Holloway Construction Co. v. Division of Highways

19 Ct. Cl. 35
CourtWest Virginia Court of Claims
DecidedDecember 20, 1991
DocketCC-88-312
StatusPublished

This text of 19 Ct. Cl. 35 (Holloway Construction Co. v. Division of Highways) is published on Counsel Stack Legal Research, covering West Virginia Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holloway Construction Co. v. Division of Highways, 19 Ct. Cl. 35 (W. Va. Super. Ct. 1991).

Opinion

HANLON, JUDGE:

Claimant contractor entered into a contract with respondent, designated as Project No. X320-G-73.02(03) or Federal Project No. APD-323(84), on February 19, 1982, for the construction of that portion of Corridor G from Davis Creek to Charleston, West Virginia. The project commenced with fill bench construction involving blasting and excavating the earth’s surface. Preconstruction conferences were held on March 3 and March 17, 1982, and notice to proceed was given. Claimant substantially completed the project on or about June 15, 1986. The project was accepted by respondent on July 27, 1987. The total amount of the contract for this project was $27,950,257.59. Claimant alleges its actual cost for construction was $34,323,000.00, with a resulting loss in excess of $6,617,449.00 not including interest. On June 30, 1988, claimant executed the final Voucher Estimate for the project in the amount of $27,708,281.10, reserving the right to bring certain claims, hereafter identified as issues. Claimant filed this action against the respondent in a 42-count Complaint demanding judgment in the amount of $7,453,096.00, plus interest, on the following issues:

I.
FAILURE TO COMPENSATE CLAIMANT FOR MATERIALS IN ACCORDANCE WITH CONTRACT PROVISIONS

[36]*36Claimant contends that the contract required respondent to pay claimant for ‘aggregate base course” in an agreed upon quantity of 39,204 cubic yards to be paid in a lump sum. Respondent applied the unit bid price to 35,768 cubic yards rather than the quantity of 39,204 cubic yards as provided in the contract. Claimant argues that this resulted in an underpayment of $109,952.00 which remains unpaid. Respondent denies the allegation. The amounts involved are uncontroverted. The only issue for the Court is whether the claimant should be paid for unexpended materials, as in this claim for aggregate base course which was not used on the project. There is no reason in law or equity for respondent to pay claimant for 39,204 cubic yards of base aggregate when only 35, 768 cubic yards were provided. This portion of the claim is denied.

II.

CALCULATION OF FUEL ADJUSTMENTS

The fuel adjustments provided under the contract were to be based upon 39,204 cubic yards of base course. Claimant alleges that respondent applied the adjustment with an erroneous calculation and that $6,500.00 remains unpaid. Respondent denies this allegation. Pursuant to West Virginia Department of Highways Special Provision For Price Adjustment of Fuels, §109.10, dated February 15, 1980, and incorporated in the claimant’s Bid Proposal, this item could have been paid if properly due. It is the finding of the Court that this item represents a fuel adjustment based upon the difference between the 39,204 and 35,768 cubic yards of base aggregate, an amount previously disallowed, and, in accordance with that finding, the Court denies this item.

III.

WATER AREA RELOCATION

Respondent approved the change and use of a waste area situate between station 263 +03 and station 269+00. Respondent designated in this area for claimant’s use throughout the construction of the project. Claimant thereupon used the area for filling and stockpiling stone. On or about May 24, 1984, when claimant had stockpiled 39,000 cubic yards of stone in the designated area, respondent ordered claimant to immediately remove the stone. Claimant compiled with this request, but alleges that it lost approximately 19,800 cubic yards of stone during the relocation. Claimant has introduced evidence that the amount of $5.80 per cubic yard is the customary and reasonable cost of this stone. The expense to claimant for the lost stone is $115,830.00. Claimant further alleges that it also had increased costs for equipment, labor, and overhead resulting from the relocation of the stone. The Court recognizes that the order to remove the stockpiled stone was unilateral on the part of the respondent. The claimant relied upon representations made to it by respondent to its detriment. It is the opinion of the Court that the claimant is entitled to recover the cost of the stone lost during the relocation operation; however, the Court denies the cost for equipment, labor, and overhead. Accordingly, the Court will make an award to claimant in the amount of $115,830.00 for this item.

[37]*37IV.

PLAN ERRORS-WATER LINE, GAS LINE, SEWER LINE, TELEPHONE LINE, AND ELECTRICAL POWER LINE LOCATIONS

The contract required various water, gas, electric, sewer, and telephone lines to be relocated on the project. Numerous water lines and other underground utilities were mistakenly cut and damaged when utility plans failed to indicate the proper locations of the lines. As a result, claimant alleges increased costs for relocating and repairing the broken lines. Claimant also alleges numerous errors and omissions in the locations of the designated utilities. Additional excavation was necessary causing inefficiencies and increased costs unanticipated under the contract. Claimant concludes that as a result of the inadequate utility plans, its schedule was interrupted resulting in increased equipment, labor, and overhead and other costs. Claimant contends that respondent breached an implied warranty of the sufficiency of the plans and specifications under the contract, thereby entitling claimant to be compensated for the increased costs. The claimant cites as its authority §104.2 of the 1978 Standard Specifications of the West Virginia Department of Highways, which provides in part:

Should the Contractor encounter or the Department discover during the progress of the work subsurface or latent physical conditions at the site differing materially from those indicated in the contract, or unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the contract, the Engineer shall be notified in writing of such conditions; and if the engineer finds the conditions do materially differ and cause an increase or decrease in the cost of, or the time required for performance of the contract, an equitable adjustment will be made and the contract modified in writing accordingly.

Respondent asserts that claimant was informed that there was no guarantee of the exactness of the utility locations. Respondent cites as its authority the 1978 Stand Specification §105.6 which states:

In general, it is to be understood that the Contractor has considered in his bid all of the permanent and temporary utility appurtenances in their present or relocated positions as shown on the Plans, and that no additional compensation will be made by the State for any delays, inconvenience, or damage sustained by him due to interference from the utility appurtenances or the operation of moving them. The locations of the underground utilities shown on the Plans have been obtained by diligent field checks and searches of available records. It is believed that they are essentially correct, but the Department makes no guarantees as to their exact locations. (Emphasis supplied.)

Respondent further contends that in Tri-State Stone v. Dept. of Highways, 9 W. Va. Ct. Cl. 90 (1972) this Court held that the risk of extra expense for utility relocations falls upon the [38]*38contractor.

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§ 14-3-1
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Bluebook (online)
19 Ct. Cl. 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holloway-construction-co-v-division-of-highways-wvctcl-1991.