B-E-C-K Constructors v. State, Dept. of Highways, B-E-C-K
| Decision Date | 21 December 1979 |
| Docket Number | No. 3610,B-E-C-K,3610 |
| Citation | 604 P.2d 578 |
| Parties | CONSTRUCTORS, a joint venture composed of Koon-Boen, Inc. and Cummins- Egge, Inc., Appellant, v. STATE of Alaska, DEPARTMENT OF HIGHWAYS, Appellee. |
| Court | Alaska Supreme Court |
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.
In 1971 a state highway bridge across the Copper River collapsed. As a result of the bridge collapse and the consequent loss of access to the work site, B-E-C-K Constructors (BECK) experienced delays and increased costs in its work on other state highway bridges. BECK sued the State of Alaska to recover the extra costs. The superior court granted the State's motion for summary judgment, and we affirm that decision.
Following competitive bidding, BECK was awarded a contract by the State of Alaska, Department of Highways, 1 to build several new highway bridges across the Copper River. These bridges were to replace existing bridges which had been destroyed or damaged in the 1964 earthquake. 2 In designing the project the State realigned the roadway so that existing Bridge 331 (the bridge which eventually collapsed) would be replaced by two new bridges new Bridge 331 and Bridge 1187 which would be located 100 feet upstream from old Bridge 331. The contract called for BECK to construct the two new bridges and to demolish old Bridge 331. The contract included no terms relating to the use of old Bridge 331 during the project. The contract, however, did contain descriptions of all existing bridges to be removed under the contract, including old Bridge 331:
(a) The existing bridges, or remains thereof, to be removed are as follows:
(1) The existing Copper River Bridge No. 331, a damaged steel and concrete structure approximately 2437 feet along (sic) and located approximately 100 feet downstream of Centerline from Station 137 k 70 to Station 162 k 20 . This structure consists of three simply supported steel through trusses with timber decks followed by a trestle system of eighteen steel stringer spans with concrete decks followed by four simple through truss spans with timber decks and terminated by a final trestle system of ten steel stringer spans with concrete decks. The substructure consists of eight massive concrete piers, a concrete abutment and the pile bents for trestle system. (Emphasis added.)
The only other reference to Bridge 331 in the contract appeared in a report which accompanied the bid package. That report, prepared by the Engineering Geology Section of the Department of Highways, included an "engineering analysis" of old Bridge 331:
2. Bridge Foundations
The Copper River and Northwestern Railroad constructed a bridge over the Flag Point channel which is still standing. It was three large piers designed to have both high strength and stability. They were specifically designed to resist large ice forces, etc. (A photo of these piers is enclosed with this report.) According to the Engineering Record description, (1910) the piers are supported on footings approximately 14' wide and 54' long. The footing is approximately 2' thick and supported on 114 timber piles with an average penetration of 36' into the "sand and gravel of the river bed". This description correlates very well with subsurface data obtained during recent drilling operations. That is, a bearing stratum was encountered between 20 and 40 feet below the river bed in all borings put down at this site. The piers supporting the railroad bridge do not appear to have undergone any critical settlement since their original construction in 1909. It is also noted that they suffered very little damage during the earthquake of March 27, 1964 which totally destroyed numerous bridges along the Copper River Highway. (Emphasis added.)
The bid package notified bidders of the availability of other information about old Bridge 331: a 1910 engineering report on the original railroad bridge, contract plans for the trestle portion of the bridge, and shop plans for the structural steel for the truss and trestle portions of the bridge. This notice, however, was accompanied by the following disclaimer:
The information shown in the above is for information only. It is expressly understood that the State will not be responsible for any deduction, interpretation or conclusion drawn therefrom by the contractor. This information is made available so that the contractor may have access to the same information as the State.
Prior to submitting its bid, BECK sent two employees to inspect the work site. According to BECK's project manager, he asked the men to
look at the bridges, particularly the precast concrete deck span sections . . . because they were damaged, from evidence in the photographs, and to look at them with a view to repairing them for our use in obtaining access across the river, and also to generally look at the major railroad spans to determine what would have to be done to all them for access across the river.
The project manager testified in his deposition that he did not ask the men to inspect the piers under the bridge "(b)ecause from the information that was supplied by the State of Alaska with the bid documents it was my belief that the concrete piers for the major railroad bridges were sound, and there was no need to consider them."
After being awarded the contract, BECK started the project in the fall of 1970. It did repair work to the superstructure of Bridge 331 and used the bridge to gain access to the work site on the other side of the channel. 3 On July 21, 1971, while BECK was moving a crane across the bridge, a pier of the bridge collapsed, dropping two spans into the river. 4 Two men died in the accident. BECK's access to the work site across the channel was cut off for about thirty days.
