HOLLWAY CONST. v. Dept. of Transp.

461 S.E.2d 257, 218 Ga. App. 243
CourtCourt of Appeals of Georgia
DecidedJuly 13, 1995
DocketA95A0254, A95A0255
StatusPublished

This text of 461 S.E.2d 257 (HOLLWAY CONST. v. Dept. of Transp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HOLLWAY CONST. v. Dept. of Transp., 461 S.E.2d 257, 218 Ga. App. 243 (Ga. Ct. App. 1995).

Opinion

461 S.E.2d 257 (1995)
218 Ga. App. 243

HOLLOWAY CONSTRUCTION COMPANY
v.
DEPARTMENT OF TRANSPORTATION.
DEPARTMENT OF TRANSPORTATION
v.
HOLLOWAY CONSTRUCTION COMPANY.

Nos. A95A0254, A95A0255.

Court of Appeals of Georgia.

July 13, 1995.
Reconsideration Denied July 31, 1995.
Certiorari Denied November 9, 1995.

*258 Wasson, Sours & Harris, John D. Sours, W. Hensell Harris, Jr., David R. James, Atlanta, for appellant.

Michael J. Bowers, Attorney General, Hendrick, Phillips, Schemm & Salzman, Martin R. Salzman, William D. Flatt, Atlanta, for appellee.

RUFFIN, Judge.

This is the third appearance of the litigation emanating from this highway construction project before us. See Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga.App. 821, 426 S.E.2d 905 (1992) ("Fru-Con I"); Dept. of Transp. v. Fru-Con Constr. Corp., 207 Ga.App. 180, 427 S.E.2d 513 (1993) ("Fru-Con II").

In conjunction with the construction project, the Department of Transportation (DOT) contracted with multiple prime contractors for various parts of the project, including Holloway Construction Company (Holloway) for the grading work. The contract specified that Holloway would complete its grading work by certain specified dates and that if it did not, it would be liable to DOT for liquidated damages. Holloway failed to complete its grading work within the times specified in its contract, and for this delay, DOT withheld liquidated damages from its final payment to Holloway. Holloway filed suit against DOT, seeking not only to recoup the liquidated damages which had been withheld, but also seeking to recover damages for extended overhead and equipment costs resulting from DOT's alleged breach of contract and for additional work and expense involved in pipe relocation.

In Fru-Con II, supra, DOT answered Holloway's complaint and filed a third-party complaint against another contractor, Fru-Con Construction Company, for expenses DOT incurred resulting from delays attributable to Fru-Con's completion of its work. We held: "[i]nsofar as Holloway seeks to recover for losses and expenses it incurred as the result of delay attributable to Fru-Con's performance of its bridge construction work, Holloway cannot recover from DOT. Paragraph 105.07 of Holloway's contract with *259 DOT provides: `When separate contracts are let within the limits of any one project, each contractor shall conduct his work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall assume all liability, financial or otherwise, in connection with his contract and shall protect and save harmless (DOT) from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him because of the presence and operations of other contractors working within the limits of the same project.' This is a clear and unambiguous expression of the mutual intent that DOT was not to assume vicarious contractual liability for any losses and expenses incurred by Holloway as the result of delay in performance of the grading work which was attributable to Fru-Con's bridge construction work. Department of Transp. v. Fru-Con Constr. Corp., 206 Ga.App. 821(1), 426 S.E.2d 905 (1992). [Fru-Con I.] Under the contract, Holloway's remedy for delay attributable to [another contractor's] work was to seek an extension of time so as to excuse its untimely performance of the grading work and thereby avoid liability to DOT for liquidated damages. See Department of Transp. v. Fru-Con Constr. Corp., supra at 823(2), 426 S.E.2d 905. DOT's remedy for unexcused delay of the grading work beyond the dates for completion specified in the contract was the assessment of liquidated damages against Holloway." (Emphasis in original.) Fru-Con II, supra at 180-181, 427 S.E.2d 513.

In the instant case, DOT moved for partial summary judgment on the ground that the damages Holloway sought for extended overhead and equipment costs were attributable solely to delays caused by other contractors. DOT contended it had no liability for such delays by virtue of the aforementioned no damage for delay clause. The trial court granted DOT partial summary judgment, and in Case No. A95A0254, Holloway appeals the grant of partial summary judgment to DOT, and in Case No. A95A0255, DOT appeals from the partial denial of its motion.

Case No. A95A0254

1. Holloway contends the trial court erred in granting partial summary judgment to DOT on its damages claim for extended overhead and equipment costs. Specifically, Holloway contends that DOT breached an implied contractual obligation by failing to control, coordinate, and sequence the work of its other contractors, resulting in Holloway's inability to access the worksite on schedule and complete its own work on time. After reviewing Holloway's amended claim and discovery responses, we find that although framed as a breach of contract claim, Holloway's argument is in reality nothing more than an attempt to seek damages attributable to delays by other contractors.

We have previously held that paragraph 105.07 of Holloway's contract with DOT is a valid "no damage for delay" clause. Fru-Con II, id.; Fru-Con I, supra at 822-823, 426 S.E.2d 905. As such, the trial court properly ruled that DOT has limited its liability for damages due to delay and that any claim for delay due to an implied duty to coordinate or sequence the prime contractors must fail.

2. In four enumerations of error, Holloway contends that because DOT also breached express contractual obligations to coordinate contractors, its claim for damages is not barred by paragraph 105.07 which does not address damages caused by a breach of the contract. But while Holloway points to various contractual provisions demonstrating that DOT controlled certain aspects of the project, none of those provisions expressly delegates to DOT a duty to coordinate or sequence the work of its contractors so that Holloway would not be delayed in completing its work.

The provision Holloway relies upon most heavily for this argument, Paragraph 108.04, does not impose an express obligation as Holloway contends. Rather, in the context of insuring public convenience and minimal interference with traffic for the project's duration, it sets forth requirements the contractors must follow in order to accomplish these goals. The paragraph's last sentence provides that the "rights of the [prime contractors] will be established by the [DOT] in order to secure the completion of the various *260

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Forehand v. Perlis Realty Co.
400 S.E.2d 644 (Court of Appeals of Georgia, 1990)
Department of Transportation v. FRU-CON CONSTRUCTION CORPORATION
427 S.E.2d 513 (Court of Appeals of Georgia, 1993)
Department of Transportation v. Fru-Con Construction Corp.
426 S.E.2d 905 (Court of Appeals of Georgia, 1992)
Department of Transportation v. Arapaho Construction, Inc.
357 S.E.2d 593 (Supreme Court of Georgia, 1987)
Holloway Construction Co. v. Department of Transportation
461 S.E.2d 257 (Court of Appeals of Georgia, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
461 S.E.2d 257, 218 Ga. App. 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollway-const-v-dept-of-transp-gactapp-1995.