Gibbons-Grable-Goettle, A. Joint Venture v. Northeast Ohio Regional Sewer District

• Decision Date: 23 January 1986
• Docket Number: 86-LW-4205,49132
• Parties: GIBBONS-GRABLE-GOETTLE, A JOINT VENTURE, Plaintiff-Appellee, v. NORTHEAST OHIO REGIONAL SEWER DISTRICT, Defendant-Appellant.
• Court: Ohio Court of Appeals

GIBBONS-GRABLE-GOETTLE, A JOINT VENTURE Plaintiff-Appellee, v. NORTHEAST OHIO REGIONAL SEWER DISTRICT Defendant-Appellant.

No. 49132.

86-LW-4205 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

January 23, 1986

Civil appeal from Common Pleas Court

No 039,878

William D. Ginn, Cleveland, Ohio, for plaintiff-appellee.

William Tousley Smith, Cleveland, Ohio, for defendant-appellant.

JOURNAL ENTRY and OPINION

STILLMAN Judge.

The Sewer District appeals from a judgment awarding $1,247,705.36 to the contractor for various alleged interferences with the contractor's performance of the contract. The District claims that the court erred by excluding certain issues and evidence, by giving erroneous and incomplete jury instructions, and by denying the District's motions for a directed verdict, judgment n.o.v., and new trial or remittitur. We find that the court did erroneously instruct the jury on the contractor's claim for extra surface excavation and the "delay" that it caused. We also find that the court should have directed the verdict or granted judgment n.o.v. on the contractor's claim for the interest it paid on a loan. We therefore reverse and remand for a new trial on the contractor's extra excavation claim and on the question of damages for all claims. We otherwise find no error in the court's rulings and instructions, so we affirm the remainder of the judgment.

I.FACTS

This action involves a contract for construction of the foundation of the District's Southerly Wastewater Treatment Plant. The agreement required several separate operations, including (1) test piles and pile load tests, (2) excavation, (3) pile driving, (4) filling the piles with concrete, (5) welding tension straps to the piles, (6) relocating a potable water line, and (7) fine grading the site surface. The contract provided for an interim completion date on which the contractor was to vacate the eastern half of the site, and a final completion date. Time was of the essence of the contract.

The contractor encountered numerous difficulties in performing the contract. As a result, it asserted the following claims:

1. Extra Excavation. The contractor's survey disclosed additional earth on the site that had not been shown in the contract drawings. The contractor claimed that it disposed of this material off site at a cost of $146,729.30.

2. Lime Road. Between the bid closing date and the start of construction, the District built a road on the site to allow lime trucks to have access to its filter building. The contractor claimed that this road interfered with its planned sequence of excavation, causing inefficiency. Eventually, the road was relocated.

3. Additional Test Piles. The District required the contractor to drive more test piles than the contract originally called for. Additionally, the contractor claimed that the District took excessive time reviewing the test data. These delayed the contractor from beginning production pile driving. Furthermore, the contractor claimed that the areas released for production pile driving were so small that the contractor could not use its rigs efficiently.

4. Potable Water Line. The District altered its plans for the relocation of the potable water line. The contractor claimed that the District unreasonably delayed its order permitting the contractor to perform the work. This delay prevented the contractor from driving piles in the area where the old line ran, reducing its pile driving efficiency.

5. H-Piles and Intersecting Piles. During construction, the contractor discovered a sub-surface condition which its pipe piles would not penetrate. It therefore substituted more expensive H-piles at an extra cost of $51,686. In addition the contractor claimed that, because of engineering defects for which the District was responsible, several piles intersected below grade and collapsed. It replaced these piles at a cost of $52,508.21.

6."Sweep" Surveyor. During construction, the parties disputed the permissible amount of "sweep," that is, deviation of the piles from the perpendicular. They eventually agreed that sweep of no more than seven percent would be permissible. However, the contractor claimed that the District required it to hire an outside consultant to measure the sweep, rather than allowing the contractor's surveyors to do it. This cost the contractor an added $55,873.50.

7. Certified Welders. The contractor claimed that the District breached by requiring it to hire only certified welders. Because of a local shortage of certified welders, the contractor was forced to obtain welders from out of town. The contractor also claimed that the District's unreasonable failure to grant it time extensions forced it to accelerate its work and to hire additional welders.

