Grant Const. Co. v. Burns

• Decision Date: 25 July 1968
• Docket Number: No. 10147,10147
• Parties: GRANT CONSTRUCTION CO., a Utah corporation, and Grant Company a co-partnership consisting of Joseph W. Grant, Willard J. Grant, Darwin L. Grant, Melvin A. Johnson and James I. Green, Plaintiffs-Respondents, v. Wallace C. BURNS, Ernest F. Gaffney and R. Doyle Symms, Acting as the Idaho Board of Highway Directors, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1005

443 P.2d 1005

92 Idaho 408

GRANT CONSTRUCTION CO., a Utah corporation, and Grant Company a co-partnership consisting of Joseph W. Grant, Willard J. Grant, Darwin L. Grant, Melvin A. Johnson and James I. Green, Plaintiffs-Respondents, v. Wallace C. BURNS, Ernest F. Gaffney and R. Doyle Symms, Acting as the Idaho Board of Highway Directors, Defendants-Appellants.

No. 10147.

Supreme Court of Idaho.

July 25, 1968.

Faber F. Tway, Chief Legal Counsel, Dept. of Highways and Jack C. Riddlemoser and F. Robert Studdert, Counsel, Dept. of Highways, Boise, for appellants.

Hawley, Troxell, Ennis & Hawley, Boise, for respondents.

SMITH, Chief Justice.

Respondents (plaintiffs) Grant Construction Company, a Utah corporation authorized to do business in Idaho, and Grant Company, a co-partnership, both engaging in highway construction work, seek by this action to recover damages for an alleged breach by appellants (defendants) Idaho Board of Highway Directors, of a highway construction contract. The contract involves a construction project on a portion of a highway in Bonner County, Idaho.

May 9, 1961, respondents submitted a bid for constructing a roadbed, drainage structures, and plantmix bituminous surface on 1.727 miles of Highway No. 2 between Priest River and Thama, known as Idaho Federal Aid Project No. F-5121(5) in Bonner County. Respondents having submitted the low bid on May 16, 1961, respondents and appellants Idaho Borad of Highway Directors entered into a contract for construction of the work. The contract consists of the bid, bond, plans, specifications, and Standard Specifications for Highway Construction in the State of Idaho, 1957 edition.

May 24, 1961, respondents were advised by appellants to commence construction of the project on or before June 1, 1961. The contract specified that the entire projuct, with certain exceptions not germane to this action, should be completed on or before November 1, 1961, and that liquidated damages for failure to complete the work by that date would be $300.00 per day thereafter. The Standard Specifications for Highway Construction, 1957 edition, published by the State of Idaho Department of Highways and incorporated into the contract at bar, states in pertinent part:

'105.07. Utility Facilities. Unless otherwise provided by the special provisions or plans, utility facilities, both above ground and below ground, that are required to be removed, altered or relocated as a part of the highway improvement will be removed, altered or relocated in advance of construction operations at no cost to the Contractor. The owners will be notified by the Engineer to remove, alter or relocate their properties within a specified time or times and the Contractor shall not interfere with said property before the expiration of the specified time or times.

'If, as a result of utility facilities not being removed or relocated as above provided, the Contractor sustains loss which could not have been avoided by the judicious handling of forces, equipment and plant, there shall be paid to the Contractor such amount as the Engineer may find to be a fair and reasonable compensation for such part of the Contractor's actual loss as, in the opinion of the Engineer, was unavoidable, except as otherwise provided in this subsection.

'Compensation for idle time of equipment shall be determined in accordance with the rates set forth in the special provisions or as agreed upon in writing. The daily rate shall be 50% of the hourly rate multipleied by 8 and compensation will be made for each calender day upon which the equipment is idle.

'Actual loss shall be understood to include no items other than necessary payments for idle time of men, idle time of equipment, cost of extra moving of equipment, and cost, of longer hauls, with no allowance in any case for overhead or profit.

'If performance of the Contractor's work is delayed as the result of the failure of the owners to remove or relocate utility facilities within the specified times, a commensurate extension of time will be granted.

'The Contractor will be required to work around utility facilities that are to be relocated and relocation has not been completed, and except as provided above, no additional compensation will be allowed by reason of such inconvenience.

