R. Zoppo Co. v. City of Dover

475 A.2d 12, 124 N.H. 666, 1984 N.H. LEXIS 342
CourtSupreme Court of New Hampshire
DecidedApril 9, 1984
DocketNo. 82-234
StatusPublished
Cited by32 cases

This text of 475 A.2d 12 (R. Zoppo Co. v. City of Dover) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R. Zoppo Co. v. City of Dover, 475 A.2d 12, 124 N.H. 666, 1984 N.H. LEXIS 342 (N.H. 1984).

Opinion

Batchelder, J.

The plaintiff appeals from a superior court verdict in its favor in the amount of $28,823.25, seeking additional damages. The verdict was recommended by the Master (Charles T. Gallagher, Esq.) and was approved by the Superior Court (Temple, J.). The trial consolidated a contract action for damages and a peti[669]*669tion for declaratory judgment brought by the plaintiff in connection with the construction of a sewage-separation project in the city of Dover. For the reasons which follow, we affirm in part and reverse in part.

In 1974, the defendant City of Dover (City) solicited bids for a construction project entailing the separation of its sewerage and waste water systems. The bid solicitation and evaluation were based on the City’s specifications of the work to be done. On March 3, 1975, the plaintiff, R. Zoppo Company, Inc. (Zoppo), was awarded Contracts I and III of the project. Zoppo began work on both contracts in April 1975. The work included excavating trenches, laying sewer pipe, removing ledge, installing manholes, erecting a pumping station, and doing all of the incidental work connected therewith. The work performed by Zoppo was accepted by the City as “useably complete” in September 1977.

The two contracts were bid largely in terms of “unit prices.” The City’s proposal included a description of the work to be done, along with “estimated quantities” for each item for which a unit-price bid was sought. For example, for excavation of certain ledge in Contract III, estimated by the City to total 700 cubic yards, Zoppo bid a unit price of $30 per cubic yard.

The quantities actually encountered in performing the contracts greatly exceeded the estimated quantities set forth in the City’s proposal. In Contract III, Zoppo actually encountered and removed 2,574.7 cubic yards of ledge instead of the 700 cubic yards estimated. In Contract I, the City estimated 200 cubic yards, while Zoppo actually encountered 2,188.1 cubic yards of ledge.

Zoppo was paid at the agreed unit price for the actual quantities encountered but has claimed that it is entitled to additional compensation from the City under the “equitable adjustment” clause present in each contract. This clause reads as follows:

“Where the quantities originally contemplated are so changed that application of the agreed unit price to the quantity of work performed is shown to create a hardship to the Owner or the Contractor, there shall be an equitable adjustment of the Contract to prevent such hardship.”

Zoppo contends that it presented sufficient evidence to demonstrate hardship based on the increased quantities, and, consequently, that the master erred in not awarding it additional compensation figured in terms of its actual cost of performance. Zoppo alleges that it suffered hardship in that the progress of its work was affected adversely by the additional time its crews had to spend on ledge excavation. Its allocation of work crews and equipment was [670]*670thus upset, which, in turn, increased its cost of performance over that which it had projected when it submitted its bid.

The master rejected Zoppo’s contention that under the equitable adjustment clause it was entitled to additional compensation based on the actual costs it incurred in excavating the increased quantities of ledge. The master ruled that for there to be an equitable adjustment in a unit price, the presence of “some factor in addition to the extra quantity” must be shown. He concluded that “where extra quantities are involved, the plaintiff may not be awarded extra compensation simply because its unit costs, in retrospect, turned out to be in excess of its bid for any particular category of work.” In applying these principles to Zoppo’s claims relating to ledge excavation, the master rejected Zoppo’s claim directed at Contract III, finding that: “There was no hardship imposed upon the plaintiff by the overrun [in quantities] except a hardship imposed by the plaintiff’s bid if such bid was in fact inadequate.”

With respect to Contract I, the master found that Zoppo had shown the “extra factor” in addition to the increased quantities. Accordingly, he ruled that Zoppo was entitled to an increase in its unit price from $20 to $30 per cubic yard for ledge that it had to “prestrip” prior to its being blasted and excavated. The master based his ruling on the unit price ($30 per cubic yard) to which Zoppo had agreed for excavating the ledge encountered in Contract III.

