Berkel and Co. Contractors, Inc. v. Providence Hosp.
| Decision Date | 20 April 1984 |
| Citation | 454 So.2d 496 |
| Parties | BERKEL AND COMPANY CONTRACTORS, INC. v. PROVIDENCE HOSPITAL, a Corporation. 82-592. |
| Court | Alabama Supreme Court |
Broox G. Holmes and Kirk C. Shaw of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Roger W. Penner of Griffin, Dysart, Taylor, Penner & Lay, Kansas City, Mo., for appellant.
Willis C. Darby, Jr. and Joseph F. Danner of Darby & Myrick, Mobile, for appellee.
This is an appeal from a summary judgment entered by the circuit court in favor of defendant Providence Hospital ("Providence") as to the four causes of action asserted against it by plaintiff Berkel and Company Contractors, Inc. ("Berkel"). Berkel sued Providence and its architect 1 for claims arising out of the construction of an addition to Providence Hospital in Mobile. Berkel contracted with Greenhut Construction Company, Inc. ("Greenhut"), the general contractor, to install piles for the foundation of the addition.
Providence issued its invitation for general contractors to bid on the hospital addition on September 17, 1979. Providence made available to bidders the plans, specifications, and addendum prepared by its architect, and a soil report prepared for Providence by an engineering firm, Vester J. Thompson, Jr., Inc. ("Thompson" or "soils engineer"). Thompson's soils report was based on eight soil test borings, only one of which was taken in the actual excavation site. The evidence is in conflict as to whether the soils report revealed a subsurface stratum which would tend to affect the installation of cast-in-place piles. 2
Greenhut was the successful bidder and contracted with Providence on January 15, 1980. Greenhut then subcontracted with Berkel to install the piling supports. Berkel's contract with Greenhut incorporates by reference certain documents from Greenhut's contract with Providence, including the general conditions of the contract for construction, the specifications for cast-in-place piles and the bidder's information package. The plans called for installation of 304 predrilled, cast-in-place piles. The piles were 16 inches in diameter, averaging 85 feet in length, with design capacities of 77 or 97 tons per pile. Each pile was supported with a cage of steel reinforcement bars extending 15 feet below the surface.
The pile specifications included many requirements. First, the admixtures used in the pile grout mix had to possess the property of combining with lime liberated during the process of hydration of Portland cement. Second, the mix design of the pile grout had to be approved by the architect. Third, at least two test piles had to be load tested to at least twice design capacity.
Berkel submitted its grout mixture, referred to as Underwood grout, on February 11, 1980, to Greenhut, who then submitted it to the architect for approval. The architect returned the Underwood grout mix submittal on March 7, 1980, with the notation "Furnished as Noted." It is unclear whether the architect's action constituted approval or something else. Berkel began installing test piles.
On May 21, 1980, Berkel installed two test piles. One test pile was 77 feet long and had a design capacity of 77 tons (No. 1); the second was 85 feet long and had a design capacity of 97 tons (No. 2). On June 3, both piles failed a load test of approximately 100 tons.
The parties were at a loss to explain why the test piles failed. Cylinders from both piles were tested for compressive strength and were found to surpass the specification requirements. After additional soil borings, Thompson, the soils engineer, determined that the bearing stratum below the tips was consistent with or better than the criteria used for pile design.
Berkel was instructed by the architect and soils engineer to install an additional test pile. Berkel was specifically instructed by Thompson regarding installation. The additional test pile (No. 3) failed a load test on June 23, 1980. Testing of the grout cylinders for the pile revealed that the aggregate in the grout was finer than specified. The finer sand required a longer time to gain strength.
The architect and soils engineer then requested Berkel to install a pile using Radcliff grout. Radcliff grout differed from Underwood grout in that it did not contain an admixture which combined with lime, as required by the specifications; the sand in the Radcliff grout was, however, of the specified gradation.
