Idaho State University v. Mitchell, s. 11735 and 11736
| Decision Date | 26 February 1976 |
| Docket Number | Nos. 11735 and 11736,s. 11735 and 11736 |
| Citation | 97 Idaho 724,552 P.2d 776 |
| Court | Idaho Supreme Court |
| Parties | IDAHO STATE UNIVERSITY, Plaintiff-Respondent, v. Leslle L. MITCHELL, d/b/a Mitchell Construction Co., Defendant-Appellant. Leslle L. MITCHELL, d/b/a Mitchell Construction Co., Third-Party Plaintiff-Respondent, v. BINGHAM MECHANICAL & METAL PRODUCTS, INC., an Idaho Corporation, Third-Party Defendant-Appellant. |
Michael G. Brady, Moffatt, Thomas, Barrett & Blanton, Boise, for appellant Mitchell Const. Co.
Gary T. Dance, Merrill & Merrill, Pocatello, for third party defendant-appellant Bingham Mechanical & Metal Products, Inc.
Herman J. McDevitt, McDevitt & McDevitt, Pocatello, for respondent Idaho State University.
On July 1, 1970, the interior of the recently completed but never before used sports arena of Idaho State University at Pocatello (hereinafter 'ISU'), the 'Minidome,' was flooded with over a foot of water and tons of silt and debris which damaged the arena's artificial turf. The incident occurred because one of the two water pipes which supplied the structure had failed. In an attempt to recover its costs of repair and cleanup, ISU sued the contractor, Mitchell Construction Co., and the architect, Cedric M. Allen, on theories of negligence and breach of contractual warranties. Subsequently, Mitchell filed a third party complaint against Bingham Mechanical & Metal Products, Inc., the subcontractor which installed the water pipe that had failed.
The water pipe that broke ran laterally from a water main which paralleled the west side of the sports arena and entered the building at its southwest corner. There was a similar lateral pipe running from the same water main which entered the building at the northwest corner. These pipes were laid by Bingham Mechanical on backfill soil which was compacted by Mitchell Construction according to specifications made by the architect Cedric Allen.
In late 1973, prior to Mitchell's third party complaint against Bingham Mechanical, depositions were taken of Brent Ballif, a consulting engineer who was employed by both ISU and the architect; John Korbis, the director of the physical plant at ISU; the architect Allen; and the contractor Mitchell. These depositions focused on the sufficiency of the architect's plans and specifications for laying of the water pipes and the requirements for compaction of the backfill on which the pipe was laid, the manner in which the pipe was laid and the soil compacted, and theories as to the cause of the pipe failure. On November 14, 1973, Mitchell filed its third party complaint against Bingham Mechanical. On November 23, 1973, ISU moved for summary judgment against Mitchell Construction Co. and thereafter the architect Allen moved for summary judgment in his favor.
In a memorandum decision and order dated February 26, 1974, the trial court ruled that there was no genuine issue of fact concerning the alleged negligence of the architect and granted summary judgment in his favor against ISU. It then concluded that ISU's motion for summary judgment on the issue of liability should be granted against Mitchell, based on the warranty given by the contractor. In this same opinion the trial court determined that Mitchell Construction Co. had a right to look to Bingham Mechanical for indemnification based on the subcontractor's warranty given to the contractor. There had been no motion for summary judgment on the third party complaint made by either Mitchell or Bingham Mechanical, but the court reasoned that the issues were so interrelated that the entire matter should be disposed of together. Formal orders were entered granting partial summary judgment on the issue of liability in favor of ISU against Mitchell Construction Co., and in favor of Mitchell Construction Co. against the subcontractor, Bingham Mechanical, and also granting the architect's motion for summary judgment. Bingham Mechanical filed a motion for relief from judgment on the ground that the trial court was without jurisdiction to grant summary judgment against the subcontractor when no motion for such summary judgment was before it, which motion was denied.
Following a hearing on the issue of ISU's damages, judgment was entered in the main action on June 3, 1974. On July 25, 1974, judgment was entered in the indemnification action against Bingham Mechanical. Mitchell and Bingham Mechanical appeal from these judgments, while ISU has acquiesced in the judgment entered in favor of the architect. Since these two appeals raise different questions of law, we will consider them separately.
NO. 11795: ISU v. MITCHELL CONSTRUCTION CO.
The construction of the Minidome was divided into three distinct contracts. The Phase I contract encompassed construction solely of the superstructure itself; the Phase II contract included the construction of the substructure and the general construction of the stadium, up to and including the asphalt subfloor upon which the artificial turf was placed. The third contract was for the procurement and installation of the artificial turf. Mitchell Construction Co. was the successful bidder for Phase II of the contract, entering into the contract with the Idaho Department of Public Works in 1968.
The 'General Conditions of the Contract for Construction,' plaintiff's exhibit 'C', governs the duties and relationships among the owner (ISU), the contractor (Mitchell Construction Co.) and the architect (Allen). This document is divided into fourteen articles. Article 4 of the contract governs the activities of the contractor. Section 4.18.1 of this article is entitled 'Indemnification' and reads as follows:
'4.18.1 The Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.'
Article 13 of the contract relates to the unconvering and correction of work. Section 13.2.2 provides:
Article 1 of the General Conditions of the Contract defines certain terms which are used as words of art throughout the document. 'The Work' is defined as:
The term Work includes all labor necessary to produce the construction required by the Contract Documents, and all materials and equipment incorporated or to be incorporated in such construction.'
Article 8, relating to time, defines the Date of Substantial Completion of the Work as:
'8.1.3 The Date of Substantial Completion of the Work or designated portion thereof is the Date certified by the Architect when construction is sufficiently complete, in accordance with the Contract Documents, so the Owner may occupy the Work or designated portion thereof for the use for which it is intended.'
The architect Cedric Allen issued to Mitchell Construction a certificate of acceptance of Phase II on May 4, 1970, two months prior to the pipe failure.
Initially we note the rule to be that if parties to a contract have provided the measure of damages to be recoverable for breach of the duties imposed by the contract, they are bound by such provision and liability thereunder is restricted to the terms of the contract. Grant Construction Co. v. Burns, 92 Idaho 408, 443 P.2d 1005 (1968). Barring questions of unconscionability or public policy, such provisions are upheld even where the effect is to limit a party's common law liability for breach of contract. Magar v. Lifetime, Inc., 187 Pa.Super. 143, 144 A.2d 747 (1958); Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d 1013 (9th Cir. 1970). Since the Phase II contract between ISU and Mitchell Construction Co. contained provisions governing the liability of the contractor under the contract, those provisions must be applied regarding the existence and the extent of its liability if recovery is predicated on that contract rather than a separate tort theory. 1
Upon close examination of the record and the contract documents which have been included in the record, 2 we note that any recovery based on contractual warranties appearing in the record which the contractor gave to ISU must fall within the indemnification section, § 4.18.1, or within the section providing for correction of defective work, § 13.2.2. Since we determine that the judgment against the contractor cannot be affirmed under either of these contractual warranties, we must reverse and remand this case to the trial court.
This provision states that if any of the Work is found to be defective or not in accordance with the contract documents within one year after the date of substantial completion, the contractor will promptly correct it. The language conditions the...
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