Missouri Dept. of Transp. ex rel. v. Safeco, ED 79860.
| Decision Date | 05 November 2002 |
| Docket Number | No. ED 79860.,ED 79860. |
| Citation | 97 S.W.3d 21 |
| Parties | The MISSOURI DEPARTMENT OF TRANSPORTATION, ex rel. PR DEVELOPERS, INC., Plaintiff/Respondent, v. SAFECO INSURANCE COMPANY OF AMERICA and Robertson Contractors, Inc., Defendants/Appellants. |
| Court | Missouri Court of Appeals |
Mark G. Arnold, St. Louis, for respondent.
Richard R. Huck, St. Louis, Richard W. Miller, Kansas City, for appellant.
Robertson Contractors, Inc. ("Robertson") and the SAFECO Insurance Company of America ("SAFECO"), surety for Robertson, appeal from the judgment of the Circuit Court of St. Louis County, after jury verdicts which awarded damages to PR Developers, Inc. ("PRD") for breach of contract. SAFE CO also appeals from the judgment of the trial court following a jury verdict which awarded damages to PRD for vexatious refusal to pay and for attorneys' fees. This case resulted from a construction project ("Project") of the Missouri Highway and Transportation Commission ("MHTC" or "MoDOT")1 in which Robertson was the general contractor and PRD was a sub-contractor. A number of difficulties arose during the Project, which PRD alleged caused substantial delays to the completion of its work. PRD also alleged that it performed extra tasks not included in its sub-contract for which it did not receive full compensation. We affirm in part and reverse in part.
When viewed in the light most favorable to the verdict, the record shows that in 1998 MHTC took bids for the Project for the construction of a bridge, embankments, ramps and roadways at the interchange of Interstate Highway 55 ("I-55") and Routes H and HH. Robertson was the general contractor, and PRD was the subcontractor for the base rock and paving portions of the Project. The MHTC bid materials obtained by Robertson and PRD informed bidders that above-ground high voltage electrical utility lines were located in the northwest portion of the Project which needed to be raised by AmerenUE for embankment and ramp work in that area. MHTC had already informed AmerenUE of the need to do this for the Project.
Robertson used PRD's bid in submitting its own bid for the Project to MHTC, and MHTC awarded the contract ("Contract") for the Project to Robertson on October 2, 1998. Robertson and PRD entered into a written sub-contract ("Sub-Contract") on September 29, 1998 based on PRD's bid to Robertson. The Contract incorporated by reference the MTHC's Standard Specifications for Highway Construction ("Specifications"), and required that the work on the Project be done in accordance with the Specifications. The Contract provided that Robertson would have one hundred thirty working days to complete the Project, starting from March 15, 1999. The Specifications stated that if the contractor experienced delays due to the owners of utility facilities, the delay would be figured into the count of working days, and that would be the contractor's sole compensation from MHTC. According to the Specifications, the contractor would be subject to liquidated damages if it failed to complete the Project on time. The Sub-Contract incorporated by reference the Contract and the Specifications. The Sub-Contract stated that time was of the essence, but did not specify a start date. Under Special Provision "B" of the Sub-Contract, PRD would be assessed that part of any charges assessed against Robertson by the State of Missouri because of a failure to complete the Project on time which were due to PRD's operations. Pursuant to the Contract, Robertson obtained a contract bond from SAFECO.
On or shortly after Robertson entered into the Sub-Contract with PRD, Robertson had advised PRD that it intended to work on the embankments for the Project throughout the winter, weather permitting. Shortly after PRD signed the Sub-Contract, P. Mitchell Parris ("Parris"), president of PRD, had a conversation with either Ben Robertson or Ben Holt ("Holt"), president and vice-president of Robertson respectively, in which Parris was told that Robertson wanted PRD prepared to begin its work on March 15, 1999. PRD verbally agreed ("the Agreement") to this starting date, and committed itself to starting the Project on March 15th, expecting to be done within eighty working days, if not sooner. Around the time that the bid was let, Parris, responding to an inquiry from Robertson, had indicated that PRD would like to start work on the west side of the Project.
Parris visited the site of the Project in February, 1999, and observed that neither the embankments on the west side of the Project nor the embankments on the east side of the Project were completed. Mike May, Robertson's designated Project superintendent, informed Parris that the power lines needed to be relocated. Mike May also told Parris that the power lines would be moved by April 15, 1999, and that the Project site would be ready for PRD to begin work. Parris also expressed concerns to Mike May about the sandy subgrade material. On March 15, 1999, PRD submitted a value engineering proposal to Harvey Graham, a MoDOT engineer on the Project, sending a copy to Robertson as well, suggesting the use of soil cement to help stabilize the sandy subgrade material that Robertson was to use for the embankments. This value engineering proposal was rejected by MoDOT.
