Hillsborough County Aviation Authority v. Cone Bros. Contracting Co., 72--1027

• Decision Date: 27 April 1973
• Docket Number: No. 72--1027,72--1027
• Citation: 285 So.2d 619
• Parties: HILLSBOROUGH COUNTY AVIATION AUTHORITY, a public body corporate, Appellant, v. CONE BROTHERS CONTRACTING COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 619

285 So.2d 619

HILLSBOROUGH COUNTY AVIATION AUTHORITY, a public body corporate, Appellant, v. CONE BROTHERS CONTRACTING COMPANY, a Florida corporation, Appellee.

No. 72--1027.

District Court of Appeal of Florida, Second District.

April 27, 1973.

Rehearing Denied Nov. 28, 1973.

Stewart C. Eggert, Allen, Dell, Frank & Trinkle, Tampa, for appellant.

J. Rex Farrior, Jr., Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.

MANN, Chief Judge.

The Aviation Authority sought, in two counts, damages from Cone for its alleged failure to complete contracted work on time. The first count sought liquidated damages under a clause ¹ reciting the difficulty The trial judge held these clauses incompatible, and granted summary judgment on Count II, leaving the Authority only the agreed upon liquidated damages. We must reverse.

of determining exact damages for delay in completion of the Tampa International Airport and fixing rates at which liquidated damages were to be paid, a much higher rate being applicable to delay in the completion of work critical to the use of the airport. The second count is based on a clause ² which emphasizes the importance of Certain phases of the work which must be scheduled compatibly with other work, in accordance with the critical path method of contract scheduling. The damages claimed under Count II are alleged to result from payments the Authority was required to make to other subcontractors on account of their losses attributable to Cone's departure from the critical path.

In the interpretation of contracts, it must be assumed that each clause has some purpose, and if the question is, as here, whether clauses are compatible or contradictory, the court should interpret the contract in such a way as to give effect to every provision, unless such an interpretation distorts the plain meaning of the agreement. It is not inconceivable that the drafters of a contract--here, the Authority--might pull stock language out of the file in compiling the agreement, and interpretation against the draftman--the main support of the judgment appealed from--might result in the exclusion of actual damages by the liquidated damages clause. If the tenor of the agreement suggested inadvertent inclusion of the actual damages clause, we would think the appellee's position well taken, but in Section 5 the word 'certain' appears repeatedly and the tenor of the instrument suggests that the parties contemplated a liquidated damages clause (that in Section 4) to cover the damages sustained by the Authority as a result of delay in the use of the new airport. Section 5, however, suggests that failure to comply with critical path scheduling will subject the Authority to liability to other subcontractors, on account of which actual damages may be assessed against Cone.

The Authority relies on Hathaway & Co. v. United States, 1919, 249 U.S. 460, 39 S.Ct. 346, 63 L.Ed. 707, in which the contract stated 'The contractor shall pay, in addition to the liquidated damages hereinbefore specified, all expenses for inspection and superintendence.' The Supreme Court determined that 'there is no reason why parties competent to contract may not agree that certain elements of damage difficult to estimate shall be covered by a provision for liquidated damages and that other elements shall be ascertained in the usual manner.' (249 U.S. at 464, 39 S.Ct. at 347) This certainly makes sense, and refutes the appellee's quotation from Corpus Juris Secundum ³ to the effect that both liquidated and actual damages should not be awarded. This is true enough when we are discussing double recovery for the same element of damages, but if we attribute to the contract of these parties any meaning at all it must appear that there are some elements subjected to determination under the liquidated damages clause, while those arising under Section 5 are treated separately. The trial judge will, of course, insure that the Authority does not recover twice for the same element of damages.

We think that the interpretation of this contract is governed by the general principle stated in Restatement of Contracts, Sections 235(c) and 236(a):

§ 235(c) A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together.

§ 236(a) An interpretation which gives a reasonable, lawful and effective meaning to all manifestations of intention is preferred to an interpretation which These contract provisions are compatible. Court II should be reinstated. To the extent that Paragraph 5 provides for damages for elements not covered by Paragraph 4, it should be given effect.

leaves a part of such manifestations unreasonable, unlawful or of no effect.

Reversed and remanded.

LILES and BOARDMAN, JJ., concur.

ON PETITION FOR REHEARING

MANN, Chief Judge.

The appellee begins its petition for rehearing by stating: 'First, let there be no mistake that the absolute and unequivocal law of the United States prohibits the award of both liquidated damages and actual damages for the same elements of damage.' We agree. It may have passed unnoticed, but we specifically said in our original opinion, 'The trial judge will, of course, insure that the Authority does not recover twice for the same element of damages.' In denying this petition for rehearing we would point simply to the language of Paragraph 4.1 of the parties: 'Since both parties recognize that precise actual damages For delay are impossible of agreed determination, the fixed agreed and liquidated damages, described in General Conditions shall be as...