Aiken County v. BSP Div. of Envirotech Corp.
| Decision Date | 24 November 1986 |
| Docket Number | Civ. A. No. 81-202-8. |
| Citation | 657 F. Supp. 1339 |
| Court | U.S. District Court — District of South Carolina |
| Parties | AIKEN COUNTY and Aiken County Public Service Authority, Plaintiffs, v. BSP DIVISION OF ENVIROTECH CORPORATION; Insurance Company of North America; and Envirotech Corporation, Defendants-Third Party Plaintiffs, v. BAY-CON GENERAL, INC.; Davis & Floyd, Inc., and The Travelers Indemnity Company, Third-Party Defendants. |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Donald A. Harper, T.S. Stern, Jr., Haynsworth, Marion, McKay & Guerard, Greenville, S.C., for plaintiff.
Paul W. Killian, Susan Smith Blakely, Watt, Tieder, Killian & Hoffar, Vienna, Va., Joseph O. Rogers, Jr., Rogers, Riggs & Rogers, Manning, S.C., for defendants-third party plaintiffs.
Patrick A. Thompson, S. Gregory Joy, Atlanta, Ga., Julian B. Salley, Jr., Aiken, S.C., for third-party defendants, Bay-Con Gen., Inc. and The Travelers Indem. Co.
Charles Porter, McNair Law Firm, P.A., Columbia, S.C., Thomas Pope, Joseph W. Hudgens, Newberry, S.C., for third-party defendant Davis & Floyd Engineers, Inc.
This is an action by the plaintiffs, Aiken County and Aiken County Public Service Authority (hereinafter collectively referred to as "Aiken County"),2 to recover damages arising out of the construction of the Horse Creek Pollution Control Facility (the "project"), located near Aiken, South Carolina. Both plaintiffs are political subdivisions of the State of South Carolina with the capacities to sue and be sued.
Envirotech Corporation ("Envirotech")3 and Insurance Company of North America ("INA") are corporations organized and existing under the laws of a state other than South Carolina and during the contract period were authorized to, and were doing, business in South Carolina. Bay-Con General, Inc., ("Bay-Con") and Travelers Indemnity Company, ("Travelers") are corporations created and existing under the laws of a state other than South Carolina and during the contract period were authorized to, and were doing, business in South Carolina. Davis and Floyd, Inc. ("Davis & Floyd") is a South Carolina corporation.
The original dispute between the parties began with an arbitration proceeding between Aiken County and Bay-Con. On January 23, 1981, Aiken County commenced this action against Envirotech and its surety, INA, alleging breach of warranty, breach of contract, and fraud in supplying equipment for the heat treatment and dissolved air flotation ("DAF") systems of the project. Envirotech brought in Bay-Con, Travelers and Davis & Floyd as third-party defendants, and all parties filed counterclaims and cross-claims. On November 5, 1981, with the consent of all parties, the arbitration proceeding was abandoned and all claims were submitted to this court for trial non-jury. As discussed later, this order is limited to Aiken County's claims regarding the heat treatment equipment and the related defenses and cross-actions. Specifically, I have limited these findings of fact and conclusions of law to Aiken County's third, fourth, fifth, and sixth causes of action and the defenses and cross-actions related thereto.
These allegations can be summarized as follows: Aiken County's causes of action against Envirotech alleging breach of warranty, breach of contract, fraud, and liability of INA as surety; Aiken County's causes of action against Bay-Con alleging breach of warranty, breach of contract, negligence, and liability of Travelers as surety; and Aiken County's cause of action against Davis & Floyd alleging breach of contract. In addition, Bay-Con, Davis & Floyd and Envirotech each asserted claims for indemnification, including attorneys' fees, against the other.
The trial commenced on September 1, 1982. After several weeks of trial, it was agreed by all parties and the court that Envirotech should clean and inspect the heat treatment equipment and that, thereafter, Aiken County and Davis & Floyd would test it. This effort began in January, 1983, and continued until June, 1983. The trial recommenced in January, 1984, at which time, on motion of Aiken County and Davis & Floyd, the court decided, that the most efficient way to dispose of this case was to bifurcate the issues and try first Aiken County's claims with regard to the heat treatment equipment, and the related defenses and cross-actions. The trial on the heat treatment issue was concluded on December 11, 1984.
This case involved the most extensive discovery and the longest trial that this Court encountered in fifteen (15) years on the trial bench. There were thirty-eight people deposed over a total of seventy-four days. The documents produced by all parties could only be counted by the box. The trial consumed fifty-two days, exclusive of many motion days, during which twenty-one witnesses testified, and the transcript includes approximately 6,690 pages.
