Ashland Oil & Refining Co. v. State Road Dept., BB--311

• Decision Date: 11 February 1977
• Docket Number: No. BB--311,BB--311
• Citation: 343 So.2d 878
• Parties: ASHLAND OIL & REFINING COMPANY, a Kentucky Corporation, the successor to Jaxon Construction Company, a Florida Corporation, Appellant, v. The STATE ROAD DEPARTMENT of Florida, an agency of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 878

343 So.2d 878

ASHLAND OIL & REFINING COMPANY, a Kentucky Corporation, the successor to Jaxon Construction Company, a Florida Corporation, Appellant, v. The STATE ROAD DEPARTMENT of Florida, an agency of the State of Florida, Appellee.

No. BB--311.

District Court of Appeal of Florida, First District.

Feb. 11, 1977.

Rehearing Denied April 1, 1977.

Marion R. Shepard, H. P. Osborne, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.

Alan E. DeSerio and Larry White, Tallahassee, for appellee.

ERVIN, Judge.

Ashland brought an action for damages against the Road Department on a roadway construction contract. The contract involved a public works project calling for both the construction of a highway and the installation of an improved storm sewer system along 1.81 miles of roadway on Cassett Avenue, a street located in Jacksonville, Florida. The case was tried non-jury. At the conclusion of the trial on October 6, 1975, the court ruled that corrections were to be made in the Department's computation of certain items. It held that the principal amount due appellant was $42,235.04, and that interest was to be computed from March 1, 1969 until the date of the verdict, October 6, 1975. Ashland was directed to draft the proposed final judgment. It did not submit the draft until January 22, 1976 and on February 20, 1976, the court entered judgment for appellant in the principal sum of $42,235.04, together with interest, from March 1, 1969.

Ashland appeals assigning two errors: (1) That it is entitled to recover $2.00 per cubic yard for the removal of certain material excavated from a pipe trench it was required to remove from the right of way job-site, and $2.50 per cubic yard for an equal volume of suitable backfill material it was required to replace in the pipe trench. (2) That since Ashland's uncontradicted evidence showed it was necessary for it to excavate a pipe trench with sides having an average 45 degree slope, the trial court erred in allowing compensation to it only for the volume of material removed by assuming that such trench excavation had only vertical sides. The Department cross-appeals alleging that the trial court erred in allowing interest on the principal sum to be computed from March 1, 1969 through January 22, 1976, which latter date was the date Ashland submitted the proposed final judgment to the court. The Department contends that the court should not have directed the accumulation of interest beyond the date of the verdict, October 6, 1975.

The primary problem arose when the Department's engineer determined that material excavated from the pipe trench was unsuitable and directed Ashland to remove it from the job-site and replace it with suitable material. No actual measurements were made on the ground of the excavated material. Ashland introduced evidence that it requested the engineer to make such measurements but he failed to do so. The evidence is undisputed that the sides of the trench sloped outward from the base up to ground level. In the absence of actual measurements Ashland contends that the best estimate of the volume of such unsuitable backfill material should be based upon an estimate testified to by its engineer which assumed that the actual volume of unsuitable backfill material removed from the site of the pipe trench excavation was equal to the volume of the excavation between the various construction stations where the Department's engineer recorded that unsuitable backfill material was found during the progress of the excavation of the trenth. The width of the excavation at the bottom of the trench was the outer diameter of the pipe plus two feet (one foot on each side of the outer edge of the pipe). The volume was then calculated by the average end area times the length of the cut with both sides sloping upward at a 45 degree angle. Ashland's engineer testified that when measured in this fashion the volume of unsuitable backfill material at the site of the pipe trench excavation removed by plaintiff was 27,561 cubic yards.

In calculating the amount of material excavated from the pipe trench, the Department used the same bottom width measurement as Ashland did, being the outside diameter of the pipe plus one foot on each side. The Department, contrary to the actual facts, assumed that the pipe trench excavation had vertical sides. This assumption was based upon Section 130.11 of the contract specifications which provides:

'When direct payment for Excavation for Structures is provided in the Proposal, such excavation will be measured in its original position by the cross-section method to determine the amount of material removed. The yardage of excavation used as a basis of payment will then be that material actually removed below the original ground line or stream bed, but not including that shown on the Plans to be paid for either as Regular Excavation, Subsoil Excavation or Lateral Ditch Excavation, or which is included in the item for Grading, and except that no payment will be made for material removed in excavating for footings or foundations outside of an area which is bounded by vertical planes one foot outside of the limits of the footings and parallel thereto. For pipe trenches the width to be used in the calculation shall be the diameter of the pipe plus two feet.' (Emphasis added.)

The Department therefore contends that it was not necessary for it to make any actual measurements of unsuitable backfill material or suitable backfill material. Appellee's reasoning, however, is erroneous because Section 130.11 has no application to the contract between the two parties. The section applies only to contracts involving direct payment for excavation for structures. It is clear from the record that there was no direct payment for the excavation of the pipe trench. The lower court itself so conceded when it stated:

'There was no provision in the contract for direct payment for excavation of the pipe trench. This work was included under § 360 of the specifications which is entitled, 'Pipe, Culverts and Storm Sewers."

While the court recognized that Section 130--11 'does not dictate the method for measuring the quantity of unsuitable backfill material . . . that (Ashland) was required to remove . . .', nevertheless the court tacitly approved the formula set forth in the section by holding it would assume the pipe trench had vertical sides, with a width of the outer diameter of the pipe plus two feet, without deducting the volume of pipe, in determining the volume of cubic yards excavated from the pipe trench, or a total of 11,224 yards.

The fallacy with the court's conclusion is that its determination was inconsistent with the facts since the record is clear that the pipe trench did not have vertical, but sloping sides. The Department failed, although requested by Ashland, to measure on the ground the amount of material excavated from the trench. The only evidence before us, and uncontradicted by the...