Sunset Coatings Co., Inc. v. Oregon State Dept. of Transp. and Highway Div.

Decision Date26 April 1983
Docket NumberNo. A7912-05814,A7912-05814
Citation660 P.2d 164,62 Or.App. 53
PartiesSUNSET COATINGS CO., INC., a Washington corporation, Respondent, v. OREGON STATE DEPARTMENT OF TRANSPORTATION AND HIGHWAY DIVISION and Oregon Transportation Commission, Appellants, v. AMERICAN FIDELITY FIRE INSURANCE, a New York corp., Respondent. ; CA A20661.
CourtOregon Court of Appeals

Leslie B. Hampton, Asst. Atty. Gen., Salem, argued the cause for appellants. With him on the briefs were Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Richard A. Hayden, Portland, argued the cause for respondent Sunset Coatings Co., Inc. On the brief was John M. Volkman and Stoel, Rives, Boley, Fraser and Wyse, Portland.

Elizabeth Yeats, Portland, argued the cause for respondent American Fidelity Fire Ins. With her on the brief were John Spencer Stewart and Kobin & Meyer, Portland.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

The state appeals from a judgment entered on a jury verdict in favor of plaintiff in this action for breach of contract. The central issue is whether the contract was ambiguous and therefore was correctly submitted to the jury for interpretation. We reverse.

Plaintiff and the Highway Division (Division) entered into a contract in January, 1979, that provided that plaintiff would sandblast and paint the Harrisburg Williamette River bridge for a bid price of $124,756. The contract provided specifications for the sandblasting and the painting. It required inspection by the Division of each phase of the operation. Work on the project began in the spring of 1979. On July 10, 1979, after completing approximately one-half of the contract work, plaintiff notified the state that it would not complete the project. The state then sought bids for completion. Finding the bids unacceptable, the state completed the work using its own personnel.

Plaintiff thereafter filed this action, contending that the state had breached the contract because it had required plaintiff to perform work beyond that required in the contract specifications and had interfered with plaintiff's performance. The state counterclaimed for its cost in completing the job. At trial, the trial court determined that the specifications for painting and sandblasting were ambiguous and submitted the question of the interpretation of the contract to the jury, after admitting evidence as to the meaning intended by the parties. The jury returned a verdict for plaintiff.

The state argues together its first 14 assignments of error, involving admission of evidence and the giving and refusal to give various instructions. The issue central to all of them is whether the contract specifications regarding painting and sandblasting are ambiguous.

The specifications relating to sandblasting are:

"Blast Cleaning--Where not in conflict with these specifications, all steel shall be blast cleaned in conformance with Steel Structures Painting Council Specifications SSPC-SP 6-63 'Commercial Blast Cleaning.' The appearance of the blast cleaned surface shall confirm to Pictorial Standard Sa 2 of ASTMD 2200 (SSPC Vis 1-67T)."

SSPC-SP 6-63 referred to in the first sentence of the specification provides:

"A Commercial Blast Cleaned Surface Finish is defined as one from which all oil, grease, dirt, rust scale and foreign matter have been completely removed from the surface and all rust, mill scale and old paint have been completely removed except for slight shadows, streaks, or discolorations caused by rust stain, mill scale oxides or slight, tight residues of paint or coating that may remain; if the surface is pitted, slight residues of rust or paint may be found in the bottom of pits; at least two-thirds of each square inch of surface area shall be free of all visible residues and the remainder shall be limited to the light discoloration, slight staining or tight residues mentioned above. Photographic or other visual standards may be used as provided in the Appendix to modify or further define the surface if specified in the contract."

The Pictorial Standard Sa 2 referred to in the second sentence of the specification is contained in Pictorial Surface Preparation Standards for Painting Steel Structures, admitted as an exhibit.

Plaintiff contends that the specifications are ambiguous because the written description allows some paint residues to remain, while the photographs in Pictorial Standard Sa 2 show steel surfaces that have not been painted, but have rusted, and have no paint residues.

