Hill Bros. Construction Co. v. Mississippi Transportation Commission

42 So. 3d 497, 2010 Miss. LEXIS 308, 2010 WL 2403733
CourtMississippi Supreme Court
DecidedJune 17, 2010
Docket2009-CA-00053-SCT
StatusPublished
Cited by2 cases

This text of 42 So. 3d 497 (Hill Bros. Construction Co. v. Mississippi Transportation Commission) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill Bros. Construction Co. v. Mississippi Transportation Commission, 42 So. 3d 497, 2010 Miss. LEXIS 308, 2010 WL 2403733 (Mich. 2010).

Opinions

DICKINSON, Justice, for the Court:

¶ 1. This is a dispute over a cost-adjustment provision of a highway construction contract between Hill Brothers Construction Company and the Mississippi Transportation Commission. While we agree with the Commission’s interpretation of the provision at issue, we find that it violates the mandate and scope of its enabling statute. We therefore reverse the trial court’s grant of summary judgment in fa[498]*498vor of the Commission, and remand for proceedings consistent with this opinion.1

FACTS AND PROCEDURAL HISTORY

¶ 2. The Commission awarded D.B. Johnson Construction Company, Inc. (“Johnson”) a contract for construction of approximately 6.25 miles of highway. After Johnson defaulted, the Commission called upon Johnson’s bonding company, Traveler’s Casualty and Surety Company of America (“Travelers”), to complete the contract.

¶ 3. Travelers and Hill Brothers Construction Company, Inc. (“Hill Brothers.”) entered into a completion agreement that incorporated all the contract documents and special provisions contained in the contract between Johnson and the Commission. Special Provision # 907-109-01 entitled “Measurement & Payment for Changes in Costs of Construction Materials (Fuel and Asphalt),” hereinafter referred to as the “FAC,” required certain monthly cost-adjustments for the purposes of reimbursing Hill Brothers for diesel fuel and asphalt used in the project.

¶ 4. The provision established a fuel base price to be used during the bidding process so that all contractors bidding on the project would have a level playing field with regard to pricing fuel costs into their bids. Actual reimbursements during the contract period would be determined by comparing the base price to a cost index published monthly by the Mississippi Department of Transportation and, where the difference exceeded five percent, reimbursement rates would be adjusted accordingly. With respect to adjustments in reimbursement rates after the contract period, the last sentence of the FAC provided:

After the expiration of contract time, including all extensions, adjustments will be computed using fuel and material prices that are in effect at the expiration of the contract time.2

¶ 5. At the time of the completion agreement, Hill Brothers estimated that the work defaulted upon and left unperformed on the Johnson contract would take more than two years to finish, even though less than a month of allowable contract time remained. The Commission extended the contract to March 13, 2004. Hill Brothers completed the contract on March 13, 2006, two years past the expiration of the contract time.

¶ 6. Prior to the expiration of the contract time, the Commission, through its subordinate and operating entity, the Mississippi Department of Transportation (MDOT), calculated monthly payments for designated pay items affected by oil prices by adjusting the baseline price of petroleum products (established when the contract was originally awarded). The amount of adjustment was controlled by then-current prices as reflected in the index published monthly by MDOT.

¶ 7. When the contract time expired on March 13, 2004, and the work was not completed, the Commission began to make [499]*499monthly adjustment payments based on the contract provision recited above. Because prices did not vary to any great extent for a period of time, this change in the method of determining adjustments had little effect on Hill Brothers’ total reimbursements. However, in August 2005, Hurricane Katrina struck the Mississippi Gulf Coast, causing the price of petroleum products to skyrocket.3 Because the Commission interpreted the contract provision to mean that all reimbursements would be determined using prices in effect at the end of the contract period, Hill Brothers received reimbursements which were far less than amounts actually expended for petroleum products. According to Hill Brothers, the Commission’s interpretation cost them nearly $500,000 in unreimbursed petroleum costs. Travelers and Hill Brothers both protested the application of this provision to no avail.

¶8. Hill Brothers filed suit against the Commission, asserting the Commission breached its contract by improperly applying the FAC and underpaying Hill Brothers. Hill Brothers contended that the proper interpretation of the FAC was for the Commission to replace the bidding baseline in the contract with the actual price of petroleum products at the end of the contract period, and then make monthly adjustments.

¶ 9. On September 4, 2008, the Commission moved for summary judgment, arguing that the FAC was unambiguous and that Hill Brothers was not entitled to any damages for the alleged underpayment relating to the FAC. Hill Brothers moved for partial summary judgment, arguing that its interpretation of the FAC was correct or, in the alternative, that the provision was ambiguous and should be construed against the Commission. The Commission then filed a motion for complete summary judgment, arguing the FAC was not ambiguous.

¶ 10. In a September 26, 2008, order, the trial court found that the FAC contract provision was unambiguous as interpreted by the Commission and denied Hill Brothers’ motion for partial summary judgment. On October 2, 2008, Hill Brothers filed its response to Commission’s motion for summary judgment along with its own cross-motion for summary judgment, arguing that the Commission’s interpretation of the provision was in conflict with and contrary to Section 31 — 7—13(i) of the Mississippi Code and therefore should be struck from the contract. Hill Brothers additionally argued that the provision — as the Commission sought to apply it — was unconscionable.

¶ 11. Following a hearing, the trial court found that the FAC as written, interpreted, and applied by the Commission was not ambiguous, contrary to the statute, or unconscionable. The court found there were no genuine issues of material fact and therefore, the-.Commission was entitled to summary judgment as a matter of law. From that ruling, Hill Brothers appeals, raising two issues: (1) whether the trial court properly interpreted the fuel adjustment provision; and (2) whether the commission’s interpretation violates the authorizing statute such that the limitation on adjustments provided for in the last sentence of the FAC should be struck.

[500]*500ANALYSIS

¶ 12. We apply a de novo standard of review to the trial court’s grant or denial of a motion for summary judgment. Kuiper v. Tamabine, 20 So.3d 658, 660-61 (Miss.2009) (citations omitted). A motion for summary judgment “shall” be granted by a court “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

¶ 13. The parties sharply dispute the interpretation of the provision governing how adjustments were to be computed “at the expiration of contract time.” Upon reviewing the clear language of the provision, we agree with the trial court that the Commission’s interpretation of the provision was correct. However, we find that the provision exceeds the scope of authority granted to the Commission by Section 31-7-13(i), which provides::

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Bluebook (online)
42 So. 3d 497, 2010 Miss. LEXIS 308, 2010 WL 2403733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-bros-construction-co-v-mississippi-transportation-commission-miss-2010.