Allied Structural Steel Co. v. State, 769A117

Decision Date29 December 1970
Docket NumberNo. 1,No. 769A117,769A117,1
Citation265 N.E.2d 49,148 Ind.App. 283
CourtIndiana Appellate Court
PartiesALLIED STRUCTURAL STEEL COMPANY, Appellant, v. STATE of Indiana, Appellee

Richard D. Wagner, Harold L. Folley, Indianapolis, for appellant; Krieg, DeVault, Alexander & Capehart, Indianapolis, Moore, Costello & Hart, St. Paul, Minn., of counsel.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

SULLIVAN, Judge.

In a suit for 'extra' work performed under a building contract with the State of Indiana, appellant, the assignee contractor appeals from an unfavorable judgment in the Superior Court of Marion County, sitting en banc as a court of claims.

The facts most favorable to the appellee indicate that in 1962 Industrial Construction Company entered into a written agreement with the appellee, State of Indiana, through the Indiana State Highway Commission, for the construction of substructures for a bridge across the Ohio River between Evansville, Indiana and Henderson, Kentucky. In 1933, Industrial, with appellee's assent, assigned its interest to the appellant, Allied Structural Steel.

The contract itself provided for the construction of five piers, two of which were to be located in the river. Each pier was to be founded on bedrock and constructed in accordance with plans and specifications included in the contract or as otherwise specified by the 1960 State Highway Department of Indiana Standard Specifications, which were incorporated into and made a part of the agreement.

The source of appellant's claim here was the construction of Pier C, one of the two piers located in the river. Under an option in the contract, Pier C could be constructed by either the 'caisson' or 'cofferdam' method, with the majority of work under either method to be completed under water. Appellant chose the cofferdam method, and according to plans it submitted, interlocking 110 foot corrugated sheets were driven to bedrock so as to form a rectangular enclosure around the foundation. The cofferdam was to provide 'quiet water' around the project and prevent the influx of silt and other river matter into the construction area.

During the spring of 1963, appellant, upon the State's determination of final elevation for the foundation, blasted and 'chipped' away layers of rock down to the prescribed elevation. The bedrock was then cleaned by the appellant pursuant to contract and inspected by divers employed by the State. Both a water jet and a suction device were then used to keep the jagged foundation clean. Twelve million pounds of special concrete were then poured under water upon the foundation, which upon hardening, formed a 'seal' or base, 26 feet wide by 66 feet long by 36 feet high, upon which Pier C's share of the weight of the bridge was to rest. Two inch core samples were taken through the hardened seal, as provided by the contract, to demonstrate the sufficiency of the seal concrete and the seal-bedrock jointure. Analysis of these samples show voids or lack of recovery in a majority of the cores ranging from three inches to three feet. Subsequently, appellant was ordered to demonstrate the sufficiency of the sealbedrock jointure, and 'split-spoon' samples were taken. Upon failure to provide satisfactory proof of the jointure the appellant was ordered to remedy the situation. A method of pressurized grouting of the jointure was agreed upon and appellant, under protest, undertook the remedy. Six inch core samples were then taken, and the results were accepted by the appellee.

In 1968, the appellant instituted a claim against the State in the amount of $194,665.29 plus interest for extra work and delays caused by the difficulties with Pier C. The Marion County Superior Court, sitting en banc as a court of claims, entered judgment for the defendant based upon forty-eight special findings of fact.

Appellant objects to seventeen of the forty-eight findings. We, however, address ourselves only to those which are not duplicitous and which are

supported by legal argument. 'PROOF' PROVISION IS NOT

AMBIGUOUS NOR IS ITS ENFORCEMENT UNCONSCIONABLE

The initial argument of the appellant is that enforcement of the dictates of Section 13 of this contract caused an unconscionable burden to fall upon it as contractor. The critical provisions of Section 13 are set forth as follows:

'13. CAISSONS AND COFFERDAMS. * * *

If the Contractor elects to use Cofferdams for the construction of Piers B and C and Pier A-Alternate X, he shall give particular attention to the final cleaning of the bedrock foundation so that all silt and debris shall be removed prior to pouring the foundation seal concrete.

To assure that the quality of the seal concrete is satisfactory and that there is no unsuitable material causing separation of the seal concrete from the bedrock, the Contractor shall drill cores not less than 2 inches in diameter through the seal into the bedrock.

