Massman Const. Co. v. Missouri Highway and Transp. Com'n, WD

• Decision Date: 23 June 1992
• Docket Number: No. WD,WD
• Citation: Massman Const. Co. v. Missouri Highway and Transp. Com'n, 835 S.W.2d 465 (Mo. App. 1992)
• Parties: MASSMAN CONSTRUCTION COMPANY, Plaintiff-Respondent, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant-Appellant. 44211.
• Court: Missouri Court of Appeals

Page 465

835 S.W.2d 465

MASSMAN CONSTRUCTION COMPANY, Plaintiff-Respondent, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant-Appellant.

No. WD 44211.

Missouri Court of Appeals Western District.

June 23, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

July 28, 1992.

Application to Transfer Denied Sept. 22, 1992.

John W. Koenig, Jr., District Counsel, Sikeston, Michael C. Rose, Asst. Counsel, Rich Tiemeyer, Chief Counsel, Jefferson City, for defendant-appellant.

R.W. Miller, Stephen R. Miller, Kansas City, for plaintiff-respondent.

Before SPINDEN, P.J., and TURNAGE and BRECKENRIDGE, JJ.

TURNAGE, Judge.

Massman Construction Company filed suit against the Missouri Highway and Transportation Commission for additional compensation under a contract which Massman entered into with the Commission for the substructure work on a bridge across the Missouri River near Gumbo. The court entered judgment on a jury verdict in favor of Massman in the amount of $1,922,821.28 plus prejudgment interest. On this appeal the Commission contends the court erred in granting summary judgment to Massman on the issue of liability. Reversed and remanded.

In early 1983, the Commission advertised for bids for the substructure work on the Highway 40/61 bridge across the Missouri River near Gumbo. Massman was the successful bidder at $6,948,602.58. In July, 1983, Massman began to mobilize its St. Louis and Kansas City yards for the beginning of construction. At about the same time two engineers for the Commission were at the job site and noticed a disturbance in the water near the footprint of Pier 6. The disturbance was found to be caused by a rock revetment which had been placed in the River. ¹ The existence of the revetment was not shown on the plans given by the Commission to Massman and on which its bid was based.

When Massman began actual work it was found that the drilling shafts which were to be placed in the River to act as a foundation for Pier 6 could not be built without removing the revetment and the Commission authorized Massman to remove it. Massman completed its work, including the removal of the revetment, in March, 1986. In October, 1986, Massman filed a claim with the Commission for an additional payment of $2,249,993.99 representing additional costs to Massman to complete its contract because of the necessity to remove the rock revetment.

After extensive negotiations between Massman and the Commission, a settlement was reached in late 1986 by which the Commission issued Change Order 8 to the contract which provided for the payment of $314,308.39 to Massman for additional work.

In April, 1988, Massman filed this suit against the Commission by which it sought to recover the balance of its claim after the payment authorized by Change Order 8. During the course of discovery, Massman filed answers to interrogatories on January 30, 1989 admitting that it had placed rock revetments in the River under a contract with the U.S. Corps of Engineers in 1979 in the vicinity of the project site. This was the first knowledge that the Commission had that Massman had placed rock revetment in the River near the point where Pier 6 was to be located.

Massman filed a motion in limine to prevent the Commission from introducing evidence at trial that Massman had placed rock revetment in the River and also filed a motion for summary judgment on the issue of liability. Massman took the position that the Commission had admitted liability when it issued Change Order 8 and for that reason it was immaterial that Massman had placed rock in the River and there was no further issue of fact as to its liability. In suggestions filed in opposition to the motion for summary judgment, the Commission argued that Massman was not entitled to summary judgment on the issue of liability because it had admitted that it placed rock in the River near the project. The Commission pointed out that under Ideker, Inc. v. Missouri State Highway Com'n, 654 S.W.2d 617, 621 (Mo.App.1983), Massman had the burden to prove that it had no knowledge that the representation of the absence of rock on the plans was false or incorrect.

The court overruled the motion in limine but sustained the motion for summary judgment on the issue of liability. During the trial, evidence that Massman placed the rock revetment in the River adjacent to the bridge site at Pier 6 was admitted. However, the court instructed the jury that it could find in favor of Massman if it found that Massman sustained damages as a direct result of the positive representation of the Commission that Pier 6 could be constructed without encountering a rock dike. The jury was never instructed that knowledge by Massman that it placed rock in the River near the bridge site would bar Massman's recovery.

The decisive issue raised by the Commission is that the court erred in granting summary judgment to Massman on the issue of liability. In Ideker, this court held that six elements must be proven to constitute a cause of action ex contractu in the nature of a breach of warranty by a contractor against a governmental entity premised on a positive representation of a material fact. This court listed the six elements as follows:

(1) A positive representation by a governmental entity,

(2) Of a material fact,

(3) Which is false or incorrect,

(4) Lack of knowledge by a contractor that the positive representation of the material fact is false or incorrect,

(5) Reliance by a contractor on the positive representation of a material fact made by the governmental entity, and

(6) Damages sustained by a contractor as a direct result of the positive representation of a material fact made by the governmental entity.

Id. at 621.

In its order sustaining the motion for summary judgment on the issue of liability the court found that Massman encountered conditions not shown in the plans and specifications given to it by the Commission in the form of a rock...