PRD was not able to begin its work on the Project until the end of May, 1999, and had to begin work on the east side of the Project, a delay of approximately fifty working days. Mike May had left the Project site by that time. PRD encountered problems with the tacks and the grades on the east side ramps which caused several days of delay, which required restaking the tack lines and grades by MHTC. PRD began to lay base rock over the sandy subgrade of the ramps placed by Robertson using the subgrade material specified by MHTC, but soon ran into trouble. Though the subgrade had been saturated, it still "deformed" under the weight of PRD's trucks, causing them to get stuck. PRD worked around this problem, suffering approximately a one-day delay.
Having laid the base rock over the sandy subgrade on the east side of the Project, PRD began paving over the base rock on June 16, 1999, and again experienced problems. The sandy subgrade deformed and rutted under the weight of PRD's paver, pushing out from under the sides of the base rock. PRD eventually dealt with the problem by constructing and laying out plywood tracks for the paver to run over the base rock to distribute the weight of the paver, which caused a delay of eleven work days.
PRD eventually finished the paving on the ramps on the east side of the Project by July 14th, and was ready to begin working on the west side of the Project by July 19th. Robertson had not yet completed the embankments and subgrade on the west side at that time, in part due to further staking problems by MoDOT, and it was not until August 16th that the subgrades on the west side ramps were ready for PRD to work, a delay of twenty working days, during which PRD could not use its paving equipment. PRD had problems on the west side with the subgrade when laying the base rock similar to those it had on the east side, causing about a day's delay. PRD handled the paving on the west side ramps as it had on the east side, using plywood tracks, and again experienced deformation of the sandy subgrade, resulting in a day's delay when the plywood track split over a portion of the deformed sandy subgrade and knocked out one of the sensors on PRD's paver.
PRD also experienced a delay of half of one day on September 2, 1999 due to grading problems at the tie-in between a ramp on the west side and the highway, again lacking proper staking. Work ran relatively smoothly until September 23, 1999, when PRD lost four working days due to the bridge being three inches too low where it was supposed to join Route HH. PRD experienced another delay from October 6th to October 13th, a loss of five working days, due to continued problems with grading and MoDOT's handling of the grade problems. PRD completed its final pour of concrete using its equipment on October 21st, though it continued on the job until January 20, 2000.
PRD also claimed that throughout the course of the Project, it did various extra tasks which were not part of its duties under the Sub-Contract pursuant to oral agreements with Robertson. The Sub-Contract specifically stated that any extra work had to be authorized by Robertson in writing.
On December 10, 1999, PRD sent a detailed letter to Robertson and SAFE CO concerning "the substantial claim for unpaid moneys that we [PRD] have regarding this job [the Project]." A copy of the contract bond and the Sub-Contract were attached to the letter. The letter stated the principal causes for the "disruption and delay" which damaged PRD were that: the jobsite was not ready for PRD on March 15, 1999; MoDOT failed to provide proper material for the subgrade for the ramps, which "deformed" under the weight of PRD's equipment; and MoDOT routinely failed to provide proper stakes and grades in a timely manner so as to permit PRD to do its work. PRD also stated in this letter that it had incurred extra costs in doing portions of its work due to acts done by MoDOT. This letter did not specifically state that PRD was making a claim against Robertson or against SAFECO under the contract bond, or that Robertson had breached the Sub-Contract.
Ann Hester ("Hester"), a senior claims representative for SAFECO, reviewed the December 10th letter, and determined that PRD's claims dealt with the actions of MoDOT, not Robertson. Hester contacted Robertson, which informed her that the December 10th letter involved...
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Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007), WD 65542.
...be raised for the first time in the reply brief, and are not properly preserved." Mo. Dep't of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 39 (Mo. App. E.D. 2002). The point is Point II In its second point, B&W claims the trial court erred in denying its mot......
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Smith v. Brown & Williamson Tobacco Corp.
...cannot be raised for the first time in the reply brief, and are not properly preserved." Mo. Dep't of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 39 (Mo.App. E.D.2002). The point is POINT II In its second point, B & W claims the trial court erred in denying ......
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Smith v. Brown & Williamson Tobacco Corporation, No. WD65542 (Mo. App. 9/2/2008), WD65542.
...be raised for the first time in the reply brief, and are not properly preserved." Mo. Dep't of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 39 (Mo. App. E.D. 2002). The point is Point II In its second point, B&W claims the trial court erred in denying its mot......
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