Reiman Const. Co. v. Jerry Hiller Co.

• Decision Date: 25 November 1985
• Docket Number: 85-40,Nos. 85-39,s. 85-39
• Citation: 709 P.2d 1271
• Parties: REIMAN CONSTRUCTION COMPANY, a Wyoming Corporation, Appellant (Defendant), Gerald Deines & Associates; Chen & Associates, Inc., a Colorado corporation; and Volk and Harrison, P.C., a Wyoming corporation, (Defendants), v. JERRY HILLER COMPANY; and Gerald G. Hiller and Betty B. Hiller, d/b/a Jerry Hiller Company, Appellees (Plaintiffs). GERALD DEINES & ASSOCIATES; Volk and Harrison, P.C., a Wyoming corporation, Appellants (Defendants), Reiman Construction Company, a Wyoming corporation; Chen & Associates, Inc., a Colorado corporation, (Defendants), v. JERRY HILLER COMPANY; and Gerald G. Hiller and Betty B. Hiller, d/b/a Jerry Hiller Company, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 1271

709 P.2d 1271

REIMAN CONSTRUCTION COMPANY, a Wyoming Corporation, Appellant (Defendant), Gerald Deines & Associates; Chen & Associates, Inc., a Colorado corporation; and Volk and Harrison, P.C., a Wyoming corporation, (Defendants), v. JERRY HILLER COMPANY; and Gerald G. Hiller and Betty B. Hiller, d/b/a Jerry Hiller Company, Appellees (Plaintiffs).

GERALD DEINES & ASSOCIATES; Volk and Harrison, P.C., a Wyoming corporation, Appellants (Defendants), Reiman Construction Company, a Wyoming corporation; Chen & Associates, Inc., a Colorado corporation, (Defendants), v. JERRY HILLER COMPANY; and Gerald G. Hiller and Betty B. Hiller, d/b/a Jerry Hiller Company, Appellees (Plaintiffs).

Nos. 85-39, 85-40.

Supreme Court of Wyoming.

Nov. 25, 1985.

Cameron S. Walker of Schwartz, Bon, McCrary & Walker, Casper, for appellant (defendant) Reiman Const. Co.

David A. Scott of Murane & Bostwick, Casper, for appellants (defendants) Gerald Deines & Associates, and Volk & Harrison, P.C.

Warren R. Darrow and Don W. Riske of Riske, Edmonds & Darrow, P.C., Cheyenne, for appellees (plaintiffs) Jerry Hiller Co. and Gerald G. Hiller and Betty B. Hiller, d/b/a Jerry Hiller Co.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

BROWN, Justice.

This appeal results from an action for damages due to the faulty construction of a commercial building and warehouse near Casper, Wyoming. The owner of the building, appellee Jerry Hiller Company (hereinafter Hiller), filed suit against the soils In Case No. 85-39, Reiman appeals from the judgment and raises the following issues:

engineering firm of Chen & Associates (hereinafter Chen), the architectural firm of appellant Gerald Deines & Associates (hereinafter Deines), the engineering firm of appellant Volk & Harrison, P.C. (hereinafter Volk & Harrison), and the building contractor, appellant Reiman Construction Company (hereinafter Reiman). At the close of Hiller's case, the court dismissed the complaint against Chen and rendered judgment in favor of Hiller, finding Deines, Volk & Harrison, and Reiman negligent and liable to Hiller for the damage caused.

"1. Will the evidence in this case support a judgment against Reiman Construction Company?

"2. Did the District Court err in refusing to specify its method of computing damages, thereby preventing an effective review?

"3. Did the District Court err in failing to determine specific percentages of negligence?

"4. Did the District Court err in failing to allocate damages among the defendants?"

In Case No. 85-40, appellant Deines and appellant Volk & Harrison together seek review of the judgment and raise the following issues:

"A. The Trial Court committed reversible error in failing to assess negligence against the Appellees.

"B. The Trial Court committed reversible error in failing to assess negligence against Defendant Chen and Associates.

"C. The Trial Court committed reversible error in awarding damages that were excessive."

The appeals were consolidated for argument and opinion. We will reverse the trial court's judgment finding Reiman negligent in Case No. 85-39. In Case No. 85-40, we will affirm the trial court's judgment finding Deines and Volk & Harrison negligent. On the issue of damages, we will remand the case to the district court.