The test pile using Radcliff grout (No. 4) was installed on June 26, 1980. No conclusion had been reached as to why the Underwood grout test piles had failed while the Radcliff grout test pile had succeeded. Nevertheless, Berkel received instructions through Greenhut from the architect that it was to proceed with installation of the 97 -ton production piles. Greenhut had been verbally informed by the architect to proceed, with the promise of written confirmation. No written confirmation was received from the architect. Greenhut did receive a copy of the soils engineer's letter recommending that installation proceed. Berkel contends that it was authorized to use Underwood grout, provided sand of the correct gradation was used, as verified in biweekly tests.
At the same time Berkel was directed to proceed with installation of the 97-ton production piles, it also was directed to install another 77-ton test pile. This Underwood grout test pile (No. 5) was tested on July 17, 1980, and failed at less than 100 tons. Tests revealed that the pile had sheared at 17 feet below the surface, just two feet below the reinforcement bar cage. The pile was excavated and swirling patterns of foreign material were observed over approximately a two-foot length immediately below the reinforcement bar cage.
On July 18, 1980, the architect directed Greenhut and Berkel to cease installing production piles. Berkel had, by then, installed 87 of the 97-ton production piles.
Thereafter, additional tests were conducted. Three of the production piles using Underwood grout with sand of the specified gradation failed a load test of 110 tons. The parties excavated the soil from around one of the test piles. At approximately 17 feet below the work surface, a fine layer of sand was observed. Water was also found to be flowing from the sand. The evidence presented is in dispute as to whether this stratum of cohesionless sand appeared in the soils report. Still, no consensus was reached as to the cause of the pile failure.
Berkel continued to install test piles at the direction of the architect. The test piles were all constructed with Radcliff grout, but had varying lengths of reinforcement bar cages and were inserted using different methods. By August 15, 1980, five Radcliff test piles had been successfully load tested, though at less than twice their design capacity. The architect authorized Greenhut and Berkel to install production piles using Radcliff grout. Berkel was given the option of either load testing each of the 87 production piles previously installed or replacing them with piles using Radcliff grout. Berkel proceeded to install production piles using Radcliff grout. Installation of all piles was complete on or about September 24, 1980.
Following the failure of test piles Nos. 1 and 2 in June 1980, Greenhut and Berkel learned for the first time that a subcontractor installing piles on an earlier, nearby project at Providence Hospital in 1968 had been unable to successfully load test its piles. The 1968 failure was caused by soil conditions which led to the sinking or pushing of piles into the ground. The tests conducted during the period June 4-9, 1980, indicated that the 1980 failure did not involve piles pushing or sinking into the ground.
On October 7, 1980, Berkel submitted its claim for additional compensation to recover what it had expended because of the unaccepted Underwood piles. Greenhut added its claim for additional compensation and presented both claims to Providence and its architect. Both claims were denied and the current action was filed.
Berkel filed a four-count complaint. Count one alleged that Providence and its architect breached their duties of care in directing Berkel's installation of the permanent piles. Count two alleged that Providence's agent, the soils engineer, negligently tested and reported subsurface soil conditions. Count three alleged that Providence misrepresented subsurface soil conditions. Count four maintained that Providence suppressed material facts concerning the 1968 project which it was obligated to communicate. The circuit court granted summary judgment on each count as to Providence. Berkel appeals from this order granting summary judgment.
This Court places a heavy burden on a party who moves for summary judgment.
Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981) (citations omitted). See Day v. Merchants Nat'l Bank of Mobile, 431 So.2d 1254, 1256 (Ala.1983).
By the same token, a summary judgment motion, properly supported as provided for under Rule 56(e), Alabama Rules of Civil Procedure, must be granted "unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial." Butler, 402 So.2d at 951. The non-movant need only establish a scintilla of supporting evidence to avoid summary judgment. White v. White, 431 So.2d 1208, 1209 (Ala.1983).
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