Poorvu v. United States

• Decision Date: 23 January 1970
• Docket Number: No. 190-66.,190-66.
• Citation: 420 F.2d 993,190 Ct. Cl. 640
• Parties: Samuel W. POORVU and Beatrice Poorvu v. The UNITED STATES.
• Court: U.S. Claims Court

190 Ct. Cl. 640, 420 F.2d 993 (1970)

Samuel W. POORVU and Beatrice Poorvu v. The UNITED STATES.

No. 190-66.

United States Court of Claims.

January 23, 1970.

COPYRIGHT MATERIAL OMITTED

Joseph H. Elcock, Jr., Boston, Mass., attorney of record for plaintiffs. Edward J. McCormack, Jr., and McCormack, Elcock, Cohen & Matera, Boston, Mass., of counsel.

Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen., Shiro Kashiwa, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner William E. Day with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a) since September 1, 1969, Rule 134(h). The commissioner has done so in an opinion and report filed on April 29, 1969. Exceptions to the commissioner's opinion, findings of fact and recommended conclusion of law were filed by defendant. Plaintiffs moved that the court adopt the findings of fact and opinion contained in the commissioner's report. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law, with minor modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiffs are entitled to recover against the defendant and judgment is entered for plaintiffs in the amount of $381,651.27.

Commissioner Day's opinion, with minor modifications by the court, is as follows:

This is a breach of contract action arising out of an agreement between the plaintiffs' assignors (hereinafter referred to as the Formans or Forman) and the United States of America acting through the Post Office Department (sometimes hereinafter referred to as the POD). The material facts are set forth at length in the findings of fact accompanying this opinion and will be summarized here for consideration of the controlling legal principles.

In May 1956, having decided that a new post office facility was needed in Kansas City, Kansas, the Post Office Department obtained an assignable option to purchase certain land. Shortly thereafter (on July 3, 1956), the POD engaged the services of a Kansas City architect, Joseph W. Radotinsky, to design and supervise the construction of a post office and garage building on that land.

The plan was that ultimately the POD would enter into a long term lease with a private bidder, who would accept transfer to it of the government's option on the land, it would construct the building and its appurtenances in accordance with the plans which the architect had prepared for the government, and that the architect would be retained by the successful bidder to supervise construction of the entire facility.

Initially the POD (through its Architectural Branch, Division of Real Estate, Bureau of Facilities) provided Radotinsky's office with schematic drawings which established the general working area needs of the proposed facility. After receiving an analysis of the subsurface conditions of the proposed site from an independent expert in August 1956, and after preparation of initial diagrammatic plans for the construction of the facility, Radotinsky went to Washington, D. C., to see James M. Lowe (chief of the above-mentioned Architectural Branch). The topic of their conversation was twofold — the diagrammatic plans, and the subsurface conditions. Lowe agreed that because of the nature of the soil and fill in the land, extensive piling would be needed under the building. However, when told by Radotinsky that piling would also be needed under the extensive maneuvering and parking areas, Lowe chose to reserve his decision on such piling until the preliminary plans and cost estimates were submitted.

After the cost estimates and preliminary plans were completed and submitted, Radotinsky again came to Washington (shortly after Thanksgiving in 1956) to confer with Lowe. The outcome of this conference (over Radotinsky's objection) was that because of the cost involved, piling would be eliminated in the outside parking and maneuvering areas. Thereafter, final plans were drawn by the architect and used in the solicitation of the successful bidder who would assume the option to the land, assume the architectural contract with Radotinsky's firm, construct or have the facility constructed according to the plans and eventually lease the facility to the Post Office Department for an extended term with renewal options. The advertisement for such bids was published by the POD on February 17, 1957.

