Unicon Management Corp. v. City of Chicago, 16831.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | SWYGERT, FAIRCHILD and CUMMINGS, Circuit |
| Citation | 404 F.2d 627 |
| Parties | UNICON MANAGEMENT CORP., Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant. |
| Docket Number | No. 16831.,16831. |
| Decision Date | 20 December 1968 |
404 F.2d 627 (1968)
UNICON MANAGEMENT CORP., Plaintiff-Appellee,
v.
CITY OF CHICAGO, Defendant-Appellant.
No. 16831.
United States Court of Appeals Seventh Circuit.
December 20, 1968.
Raymond F. Simon, Brendan Q. O'Brien, Chicago, Ill., for defendant-appellant.
Herbert Morton, Richard A. Greig, John O. Snook, Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, FAIRCHILD and CUMMINGS, Circuit Judges.
CUMMINGS, Circuit Judge.
This is an interlocutory appeal taken under Section 1292(b) of the Judicial Code (28 U.S.C. § 1292(b)) from the district court's denial of a motion to dismiss the complaint, filed by the defendant City of Chicago. This diversity action was brought by Unicon Management Corp., formerly the Malan Construction Corp., a New York corporation, to recover damages assertedly caused by the City's delays in approving wall panels and doors for the Eastern Airlines hangar built by Unicon at O'Hare International Airport in Chicago.
In April 1960, Unicon and the City executed a contract for the construction of this hangar for $3,794,000. The contract required Unicon to complete its work by May 16, 1961. The complaint alleged that the City notified Unicon to proceed with its work even though the essential site work and grading had not yet been completed. The complaint also charged that the City failed to approve wall panels for the hangar for 10 months and doors for 4 months.1 Count I claimed that these delays caused Unicon to incur $525,000 in additional costs and expenses in the performance of its contract work. Count II is a quantum meruit claim for the same amount. The complaint labeled the City's failure to approve these items promptly as "arbitrary, capricious, and unjustified procrastination."
The City's motion to dismiss relied on Section GC120 of the contract as relieving it of any liability for these delays. That Section provides:
"GC120 PROVISIONS RELATIVE TO DELAY
"(A) Anything contained in the conditions or specifications document to the contrary notwithstanding, it is agreed that the following provisions relative to unavoidable delay shall be controlling:
"1. Should the Contractor be obstructed or delayed in the commencement, prosecution or completion of the work hereunder by any act or delay of the City or by unavoidable acts or delays on the part of transportation companies in transporting, switching or delivering material for said work, or by acts of public authorities, or by riot, insurrection, war, pestilence, fire, lightning, earthquake, cyclone, or through any delays or defaults of other parties under contract with said City or due to unavoidable delays in obtaining the specified materials or equipment for said work because of controlled materials, priorities, allocations, or prohibitions established by the United States of America, or due to strikes that cause unavoidable delays in performing said work, or to other unavoidable causes (except wet or cold weather), and provided the Purchasing Agent shall determine that any of such causes or delays were entirely beyond the control of the Contractor, then
the times herein fixed for the completion of said work shall be extended for a period equivalent to the time lost by reason of any of the aforesaid causes or delays mentioned herein.2 No such allowance of time shall be made, however, unless notice in writing of a claim therefor is presented to the Purchasing Agent before the 30th day of each succeeding month of all delays occurring within the preceding month, and the Contractor shall satisfy the Purchasing Agent that the delays so claimed are unavoidable and substantial, and could not be reasonably anticipated or adequately guarded against, and said allowance of time is authorized in writing by the Mayor, Comptroller and Purchasing Agent.
"2. It is further expressly understood and agreed that the Contractor shall not be entitled to any damages or compensation from the City, or be reimbursed for any losses, on account of any delay or delays resulting from any of the causes aforesaid. The Commissioner and the Purchasing Agent shall determine the number of days, if any, that the...
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