Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary Dist.
| Decision Date | 17 July 1970 |
| Docket Number | No. 69--485,69--485 |
| Citation | 238 So.2d 458 |
| Parties | SOUTHERN GULF UTILITIES, INC., Appellant, v. BOCA CIEGA SANITARY DISTRICT and the Board of County Commissioners of Pinellas County, as its governing body, Appellees. . Second District |
| Court | Florida District Court of Appeals |
Mark Hawes, Tampa, and C. Ray Smith, St. Petersburg, for appellant.
Daniel N. Martin, of Delzer, Edwards & Martin, Port Richey, and Adrian S. Bacon, of Bacon, Hanley & Piper, St. Petersburg, for appellees.
It speaks well for government in Florida that this is the first reported construction of a common clause that has provoked much litigation in other jurisdictions.
Appellant contracted to build a sewer line for appellee. The contract states that Appellant alleges that the appellee, despite ample authority for a quick taking under Florida Statutes c. 74 (1967), F.S.A., 'negligently, wilfully and for a long time, after Plaintiff commenced work under (the) contract, did not take the reasonable and necessary steps' to acquire the rights-of-way. By its summary judgment for the appellee the trial judge determined that the contract afforded the contractor no right to recover damages.
We dispose of the polar positions first. The 'no damages' clause is not void as against public policy, as a Louisiana court stated--unnecessarily to its decision, we think--in Sandel & Lastrapes v. City of Shreveport, La.App.1961, 129 So.2d 620. But that opinion shows as well as any why it cannot be read literally, as appellee contends. There a nine-months delay was caused by the city's failure to provide five joints of concrete pipe five feet in diameter and sixteen feet long. The contract for the pipe was let at the same time as the contract for the construction of the project into which it was to be installed, but the city delayed procurement unreasonably and knew that its delay was causing damage. 129 So.2d at 625.
The cases are clear that a wilful failure to provide the right-of-way will not allow the public authority to hide behind the no-damages clause. Annotation, 10 A.L.R.2d 801. E.g., Norman Company v. County of Nassau, 27 A.D.2d 936, 278 N.Y.S.2d 719 (App.Div.1967); Ippolito-Lutz, Inc. v. Cohoes Housing Authority, 22 A.D.2d 990, 254 N.Y.S.2d 783 (App....
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...County, Ohio, supra; Wright & Kremers, Inc. v. State, N.Y.Ct.App., 263 N.Y. 615, 189 N.E. 724 (1934); Southern Gulf Utilities, Inc. v. Boca Ciega San. Dist., Fla.App., 238 So.2d 458 (1970). He must not interfere with the progress of the work. California v. U.S., D.Cal., 151 F.Supp. 570 (195......
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...public policy," under Florida law there are several situations in which it cannot be enforced. Southern Gulf Utils., Inc. v. Boca Ciega Sanitary Distr., 238 So.2d 458, 459 (Fla. 2d DCA 1970) (emphasis added); see also Triple R Paving, Inc. v. Broward County, 774 So.2d 50, 54 (Fla. 4th DCA 2......
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...under Florida law there are several situations in which it cannot be enforced. Southern Gulf Utils., Inc. v. Boca Ciega Sanitary Distr., 238 So. 2d 458, 459 (Fla. 2d DC A 1970) (emphasis added); see also Triple R Paving, Inc. v. Broward County, 11A So. 2d 50, 54 (Fla. 4th DCA 2000). A no da......
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...case in Florida that took a look at the no damage for delay provision was Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, 238 So. 2d 458 (Fla. 2d DCA 1970), cert. denied, 240 So. 2d 813 (Fla. 1970), in which Judge Mann observed: "It speaks well for government in Florida that ......