After the State rejected BECK's administrative claim for extra costs, BECK filed this action against the State. Following extensive discovery, the State filed a motion for summary judgment. The superior court granted that motion and subsequently filed a memorandum of decision detailing the rationale for the decision. The court concluded that the State had made no explicit representations that Bridge 331 was suitable for use as a means of access, that the State had not implicitly warranted the integrity of the bridge as a means of access, and that the State had no duty to disclose additional records it had pertaining to the bridge.
Final judgment was entered for the State, including an award of $23,000 in costs and attorney's fees. BECK appeals both the decision to grant the State's motion for summary judgment and the award of attorney's fees. 5
In order to prevail upon appeal, a party against whom a motion for summary judgment has been granted must persuade this court either that a genuine issue of material fact did exist, See Alaska R.Civ.P. 56(c); Champion Oil Co. v. Herbert, 578 P.2d 961, 963 (Alaska 1978), or that the moving party was not entitled to a judgment as a matter of law. See Jennings v. State, 566 P.2d 1304, 1309 (Alaska 1977). Appellant "need not establish that it will ultimately prevail at trial, but only that there exists a genuine issue of fact to be litigated." Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136, 1139 (Alaska 1974). We are of the opinion that no genuine issue regarding any fact material to the subject contract has been specifically set forth by BECK sufficient to withstand the motion for summary judgment. 6
The only description of old Bridge 331 in the contract itself was in a section entitled "Removal of Bridges, Culverts and Other Drainage Structures, General Description." This section explicitly described the bridge as "a damaged steel and concrete structure." BECK, however, bases its claim of misrepresentation on two statements included in documents that accompanied the bid package. We conclude that, in the context in which they were made, the statements do not constitute misrepresentations.
The first alleged misrepresentation is the statement in the bid package that the piers supporting the bridge "suffered very little damage during the earthquake." This statement was in the report of the Engineering Geology Section. Considering the report as a whole, the obvious reason for including this report in the bid package was to provide bidders with information on the soil conditions in the riverbed in connection with the construction of the new bridges. Given the purpose of the report, it is clear that the statement regarding the piers of the bridge was intended to impart information about the stability of the soils in the riverbed and not to warrant the structural integrity of the piers themselves. 7
The second alleged misrepresentation is the statement in the bid package that the additional information on the existing structures "is made available so that the contractor may have access to the same information as the State." The "existing structures," however, were pertinent to the contract only as structures which were to be Demolished. In this context, we believe it is clear that the purpose of the "additional data," consisting of an engineer's report and various plans for the steel portion of the bridge, was to assist the contractor in estimating the cost of demolition. Although the State had information in its files pertaining to Bridge 331 that was not included in the bid package, 8 and the contractor, therefore, did not actually "have access to the same information as the State," there is no indication that the information was pertinent to demolition of the bridge. We conclude that the statement in question did not misrepresent the extent of the State's knowledge concerning the bridge.
Considering the context in which the two statements...
To continue reading
Request your trial
-
Jones v. Ippoliti
...(motion concerning cost sharing of fees and rate at which services of staff counsel should be reimbursed); B-E-C-K Constructors v. Dept. of Highways, 604 P.2d 578, 585 (Alaska 1979) (state awarded attorney's fees for services of outside counsel, as well as for staff attorney general); Trave......
-
Cook v. Oklahoma Bd. of Public Affairs, s. 59824
...Wiechman Engineers v. State ex rel. Department of Public Works, 107 Cal.Rptr. 529, 31 Cal.App.3d 741 [1973]; B-E-C-K Constructors v. State, Dept. of Hwys., 604 P.2d 578 [Alaska 1979] and Schmelig Constr. Co. v. Mo. State Highway Com'n, 543 S.W.2d 265 [Mo.App.1976].22 Maney v. Oklahoma City,......
-
Softsolutions, Inc. v. BYU
...to non-profit consumer educational organization when litigation was conducted by in-house salaried attorneys); B-E-C-K Constructors, Inc. v. State, 604 P.2d 578, 585 (Alaska 1979) (stating "where a party is represented by both private counsel and in-house counsel who actively participate in......
-
Garfield Bank v. Folb
...the preparation of the case, the party may recover partial fees for both private and in-house counsel." (B-E-C-K Constructors v. State Dept. of Hwys. (Alaska 1979) 604 P.2d 578, 585.) As noted above, the overall concern of Civil Code section 1717 is that the award of attorney fees be recipr......