Hendry Corp. v. Metropolitan Dade County

• Citation: 648 So.2d 140
• Decision Date: 24 August 1994
• Docket Number: No. 92-44,92-44
• Court: Court of Appeal of Florida (US)
• Parties: 19 Fla. L. Weekly D1795 HENDRY CORPORATION, a Florida corporation, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.

Page 140

648 So.2d 140

19 Fla. L. Weekly D1795

HENDRY CORPORATION, a Florida corporation, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the

State of Florida, Appellee.

No. 92-44.

District Court of Appeal of Florida,

Third District.

Aug. 24, 1994.

Order Denying Rehearing

Jan. 4, 1995.

Charles S. Dale, Jr., and Richard L. Halpern, Ft. Lauderdale, Smith & Fleming and George D. Weniock, Peter M. Crofton and Kent Smith, Atlanta, GA, for appellant.

Robert A. Ginsburg, Dade County Atty., and Jay W. Williams, Asst. County Atty., for appellee.

Before BARKDULL ¹, BASKIN, and JORGENSON, JJ.

ON MOTION FOR REHEARING GRANTED

JORGENSON, Judge.

On consideration of Dade County's motion for rehearing, we grant the motion, withdraw our opinion filed October 26, 1993, and substitute the following opinion in lieu thereof.

The Hendry Corporation appeals from a final judgment finding that Dade County is Dade County solicited bids to demolish the old Rickenbacker Causeway bascule span and provided all bidders with a set of demolition plans and specifications for the project. The 1941 plans of the original bascule span were made available to the bidders for inspection before the bid deadline. Hendry submitted the lowest bid and the County awarded it the contract in December, 1985. Hendry's bid was based on its conclusion that the pilings supporting the old bridge were made of concrete. This conclusion was based upon visual observations, past experience, and an examination of the 1941 bascule plans.

not liable for additional costs incurred on a public project to demolish the old Rickenbacker Causeway connecting Key Biscayne to the mainland. We affirm.

Hendry encountered problems with the demolition and failed to complete the project within the time period specified by the contract. The County withheld $81,900 of the contract proceeds as damages for delayed completion. Hendry sued Dade County for breach of contract, alleging that the County was liable for costs that arose from unexpected site conditions. Specifically, Hendry alleged that after it started work on the project, it encountered two differing site conditions that required an equitable adjustment of the contract price. ² The first differing site condition alleged was the existence of wooden, rather than concrete pilings. Hendry contended that Dade County had an obligation to provide the bidders with the 1941 specifications for the bascule which would have shown that the pilings were wooden. Demolition of structures supported by wood pilings is more difficult than demolition of structures supported by concrete pilings. The second differing site condition that Hendry alleged made demolition more difficult and therefore more expensive was subsurface debris that remained from the original construction project. Hendry claimed that Dade County was aware of the debris but failed to notify the bidders.

Hendry asked the trial court to instruct the jury that Dade County had a duty to disclose to prospective bidders all available information relating to the project, and to warrant that the plans and specifications provided were full, complete, and accurate. The trial court denied Hendry's request; the jury returned a verdict for the County.

The trial court properly declined to instruct the jury as Hendry requested, as the requested instructions did not provide an accurate statement of the law concerning Dade County's duty to disclose. See Giordano v. Ramirez, 503 So.2d 947, 949 (Fla. 3d DCA 1987) (requested instructions must contain accurate statement of law, and facts of case must support giving those instructions).

In seeking reversal, Hendry asks this court to impose upon Dade County a duty heretofore not recognized in Florida--that Dade County had an obligation to disclose facts in its possession when its superior knowledge or silence would convey a false impression, even when it has made no affirmative misrepresentation. However, our courts have recognized only that the government has an affirmative duty to provide bidders with information that will not mislead them. Jacksonville Port Auth. v. Parkhill-Goodloe Co., 362 So.2d 1009 (Fla. 1st DCA 1978); Town of Longboat Key v. Carl E.

Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978). See also Champagne-Webber, Inc. v. City of Fort Lauderdale, 519 So.2d 696 (Fla. 4th DCA 1988). The law in Florida also provides that where a contractor is misled by relying on inaccurate representations, a disclaimer clause requiring inspection of the site will not prevent the contractor from recovering additional costs under a differing site conditions clause. Jacksonville Port Auth., 362 So.2d at 1012 (citing United States v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735 (1920)); Miami-Dade Water & Sewer Auth. v. Inman, Inc., 402 So.2d 1277 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982). However, a differing site conditions clause will be "triggered only where an inaccurate representation is relied on, not where there has been no representation." Inman, 402 So.2d at 1278 n. 2 (emphasis supplied). Moreover, in the absence of such misrepresentation, there will be no recovery under the differing site conditions clause if the contractor relies on its own inadequate investigation. Inman, 402 So.2d at 1278 n. 2.

Under the prior standard established by Florida cases, Dade County breached no duty to prospective contractors; it did not represent any material fact to the contractor that later turned out to be false. In Jacksonville Port Auth., the Port Authority furnished the contractor with boring reports that indicated that there was no significant rock in the area to be dredged. The Port Authority, however, was on notice that rock was in the area because another dredging contractor in an earlier project for the Port Authority encountered extensive rock in an adjacent area. The contract guaranteed that the information provided in the boring reports gave a general indication of the materials likely to be found. The court held that there was a duty to furnish information which would not mislead prospective bidders and found that the Port Authority misled the contractor by providing the boring reports knowing that they were inaccurate. Jacksonville Port Auth., 362 So.2d at 1013.

In Town of Longboat Key, the contractor also relied on misleading information provided by the town. To prepare its bid, the contractor relied on a subsurface soil analysis and an investigation provided by the town. The investigation indicated that the excavations could be kept dry by using the well pump method of dewatering. The contract specifications called for dewatering by the method suggested in the investigation. When the contractor began excavating, however, it encountered a high water level, and as a result, it had to use another more expensive method of dewatering. The court, recognizing that the contract contained a differing site conditions clause, held that the contractor could recover the additional costs even though the contract also contained an exculpatory clause requiring the contractor to examine the construction site. Town of Longboat Key, 362 So.2d at 722. These decisions simply do not stand for the proposition that the governmental entity has a duty to disclose all information in its possession that may be material to the bidding process.

In this case there was no misrepresentation by the County. Dade County never represented that the pilings were made of concrete, and the 1941 plans did not indicate that the old pilings were made of concrete. At trial, Aaron Hendry, the President of Hendry Corporation, testified that the 1941 plans were not clear as to the pilings' composition. Hendry also testified that the tapering shape of the old pilings was consistent with wooden pilings made from tree trunks.

Although Dade County did not provide the 1941 specifications for the bascule, which indicated that the bridge was supported by wooden rather than concrete pilings, there is no evidence in the record that Dade County withheld the 1941 specifications from Hendry. In fact, Hendry Corporation stated in response to interrogatories that in demolition projects, no owner had ever supplied it with specifications of the original structure. Hendry's Assistant Vice President for Engineering testified that in his many years of experience on demolition projects, specifications for the original projects were not provided with the original plans.

Dade County made no representations in the bid documents regarding the condition of the bay bottom. Although the County paid a contractor who had worked on the new In sum, we hold that the trial court properly instructed the jury, as Dade County has no duty to provide information to a contractor when the contractor knows, or should have known, of the conditions disclosed by the information, or where the bidding documents do not misrepresent material facts.

bridge span additional money due to a differing site condition, the subsurface debris encountered during construction of the new bridge was found beneath dry land under fill, on the mainland side of the bay. The subsurface debris encountered by Hendry was found under both water and bay bottom dirt, beneath the draw-bridge mechanism located midway on the old bridge connecting the mainland to Virginia Key. The County had no duty to disclose the additional payment it had made to another contractor, particularly where there was no indication that the debris found under the dry land was similar to the underwater debris that Hendry encountered. Moreover, there was substantial competent evidence presented at trial that Hendry knew, or should have known, that it would encounter subsurface debris.

AFFIRMED.

BARKDULL, J., concurs.

BASKIN, Judge (dissenting).

I disagree with the majority's conclusion that the trial court properly instructed the jury. Appellants' requested instruction was an accurate statement of the law regarding ...