Department of Transp. v. Dalton Paving & Const., Inc.
| Decision Date | 17 June 1997 |
| Docket Number | No. A97A1222,A97A1222 |
| Parties | , 97 FCDR 2369 DEPARTMENT OF TRANSPORTATION v. DALTON PAVING & CONSTRUCTION, INC. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Senior Assistant Attorney General, Lawson, Davis & Pickren, G. Thomas Davis, Winslow A. Ward III, Alison H. Price, Atlanta, for appellant.
Griffin, Cochrane & Marshall, Henry L. Griffin, Jr., John D. Marshall, Jr., William H. Parkman, Atlanta, for appellee.
Appellant, the Georgia Department of Transportation ("DOT"), challenges a jury verdict for appellee, Dalton Paving & Construction ("Dalton Paving"), in a highway construction contract dispute. In asserting 27 enumerations of error, DOT attempted to have this Court reexamine every aspect of this case, from the admissibility of evidence and the failure to give certain jury charges to the weight of evidence presented and the credibility of witnesses. Although this Court refuses to invade the province of the trial court and the jury by retrying the case in its entirety, we must, in an effort to fairly and effectively resolve the issues on appeal, review the sequence of events leading to the jury verdict for appellee.
The facts, viewed in a light most favorable to the jury's verdict, Dept. of Transp. v. Blair, 220 Ga.App. 342, 343, 469 S.E.2d 446 (1996), are as follows: in 1989, appellee Dalton Paving contracted with appellant DOT for the reconstruction of a state road (SR146) as it passed under Interstate 75 in Catoosa County.
DOT began planning for the construction prior to 1987, and a Field Plan Review Inspection was conducted on March 6, 1987. The inspection report refers to potential problems with the grade change at Ramps B and C, in that the project required a four and one-half foot drop or "cut" in the grading, thereby impeding access to the ramps during construction, and that the bridge embankments did not allow sufficient width for an additional temporary lane to provide for traffic flow during the project. DOT transportation engineer who prepared the inspection report presented three alternatives for dealing with the problems, including (1) temporarily closing the interchange, (2) keeping a single lane open to two-way traffic and utilizing flagmen or traffic signals to direct traffic, or (3) staging construction so that two-way traffic is re-routed onto one side of the interchange while work is conducted on the other side, then switching sides. The engineer opined that the third alternative "would be the most hazardous of the alternatives ... and the least recommended of the three alternates." Further, the inspection report recommended that "the contractor be provided an opportunity for a separate alternate at the Preconstruction Conference that would have to be approved by DOT from a variation of one of the above listed alternates." (Emphasis supplied.)
On August 1, 1989, DOT engineers recognized that the construction plan was still incomplete and that DOT "should clarify the staging of the construction of Ramps B, C, and D." Shortly thereafter, DOT solicited bids for the project, even though DOT had not provided the necessary clarification of the construction plan. Appellee acquired bid documents for the project, visited the site, and submitted a bid in the amount of $915,285.22, which was 95.8 percent of DOT's cost estimate of $955,207.50. DOT accepted appellee's bid on September 1, 1989.
A preconstruction conference was held on October 18, 1989 "for the purpose of discussing and familiarizing [all parties] with the various construction details" of the project. At the meeting, Tommy Patterson of Dalton Paving asked for clarification concerning the construction on Ramp B and the resultant grade changes, saying that "I have not found out any provisions for the ramps, as far as what to do with traffic." Mike Long, a DOT engineer, responded that Ramp B was the "only problem ramp we have on 146," and that Dalton Paving will have to do the construction "[i]n phases, you will have to maintain traffic there." When more questions were asked by Patterson, DOT turned off the tape recorder, so the discussion between the parties intentionally was unrecorded by DOT. However, when recorded discussion resumed, John Rakestraw, another DOT engineer, said that "the project has three phases of construction and the phases should be set up to handle it, if there should be some problems arise [sic] on the construction, then it will have to be handled out there on construction to keep the traffic flowing, is that pretty well what we said?" (Emphasis supplied.) Patterson responded, "Sounds wonderful," and the meeting was adjourned. Thus ended the preconstruction conference, wherein the contractor was supposed to have an "opportunity" to discuss a separate alternative.