There was testimony that Zoppo had bid $20 per cubic yard of ledge for Contract I because it had reasonably assumed that the geography of the project-area would allow it to drill through the earthen overlay to the ledge and pre-blast the ledge. Additional testimony was also produced that this latter method is less expensive than the method of prestripping the ledge of its overlay prior to blasting and excavating. Contrary to its assumption, Zoppo had to prestrip much of the ledge it encountered in performing under Contract I. In Contract III, Zoppo bid $30 per cubic yard as the unit price for excavating the ledge because it assumed that the geography of that project area required the more expensive method of prestripping of the overlay prior to blasting and excavating. Rejecting Zoppo’s claim for reimbursement of its actual cost, the master ruled that Zoppo had failed to convince the court of the accuracy of its cost calculation and also ruled that Zoppo was bound by the unit price it had bid in Contract III for excavating ledge that largely required prestripping.

The final interpretation of a contract is ultimately a question of law for this court. Baker v. McCarthy, 122 N.H. 171, 174-75, [671]*671443 A.2d 138, 140 (1982). In interpreting a contract, our inquiry focuses on the intent of the contracting parties at the time of the agreement. Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 770, 423 A.2d 980, 984 (1980). The language of a written contract will be given the interpretation that best reflects the parties’ intentions. Thiem v. Thomas, 119 N.H. 598, 602, 406 A.2d 115, 118 (1979). Because interpreting a contract is, by necessity, fact-oriented, we will consider the situation of the parties at the time of their agreement and the object that was intended thereby, together with all the provisions of their agreement taken as a whole. Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623, 419 A.2d 1111, 1113 (1980). When there is a question of fact concerning what was intended by certain terms within a contract, the dispute is to be resolved by the trier of fact, whose findings will be upheld if supported by the evidence. Peabody v. Wentzell, 123 N.H. 416, 418-19, 462 A.2d 105, 107 (1983).

After examining the contract as a whole and the remainder of the record, we are unable to find fault either with the master’s interpretation of the equitable adjustment clause or with his application of that interpretation to Zoppo’s claim for additional compensation for ledge excavation. See generally J. E. Brenneman Co. v. Com. Dept. of Transp., 424 A.2d 592 (Pa. Commw. 1981);

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

Related

Stone v. City of Claremont
2024 N.H. 11 (Supreme Court of New Hampshire, 2024)
In re: ik/s-bar, LLC
Ninth Circuit, 2011
Foundation for Seacoast Health v. HCA Health Services of New Hampshire, Inc.
953 A.2d 420 (Supreme Court of New Hampshire, 2008)
N.A.P.P. Realty Trust v. CC Enterprises
784 A.2d 1166 (Supreme Court of New Hampshire, 2001)
Slattery v. Norwood Realty, Inc.
765 A.2d 143 (Supreme Court of New Hampshire, 2000)
Robbins v. Salem Radiology
764 A.2d 885 (Supreme Court of New Hampshire, 2000)
West v. Turchioe
761 A.2d 382 (Supreme Court of New Hampshire, 1999)
Holl v. Claremont Associates
729 A.2d 419 (Supreme Court of New Hampshire, 1999)
Huguelet v. Allstate Insurance
693 A.2d 408 (Supreme Court of New Hampshire, 1997)
Bottomline v. Ingrum
D. New Hampshire, 1996
ATHR v. Hutchinson
D. New Hampshire, 1995
Synchronies v. Realworld
D. New Hampshire, 1995
Loney v. MHA v. Aetna
D. New Hampshire, 1995
BankEast v. Michalenoick
639 A.2d 272 (Supreme Court of New Hampshire, 1994)
Angus Realty v. Exxon Corporation
D. New Hampshire, 1993
Butler v. Walker Power, Inc.
629 A.2d 91 (Supreme Court of New Hampshire, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
475 A.2d 12, 124 N.H. 666, 1984 N.H. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-zoppo-co-v-city-of-dover-nh-1984.