Maryland Cas. Co. v. Department of General Services

• Decision Date: 11 March 1986
• Docket Number: No. BI-298,BI-298
• Citation: 11 Fla. L. Weekly 614,489 So.2d 54
• Parties: 11 Fla. L. Weekly 614 MARYLAND CASUALTY CO., Appellant, v. DEPARTMENT OF GENERAL SERVICES, the Florida Board of Regents, Moore May Graham Brame Poole/Architects, Inc., Geiger Berger Associates, P.C., Printer Contracting Co., Inc., David H. Geiger, and Lester N. May, Appellee.
• Court: Florida District Court of Appeals

Page 54

489 So.2d 54

11 Fla. L. Weekly 614

MARYLAND CASUALTY CO., Appellant, v. DEPARTMENT OF GENERAL SERVICES, the Florida Board of Regents, Moore May Graham Brame Poole/Architects, Inc., Geiger Berger Associates, P.C., Printer Contracting Co., Inc., David H. Geiger, and Lester N. May, Appellee.

No. BI-298.

District Court of Appeal of Florida First District.

March 11, 1986.

Rehearing Denied April 11, 1986.

Jonathan L. Alpert, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.

Thomas M. Beason, of Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A., Tallahassee, for appellee.

ZEHMER, Judge.

Maryland Casualty Co., one of the defendants in this action against its insured, Pinter Contracting Co., and others, appeals an interlocutory order denying its motion to compel arbitration or, in the alternative, to dismiss appellees' complaint for lack of jurisdiction. We have jurisdiction of this appeal under rule 9.130(a)(3)(C)(v), Florida Rules of Appellate Procedure.

The following essential facts appear in the complaint and in plaintiffs' response to a request for more definite statement. The Department of General Services (DGS) and the Board of Regents (BOR) approved a project for the construction of a mass seating/natatorium facility, now known as the O'Connell Center, at the University of Florida. DGS and BOR contracted with Moore May Graham Brame Poole Architects, Inc. (Moore, May), to provide professional services for design of the facility. Moore, May in turn contracted with Geiger Berger Associates, P.C. (Geiger Berger), a consulting engineering firm, to provide structural and other engineering services. Moore, May and Geiger Berger prepared the design and project drawings, which were then used by DGS as the basis for soliciting bids. Bids were received, and the apparent low bid exceeded the estimate of probable construction costs prepared by Moore, May and Geiger Berger by more than $1,000,000. Moore, May and Geiger Berger requested and were authorized by DGS to meet with the low bidder, Dyson and Co., and various proposed subcontractors to review reasons for the large disparity between the bid and the estimated probable cost. This review indicated major differences in the cost of precast concrete elements forming the major structural elements of the project.

During these post-bid meetings, Geiger Berger suggested that Pinter Contracting Co., Inc., a precast contracting and engineering firm with whom Geiger Berger had prior business arrangements, was adept at devising methods for reducing the cost of precast concrete work and proposed that Dyson work with Pinter, in lieu of its proposed precast subcontractor, to develop reduced prices for the precast work. Consequently, Geiger Berger consulted with Pinter for the purpose of reviewing the existing structural design and proposing modifications to achieve cost savings that would bring the Dyson price proposal within the amount of available funding. Pinter and Geiger Berger prepared sketches conceptually depicting certain major structural revisions to the project, primarily in changing many of the large precast concrete elements, and Pinter represented that the recommended changes would reduce the cost but would not affect the structural integrity of the structure. Pinter prepared its revisions and price proposal in hopes of becoming Dyson's precast subcontractor on the project. Unknown to DGS and BOR, Pinter offered to hire Geiger Berger to do the necessary engineering and issue revised structural drawings at Pinter's expense.

DGS and BOR accepted and relied on Moore, May and Geiger Berger's recommendations, which were based on Pinter's advice, that the proposed structural modifications were safe and consistent with the intended design and function of the O'Connell Center. After the proposed revisions were incorporated into the bid drawings and specifications by written addendum prepared by Moore, May and Geiger Berger, DGS and BOR executed a contract with Dyson as general contractor for construction of the facility. This construction contract anticipated that Moore, May and Geiger Berger would immediately prepare and issue revised architectural, structural, and other drawings to be used as final contract drawings for the project.

The allegations in count two of the complaint specifically implicate Pinter in the following fashion. Unknown to DGS and BOR, Pinter and Geiger Berger collaborated during the post bid negotiations in preparing and recommending proposed changes to the project and agreed that, in the event the construction contract was awarded, Pinter would, at its own expense and responsibility, employ Geiger Berger to prepare and issue the revised structural drawings incorporating Pinter's proposals, and Pinter and Geiger Berger agreed that during construction Geiger Berger would incorporate further modifications...