A minimum of 12 cored holes shall be drilled in each of the foundations * * * In case of any questionable material or separation of seal from bedrock, additional cores shall be drilled to determine the area or volume involved.

An unsatisfactory quality of seal concrete or separation of the seal concrete from the bedrock by any unsuitable material may be cause for rejection of the seal concrete. Removal and replacement of the seal concrete shall be done at no additional cost to the State.' (Emphasis supplied)

It is the contention of the appellant that the terms 'questionable material' and 'unsuitable material' with reference to an acceptable jointure of bedrock and seal concrete are undefined, misplaced, and misleading, and that accordingly there was no meeting of the minds regarding that provision of the contract.

We would affirm the well-stated principle of contract interpretation that contracts must be given such reasonable construction as will give them effect, if possible, according to the parties' intention. L & G Realty & Const. Co. v. City of Indianapolis (1957), 127 Ind.App. 315, 139 N.E.2d 580. It appears the clear intent of the State in its choice of contractual language was to assure conformance to plans and specifications for the substructure project. With deliberateness Section 13 was drafted to point out the expectations of the State concerning the very critical sealbedrock jointure, and the requirement that there be no separation between the seal and bedrock was emphasized in four successive paragraphs of that section.

Appellant's contention of ambiguity becomes considerably less tenable when the whole of the contract is considered as to the genuine intent of the parties. The true meaning of a contract is to be ascertained from a consideration of all its provisions, and a liberal or technical construction of an isolated clause should not be indulged to defeat the true meaning. Sindlinger v. Department of Financial Institutions (1936), 210 Ind. 83, 199 N.E. 715; Elliott v. Travelers Insurance Co. (1951), 121 Ind.App. 400, 99 N.E.2d 274; McClain's Estate v. McClain (1962), 133 Ind.App. 645, 183 N.E.2d 842, 184 N..E.2d 281; General Insurance Co. of America v. Hutchison (1968), Ind.App., 239 N.E.2d 596.

Within the contract here considered are numerous references to suitable and unsuitable material. In Section 14, with reference to core samples taken preliminary to selection of a final elevation for the foundation, it was provided that:

'In the event that the rock cores * * * indicates unsound rock, soft layers of shale, layers of clay, or other soft material beneath the top layer or ledges of the rock which is unsuitable for the pier foundation in the opinion of the Engineer, the Contractor shall excavate the layers of rock and the unsuitable material down to sound, solid rock * * *' (Emphasis supplied)

In other reference to the desired foundation material it was provided that:

'If any of the rock cores (preliminary to selection of the final elevation) * * * do not indicate sound, solid rock * * *, the Contractor shall continue drilling * * * until he has cored not less than five (5) feet into a solid rock foundation material * * *

If the rock cores as specified above indicate that a suitable foundation leval has been reached, the footing area shall be cleaned * * * If the rock cores indicate unsuitable foundation material below the level of the caission or cofferdam, such unsuitable material and layers or ledges of rock shall be removed * * *' Again, in reference to the driving of caisson piles 1 the nature of 'unsuitable material' was indicated:

'Caisson piles shall be driven or drilledin to bedrock * * * (l)ayers or ledges of rock which are underlain by soft materials such as clay, silt, soft shale or other unsuitable foundation material shall be (excavated) * * *' (Emphasis supplied)

The unambiguous definition of unsuitable material was again affirmed with regard to the contractor's duty to supply adequate core samples:

'If seams, cavities, soft layers of mud, clay, shale or other unsuitable foundation material are found * * *, drilling shall be continued * * *' (Emphasis supplied)

A later provision concerning approval of caisson pile drillings 2 made repetitious the clarity of the contractual proscription against unsuitable material:

'* * * the interior of the caisson pile drilling shall be inspected for crevices, seams, cavities or soft material in the rock. If such unsuitable material is found, the Contractor shall drill * * * farther into the rock * * *' (Emphasis supplied)

Upon consideration of the ample contractual references to the nature of unsuitable material we are forced to conclude that reasonable men would necessarily find the various terms describing acceptable foundation material are neither misleading nor ambiguous, and that a singular and clear meaning of such terms were within the contemplation of both parties.

The appellant, however, further couches his...

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