The question whether a contract provision is ambiguous is one for the court. Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or. 639, 643, 576 P.2d 1244 (1978); Olson v. GAF Corp., 53 Or.App. 71, 75, 630 P.2d 921, rev. den. 291 Or. 514 (1981). If the court determines that the provision is not ambiguous, the interpretation of the contract is also one of law for the court. Timberline Equip. v. St. Paul Fire and Mar. Ins., supra. In determining whether a contract provision is ambiguous, the court may consider "the circumstances under which it was made, including the situation of the subject and of the parties, * * * so that the judge is placed in the position of those whose language he is interpreting." ORS 42.220; see ORS 41.740. We therefore turn to the question whether the trial court correctly concluded that the sandblasting provisions were ambiguous. We conclude that they are not and that the court therefore erred.

The dispute is over whether the contract requires that all paint residues be removed. It is clear that it does not. The written description states that "at least two-thirds of each square inch of surface area shall be free of all visible residues" and that the remainder of the surface may contain only "slight shadows, streaks, or discolorations caused by rust stain, mill scale oxides or slight, tight residues of paint or coating * * *." The photographs show unpainted, but rusted, steel surfaces after various degrees of sandblasting. The Sa 2 photographs are as consistent with the written description as it seems to us possible to be. Although the discoloration in the photographs is caused by rust, it is consistent with the written description. We do not believe that it is of consequence that the photographs show rust rather than paint. They show a surface from which most of the residues, whether rust or paint, have been removed. They do not show a surface from which all residues have been removed. The photographs are entirely consistent with the written description, and neither requires that the surface be entirely free of all residues of whatever kind. 1 The trial court erred in admitting evidence regarding, and in submitting to the jury the interpretation of, the sandblasting specifications.

The trial court also concluded that the painting specifications are ambiguous. Those specifications provide:

"Number of Coats and Film Thickness--Paint shall be applied to the cleaned steel surfaces as follows:

                                              Minimum Dry
                "Coat        Formula          Film Thickness
                 ----        -------          --------------
                 Prime       12-69            1-1/2 mils
                 1st Base    13-69            1-1/2 mils
                 2nd Base    14-69            1-1/2 mils
                 1st Finish  317-74 (tinted)  1-1/2 mils
                 2nd Finish  317-74           1-1/2 mils
                

"It shall be understood that a coat shall be as many applications as necessary to produce the specified minimum film thickness."

"Paint Film Thickness--The thickness of all paint coats shall conform to the following requirements:

"(a) Film thickness shall be measured above the peaks of the profile of the anchor pattern in the substrate but shall not include the thickness of previous coats.

"(b) One hundred percent of all measurements shall be within the specified minimum dry film thickness.

"Where thickness measurements in accordance with the above fall below the specified minimum, additional applications of paint shall be made as necessary to meet the...

To continue reading

Request your trial
6 cases
  • Oregon RSA No. 6 v. Castle Rock Cellular
    • United States
    • U.S. District Court — District of Oregon
    • December 15, 1993
    ...parties, so that the judge is placed in the position of those whose language he is interpreting. Sunset Coatings Co. v. State ex rel. Dept. of Transport., 62 Or.App. 53, 56, 660 P.2d 164, rev. denied, 294 Or. 792, 662 P.2d 728 (1983). Extrinsic evidence is admissible for that purpose withou......
  • Banister Continental Corp. v. Northwest Pipeline Corp.
    • United States
    • Oregon Court of Appeals
    • January 10, 1986
    ...to the jury. Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or. 639, 643, 576 P.2d 1244 (1978); Sunset Coatings Co., Inc. v. Dept. of Trans., 62 Or.App. 53, 56, 660 P.2d 164, rev. den. 294 Or. 792, 662 P.2d 728 (1983). Only if provisions of a contract are ambiguous does its meaning b......
  • Hadley v. Extreme Techs., Inc.
    • United States
    • Oregon Court of Appeals
    • June 24, 2015
    ...one plausible interpretation—then “interpretation of the contract is also one of law for the court.” Id.; Sunset Coatings Co., Inc. v. Dept. of Trans., 62 Or.App. 53, 56, 660 P.2d 164, rev. den., 294 Or. 792, 662 P.2d 728 (1983) (citing Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 ......
  • Walston v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA
    • United States
    • U.S. District Court — District of Oregon
    • June 6, 2012
    ...in the position of those whose language the judge is interpreting." Or. REV. stat. 42.220 (2011); Sunset Coatings Co. v. State ex rel. Dep't. of Transport., 62 Or. App. 53, 56 (1983). If two or more plausible interpretations of the disputed term still remain, the term is considered ambiguou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT