Greater Johnstown School Dist. v. Frontier Ins. Co. Inc.
| Decision Date | 02 July 1998 |
| Citation | 252 A.D.2d 615,675 N.Y.S.2d 212 |
| Parties | , 127 Ed. Law Rep. 990, 1998 N.Y. Slip Op. 6584 GREATER JOHNSTOWN SCHOOL DISTRICT, Appellant, v. FRONTIER INSURANCE COMPANY INC. et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ruberti, Girvin & Ferlazzo (Patrick J. McKenna, of counsel), Albany, for appellant.
William J. Murphy, Albany, for respondents.
Before: CARDONA, P.J., WHITE, PETERS, SPAIN and CARPINELLO, JJ.
Appeals (1) from an order of the Supreme Court (Ferradino, J.), entered February 6, 1997 in Fulton County, upon a decision of the court in favor of defendants, and (2) from the judgment entered thereon.
In February 1992, defendant C.G. Tanner & Sons Inc. (hereinafter Tanner), a paving contractor, received a bid package from plaintiff which included drawings and specifications of proposed work to be performed at Knox Junior High School in the City of Johnstown, Fulton County. After the release of the original project specifications to all prospective bidders but prior to the award of the contract, plaintiff's architectural firm, Sergent, Webster, Crenshaw and Folley (hereinafter SWCF) issued two addenda. In March 1992, plaintiff awarded the site work and paving contract to Tanner as the lowest bidder. Pursuant to all applicable bid and contractual requirements, which incorporated the project specifications governing the paving and surfacing portion of this project, Tanner posted a performance bond issued by defendant Frontier Insurance Company Inc.
In February 1994, following premature deterioration, plaintiff discovered that Tanner had not installed a foundation course prior to its completion of the paving portion of the project. Plaintiff therefore withheld the remaining moneys it owed to Tanner and in August 1994 commenced this breach of contract action against both Tanner and Frontier. After a trial in August 1996, wherein the parties stipulated to certain facts and exhibits, Supreme Court dismissed the complaint by finding that one of the addenda issued after the release of the project specifications but before acceptance of any bids deleted the requirement in the contract that a foundation course of pavement be installed. It further found that plaintiff waived any provisions of the contract between it and Tanner which might have required the installation of the foundation course and that, due to its actions, plaintiff was estopped from pursuing its challenge. Plaintiff appeals.
Noticeably absent from Supreme Court's findings is a determination that the contract provisions and/or the various addenda are ambiguous. Hence:
The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance * * *. In the interpretation process, the objective is to determine the parties' intention as derived from the language employed in the contract * * *. In this regard, a court is duty-bound to adjudicate the parties' rights according to unambiguous provisions and give words and phrases employed their plain meaning * * * (Estate of Hatch v. Nyco Minerals, 245 A.D.2d 746, ----, 666 N.Y.S.2d 296, 298 [citations omitted] ).
Agreeing that the documents before the court were unambiguous, we note that the parties do not dispute that the original project specifications required that a foundation course be installed and that there are approximately five references to such requirement in the specifications.
The issue thus distills to whether this requirement was deleted by the addenda issued by the architect prior to the award of the contract. In support thereof, Clayton Tanner, president of Tanner, was permitted to testify, over plaintiff's objection, that on some unspecified date prior to submitting a bid he telephoned the SWCF Albany office and opined, to an unidentified individual, that the contract requirement for a foundation course of asphalt was not necessary. He further testified that the unidentified person agreed with his assessment and indicated that he would either be contacted or an addendum would be issued. When addendum No. 1 was issued, informing all prospective bidders that they must "[d]elete all reference[s] to 'Type I asphalt pavement' " and as well as "the words 'Type II' where ever they occur" in the original specifications, Tanner testified that he believed that the addendum was issued as a result of his conversation with the unknown SWCF representative. Accordingly, Tanner's bid did not include the cost of the foundation and none was laid.
Upon our review of the record and acknowledging the deference which should be accorded to the trial court's assessment of credibility issues (see, Hoover v. Durkee, 212 A.D.2d 839, 841, 622 N.Y.S.2d 348), we find that we must credit the testimony of Donald Van Cott, the project administrator for SWCF, over that of Tanner and the unidentified SWCF representative (see, id.). Van Cott testified that he was the only person fully familiar with the project specifications prior to the award of the contract and that all specific inquiries would have gone to him and not anyone else in SWCF's office. He further testified that he received no inquiries from Tanner or anyone else with respect to such deletion of the foundation requirement. Finally, by the instructions to bidders at section 13A, it was clear that "[n]o interpretations of the meaning of the drawings, specifications, or other Contract Documents will be made to any bidder orally".
Moreover, the language of addendum No. 1, in light of the contract provisions, makes it clear that the language did not delete the foundation course requirement in the other five references in the contract and that the subsequently issued addendum No. 2 clearly preserved a reference to placing a surface course over the foundation course. Notably, the diagram of the...
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