Pinkerton and Laws Co., Inc. v. Roadway Exp., Inc.

• Decision Date: 28 August 1986
• Docket Number: Civ. A. No. C84-1937A.
• Citation: 650 F. Supp. 1138
• Parties: The PINKERTON AND LAWS COMPANY, INC., Plaintiff, v. ROADWAY EXPRESS, INC., Defendant, v. OWENS-CORNING FIBERGLAS CORPORATION, Giffels, Bergstrom & Fricker, Inc. and St. Paul Fire and Marine Insurance Company, Defendants in Counterclaim.
• Court: U.S. District Court — Northern District of Georgia

650 F. Supp. 1138

The PINKERTON AND LAWS COMPANY, INC., Plaintiff, v. ROADWAY EXPRESS, INC., Defendant, v. OWENS-CORNING FIBERGLAS CORPORATION, Giffels, Bergstrom & Fricker, Inc. and St. Paul Fire and Marine Insurance Company, Defendants in Counterclaim.

Civ. A. No. C84-1937A.

United States District Court, N.D. Georgia, Atlanta Division.

August 28, 1986.

COPYRIGHT MATERIAL OMITTED

J. Ben Shapiro, Jr., Atlanta, Ga., for plaintiff.

Harry L. Griffin, W. Henry Parkman, Atlanta, Ga., for defendant.

ORDER OF COURT

HORACE T. WARD, District Judge.

The court currently has under consideration the following motions: (1) defendant's motion for partial summary judgment; (2) defendant's motion for sanctions; (3) plaintiff's motion for leave to file an amended complaint; (4) plaintiff's motion to supplement the record; (5) defendant's motion to supplement the record; (6) defendant's motion to strike; and (7) plaintiff's motion to dismiss the motion to strike. On May 2, 1986, the court heard oral argument on all motions outstanding as of that date. The court will rule on all pending motions in this order.

Procedural and Factual Background

This dispute arises out of a construction project in Ringgold, Georgia. Plaintiff, The Pinkerton and Laws Company ("P & L"), contracted in November 1981 to construct a freight terminal for defendant, Roadway Express, Inc. ("Roadway") in accordance with plans and specifications prepared by Roadway's architect. P & L subcontracted the excavation, grading, and fill portion of the work to Jerome Bradford Construction Company ("Bradford").

After P & L began work on the project, it and Bradford encountered difficulties in achieving the required soil compaction, primarily as a result of excess moisture in the soil. Bradford eventually abandoned the project, and P & L completed Bradford's portion of the work. P & L then brought this action, alleging breach of contract by failure to make progress payments or to disclose soil conditions, and fraudulent misrepresentation of soil conditions at the project site. Roadway answered and counterclaimed for damages for breach of contract, delay, and negligent construction.¹

Motions Regarding the Record

Before the court addresses Roadway's motion for partial summary judgment, it must resolve the various motions to include additional evidence in the record before the court. Roadway has moved to include excerpts from a second deposition of Lawrence Coil, and has filed the original deposition with the court. P & L has not opposed this motion, but has moved to supplement the record by including the affidavit of an expert witness, James Ahlberg. Roadway has filed an objection to this motion and also has moved to strike Ahlberg's affidavit. Not to be outdone, P & L then moved to dismiss Roadway's motion to strike.

These motions appear to be much ado about nothing. Both parties are entitled to include in the record any form of evidence contemplated by Fed.R.Civ.P. 56(e). Roadway objects to the Ahlberg affidavit on the grounds that it presents inadmissible evidence and does not indicate the affiant has first-hand knowledge of all facts to which he testified. Defendant argues that Auto Drive-Away Co. v. ICC, 360 F.2d 446 (5th Cir.1966) requires the court to strike an affidavit containing inadmissible evidence. However, in Auto Drive-Away, the former Fifth Circuit did not strike an affidavit, but instead rejected the appellant's challenge to an affidavit because no objection had been made in the lower court. Id. at 448-49.

Several judges in this district have held that the proper method for challenging the admissibility of evidence in an affidavit is to file a notice of objection to the challenged testimony, not a motion to strike. Friedlander v. Troutman, Sanders, Lockerman & Ashmore, 595 F.Supp. 1442 (N.D.Ga.1984), rev'd on other grounds, 788 F.2d 1500 (11th Cir.1986); Smith v. Southeastern Stages, Inc., 479 F.Supp. 593 (N.D.Ga.1977). This court concludes that Friedlander and Smith establish the preferred procedure. Affidavits are not included in the category of pleadings that may be subject to a motion to strike pursuant to Fed.R.Civ.P. 12(f). Of course, the court may consider only admissible evidence when deciding a summary judgment motion. However, the court will assess the admissibility of evidence presented through affidavits, depositions, or any other method as part of its consideration of the motion. As part of that assessment, the court will consider any objections to testimony presented in affidavits or any other form of evidence when it rules on the merits of a summary judgment motion.

Accordingly, both motions to supplement the record are GRANTED. The motion to strike is DENIED, and the motion to dismiss the motion to strike is DISMISSED AS MOOT.

Roadway's Motion for Partial Summary Judgment

1. Findings of Fact

Defendant has moved for summary judgment on Counts 2 and 3 of plaintiff's complaint, which sought damages for additional costs allegedly incurred as a result of excess moisture in the soil at the project site. Count 2 alleged breach of contract by failure to disclose the soil conditions, and Count 3 asserted a claim for fraudulent misrepresentation of the soil conditions. In essence, Roadway argues that P & L should be barred from asserting any claim for damages for extra costs incurred in the soil compaction phase of the project because P & L assumed the risk of any excess moisture or unfavorable site conditions. In response, plaintiff contends that Roadway failed to disclose important information it had regarding the soil conditions in violation of its legal and contractual duties.

After reviewing the depositions and affidavits filed in connection with this motion, the court finds the following material facts are not in genuine dispute:

(1) P & L and Roadway entered into a contract in November 1981 whereby P & L agreed to supply the labor and materials necessary to construct a motor freight terminal in Ringgold, Georgia.

(2) The contract documents comprise the Agreement, General and Special Conditions, drawings and specifications, addenda, and any change orders issued during the performance of the job.

(3) Relevant portions of the contract documents provide as follows:

Changes in Work: Changes in work may be ordered only upon written order from Owner. Cost or credit to Owner resulting therefrom shall be calculated in accordance with the method chosen by Owner pursuant to ARTICLE No. 1-18 of the General Conditions.

Merger of Understandings: This Agreement represents the entire contract between the parties hereto and supercedes all prior negotiations, representations or agreements, either written or oral. Any and all rights or duties arising hereunder are personal to the Contractor and cannot be assigned or delegated under any circumstances.

1.010 — General Conditions

1-15. Suspension of Work — Delay:

. . . . .

The Contractor may file proper claims for loss or damage on account of delays incurred by the Owner. If any delay is caused by any act of the Owner, or results from causes hereinbefore mentioned, the Contractor will be granted an extension of time for the completion of the work, sufficient to offset such delay if a claim is made by the Contractor in writing to the Engineer within seven days from the date upon which such delay started. No extension of time shall be granted for time lost during suspension of work due to the Contractor's failure to comply with the conditions or terms of the Agreement.

1-18. Changes in the Work:

The Owner, without invalidating the contract, may order extra work, or make changes by altering, adding to, or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract, except that the claim for extension of time caused thereby shall be adjusted at the time of ordering such change.

No extra work or change shall be made without a written order from the Owner, in which event the Contractor shall proceed with such extra work or change, and no claim for an addition to the contract sum shall be valid unless so ordered.

1.020 Special Conditions

2.2 Examination of Site:

The Contractor shall, before submitting his proposal, examine the site, inform himself of the conditions and make his own estimates of the facilities and difficulties attending the execution of the work.

Specifications

2.010 Soil Boring Logs

1.01 General:

Included in this Section of the Specifications are copies of forty-four soil boring logs taken at the site. These logs are part of subsurface investigations performed between February 9 and April 2, 1980, under separate contract by Law Engineering Testing Company, Atlanta, Georgia.

2.200 Earthwork

PART 1 — GENERAL

1.01 Scope of Work:

A. Under this Section of the Specifications the Contractor shall furnish all labor, plant and materials required to complete the following general items of work:

1. Preparation of areas to receive fills and the constructions of such fills.

2. General excavation and site grading.

3. Finish grading including all slopes, ditches and subgrade preparation.

4. Excavations and backfilling.

5. Spreading of stockpiled top-soil.

B. All general site grading shall be completed before work is started on the building foundations.

The Contractor shall visit the site, inform himself of the conditions and make his own estimates of the facilities and difficulties attending the execution of the work.

1.03 Inspection and Testing:

A. The Owner will provide and pay for continuous inspection and testing service using a qualified engineering testing laboratory. It will be the laboratory's decision, in conjunction with the Owner and the Engineer, as to the acceptability of any materials or work containing those materials.

B. If the initial test results fail to met the required specifications, the material shall be reworked and/or removed and recompacted and retested. All costs of reworking

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