Fattore Co., Inc. v. Metropolitan Sewerage Commission of Milwaukee County

• Decision Date: 25 October 1974
• Docket Number: Nos. 73-1660 and 73-1661,s. 73-1660 and 73-1661
• Citation: 505 F.2d 1
• Parties: FATTORE COMPANY, INC., Plaintiff-Appellee, v. METROPOLITAN SEWERAGE COMMISSION OF the COUNTY OF MILWAUKEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1

505 F.2d 1

FATTORE COMPANY, INC., Plaintiff-Appellee, v. METROPOLITAN SEWERAGE COMMISSION OF the COUNTY OF MILWAUKEE Defendant-Appellant.

Nos. 73-1660 and 73-1661.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 1974.

Decided Oct. 25, 1974.

Ewald L. Moerke, Jr., Stewart G. Honeck, Milwaukee, Wis., for Metropolitan Sewerage Comm.

Elwin J. Zarwell, Richard W. Cutler, peter W. Bunde and Ronald L. Wallenfang, Milwaukee, Wis., for Fattore Co.

Before PELL and STEVENS, Circuit Judges, and LARAMORE, Senior Judge. ^*

LARAMORE, Senior Judge.

This case is before the court on appeal by each party; both the plaintiff and defendant requesting review of the District Court's findings regarding damages due and the defendant also requesting review of a finding favoring the payment of prejudgment interest. ¹

The main issues in this case are the amount of damages under a changed condition and equitable adjustment provision of a municipal government construction contract and prejudgment interest on such a claim. The District Court, after carefully considering the evidence in its totality, found plaintiff entitled to a 'jury verdict' equitable adjustment of $1,500,000. The finding was based on this court's reasoning in the first appeal that a broad exculpatory clause should not operate to render another clause meaningless, freeing defendant from its liability. ² The judgment included superintendence, overhead expense, home office expense, profit and any and all other items aside from interest. Prejudgment interest was awarded at the rate of five per cent per annum from and after June 18, 1964, ³ the date all plaintiff's accounting data necessary to compute the equitable adjustment under the changed conditions clause was complete and the retained percentage was paid.

Plaintiff presented its damages, ⁴ in a very detailed accounting, as the difference between the actual costs ⁵ incurred, adjusted downward for events unrelated ⁶ to the changed condition, and its bid. ⁷ Plaintiff argues its method for computing damages is the most reliable and is clearly supported by the evidence; therefore, the 'jury' type verdict awarded is inappropriate, surpassed by plaintiff's proof. In effect, plaintiff contends that it used reasonable costs, not total costs, because it only used items affected by the changed conditions. Accordingly, the increase in cost was directly related to the increase in time required to complete the contract due to the changed condition. ⁸ Plaintiff also contends that it is correct and has always been appropriate for an equitable adjustment to include a profit ⁹ because it would be 'inequitable' for one to do two extra years work under the circumstances involved in this case, with a substantial increase in investment, for no additional return.

Defendant contends plaintiff, in effect, used the normally unacceptable total cost method of computing damages and that the total cost method is not acceptable because here there is an alternative in reasonable costs which the plaintiff failed to prove. Further, there is no right to recover the costs unreasonably incurred, when the changed geological conditions were discovered, by abandoning the shield technique for hand mining. ¹⁰ Accordingly, failure to use the proper proof of damages, reasonable costs, requires dismissal of the case. It is further alleged that even if the equitable adjustment were applicable, it would be error to include profit because such an adjustment should only permit the contractor to break even on extra costs due to changed conditions. The defendant also asserts award of prejudgment interest is contrary to law because there is a genuine dispute regarding the amount due; it cannot be determined with the reasonable certainty necessary to bring it within the definition of liquidable or liquidated damages entitling it to an award of prejudgment interest.

The defendant's argument aimed at barring correction of a wrong for failure of proof, is untenable based on the principle that a judicially recognized wrong is not a bar to recovery of damages that would be difficult to establish with precision. Given the plaintiff's adequate proof, including the correlation between the increase in time and expense due to the changed condition, it would be unjust to only permit recovery for a recognized wrong by holding plaintiff to a near impossible standard of requiring him to list with mathematical precision the amount of every item of damage flowing from that wrong. See also, Dale Construction Co. v. United States, 161 Ct.Cl. 825 (1963); Luria Bros. & Co. v. United States, 369 F.2d 701, 712-713, 177 Ct.Cl. 676, 695-696 (1966); Adams v. United States, 358 F.2d 986, 993, 175 Ct.Cl. 288, 299 (1966); Specialty Assembling & Packing Co. v. United States, 355 F.2d 554, 572-573, 174 Ct.Cl. 153, 184 (1966).

