District Concrete Co. v. Bernstein Concrete
| Decision Date | 07 August 1980 |
| Docket Number | No. 13380.,13380. |
| Citation | 418 A.2d 1030 |
| Parties | DISTRICT CONCRETE COMPANY, INC., Appellant, v. BERNSTEIN CONCRETE CORPORATION, Appellee. |
| Court | D.C. Court of Appeals |
Rodney F. Page and Paul A. Kaplan, Washington, D. C., for appellant.
Daly D. E. Temchine, Washington, D. C., for appellee.
Before KERN and MACK, Associate Judges, and WEBBER, Associate Judge, Superior Court of the District of Columbia.*
Bernstein Concrete Corporation (Bernstein) successfully sued its concrete supplier, District Concrete Company, Inc. (District) for breaches of contract and warranty arising from the delivery and use of defective concrete. In this appeal, District submits that Bernstein did not present sufficient evidence on causation to hold District liable. It further challenges the correctness of the damages award on several grounds, arguing that an incorrect measure of damages was used, and alternatively that the damages were neither foreseeable nor reasonable. After a thorough review of this extensive record, we affirm.
Savoy Construction Company, Inc. (Savoy),1 the general contractor for the construction of the Capitol View Plaza II apartment building project (Project), subcontracted with Bernstein to perform the concrete work on the Project. Pursuant to this subcontract, Bernstein entered into a requirements contract with District for the needed concrete.2 The contract called for, inter alia, concrete that would have a compressive strength of 3000 pounds per square inch (psi) or "a 6 bag mix."3 This particular mix was to be used for pouring the roof of the Project, on which would rest the mechanical facilities for the building. In addition, the roof itself was a cantilever design which required this strength concrete to support itself. The contract with District expressly incorporated the specifications of the Project. District expressly warranted the concrete it supplied. Bernstein, under its contract with Savoy, was responsible for conducting tests on the poured concrete to insure conformance with specifications.4
According to industry custom and practice, a concrete contractor assumes responsibility for the material when it is actually discharged from the truck. Until this point, the supplier maintains responsibility and control. An industry standard specifies a maximum 90-minute waiting period once the dry ingredients are mixed (in this case when the truck leaves the District plant), after which the concrete may be too "old" to develop its designed strength. Under the instant contract, District was to dispatch its trucks to the construction site with the appropriate mix of materials, absent water. At the site the driver was to add the requisite amount of water and mix the batch before unloading it.
On October 29, 1974, the building roof was poured. Sometime during the day defective concrete found its way to the roof. The 7-day tests revealed the possibility, later confirmed, of concrete substantially below design strength distributed over a rather wide area of the roof. District was informed of the preliminary results. Extensive testing was then conducted to identify the magnitude of the defect, and the extent of the roof area involved.
Upon discovery of the defective concrete, further work on the project halted, pending correction of the problem. Bernstein initially considered three possible approaches to cure the problem, ultimately narrowed to two: (1) tearing out the 5,000 square feet of defective concrete and replacing it, or (2) construction of a "composite slab" over the defective area.5 A larger area was designated for replacement than originally estimated because of the structurally critical importance of this area of the roof. District was informed that these two methods were under consideration.
At the time it weighed the merits of these alternatives, Bernstein estimated the cost of each to be approximately $100,000. It anticipated the tear-out method would take from 4-8 weeks to complete, whereas the composite slab method would take 5-6 weeks. Other considerations were factored into the decision, among them: possible damage to Bernstein's and Savoy's reputation and possible economic loss by undertaking the highly visible tear-out methods;6 the potential for additional structural damage caused by jackhammering used in the tearout method which would necessitate, at a minimum, retesting equipment already in place (the affected roof area was near the elevator shaft and electrical conduits); additional safety problems inherent in the tear-out method, created in part by the cantilever overhang design.
