MARTA v. Green Intern., Inc.

• Decision Date: 20 November 1998
• Docket Number: No. A98A1575.,A98A1575.
• Citation: 235 Ga. App. 419,509 S.E.2d 674
• Parties: METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. GREEN INTERNATIONAL, INC. et al.
• Court: Georgia Court of Appeals

509 S.E.2d 674

235 Ga. App. 419

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. GREEN INTERNATIONAL, INC. et al.

No. A98A1575.

Court of Appeals of Georgia.

November 20, 1998.

Certiorari Denied March 5, 1999.

Pursley, Howell, Lowery & Meeks, John R. Lowery, Atlanta, for appellant.

Smith, Currie & Hancock, Philip L. Fortune, James K. Bidgood, Jr., Atlanta, for appellees.

SMITH, Judge.

Green International, Inc. and Seaboard Surety Company brought this action against Metropolitan Atlanta Rapid Transit Authority (MARTA), seeking damages in the amount of approximately $3.4 million for cost overruns and additional work on the Kensington Transit Station construction project. Green and Seaboard alleged that MARTA's plans and specifications were inadequate and defective and that MARTA did not correct the errors or administer the contract in a timely fashion, causing a significant increase in the costs of performance.

The case was tried before a jury, which returned a verdict in favor of Green and Seaboard for $2.8 million. The trial court denied MARTA's motion for judgment notwithstanding the verdict or for new trial, and MARTA appeals, asserting that Green and Seaboard failed to prove damages proximately caused by contract deficiencies, that they failed to comply with contract conditions precedent to recovery, and that the trial court erred in admitting two exhibits and refusing to admit another. Finding no error, we affirm.

1. First, we consider MARTA's contention that Green and Seaboard failed to prove damages proximately caused by contract deficiencies. In reviewing a jury verdict after denial of j.n.o.v. or motion for new trial, we follow well-established principles. "Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant's motion for directed verdict and new trial will not be disturbed." (Citations and punctuation omitted.) John Crane, Inc. v. Wommack, 227 Ga.App. 538, 489 S.E.2d 527 (1997).

Construed in this manner, the evidence shows that MARTA originally engaged Stolte Construction Company to build the project after Stolte submitted a competitive bid based upon plans and specifications provided by MARTA. These plans and specifications were flawed, however, because the firm MARTA hired to coordinate the architectural and structural drawings did not complete its work. The manager of design review for MARTA characterized this firm's performance as a "total disaster." The plans and specifications contained major errors, inconsistencies, and design flaws; a Green project manager and an office engineer described the design problems as the worst they had ever seen. Stolte began discovering these problems during construction and repeatedly notified MARTA of a potential claim due to deficient plans and asked for assistance. MARTA did not adopt any of Stolte's suggestions or respond to requests to address the problem. Green and Seaboard also presented evidence that MARTA did not prepare formal change orders in a timely fashion.

Stolte experienced "financial strain" as a result of the design deficiencies and MARTA's failure to correct them; eventually Seaboard, the surety on the project, designated Green to complete the work. The problems with design discrepancies and errors did not improve after Green took over management of the project but continued "right through the end of the concrete work."

The record is replete with evidence from many witnesses, who were personally involved in the management and supervision of the project, regarding the design deficiencies, MARTA's delay or failure to respond, and the resulting effect on the project. According to these witnesses, the state of the plans created a "design-as-you-go situation" requiring over 350 written requests for information and clarification or "RFIs" and over 1,000 new or revised drawings while the project was already underway. The witnesses testified that this piecemeal design scheme disrupted planning and coordination of the work, impaired efficiency, and caused additional costs, giving numerous specific examples. Green and Seaboard also presented expert witnesses who conducted a detailed evaluation of the claim, including review of all construction documents, interviews with Stolte and Green personnel, and scheduling and cost analysis. These experts analyzed the claim in terms of the plan deficiencies, the cause of loss of time and efficiency, and the value of that loss, allowing adjustments for more appropriate bid costs and expected or customary delays in similar work constructing other MARTA stations over a period of years.

MARTA contends that some of the corrective work performed by Green was compensated by change orders, that the change orders and RFIs contained waiver language, and that Green and Seaboard did not sufficiently distinguish between the claims remaining at trial and those already paid for and released. But evidence was presented that Green reserved its right to claim disruption and impact costs caused by the design deficiencies and distinguished between those reserved claims and those already compensated by change order.

Under OCGA § 13-6-2, "[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach." The trial court instructed the jury in the language of this Code section, proximate cause, damages as compensation for loss sustained as a result of defendant's breaches, and proof of the amount of damages. MARTA did not except to these instructions, which are a correct general statement of Georgia law.

Expert testimony will support a finding of the amount of damages caused by a party. Sanders v. Robertson, 196 Ga.App. 739(1), 397 S.E.2d 26 (1990) (in action against contractor and architect for negligent design and construction, expert testimony authorized jury to determine amount of damages "attributable or apportionable to" contractor). "The applicable law in Georgia is OCGA § 24-9-67, which provides: `the opinions of experts on any question of science, skill, trade or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.' Provided an expert witness is properly qualified in the field in which he offers testimony, and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility." (Citations omitted.) Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 592-593(4), 452 S.E.2d 159 (1994).

Green and Seaboard presented expert testimony calculating damages caused by the design deficiencies, setting out three different methods of calculation employed in the trade, and explaining which method produced the most accurate results in this case.¹

A very similar problem of damages analysis was presented in CRS Sirrine v. Dravo Corp., 219 Ga.App. 301, 464 S.E.2d 897 (1995), involving deficiencies in design documents prepared by the defendant that increased costs to the plaintiff construction contractor. We first remanded the trial court's bench trial judgment for clarification because of an apparent conflict between the amount of damages the trial court found and the amount awarded. CRS Sirrine v. Dravo Corp., 213 Ga.App. 710, 720-721(4), 445 S.E.2d 782 (1994).

On the second appeal, this Court considered and approved a revised judgment specifying the percentage of increased costs caused by the defendant and applying that percentage to various cost categories. CRS Sirrine, supra, 219 Ga.App. at 302, 303(1),464 S.E.2d 897. Our findings on the second appeal are equally applicable here. The defendant argued that reversal was required because the trier of fact found that the defendant did not cause all of plaintiffs' damages, and therefore should have limited the award to only those damages which were shown to result solely from specific breaches on the part of defendant. This Court rejected this proposed approach, observing that it "would establish a standard which would be almost impossible to meet, resulting in nonliability for the defendant even when it is clear that the defendant caused a substantial portion of the loss." Id. We reiterated the general approach to damages in Georgia, contrasting mere speculation with evidence that allows damages to be "estimated with reasonable certainty," despite difficulty in fixing the exact amount. "Thus, if a plaintiff can show with reasonable certainty the total amount of damages and the degree to which those damages are attributable to defendant, that is sufficient to support an award. And that is exactly what happened in this case." Id. The trial court did not err in denying MARTA's motion for j.n.o.v. and new trial on the basis of failure to prove causation or damages.

2. (a) In its second enumeration of error, MARTA contends that Green and Seaboard's claim is barred because Stolte failed to give timely notice of its claim under Article 39 of the general conditions to the project contract "within 15 days after the happening of the event or occurrence giving rise to the potential claim." MARTA also contends that Stolte failed to submit its claim in a timely fashion as required by Article 40 of the general conditions.

Assuming without deciding that...