In August 1977, Hiller entered into a contract with the architectural firm of Deines to design an office and warehouse building. Deines subsequently obtained a soils report from Chen and enlisted the engineering services of Volk & Harrison to design the foundation and floor of the building. When all the construction bids were received, Reiman's was the lowest at $604,000, but well above the projected cost of $450,000. Therefore, all bids were rejected, and Hiller, at the suggestion of Deines, retained an outside consulting engineer to modify the building design and thereby reduce the construction cost. After the modification plans were completed, Reiman agreed to construct the building, as modified, for the sum of $542,551.

The Chen soils report was used by both Deines and Volk & Harrison in the original design as well as the subsequent modified design. However, as Reiman points out in its brief, the plans did deviate from the soils report in the following respects:

"(1) Sheet FF of the plans showed that the floor slab was to be tied directly to the foundation, without providing for an expansion joint;

"(2) The roof drain on the north side of the building discharged directly against the side

"(3) No sloping contour lines were shown on the north side of the building * * *."

Construction on the building was substantially completed in December of 1979, and Hiller moved into the building. Subsequently, in July of 1981, inspection revealed cracks in the building. All witnesses agreed the damage was caused by water infiltrating into the foundation, causing the soil to expand.

In its decision letter, the trial court found:

"1. In August of 1977, plaintiffs and defendant Deines contracted for Deines to design an office and warehouse building for plaintiffs. Deines retained defendant Volk and Harrison as structural engineer. In January of 1979, plaintiffs and defendant Reiman contracted for construction "2. In September of 1977, a soils report was submitted by defendant Chen noting that the underlying soil possessed a high swell potential. Chen recommended that the building be designed to account for this with particular reference to the floor, exterior ground slope, and roof drain discharges. This report was submitted to Deines, made available to Volk, and included in the specifications for the Reiman contract.

of the building in accordance with plans and specifications prepared by Deines and Volk.

"3. The building was not designed and constructed to accommodate the findings and recommendations of the soils report. The design and construction should have allowed for vertical movement of the floor and walls, for roof drains to discharge water a sufficient distance from the foundation, and for adequate exterior ground slope to drain water away from the building.

"4. Defendants had a duty to design and construct the building in accordance with the soils report. The breach of this duty was negligence and below standards in the industry. It was technically feasible to design and construct the building to allow for the soil conditions.

"5. As a result of the negligence of defendants, roof drains discharged water too near the foundation and the drainage slope north of the building was inadequate. Water thus flowed underneath the floor slab, causing the ground to swell. The slab heaved, causing cracks in the floor, walls, and ceiling and relating damages throughout the office portion of the building.

"6. Cracks appeared in the concrete before completion of the building. Plaintiffs occupied the building in December of 1979, with the understanding that the defects had been or would be corrected by Deines and Reiman.

"7. There was no negligence by Chen or plaintiffs or, if they were negligent, it was not a proximate cause of the damages.

"8. There is not such a disproportion of fault among the defendants as to render inequitable an equal distribution among them of their common liability. The injuries sustained by plaintiffs are incapable of any logical, reasonable or practical division. The conduct of defendants each constitutes a legal cause of the injuries. Thus, the defendants are jointly and severally liable.

"9. As a proximate cause of the negligence of defendants, plaintiffs were injured in the amount of $167,200.00, the reasonable cost of repairs determined from comparing the damage estimates received in evidence."

CASE NO. 85-39

As noted earlier, appellant Reiman raises the issue of whether there was sufficient evidence to support a finding of negligence against Reiman. Since we find insufficient evidence to find Reiman negligent, we need not address the other issues raised by Reiman.

As stated above, Reiman constructed the building from the plans and specifications provided by Deines. On January 14, 1980, Reiman was given a certificate of substantial completion which stated, "The Work performed under this Contract has been reviewed and found to be substantially complete." Under § 9.9.1 of the "General Conditions of the Contract for Construction," published by the American Institute of Architects, an architect issues a final certificate of payment after inspecting the construction:

"9.9.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance It is generally recognized that a contractor who follows the building plans and specifications is not liable for the resultant defects in a building due to a faulty design.

with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate is due and payable. * * *"

" * * * In the absence of special provisions in the contract, the contractor's obligation is ended upon the completion of the structure in accordance with the terms of the contract. Therefore, he is not liable in case the structure is subsequently damaged or is destroyed by some accident or calamity, or falls from some defect or weakness in the structure or fault of the soil, inasmuch as he does not guarantee the sufficiency of the specification, but only the skill with which he performs his work and the soundness of the materials used therein.

* * *

* * *

" * * * [T]he rule has become well settled in practically every American jurisdiction...