It is well settled that the one liable for established and proven harm shall not escape monetary responsibility because the one harmed failed to prove his damages with mathematical precision. This view is in consonance with the Supreme Court case, Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, at 562-563, 51 S.Ct. 248 at 250, 75 L.Ed. 544 (1931), which stated:

* * * The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount. * * * it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.

In addition, recognition of defendant's argument concerning damages would have the effect of negating both the first decision in this case, Fattore Co. v. Metropolitan Sewerage Commission of Milwaukee, supra, which found plaintiff was entitled to relief, and the policy considerations upon which the changed conditions and equitable adjustment provisions are based. The purposes for institution and utilization of these two provisions includes eliminating the contractor's need for placing large contingencies and unknown costs into his pricing for the great risk he may be taking by encountering adverse subsurface conditions, Kaiser Industries Corporation v. United States, 340 F.2d 322, 169 Ct.Cl. 310 (1965), and providing administrative remedies involving negotiation for what otherwise would amount to a breach of contract requiring litigation for resolution. ¹¹ The bidder will neither enjoy windfalls nor suffer disaster. The municipal government benefits or pays according to the occurrence of adverse conditions. Foster Construction C.A. & Williams Bros. Co. v. United States, 435 F.2d 873, 887, 193 Ct.Cl. 587, 614 (1970). The contract solicitation procedure followed by defendant in this case is the common one for reducing costs by making the borings and providing the information to the bidders. In such a situation '* * * it is settled that the (municipal) government is deemed to warrant the adequacy of its plans and specifications to the extent that compliance therewith will result in satisfactory performance.' Jefferson Construction Company v. United States, 392 F.2d 1006, 1011, 183 Ct.Cl. 720, 727 (1968).

Foster Construction C.A. & Williams Bros. Co., supra, 435 F.2d at 875, held:

* * * all that is required is that there be enough of an indication on the face of the contract documents for a bidder reasonably not to expect 'subsurface or latent physical conditions at the site differing materially from those indicated in this contract.' ¹²

Equally settled is the '* * * axiom that the parties may, by virtue of their contract, convert into a dispute arising under the contract a claim which is the result of deficient plans or specifications and, in the absence of an agreement, would be a sufficient predicate for an action based on a breach of the (municipal) government's implied warranty. Additional compensation which may be awarded for the damages incurred as a result of the deficient plans is limited by that conversion to the specific equitable adjustment provided for in the contract.' (Jefferson Construction Co. v. United States, supra, 392 F.2d at 1011.) Accordingly, the parties here are bound by their contract and are, therefore, protected and limited to the amount of damages permitted through the operation of the equitable adjustment in that contract.

Given the inherently imprecise nature of an equitable adjustment, the existence of sufficient evidence for a court to come to a fair and reasonable conclusion, and the quantum issue presented in this case, the District Court's 'jury verdict' must stand.

'Jury verdicts' have always been supported if there was clear proof that the contractor was injured and there was no more reliable method for computing damages provided that the evidence adduced was sufficient to enable a court or jury to make a fair and reasonable approximation. Specialty Assembling & Packing Co. v. United States, supra; see, River Construction Corp. v. United States, 159 Ct.Cl. 254, 271 (1962); Western Contracting Corp. v. United States, 144 Ct.Cl. 318, 320, 333-336 (1958); Brand Investment Co. v. United States, 58 F.Supp. 749, 751, 102 Ct.Cl. 40, 45 (1944), cert. denied, 324 U.S. 850, 65 S.Ct. 853, 89 L.Ed. 1410 (1945).

The record in this case is replete with evidence upon which a jury or court could fairly and reasonably determine the approximate amount of damages.

Plaintiff, by selecting and compiling all the costs of certain items that directly related to the changed condition, has rhetorically labeled its cost presentation as reasonable because this selective process does not include 'all' of the costs. However, the 'total cost' concept, even when applied to selective items and rhetorically labeled 'reasonable' based on selectivity of items, cannot be accepted. See, F. H. McGraw & Co. v. United States, 130 F.Supp. 394, 131 Ct.Cl. 501 (1955) and ...