J. A. Jones Const. Co. v. City of Dover
| Decision Date | 28 February 1977 |
| Citation | 372 A.2d 540 |
| Court | Delaware Superior Court |
| Parties | 22 UCC Rep.Serv. 694 J. A. JONES CONSTRUCTION COMPANY et al., Plaintiffs, v. CITY OF DOVER, a Municipal Corporation of the State of Delaware, Defendant-Third-Party Plaintiff, v. GENERAL ELECTRIC COMPANY, a New York Corporation, and Westinghouse Electric Corporation, a Pennsylvania Corporation, et al., Third-Party Defendants. CHAS. E. BROHAWN & BROS., INC., a Maryland Corporation, Third-Party Defendant-Fourth-Party Plaintiff, v. GEORGE CONCRETE CO., a Delaware Corporation, Fourth-Party Defendant. |
Motion of General Electric Company and motion of Westinghouse Electric Corporation for Summary Judgment.
Walter L. Pepperman, II, of Morris, Nichols, Arsht & Tunnell, Wilmington, and C. Richard Rayburn, Jr. of Fleming, Robinson & Bradshaw Charlotte, N.C., of counsel, for plaintiff.
Nicholas H. Rodriguez, of Schmittinger & Rodriguez, Dover, for defendant and third party plaintiff City of Dover.
Stuart B. Young, of Young, Conaway, Stargatt & Taylor, Wilmington, for third party defendants General Elec. Co. and Federal Ins. Co.
Edward R. McNamara, of Brown, Shiels & Barros, Dover, for third party defendants Fischer & Porter of Warminister, Pa., and United Pacific Ins.
John R. Bowman, of Connolly, Bove & Lodge, Wilmington, for third party defendant Riley-Stoker Corp.
Stephen E. Herrmann, of Richards, Layton & Finger, Wilmington, for third party defendant Westinghouse Elec. Corp.
James W. Semple, of Flanzer & Isaacs, Wilmington, for third party defendant Laramore, Douglass & Popham of New York, Inc.
Daniel F. Wolcott, Jr., of Potter, Anderson & Corroon, Wilmington, for third party defendant Employers Commercial Union Ins. Co. and third party defendant, fourth party plaintiff Chas. E. Brohawn & Bros., Inc.
N. Maxson Terry, Jr., of Terry, Terry & Jackson, Dover, attorney for fourth party defendant George Concrete Co.
Henry J. Ridgely, of Ridgely & Ridgely, Dover, for third party defendant Frank Elec. Corp.
Plaintiff, J. A. Jones Construction Company, successor to Livsey & Company, Inc., and J. A. Jones Construction Company (Jones), 1 and defendant, City of Dover (Dover) contracted for Jones to install certain equipment and render services in connection with the expansion of Dover's electric generating plant for a contract price of $5,500,000. While the work to be done by Jones was substantial, the progress of the work was dependent upon work of other contractors on the job and upon proper deliveries by various suppliers of equipment and materials. In accordance with the current trend, Dover did not have a general contractor in the traditional sense. Instead, it contracted directly with different suppliers and contractors for different portions of the project.
The Jones contract provided for its completion within 15 months. Jones' complaint asserts that because of delays which were beyond Jones' control and were not Jones' responsibility, it was required to spend an additional 15 months in completing its contract performance. Jones seeks $925,285.92 as additional expense incurred because of the delays.
Jones has based its claim alternatively upon breach of implied covenant, quantum meruit, and tort, asserting gross neglect, recklessness and wilful wrongdoing. Dover has moved for summary judgment against Jones' claim.
Dover contends that Jones' claim for compensation in excess of the contract amount is barred by the terms of their contract. Dover relies on two contract provisions. 2
The portion of paragraph (A) of footnote 2 following the semi-colon in the last sentence deals with the limitation of Dover's liability and states:
'provided, however, that no such delay in the time for completion of the work or in the progress of the work shall result in any liability on the part of the owner, and provided further that any claim for extension of time shall be adjusted at the time any such delay occurs or any such change is made.'
The limitation is that 'no such delay in the time for completion of the work or in the progress of the work' shall result in liability to Dover. The use of the word 'such' in conjunction with 'delay' indicates that the quoted phrase was intended to refer to 'delay' of a type which had been mentioned, characterized or described in preceding language appearing in close proximity to the phrase which contained the word 'such'.
