Underwater Engineering Services v. Utility Board of the City of Key West

194 So. 3d 437, 2016 WL 2731438, 2016 Fla. App. LEXIS 7142
CourtDistrict Court of Appeal of Florida
DecidedMay 11, 2016
Docket3D14-2011
StatusPublished
Cited by14 cases

This text of 194 So. 3d 437 (Underwater Engineering Services v. Utility Board of the City of Key West) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Underwater Engineering Services v. Utility Board of the City of Key West, 194 So. 3d 437, 2016 WL 2731438, 2016 Fla. App. LEXIS 7142 (Fla. Ct. App. 2016).

Opinion

EMAS, J.

Appellani/Plaintiff, Underwater Engineering Services, Inc. (“Underwater”), appeals from a final judgment, entered after a nonjury trial, in favor of Appellee Utility Board of the City of Key West (“the Utility Board”) on Underwater’s breach of contract claim, as well as the Utility Board’s counterclaim. We hold that there is competent substantial evidence in the record to support the trial court’s determination in favor of the Utility Board on Underwater’s breach of contract claim and affirm that portion of the final judgment. We further hold that the trial court erred in entering judgment in favor of the Utility Board on its counterclaim, as the evidence establishes that Underwater was not provided the contractually-required notice and opportunity to cure the alleged defects before the Utility Board hired a different contractor to correct and repair Underwater’s work. We therefore reverse that portion of the final judgment and remand for entry of final judgment in favor of Underwater on the Utility Board’s counterclaim.

FACTS AND BACKGROUND

This action arises from a construction contract (“the Contract”) between Underwater and the Utility Board. The Utility Board hires contractors as needed to inspect over-the-water concrete and steel poles, and to perform necessary maintenance and repairs. The inspections may reveal issues affecting or compromising the structural integrity of the poles; they may require the pouring of a concrete collar around the base of the pole for additional support, or the application of a particular coating to areas needing repair or to areas where a prior coating application may have deteriorated.

In May 2004, the Utility Board issued a call for bids on a project entitled “Repair Over the Water Transmission Pole Foundations.” The project involved, among other things, structural concrete repairs, coating repair and new coating placement. Specifically, the successful bidder was to repair approximately fifty-seven concrete pole structures supporting electric transmission lines running from Key West to the Seven Mile Bridge. Pursuant to the bid schedule, the Contract was a unit-price contract — the bid price was not a lump *439 sum, but was instead broken down into subparts for each item of work or material to be used — and the bidders proposed a price per unit. Following the bidding process, Underwater was awarded the Contract, which was executed in October of 2004, and a Notice to Proceed was issued in January 2005. The final contract price (based on the unit prices bid by Underwater) was $767,585.50.

The Contract contained the following relevant provisions:

Pursuant to “Section 01010-Summary of Work”:
1.8 Construction Sequence
A. Prior to commencement of Work, ■ complete a detailed Pre-Construction Inspection of all structures. This inspection shall identify repairs on each structure....
B. Required Observation and Review
1. Notify the Resident Engineering Representative 24 hours prior to completing the following work: ...
d) Completion of surface preparation and prior to application of any coatings, sealers, or miscellaneous patching material in accordance with the applicable sections.
Pursuant to “Section 01019: Contract Considerations ”:
1.4Change Procedures ...
C. The Contractor may propose changes by submitting a Request for Change Order to the Engineer, describing the proposed change and its full effect on the Work. Include a statement describing the reason for the change and the effect on the Contract Price and Construction Time with full documentation. Document any requested substitutions in accordance with Section 01600.
D. Unit Price Change Order: For predetermined unit prices and quantities, the Change Order will be executed on a fixed unit price basis. Changes in Contract Price or Construction Time will be computed as specified- for Time and Material Change Order.
E.Engineer may issue a directive signed by the Owner, instructing the Contractor to proceed with a change ⅛ the Work for subsequent inclusion in a Change Order, Document will describe changes in the work and designate method of determining, any change in Contract Price or Construction Time. Promptly execute the change....
1.5Measurement and Payment— Unit Prices....
C. Estimated Quantities: Quantities and measurements indicated in the Unit Price Bid are scheduled for bidding purposes only. Actual quantities and measurements supplied or placed in the Work shall determine payment.
E. Defect Assessment: The Work, or portions of the Work, not conforming to specified requirements, shall be replaced by the Contractor at Contractor’s expense.
Pursuant to “Section 01025: Measurement and Payment":
1.5DEFECT ASSESSMENT
A. Replace the Work, or portions of the Work, not conforming to specified requirements.
B. If, at the request of the Contractor and in the opinion of the Engineer, it is not Practical to remove and replace the Work, the Engineer will direct one of the following remedies:
1. '.The■ defective Work may.remain, but the Unit Price will be adjusted to a new price as agreed to by the Owner and Engineer.
2. The defective Work will be partially repaired to the instructions of the Engineer, and the Unit Price will be adjusted to a new price.
*440 0. The authority of the Engineer to assess the defect and identify- payment adjustment is final.

Ed Giesler was the project engineer and Underwater’s primary contact with the Utility Board. Tom Fettig was Underwater’s project manager. Pursuant to' the Contract, the preconstruction inspection of the Seven Mile Bridge area occurred on June 22 and 23, 2005. The inspection was conducted by the Utility Board’s resident engineering representative, Anchor Structural, represented by Wayne Fey and Mark Demarest.

Underwater's Claim: Breach of Contract (Coating Work)

Underwater’s primary claim against the Utility Board concerns an item designated as, “MIS4” and described as “Concrete Coating Repair.” In the blank bid schedule, the Utility Board estimated the quantity of MIS4 units to be 200 square feet. Underwater’s bid stated it would perform MIS4 at a unit price of $110, so the total price of the concrete coating repair (based on the estimated 200 square feet x $110/ square feet) was $22,000.

On June 23, 2005, a consultant on the project sent an email to Giesler and Dale Finigan, also with the Utility Board, explaining he wás trying to get the Utility Board a revised estimate.

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Bluebook (online)
194 So. 3d 437, 2016 WL 2731438, 2016 Fla. App. LEXIS 7142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwater-engineering-services-v-utility-board-of-the-city-of-key-west-fladistctapp-2016.