'When it can be determined in advance that it will be necessary to move or alter any utility facility to permit the prosecution of construction operations, such utility facility will be shown on the plans or specified in the special provisions, and the work involved will be performed either by others at no cost to the Contractor or shall be performed by the Contractor and will be paid for as a contract item or as extra work as provided in Subsection 104.04 or 109.04 of these specifications. If a utility facility is encountered which is not shown on the plans or mentioned in the special provisions and which must be moved or altered to permit prosecution of construction operations, the work involved will be performed either by others at no cost to the Contractor or shall be performed by the Contractor and shall be paid for as extra work as provided in Subsection 104.04 or 109.04. However, such moving or altering of a utility facility as covered by this provision shall not be construed to include the moving or altering of any utility facility or other improvement solely for the convenience and benefit of the Contractor.'

June 6, 1961, respondents, in accordance with the requirements of the contract, submitted to appellants a schedule of construction, setting forth in a construction progrees time table the various phases of the construction work. Appellants accepted the schedule of construction without change or recommendation and, according to respondents, with full knowledge that the schedule of construction was dependent upon the timely removal of certain utility poles then obstructing the right-of-way and work area. Appellants allege that as early as September, 1959, Pacific Power & Light Company was notified of the project and of the necessity for relocating their power poles along the project.

After a formal hearing was had upon the issue of moving of utilities on the project, appellants, on April 13, 1961, entered an order requiring removal of the utilities, which order was sent to all companies having utilities on the project.

Respondents commenced construction as planned, but on June 22, July 5, and July 28, they notified appellants that the utility poles were interfering with performance of the contract. Respondents stated in their letter of notification that the failure to remove the poles would materially change the construction schedule and add materially to respondents' total costs. Appellants failed to cause the removal of the utility poles until September 1, 1961.

October 26, 1961, appellants extended the completion date of respondents' contract thirty-six additional working days as a result of the delay in removing the utility poles.

April 2, 1962, respondents, pursuant to Section 105.07 of the Standard Specifications, filed a claim with appellants for $47,550.94, for idle time of men and equipment and extra costs of moving equipment, resulting from the delay in removing the utility poles. April 23, 1962, respondents filed a supplemental claim for $158,405.65, arising from the same facts.

July 2, 1962, the State Highway Engineer approved payment to respondents of $38,263.04 as compensation for additional costs incurred by the delay in the removal of the utility poles, which sum repondents accepted as settlement of the claim of April 2, 1962; at the same time the State Highway Engineer denied the supplemental claim of $158,405.65. He approved, in a different action, additional compensation of $3,402.90 for costs caused by the delay. July 10, 1962, respondents acknowledged settlement of their original claim of April 2nd, and appealed to appellants the State Highway Engineer's denial of the supplemental claim of $158,405.65.

Appellants denied respondents' claim for additional compensation. September 23, 1963, respondents submitted their claim to the State Board of Examiners, requesting full payment of the sum of $167,693.55, which claim the State Board of Examiners denied in writing.

February 7, 1964, respondents petitioned this Court, requesting that the Idaho Board of Highway Directors be directed 'to perform their duties' and approve and certify respondents' claim to the State Auditor, or that original jurisdiction be assumed and judgment be entered in favor of respondents for $167,693.55. This Court denied respondents' petition.

On March 20, 1964, respondents commenced this action in the Ada County district court. Appellants moved to dismiss respondents' complaint on the grounds that it failed to state a claim against appellants, that the district court does not have jurisdiction to determine claims against the State, and that the Idaho Board of Highway Directors is immune from liability in this action by reason of sovereign immunity. December 1, 1964, the district court entered a memorandum decision denying appellants' motions to dismiss repondents' complaint.

April 6, 1965, appellants filed a motion for summary judgment, which the district court denied. After trial, and on March 1, 1967, the district court filed its memorandum decision, which in part recites:

'* * * the contractor's plan contemplated the performance of all of the remaining contract operations in a continuous sequence rather than in a piecemeal operation. Thus, as the contractor moved east on the project removing the unclassified excavation, it would have followed with the structural excavation that was necessary in the traveled portion of the readway to put in the underground facilities which went under or across the roadway.

'I have concluded that even though there may have been other feasible plans, perhaps plans which were even more feasible, the contractor's proposed plan was...