Examining the preceding portions of the paragraph, the only reference therein to 'delay' is found in the same sentence preceding the semi-colon, and reads:
'The time for completion shall be extended for the period of any reasonable delay due exclusively to causes beyond the control and without the fault of the Bidder, including acts of God, fires, strikes, floods, changes in the Plans and Specification as herein provided and acts or omissions of the Owner with respect to matters for which the Owner is solely responsible;'
Hence, the delay in time of completion which the contract provides shall not result in liability to the owner is the type of delay described in the quotation immediately above, namely, 'and reasonable delay due exclusively to causes beyond the control and without the fault of the Bidder.' Hence, the delay must be a reasonable delay and must be due exclusively to causes which are not within the control of and are not the fault of the plaintiff.
It is noted that immediately following the last quoted language is an enumeration of eventualities which are specifically stated to be included within the above-quoted delay clause. Dover contends that the delay referred to in the non-liability clause refers back only to the specific eventualities. This contention overlooks the context in which the specific eventualities appear, namely, not as delays in themselves but as 'causes' of delay. It further overlooks the fact that the enumerated eventualities are preceded by the word 'including' which indicates that they were not intended to have independent treatment, but were merely specific examples of matters intended to be covered by the general language which preceded the enumeration, namely, 'any reasonable delay due exclusively to causes beyond the control and without the fault of the Bidder.' Cf. Northeast Clackamas C.E. Co-Op v. Continental Gas Co., 9 Cir., 221 F.2d 329 (1955).
Dover also contends that the phrase 'such delay' appearing in the portion of the sentence following the semi-colon was not intended to refer back to the phrase 'reasonable delay'. No valid basis has been shown for the extraction of the word 'reasonable' from its context as a descriptive adjective modifying the word 'delay' nor is it necessarily extracted because the phrase 'such delay' was used rather than the phrase 'such reasonable delay'.
Dover also contends that the word 'reasonable' relates to the reasonableness of the length of time of the delay and not the reasonableness of all of the factors entering into the delay, including its causation. This argument would have appeal, were it not for the presence of the phrase 'for the period of' immediately preceding the reference to reasonable delay. Since the word 'period' refers specifically to time, while the word 'delay' often has references broader than mere reference to time, it must be assumed that since the word 'reasonable' was used to modify 'delay' rather than to modify 'period,' the requirement of reasonableness is not confined to the reasonabless of the period of time but was intended to relate to the reasonableness of all of the factors constituting the delay.
Dover contends that the provision at the end of the quoted sentence which contemplates that the extension of time will be 'adjusted at the time any such delay occurs' indicates that it refers to the causal enumerations discussed above. This contention apparently is based on the proposition that a reasonable delay is a mandated extension of the time of completion and does not need to be 'adjusted.' Assuming the word 'adjusted' to mean that the matter would be resolved or settled, common experience is such that any matter which includes a standard of 'reasonableness' is something on which people can differ and, therefore, an adjustment of the matter would be necessary. The need for 'adjustment' applies whether the extension involves the question of 'reasonable delay' or whether it involves the eventualities enumerated after the word 'including.' Hence, Dover's argument gains nothing from the reference to 'adjusted.'
Finally, attention is directed to the phrase 'or any such change is made.' Dover notes that the only reference to 'change' is found in the enumerated eventualities. It appears that the clause after the words, 'provided further,' which fixes the time for raising and adjusting claims for extension of time does relate that time to the occurrence and that one of the occurrences may be a change in the plans and specifications. However, this usage does not require rejection of the construction reached above.
Dover also contends that under Jones' construction there could be no extension for an unreasonable delay, regardless of the cause. From the wording of the sentence, it is clear that the parties did not address themselves to the question of unreasonable delay. This may be because they assumed that the parties would perform in a businesslike way and not in an unreasonable way. In any case, it is clear that in limiting extensions to those for reasonable delays and in using the abbreviated reference to 'such delays' in its limitation of liability clause, Dover has confined its limitation of liability to reasonable delays. To have dealt with the subject of unreasonable delays would have invoked more complex considerations including the causation of the unreasonable delay.
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