McMillion Dozer Service, Inc. v. JOH Construction Co.

720 So. 2d 1239, 1998 WL 751030
CourtLouisiana Court of Appeal
DecidedOctober 28, 1998
DocketNo. 98-CA-352
StatusPublished

This text of 720 So. 2d 1239 (McMillion Dozer Service, Inc. v. JOH Construction Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMillion Dozer Service, Inc. v. JOH Construction Co., 720 So. 2d 1239, 1998 WL 751030 (La. Ct. App. 1998).

Opinion

hDUFRESNE, Judge.

This is an appeal from a judgment in a suit involving a fixed-price construction contract. Because we find no legal or manifest factual errors in the actions of the trial judge, we affirm that judgment.

In late 1990, American Cyanamid Company sought bids for work on some 1300 feet of drainage ditches on either sides of a street running down the center of its chemical plant. The plant is located on the west bank of the Mississippi River in Avondale. The ditches begin at the north end of the property, nearest the river, where the elevation is about 13 feet above sea level. At the south end, where the ditches flow into an intercept ditch, the level is about 7 feet. The intercept ditch in turn flows through an adjustable-level weir and into the swamp. The job involved cleaning, dredging, and grading the drainage ditches to provide for the 6 foot drop from the north to the south ends, paving the sloped sides of the northern 650 feet, and smoothing the earthen sloped sides of the southern 650 feet. The bid drawings indicated a number of concrete obstructions related to |2both obsolete and functioning works which would probably need to be removed or reconfigured during the project, and made reference to more complete drawings in the plant’s engineering office which could be consulted for the precise nature and location of the underground portions of these structures. These difficulties were discussed with potential bidders in the pre-bid walk-through.

JOH Construction Company, Inc. was originally awarded the job on a fixed-price contract for $220,250.00, on a 180 day completion basis, but for an additional $4,000.00, JOH agreed to finish the job in 75 days. Cyanam-id was interested in the shorter completion time because it was planning a shut-down of the plant for maintenance work in early May [1241]*1241and did not want the drainage ditch work going on at the same time. The contract also provided that JOH was responsible for maintaining adequate drainage of rainwater through the ditches during the work. JOH subcontracted with McMillion Dozer Service, Inc. for a part of the work for $42,602.00, later amended to $48,552.00, and also as a separate item leased from it on an hourly basis several pieces of heavy equipment.

The job began on February 18, 1991, and progressed uneventfully until April 2, when the JOH crew encountered a concrete manhole structure that could not be identified from the original bid drawings. Louis Deutschmann, the superintendent on the job for JOH, contacted Raymond Thompson, Cyanamid’s senior project engineer, for further information about this structure. Thompson testified that he told Deutsch-mann to have his crew carefully excavate around the it to see if anything went into or out of it, and if not to dig the whole thing out. While the record is not clear on this point, it appears that the workers did do some excavation, but did not lago deep enough to uncover a 14,000 volt electrical line beneath the structure. When they pulled it out of the ground, the electrical line was severed causing most of the plant to shut down.

An electrical contractor was immediately called in to repair the electrical line. This project took several weeks, during which time work on the drainage canals was temporarily disrupted. Erie Heidingsfelder, project manager for JOH, testified that at the time of the electrical problem the canal work was two to three weeks from completion. He said that because of the electrical repair, all of the water in the canal where the line was located had to be pumped into the canal on the opposite side of the street, thus effectively preventing any substantial work from being done on either canal. He noted that the early-May maintenance shut-down further delayed his crews, especially because it caused routine delays in issuance of the daily safety permits, without which JOH was strictly forbidden to begin work. Finally he explained that an extremely rainy summer, particularly from May through August, caused additional loss of time because of excess water in both the canals and the rear intercept ditch which necessitated the building of temporary dams on the upper as well as the lower ends of the daily work area, and extensive pumping to keep the dammed sections dry.

Chad Dantin, who had replaced Raymond Thompson as Cyanamid’s man in charge of the job, testified that the project was in fact only about 50% complete at the time of the accident. His explanation for JOH’s lack of progress was bad crews and lack of continuity in field supervision. He agreed that the electrical repair and the shut-down caused some disruption, but that both problems ended by May 10, when the shut down fended. From that point there were no restrictions on JOH’s work. He also pointed out that Cyanamid had approved of an additional $55,000.00 worth of work, lasting about a month during April and early May, so that JOH could utilize its crews on these other jobs while the canal work was disrupted. He did not believe that issuance of the daily safety permits, usually within a half hour of the usual starting time of 7 AM, caused any significant delay, and it was also shown that JOH had worked for Cyanamid in the past and was familiar with the daily issuance of these permits when it bid the job. Dantin did agree that the summer had been extremely rainy, probably causing loss of another month’s time, but he did not believe that anything else done by Cyanamid could have delayed the canal work until September 6, when it was finally completed. Raymond Thompson was of the opinion that JOH had inadequate pumps and hoses to control the water problem throughout the job, and had mentioned this to the JOH supervisor. He also thought the job was only 50-65% done when the wire was severed.

Shortly after completion, JOH submitted claims to Cyanamid for payments of $187,-000.00 above the contract price, mostly due to costs allegedly occasioned by the various delays. In addition, several sub-contractors and suppliers filed liens against Cyanamid for amounts still owing them by JOH. Several of these liens were satisfied by Cyanamid, but the claim of McMillion Dozer Service, Inc., for $116,624.83, most of which was for [1242]*1242equipment rental, could not be resolved. McMillion thereupon sued Cyanamid and JOH for payment. Cyanamid asserted that JOH was solely responsible for this debt, and JOH claimed otherwise and further sought additional payment from Cyanamid under the contract.

By the time of trial it was uncontested that Cyanamid had withheld |s$65,846.18, owing to JOH under the contract, but had paid $104,-383.50, on outstanding liens, $45.000.00 of which had gone to McMillion. At issue at trial were thus McMillion’s claim for the remaining $71,624.83, against Cyanamid and JOH, and JOH’s claim against Cyanamid for additional payments for the work done. There were no claims by Cyanamid for damage to the electrical line, nor for any delay damages relating to JOH’s failure to finish the project within the original 75 day period.

After completion of the case, the trial judge entered judgment in favor of McMil-lion and against JOH for $116,624.83, and in favor of JOH against CyanamM for the same amount. JOH’s claim for additional payment under the contract was denied. This original judgment was corrected on motion for a new trial to reflect Cyanamid’s earlier $45,000.00 payment to McMillion, leaving a final judgment of $71,624.83. In his brief reasons for judgment, the trial judge stated pertinently:

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Bluebook (online)
720 So. 2d 1239, 1998 WL 751030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillion-dozer-service-inc-v-joh-construction-co-lactapp-1998.