Town of Longboat Key v. Carl E. Widell and Son

• Decision Date: 27 September 1978
• Docket Number: No. 78-20,78-20
• Citation: 362 So.2d 719
• Court: Florida District Court of Appeals
• Parties: TOWN OF LONGBOAT KEY, Florida, Appellant, v. CARL E. WIDELL & SON, Appellee.

Page 719

362 So.2d 719

TOWN OF LONGBOAT KEY, Florida, Appellant, v. CARL E. WIDELL & SON, Appellee.

No. 78-20.

District Court of Appeal of Florida, Second District.

Sept. 27, 1978.

I. W. Whitesell, Jr., of Wood, Whitesell & Karp, Sarasota, for appellant.

Andrew D. Owens, Jr. and G. Hunter Gibbons, of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellee.

DANAHY, Judge.

Appellant/defendant (the town) and appellee/plaintiff (the contractor) entered into a contract for the construction of a pumping station and a lift station as part of a central wastewater system for the town. After completion of construction and acceptance by the town, the contractor brought this suit to recover the balance due it under the contract plus costs incurred by the contractor over and above the contract price in constructing the lift station by the caisson method. The contractor claimed that the caisson method of construction, which does not require a dry excavation, was made necessary by the fact that the excavation at the construction site could not be kept dry by dewatering, as the contractor had anticipated in submitting its bid.

The town disputed the contractor's claim for the extra costs and asserted an offset for delay beyond the completion date specified in the contract, including extensions. The contract provided that the town was entitled to a credit in the amount of $150 per day for delay. The town claimed a delay of 98 days, resulting in an offset of $14,700. The contractor argued that the delay was for only 33 days, so that the proper credit was $4,950.

After a nonjury trial, the trial judge entered a final judgment in favor of the contractor for the balance due under the contract plus the extra cost of the caisson method of construction, less a credit to the town for the delay in the amount of $4,950.

The town appeals from that part of the judgment which awards the extra costs and that part which allows a credit of $4,950 for delay. By cross-assignment of error, the contractor asserts that the trial judge erred in failing to award the contractor prejudgment interest on the sums found to be due the contractor, computed from the day that construction was completed.

We find no error in the final judgment except as to the matter of prejudgment interest. Therefore, we affirm in part and reverse in part, and remand with instructions to enter an amended final judgment awarding the contractor interest on the sums found to be due it, computed from July 4, 1975, thirty days following the date of acceptance by the town.

The contractor asserted that in making its bid, it relied upon a subsurface soil analysis and investigation prepared for the town by Ardaman & Associates, consulting engineers, which was included by the town in the bid packet. The contractor claimed that this report, which was based on test borings, showed that the excavations for both the pumping station and the lift station could be kept dry by using the well pump method for dewatering. The specifications called for dewatering by the well pump method. However, when the contractor began excavation for construction of the lift station, it encountered a water level which rose and fell with the tides. The contractor concluded that, therefore, it was not possible to dewater for construction by the dry method and suggested to the town's project engineer that construction be accomplished by the caisson method. The engineer redesigned the lift station for construction by the caisson method and submitted the new plans to the contractor. The contractor then proceeded with construction of the lift station by the caisson method and thereby incurred additional costs. The town refused payment.

The town first argues that the contractor was not justified in relying on the Ardaman report in basing its bid on the cost of construction by the dry method, on the assumption that the construction site could be dewatered. The trial judge must have come to a contrary conclusion, and we find no error in that regard since the evidence supports such a conclusion. The town next argues that, in any event, the contract provided that each bidder was held responsible for having examined the proposed construction site and for having satisfied himself as to conditions, including the nature of the ground water table conditions. The town asserts that, having failed to make test borings which would have revealed the water level conditions which the contractor encountered, the contractor "assumed the risk" of those conditions which he actually found. The contractor counters that the test borings would have been very expensive and, furthermore, only actual excavation would have revealed the water level conditions which were found. Whether or not these contentions by the contractor are justified by the record in this case, we hold that, for reasons hereinafter expressed, the contractor's recovery is not precluded by its failure to make test borings at the construction site.

The town argues that this case is on all fours with Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 169 So.2d 499 (Fla. 3d DCA 1964), which involved a contract between private parties for the laying of pipe in the construction of a sewage collection system. The contractor's bid contemplated the use of clay pipe. Because of the existence of soft sand, the contractor...