The bid of Forman to rent the proposed facility to the POD at an annual rate of $159,920 for an initial period of 30 years was accepted on June 21, 1957. The accepted bid specified that maintenance of the leased premises was to be the obligation of the government. However, by an amendment dated June 28, 1957, the parties agreed to 22 changes in the plans in order to reduce the cost of construction and further agreed that maintenance of the premises would be assumed by the lessor. This amendment also reduced the annual rental during the initial rental period from the above-mentioned $159,920 to $157,220.

The construction of the post office was completed, the building was accepted by the government and a lease was executed on August 22, 1958 for the term beginning July 21, 1958 and ending July 20, 1988, with one 10-year and two 5-year renewal option terms.

Paragraph 7 and 10 of that lease are as follows:

7. The Lessor shall, unless herein specified to the contrary keep the demised premises, including the building and any and all equipment, fixtures, and appurtenances, whether severable or non-severable, furnished by the Lessor under the provisions of this lease in good repair and tenantable condition, including but not limited to any necessary servicing contracts, to the satisfaction of the Post Office Department during its occupancy of the premises, except in case of damage arising from the act or the negligence of the Government\'s agents or employees. For the purposes of so maintaining the premises the Lessor reserves the right at reasonable times to enter and inspect the premises and to make any necessary repairs to the building. The Government shall pay for heat, all utilities, and custodial services.

* * * * * *

10. If any building or any part of it on the leased property becomes unfit for use for the purposes leased, the Lessor shall put the same in a satisfactory condition, as determined by the Postmaster General for the purposes leased. If the Lessor does not do so with reasonable diligence, the Postmaster General in his discretion may cancel the lease. For any period said building or any part thereof is unfit for the purposes leased, the rent shall be abated in proportion to the area determined by the Postmaster General to have been rendered unavailable to the Post Office Department by reason of such condition.

On March 1, 1961, the Formans conveyed the property and assigned the lease to the plaintiffs herein, Samuel W. and Beatrice H. Poorvu.

On September 8, 1962, on December 2, 1963, and again on August 28, 1964, breaks in the 4-inch water line to the building were discovered and the breaks were repaired. The expenses incurred in the repair of each break were sustained by the Poorvus. Slightly more than a month after the last break, settlement of the building had become so extensive¹ that Poorvu (who resides in Massachusetts) was notified by telephone of the conditions. Poorvu contacted Radotinsky in an effort to ascertain the extent of the damage. Garber-Renne Co. (an engineering consulting firm, hired to assay the nature and extent of the damage) concluded that there had been a general settlement of the ground which extended from the northeast corner of the property to the southwest corner of the building. The maximum settlement (which reached 1.75 feet at one spot) was found in areas in which extensive quantities of ground water were discovered in November 1964. Comparison of the subsurface investigation conducted in November 1964 with that made in 1956, revealed that the ground water found in the later examination was not present at the earlier date.

It was the ultimate conclusion of Radotinsky and the Garber-Renne personnel that the settlement in the maneuvering area over a substantial period of time had exerted a downward pressure on the water pipe which extended into the building from the property line. Since the pipe was supported by hangers as it passed under the building, but was not supported in the maneuvering area, the breaks resulted from the downward pressure in the maneuvering area. All the breaks occurred near the building.

As a result of the breaks, very large quantities of water flowed into the fill under the building. The nature of that fill was such that it easily became saturated with water and consequently lost its capacity to support the piles which supported the building. The obvious end result was the severe settlement and damage caused thereby.

Had the maneuvering area been constructed in the manner originally proposed by Radotinsky (i. e. piles supporting concrete slabs from which the pipes would be suspended), the extensive damage to the building would not have occurred, because the water pipes would not have sheared off.

Efforts to repair the damage caused by the extensive settling and to prevent future settlement, were undertaken and the costs were paid for by Poorvu. A claim for $392,854.84 was presented to the POD, to reimburse plaintiffs for those expenditures, but that claim was denied by the Comptroller General in decision B-136683 (45 Comp.Gen. 617, April 5, 1966) on the ground that the government was not liable for the damage incurred.

In order for plaintiffs to recover in this action, three legal questions must be...