On May 29, 1990, the Federal Highway Administration ("FHWA") conducted an intermediate inspection of the project and found the quality of the work to be "satisfactory." The inspection report noted, however, that the (Emphasis supplied.)
On June 4, 1990, appellee notified DOT that it would be "impossible" to construct the interchange around Ramp B according to the original DOT traffic control plan contained in the bid documents and upon which appellee had relied in submitting its bid. DOT responded that any changes to the original plan would be appellee's responsibility and asserted that appellee requested the revision to the traffic control plan due to appellee's error in construction of temporary pavement, asserting that appellee did not widen the pavement enough to accommodate the existing traffic control plans. DOT's position is further clarified in a July 26, 1990 FHWA inspection report, which states that DOT "informed the contractor that since the change is required due to an error on the part of the contractor that he is responsible for developing an acceptable traffic control plan and that he will be responsible for all the additional expense for the new traffic sequence."
Pursuant to these instructions, appellee submitted an alternate traffic control plan for DOT's approval on August 2, 1990. In this letter, appellee also notified DOT that, because of the "erroneous Georgia DOT traffic control plan," they had sustained "additional direct job expenses," and asked DOT to extend the time for completion of the project so that a "workable" traffic plan could be approved.
DOT considered appellee's proposed plan and, in an August 6, 1990 memo between DOT engineers, DOT noted that the No mention was made of any purported mistake on the part of appellee in its alleged failure to pave the road to the appropriate width.
On August 10, 1990, appellee sent a letter to DOT, asserting that any alleged paving problem "can be easily corrected," and noting that DOT had previously inspected and accepted the paving. The same letter notified DOT that appellee continued to sustain additional direct job expenses due to the "erroneous GA DOT sequence of operations and traffic control plan," and that appellee "intends to claim compensation for said additional expenses." Further, they noted that the "only reason" they submitted the proposed new traffic plan on August 2, 1990 was "because of your verbal threat to retain our monthly [payments]."
Having reached a virtual impasse, the parties met on August 15, 1990, to "work out a solution for staging traffic throughout Stages I, II, III so the project can be completed." According to DOT's own notes from that meeting, Felton Rutledge of DOT "re-defined the problem as being [the] grade connection [at] SR 146 & ramps 'B' & 'C' and said D.O.T.'s [traffic control] plan was a suggestion from D.O.T. Felton [Rutledge] also said that D.O.T. would review any proposal from D.P.C. [Dalton Paving] and if D.P.C. [Dalton Paving] chose to accept D.O.T.'s plan that it would be 'their' [Dalton Paving's] plan." DOT reiterated that the "original plan was buildable and that [the new DOT proposed] plan was merely an alternative to [the] original plan since [the] original plan was not followed from ramps 'B' & 'C' west. ..." (Emphasis supplied.)
After discussing DOT's proposal, appellee asked DOT to put it in writing, but DOT refused, responding that it was appellee's responsibility to furnish a plan and that DOT was responsible only for reviewing it. At the end of the meeting, representatives of both sides agreed to proceed with the "DOT proposal."
On the same day, following the meeting and after reviewing the project site, DOT and FHWA officials met and "decided" on a traffic control plan, including the use of barricades, signs, and message boards. The officials then returned to the project site and "explained [to appellee] what needed to be done " regarding traffic control. (Emphasis supplied.)
In an inspection report dated August 29, 1990, the FHWA inspector referred to the August 15 meeting and the agreement regarding the revised traffic plan, and noted that "[t]his additional work may make these bid items overrun the bid quantity." A Supplemental Agreement...
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