Mid-Gulf Construction, Inc. v. St. Charles Parish Police Jury

433 So. 2d 769, 1983 La. App. LEXIS 8237
CourtLouisiana Court of Appeal
DecidedApril 11, 1983
DocketNo. 82-CA-145
StatusPublished

This text of 433 So. 2d 769 (Mid-Gulf Construction, Inc. v. St. Charles Parish Police Jury) 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
Mid-Gulf Construction, Inc. v. St. Charles Parish Police Jury, 433 So. 2d 769, 1983 La. App. LEXIS 8237 (La. Ct. App. 1983).

Opinions

KLIEBERT, Judge.

In April 1974, Mid-Gulf Construction, Inc. (contractor), entered into a contract with the St. Charles Parish Police Jury (owner) for the construction of a new courthouse and jail facility in Hahnville, Louisiana. The owner had previously contracted with Cimini Meric and Associates, Inc. (architect) to provide architectural and engineering services for the project. The architect, in turn, obtained the services of Beall Engineers, Inc. (engineer) as the project engineer.

In May 1975, while the contractor was proceeding with a concrete pour of the facilities’ third floor, Mr. Everett Downing, the Clerk of Works and, hence, the owner’s representative, reported to the engineer that the concrete was not being poured in a satisfactory manner. After investigations by the engineer and the architect, the architect stopped work on the building. Following core analysis and load testing, the architect accepted the floor and the job proceeded. Following occupancy of the building, 'the contractor sued the owner to recover the costs of these tests, including the added expenses due to the delays in the construction, under a contractual provision and, in a supplemental pleading, sought an additional $25,000.00 alleged as being held by the owner as contract retainage. The owner then brought a third party action against the architect and engineer in damages for any amounts which the pwner may be required to pay under the contractor’s suit.

After a trial on the merits, held in June 1981, the trial judge found the floor defective and the contractor at fault for the defective floor and in not satisfactorily completing the agreed-upon tests of structural integrity of the concrete floor. The judgment also contained a finding the architect and engineer were at fault in the discharge of the duties and responsibilities they owed to the owner. The judgment dismissed the contractor’s suit and the owner’s third party demand against the architect and engineer.

The contractor devolutively appealed the judgment. It assigns as errors the trial court’s: (1) holding the floor was defective, (2) failure to find the architect and engineer had ordered a “special test” within the intendment of Article 7.8.2 of the general provisions of the contract, (3) failure to award to the contractor the sum of $197,-431.00 as the cost of the special test and delay expenses, and (4) failure to award to the contractor $25,000.00 alleged to be a retainage on the contract price held by the owner. The engineer and the architect answered the appeal and asked for a reversal of the trial judge’s finding that they were at fault in the discharge of the duties and responsibilities they owed to the owner. We affirm the trial court’s judgment dismissing the contractor’s claim and the owner’s third party demand against the architect and the engineer.

The problems involved here commenced during the construction of the third floor. The Clerk of the Works was present during the pour of the concrete for the third floor. He observed concrete being poured alongside of hardened concrete and feared cold joints1 were being formed on the third floor. He informed the engineer and the architect of his observations and fears. [771]*771Thereafter, by telegram dated May 29, 1975, the architect informed the contractor the concrete pour was suspect and, hence, after further inspection, might result in the rejection of the pour. The structural engineer, Beall, personally inspected the concrete pour on June 2,1975. He advised the architect on June 3, 1975 that: (1) the concrete had not been poured in accordance with the contract specifications, (2) cold joints appeared to be prevalent throughout the floor system, and (3) concrete had been chipped away with a jackhammer and then repaired with sand mortar grouting.

The architect concurred with the engineer’s investigation. Therefore, by letter dated June 3,1975, he rejected the concrete poured on May 27, 1975, suspended further concrete pourings and requested the contractor submit, for review, a detailed outline of remedial action to be taken by him. The letter also pointed out the particular contract specifications which in the architect’s judgment had been violated. In compliance with the architect’s request, as part of a remedial plan to prove the structural integrity of the concrete, the contractor brought in Gulf South Laboratories to drill and test cores of the concrete poured on May 27, 1975. On June 10, 1975, seven cores were drilled in areas designated by the engineer. According to Gulf South Laboratories’ test report the compression strength of the concrete appeared satisfactory. However, the test showed a cold joint existed in one of the cores and three of the cores indicated a highly porous mortar grout topping ⅛" to ¾" thick. Compression strength tests conducted on the cores in the laboratory led Gulf South to conclude the cores were in compliance with the designed requirement of 4000 P.S.I. (pounds per square inch) compression strength required for the concrete used in the project.

Approximately fourteen days2 after the concrete was poured on the third floor, the metal pan (forms) were removed revealing the underside of the slab. According to the engineer and the architect there was extensive honeycombing, voids and apparent cold joints, and exposed reinforcement bars throughout the floor. Both believed the pour was the worst they had ever inspected. By letter dated June 24, 1975, the architect again rejected the third floor pour and advised Mid-Gulf to either demolish the third floor pour or liveload test3 the questionable area of the third floor.

On July 1, 1975, the contractor informed the architect it had employed an engineer, Mr. Lyman Ellzey, to inspect the work and give his opinion regarding the structural integrity of the pour and if after receiving and reviewing his report if “it is still deemed necessary to load test the third floor we shall load test same as required.” According to the report of Mr. Ellzey, dated July 11, 1975, he recommended the contractor choose the option of load testing the questionable area (as opposed to demolishing the concrete in the questionable area) to satisfy the requirements of the design engineer and the architect on the project.

The contractor brought in Shilstone Testing Laboratory, Inc. to monitor the liveload test. The suspect area of the pour was determined to be 9,000 square feet. The contemplated test area consisted of 14,000 square feet. The contractor was responsible for setting up the test with Shilstone monitoring the results. Water was used as a liveload and placed into forms prepared by the contractor. The test was not conducted in strict accordance with AIA (American Institute of Architect) recommendations, as originally contemplated, because some of the forms built by the contractor did not hold sufficient water to load the concrete with the desired weight for the [772]*772desired length of time. The load test, however, led the engineer (according to his testimony) to conclude that although the concrete did not meet the concrete specifications in the contract it would carry the load it was designed to carry. Notwithstanding the test deficiencies, the architect, by letter dated September 11,1975, accepted the concrete third floor and subsequently advised the police jury to accept the building.

The trial of this case was long and tedious; the exhibits numerous and the witnesses many and varied. The trial judge gave extensive reasons for judgment and summarized the testimony of the witnesses as to the defective floor as follows:

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Merrydale Glass Works, Inc. v. Merriam
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Bluebook (online)
433 So. 2d 769, 1983 La. App. LEXIS 8237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mid-gulf-construction-inc-v-st-charles-parish-police-jury-lactapp-1983.