloop contract. In addition, the plaintiff alleges that, as a result of such letter, Balboa refused to bond the plaintiff on other construction jobs unrelated to this contract, which the plaintiff had contemplated undertaking.

Thus, the plaintiff claims that Balboa’s demand for the additional letter of credit impeded its performance on the Fishloop contract and caused it to incur $151,400 in damages, including expenses in obtaining the letter of credit, loss of equipment rental, lost wages, and lost profit on the Fish-loop contract during the consequent delay. Moreover, the plaintiff seeks $100,000 in additional damages on the grounds that the inaccurate criticism contained in Mr. Voss’s letter harmed its on-going business relationship with Balboa and damaged its overall business reputation, causing Balboa to refuse to bond the plaintiff on other future jobs and leading to H.H.O.’s consequent inability to obtain bonding from other sources. Finally, the plaintiff alleges that the Government’s forwarding of the letter to Balboa caused it to lose an additional $50,000 in anticipated profits from other construction jobs, which the plaintiff had contemplated undertaking. Thus, the plaintiff seeks $301,400, plus interest, in money damages under its Claim No. 1.

Discussion

The Tucker Act, 28 U.S.C. § 1491(a)(1) (1982), expressly excludes the consideration of tort claims against the Government from the jurisdiction of this Court:

The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or [706]*706any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. [Emphasis supplied.]

After noting that the plaintiff bases its Claim No. 1 on the Government’s supplying Balboa with erroneous information regarding H.H.O ’s performance on the Fishloop contract, the Government argues that Claim No. 1 is merely one for tortious misrepresentation, rather than for breach of contract.

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Cite This Page — Counsel Stack

Bluebook (online)
32 Cont. Cas. Fed. 73,393, 7 Cl. Ct. 703, 1985 U.S. Claims LEXIS 1007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hho-inc-v-united-states-cc-1985.