Under the authority granted by Rule 42(b), the Federal Rules of Civil Procedure, and on motion of Aiken County and Davis & Floyd, I determined that Aiken County's heat treatment claim (hereinafter "heat exchanger claim") should be tried first. The heat exchanger claim was a separate claim in that it presented an aggregate of facts giving rise to an enforceable right. Gottesman v. General Motors Corp., 401 F.2d 510, 512 (2d Cir. 1968). Moreover, it was the largest and most important issue in the case,4 and the Court felt it would be inadvisable to dilute the court's focus on that issue by a lenghty trial of numerous unrelated defective equipment and delay claims. Martin v. Wyeth, Inc., 96 F.Supp. 689, 697-98 (D.Md. 1951), aff'd 193 F.2d 58 (4th Cir.1951). These other issues were based on separate facts and would not involve relitigation of the facts in the heat exchanger claim. In addition, the Court felt that bifurcation would most likely result in savings of time and expenses to the parties and the court. See, Value Line Fund, Inc. v. Marcus, 161 F.Supp. 533 (S.D.N.Y.1958).
Envirotech was the only party to object when the court asked for the parties' written positions on the issue of bifurcation. The Court could see no prejudice to Envirotech in this procedure. The burden of transporting a witness back to court on the later issues is one which will be shared by the other parties. Any claim that Envirotech's witnesses might have to travel greater distances was a de minimis consideration given the size of this case and the number of trips made to the separate trial sessions already held. The Court also found no prejudice in separating Envirotech's heat treatment delay claim. First, the two claims were conceptually and factually distinct; second, Envirotech was allowed to litigate all affirmative defenses found to be relevant.
Trial on the heat exchanger claim having concluded, Aiken County and Davis & Floyd have moved for the entry of a final judgment as to them pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. In rendering a decision, the court must first find that there are multiple claims for relief and that at least one claim has been finally decided. The court must then find that, in its discretionary judgment, the equities favor a determination that no just reason for delay in entering judgment exists. Curtiss-Wright Corporation v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Pursuant to Rule 54(b), I find that there are multiple claims, that the heat exchanger claim has been finally decided, and that no just reason for delay in entering judgment exists.
The parties have presented evidence concerning all issues related to the design and function of the heat treatment equipment and the responsibility therefor. Having made a decision on this claim, nothing remains for the court to do but execute the judgment. United States v. Arkansas, 632 F.2d 712 (8th Cir.1980).
Aiken County's claims that other equipment is defective and that completion of the plant was delayed, along with Bay-Con and Envirotech's shop drawing delay claims, are separate and independent claims. Aiken County's heat exchanger claim resolves the issues of the defectiveness of said heat exchanger, the responsibility for the alleged defects, Envirotech's knowledge of those defects, the alleged fraudulent conduct of Envirotech toward the owner and engineer, the influent issues, and all affirmative defenses of Envirotech and Bay-Con relevant to this claim. These issues are factually separate from the question of whether Davis & Floyd took excessive time to review shop drawings submitted by Envirotech and Bay-Con. If Davis & Floyd failed to return the shop drawings within an agreed time period, it may have caused Envirotech to spend more time on the job than planned, but that delay is unrelated to the issues of whether the equipment worked when installed and whether Envirotech defrauded Aiken County when it sold this equipment.
An analogous situation arose in another complicated construction case, Hartford Accident and Indemnity Co. v. Boise Cascade Corp., 489 F.Supp. 855 (N.D.Ill.1980). That action involved the completion of a project by a contractor's surety after the contractor failed to perform. Upon the surety's completion, the owner refused the surety's demand for payment of the remaining contract balance, and the surety filed an action seeking recovery of the remaining contract balance. Boise, the owner, counterclaimed for losses it suffered due to the delay in completion. In deciding that the surety, Hartford, was entitled to the balance due on the project and that Rule 54(b) certification was appropriate, the court stated:
Although Boise's counterclaim arises from the same general transaction as does Hartford's claim and thus may be termed compulsory under Fed.R.Civ.P. 13(a), this in itself poses no bar to certification. Cold Metal Process Co. v. United Engineering, 351 U.S. 445, 452, 76...
To continue reading
Request your trial
-
Aiken County v. BSP Div. of Envirotech Corp.
...Procedure to include Davis & Floyd as a principal defendant and absolved it of any liability to Aiken. Aiken County v. BSP Division of Envirotech Corp., 657 F.Supp. 1339 (D.S.C.1986). This action by the court generated one of the issues in this appeal, viz., whether diversity was Envirotech......
-
Design-build Contracts for Colorado Highway Construction: New Contractual Issues-part Ii
...City of Austin v. Houston Lighting & Power, 844 S.W.2d 773 (Tex.App. 1992)(owner sued construction manager for cost overruns). 17. 657 F.Supp. 1339 (D.S.C. 1986), rev'd in aff'd in part, 866 F.2d 661 (4th Cir. 1989). 18. Id. at 1353. 19. Id. at 1364. The award was reversed on appeal on proc......