Saul Bernstein, President of both Bernstein and Savoy, made the decision to proceed with the composite slab method. At the time he thought the costs and delays associated with this method could be more reliably anticipated. Subsequent events proved him wrong; the repairs took 6 months to complete at a cost of $222,681.57. The Project architect expressed a preference for the tear-out method, but designed and approved the composite slab alternative. He advised Bernstein that he thought this method would be more costly in the long run. There was testimony that the tear-out method is generally used, although it is not the preferred method of contractors. District was aware of the choice of the composite slab remedy and did not at the time object.
The length of time to make the repairs was the greatest factor contributing to their unanticipated cost. The bulk of the delay was due to an unforeseen shortage of the necessary steel. Bernstein had contacted a local supplier before the final selection of a repair method and was told it was available. This 6-week delay, coupled with design delays, postponed commencement of the repair work for several months. There was conflicting testimony as to how many of these costs would have been avoided had the tear-out method been used. Since that alternative was rejected after preliminary estimates, no further costs details were developed. Those delays due to testing (2 months) and some delay caused by redesign and actual repair were unavoidable regardless of the method selected.
The parties stipulated that Bernstein incurred actual costs of $222,681.57 in making these repairs. The amount includes: $8,439.36 for the testing; $115,215.23 to have the work actually performed; $14,366.68 in related costs including delay costs to subcontractors, modifications to the boiler room equipment, storage charges and the like; $84,660 for additional field overhead expenses incurred by Bernstein and Savoy as a result of the delay in completing their performance of the Project.7
A 3-day bench trial was held. On the issue of District's liability for the damage, Bernstein's evidence showed that all the concrete on the day in question was supplied by District; that the concrete varied significantly from the design mix, having only 2.74 bags of cement and a high water-to-cement ratio. In addition Bernstein proffered that it gave no orders to the District drivers to add unusual amounts of water; that despite some delays due to a crane breakdown, there was no evidence that concrete older than 90 minutes was used.
In denying liability, District presented evidence showing no abnormality in its automated batching process that could account for any defect. It argued that if the concrete were as watery as Bernstein claimed, its faulty condition must have been visible to Bernstein when it accepted the load, making Bernstein responsible for the consequences; that according to its estimates based on reconstructed records, a number of trucks were required to wait beyond the 90-minute point before discharging their loads.8 It argued that the defective concrete could have resulted independently from the addition by Bernstein of too much water.
At the trial's conclusion the judge requested each party to submit proposed findings of fact and conclusions of law. Those submitted by Bernstein were adopted with only minor modifications. By order, the judge granted the full $222,681.57 request, set off by District's counterclaim of $56,243.77 (unpaid balance due on concrete supplied) for a net judgment of $166,437.80. In addition to adopting Bernstein's proposed findings of fact and conclusions of law, the judge specifically concluded that the concrete was defective when District delivered it; that District had breached both the express and implied warranties given to Bernstein, and the contract; that the method chosen by Bernstein to remedy the defect was reasonable under the circumstances; that the damages claimed by Bernstein were proximately caused by District's breaches which were reasonably foreseeable; that the measure of damages was the cost of remedying the defect which entitled Bernstein to consequential damages.
District challenges all aspects of the trial court's ruling. First, it submits that it was error to conclude that District was liable. It argues the evidence showed other equally plausible explanations for the defect. Moreover, even accepting Bernstein's evidence, the defect would have been obvious at the time of delivery. Second, it contends that the measure of damages used by the trial court, i. e. actual costs incurred by Bernstein, is incorrect since Bernstein substantially deviated from the original design and specifications in its corrective measures. Third, it differs with the trial court's determination that Bernstein's actions were reasonable, and that the damages were reasonably foreseeable. Fourth, District argues that the trial court incorrectly included "delay" damages (field overhead) since the Project itself was completed on schedule. Finally, it asserts it was entitled to an award of interest on its counterclaim.
At the outset, we are confronted with an assertion by District that the trial court's judgment in this case is to be given little weight because it adopted a...
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