Department of Transp. v. APAC-Georgia, Inc.

• Decision Date: 17 March 1995
• Docket Number: INC,APAC-GEORGI,No. A94A2078,A94A2078
• Citation: 217 Ga.App. 103,456 S.E.2d 668
• Parties: DEPARTMENT OF TRANSPORTATION v.
• Court: Georgia Court of Appeals

Page 668

456 S.E.2d 668

217 Ga.App. 103

DEPARTMENT OF TRANSPORTATION v. APAC-GEORGIA, INC.

No. A94A2078.

Court of Appeals of Georgia.

March 17, 1995.

Reconsideration Denied March 30, 1995.

Certiorari Denied June 7, 1995.

Michael J. Bowers, Atty. Gen., George P. Shingler, Sr. Asst. Atty. Gen., G. Thomas Davis, Alison H. Price, Atlanta, for appellant.

Smith, Currie & Hancock, Robert B. Ansley, Jr., Fredric W. Stearns, Joseph P. Henner, Greenfield, Bost & Kliros, John W. Greenfield, Sutherland, Asbill & Brennan, William R. Wildman, Atlanta, for appellee.

POPE, Presiding Judge.

On or about July 3, 1984, plaintiff APAC-Georgia, Inc. ("APAC") contracted with the Department of Transportation ("DOT") to reconstruct approximately three miles of roadway and walls on part of the Downtown Atlanta I-75/I-85 connector. The agreed upon price of the job was $49,050,459.62. On July 12, 1984, DOT gave APAC written notice to proceed with the reconstruction. Under APAC's contract, the reconstruction project was to be completed by November 1, 1986. However, APAC did not substantially complete the project until September 26, 1988. It is undisputed that APAC received time extensions from DOT through the actual completion date, and no contractual liquidated damages were charged to APAC for failure to complete the project on time.

On July 11, 1990, APAC filed suit against DOT for breach of contract, and sought to recover damages in the amount of approximately $7,218,765 for delays, impacts and inefficiencies allegedly caused by DOT. DOT answered denying liability. On January 11, 1993, DOT filed a motion for partial summary judgment ("Partial Summary Judgment Motion"). After hearing oral argument on this motion, the trial court, by order dated October 5, 1993, denied all but one part of the motion. Subsequently, DOT filed a motion for summary judgment and, in the alternative, a second motion for partial summary judgment ("Summary Judgment Motion"). DOT also filed a motion to compel ("Motion To Compel"). DOT timely requested oral argument on these motions. Without holding oral argument, the trial court, in two separate orders dated February 15, 1994, partially denied DOT's Motion To Compel, and denied DOT's Summary Judgment Motion. The trial court entered a certificate of immediate review as to the denial of DOT's Summary Judgment Motion, and we granted DOT's application for interlocutory appeal.

DOT's Partial Summary Judgment Motion

DOT's fourth, sixth, seventh and eighth designated enumerations of error relate to the trial court's October 5, 1993 order denying DOT's Partial Summary Judgment Motion. These enumerations will be addressed in the order in which their corresponding arguments were originally considered by the trial court.

1. In its eighth enumeration, DOT argues that the delay damages APAC seeks to recover in this case are barred as a matter of law by Standard Specification 105.07. We disagree. In Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga.App. 821, 822(1), 426 S.E.2d 905 (1992), we held that under Standard Specification 105.07, DOT could not be held vicariously liable for the untimely performance of its various contractors. However, as the trial court noted in its October 5, 1993 order, APAC does not argue that the damages it seeks to recover in this case were caused by the untimely performance of other contractors. Instead, APAC contends that its delay damages arose from DOT's breach of its own duty to coordinate and control the work of other contractors.

We agree with the trial court that under Special Provision 105.07, which supplements Standard Specification 105.07, DOT did in fact have a duty to coordinate the project. Special Provision 105.07 states that in order "[t]o effect ... cooperation and to coordinate all phases of the work, [DOT] will name one Engineer who, in effect, will be a Project Manager who will be given the authority to coordinate all phases of the construction. This Engineer shall be the sole judge of responsibility on this Project and shall make such rulings as necessary to control the work." Consequently, because DOT had a contractual duty to coordinate the project, APAC's claim for delay damages allegedly resulting from breach of that duty, rather than from the untimely performance of other contractors, is not barred by Standard Specification 105.07 or our holding in Fru-Con. Moreover, because a genuine issue of material fact exists as to whether DOT breached its duty to coordinate, we hold that the trial court did not err in denying that portion of DOT's Partial Summary Judgment Motion relating to Standard Specification 105.07.

2. In its fourth enumeration, DOT argues that APAC's claims for damages based on design errors and omissions and on breach of certain implied contractual obligations are ex delicto, and thus, barred by the doctrine of sovereign immunity. APAC contends that its claims are ex contractu. As the trial court stated in its order, "the nature of an action is to be determined ... by the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the kind of relief sought." A.A.A. Parking v. Bigger, 113 Ga.App. 578 580, 149 S.E.2d 255 (1966). "[W]here the breach complained of is simply the neglect of a duty such as is expressly provided by the contract itself, the action will be construed and treated as one brought ex contractu. [Cits.] This principle is also applicable where the breach complained of is simply the neglect of a duty provided by the contract by implication, either of law or of fact. [Cits.]" (Punctuation omitted.) Id. at 581, 149 S.E.2d 255.

In this case, APAC seeks to recover delay damages based on DOT's alleged breach of its express duty to coordinate and its alleged breach of certain implied duties, including the duty of good faith and fair dealing. We reject the contention that under Fru-Con, supra, claims against the State based on implied contractual duties are ex delicto, and thus barred by the doctrine of sovereign immunity. In Fru-Con, we held that there cannot be an express and implied contract for the same thing existing at the same time. 206 Ga.App. at 825(3), 426 S.E.2d 905. In that case, we did not hold that the State could not be sued for breach of an implied contractual obligation in a written contract. Consequently, we agree with the trial court that APAC's claims are ex contractu. "The state's defense of sovereign immunity is ... waived as to any action ex contractu for the breach of any written contract ... entered into by the state or its departments and agencies." Ga. Const. of 1983, Art. I, Sec. II, Par. IX(c). Accordingly, the trial court did not err in denying that portion of DOT's Partial Summary Judgment Motion relating to the issue of sovereign immunity.

3. In its seventh enumeration, DOT argues that Standard Specification 109.08.B bars APAC from recovering any prejudgment interest in this case. We disagree. "(E)xculpatory clauses must be clear and unambiguous, they must be specific in what they purport to cover, and any ambiguity will be construed against the drafter of the instrument." Dept. of Transp. v. Arapaho Constr., 180 Ga.App. 341, 343(1), 349 S.E.2d 196 (1986), aff'd 257 Ga. 269, 357 S.E.2d 593 (1987). In this case, Standard Specification 109.08.B seeks to bar recovery of prejudgment interest "for any sum claimed by the Contractor under the Contract or for any extra or additional work...."...