8. Concrete Testing. The contractor claimed that the District demanded that it perform extra tests on concrete which had been poured in winter without reimbursing it for the costs of these tests.

9. Fine Grading. The contractor claimed that the District's delays and interferences and failure to grant a time extension forced the contractor to fine grade the site in the winter, which made the work more costly.

10. Interference. The contractor claimed that the District interfered with and disrupted its work, causing the contractor to take 25.1 weeks longer to complete the project than it otherwise would have taken.

The claims and defenses asserted will be discussed more fully below.

II.EXCLUSION OF "NO DAMAGES FOR DELAY" AND NOTICE PROVISIONS FROM TRIAL

The District's first two assigned errors assert that the court committed prejudicial error by excluding from the trial all issues relating to the contract's "no damages for delay" and notice provisions. Those clauses provided:

"GC-5 DELAY FOR CAUSES BEYOND CONTROL:

"A.If the Contractor is delayed in completion of the Work and the proximate cause of the delay is an act of negligence of the C.R.S.D.; or lawfully authorized changes ordered in the Work by C.R.S.D.; or by labor disputes, fire, acts of God; or by Governmental controls, restrictions or regulations; or for any other cause which the C.R.S.D. shall determine is beyond the control of the Contractor; or by any cause which the C.R.S.D. shall decide to justify the delay, then, for all such delays and suspensions, which have been approved by the C.R.S.D., the Contractor shall be allowed one calendar day extension beyond the time herein stated for the completion of the Work for each and every calendar day of such delay so caused in the completion of the work, the same to be ascertained by the C.R.S.D.

"B.No such extension shall be made for any one or more of such delays unless within ten (10) days after the beginning of such delay a written request for additional time be filed with the C.R.S.D. In the case of a continuing cause of delay, only one request will be necessary.

"C.No claims for damages or any claim other than for extension of time as herein provided shall be made or asserted against the C.R.S.D. by reason of any delays hereinbefore mentioned.

"D.When, by reason of any of the causes stated herein, an extension of time has been allowed the Contractor for the completion of his work, he shall not be entitled to a bonus for completion prior to the date so extended."

"GC-37CLAIMS FOR DAMAGES:

"A.If the Contractor makes claim for any damages alleged to have been sustained by breach of Contract or otherwise, he shall, within ten (10) days after occurrence of the alleged breach or within ten (10) days after such damages are alleged to have been sustained, whichever date is the earlier, file with the C.R.S.D. a written itemized statement, in triplicate, of the details of the alleged breach and the details and amount of the alleged damages. The Contractor agrees that unless such statement is made and filed as so required, his claim for damages shall be deemed waived, invalid, and unenforceable, and that he shall not be entitled to any compensation for any such alleged damages.

"B.The Contractor shall not be entitled to claim any additional compensation for damages by reason of any direction, instruction, determination or decision of the C.R.S.D., nor shall any such claims be considered, unless the Contractor shall within ten (10) days after receipt of any such direction, instruction, determination or decision have filed a written protest with the C.R.S.D. stating clearly and in detail his objections therefore, and the nature and amount of additional compensation, if any, to which he claims to be entitled thereby. Unless the Contractor files such written protest with the C.R.S.D. within ten (10) days, he shall be deemed to have waived all grounds for protest of such direction, instructions, determination or decision and all claims for additional compensation or damages occasioned thereby, and shall further be deemed to have accepted such direction, instruction, determination or decision as being fair, reasonable and finally determinative of his obligations and rights under the Contract."

"SGC-10 EXTENSION OF TIME:

"All claims for extension of time shall be made in writing to the Engineer no more than ten (10) days after the occurance [sic] of the alleged delay, otherwise they shall be considered to have been waived.

"Unacceptable reasons for extension of time include, but are not limited to occurances [sic] such as rain, snow, sleet, ice, hail, high water in the Cuyahoga River or excessively hot or cold weather."

"SGC-17DISPUTES:

"All disputes arising under this Contract or its interpretation except those disputes covered by Federal Labor Standards provisions, whether involving law or fact or both or extra work, and all claims for alleged breach of contract shall within ten (10) days of commencement of the dispute be

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