WILDNER CONTRACTING CO. v. Ohio Turnpike Com'n

• Decision Date: 26 January 1996
• Docket Number: No. 1:95CV0696.,1:95CV0696.
• Citation: 913 F. Supp. 1031
• Parties: R.J. WILDNER CONTRACTING CO., INC., Plaintiff, v. OHIO TURNPIKE COMMISSION, Defendant.
• Court: U.S. District Court — Northern District of Ohio

913 F. Supp. 1031

R.J. WILDNER CONTRACTING CO., INC., Plaintiff, v. OHIO TURNPIKE COMMISSION, Defendant.

No. 1:95CV0696.

United States District Court, N.D. Ohio, Eastern Division.

January 26, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Tucker, Karen K. Grasso, Buckingham, Doolittle & Burroughs, Akron, OH, for R.J. Wildner Contracting Co. Inc.

Alan Neil Hirth, Thomas M. Wilson, Mark E. Leskovec, Climaco, Climaco, Seminatore, Lefkowitz & Garofoli, Cleveland, OH, for Ohio Turnpike Commission.

Hugh M. Stanley, Jr., Arter & Hadden, Cleveland, OH, for Hugh M. Stanley.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

R.J. Wildner Contracting Company brought this diversity action against the Ohio Turnpike Commission (OTC) for breach of contract, misrepresentation, recision of a contract, superior knowledge, unjust enrichment, and conversion. After the OTC answered the original complaint, Wildner asked for and received leave to file an amended complaint. The OTC has now moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss each count of the amended complaint for failure to state a claim upon which relief can be granted. The OTC has also moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss count V of the amended complaint for lack of subject matter jurisdiction. For the reasons which are stated below, the OTC's motion to dismiss is granted in part and denied in part.

I.

Wildner is a Pennsylvania corporation with its principal place of business in Johnstown, Pennsylvania. The OTC is an instrumentality of the state of Ohio, created by the state as a "body both corporate and politic" and with its principal place of business in Berea, Ohio. Ohio Rev.Code § 5537.02(A). In 1993, Wildner and OTC entered into a written contract for the stripping and recoating of the Huron River Bridge, located on the Ohio Turnpike in Erie County, Ohio. Wildner incorporated the contract into its amended complaint by reference. According to the contract, the

major work to be performed ... consists of the following: Removal of the existing lead based paint within engineered containment systems; disposal of hazardous and non-hazardous waste; employee and environmental protection; and recoating the existing bridge steel with an epoxy organic zinc-rich primer, a high build epoxy intermediate coat, and a urethane protective coat.

Contract, § SP 101.

The contract estimated that the bridge covered 205,300 square feet and that approximately 35 tons of hazardous and non-hazardous waste would be generated during the removal process. As it turned out, the bridge actually covered 213,149 square feet. More importantly, the existing paint was much thicker than Wildner anticipated ("abnormally thick" in the language of Wildner's complaint) and far more waste was generated. In addition, removing the thicker coating required a greater expenditure of labor, materials and time than Wildner had anticipated. Wildner alleges that the OTC had information in its files which indicated that the coating was abnormally thick, but did not share this information with Wildner.

Wildner sought compensation from the OTC for this work, which it characterized as "extra work," in accordance with §§ G-4.02 and G-4.03 of the contract. Section G-4.02 ("Increased or Decreased Quantities") provides:

The Chief Engineer may by written instructions to the Contractor order increases or decreases in the quantity of work as he may deem necessary or desirable to carry out the performance of the work. The quantity of any item in the original contract, except lump sum items, may be increased regardless of the percentage provided the total increase and cost of the item does not exceed $5,000, or the quantity may be increased not to exceed 25% provided the total increase of the cost of an item does not exceed $30,000. Such increases shall be designated on change orders as additions to the additional contract, and the unit price in the original contract shall apply.

Decreases may be made in the quantity of any item, except lump sum items, in the original contract or an extra work contract. Cancellation shall be authorized by change order and shall be designated as non-performed under the appropriate heading.

A contract for extra work is required if the addition to the quantity of any bid item is in excess of those described above or for work for which the contract does not contain a bid price.

If, during the course of the work, it becomes apparent that there will be an overrun or underrun in proposal quantities, for whatever reason, such overrun or underrun shall be governed by the procedures set forth in this section.

Section G-4.02 is explicitly amended by § SP 105 ("Increased or Decreased Quantities"), which adds the following language:

The Contractor's attention is directed to Item SP 525 — Hazardous Waste Classification, Handling, and Disposal and Item SP 525 — Non-Hazardous Waste Classification, Handling, and Disposal. The quantities shown for these items were determined from the best available information that existed during the preparation of the Plans and the estimates of quantities. In addition, at this time it is not known if the waste material will be hazardous or nonhazardous. Therefore, the Contractor is cautioned that the estimates of the quantities of these items (which estimate, as in other cases, is for bidding and bonding purposes only) are necessarily more speculative than estimates of some other types of work. Payment will be made in accordance with the unit price bid or when applicable, in accordance with the procedures set forth in G-4.02.

The next section, § G-4.03 ("Extra Work"), defines extra work and provides:

"Extra Work" is unforeseen work, including changes in any work which is made necessary by alteration of Plans, or necessary to complete the work or for other reasons, and which is ordered pursuant to Section G-4.02 or G-5.01. Extra work shall be performed by the Contractor as directed by the Engineer. In any situation deemed by the Engineer to be an emergency in which he shall consider such action necessary in order to save or protect life or property, he may require the performance of extra work by oral direction to the Contractor, which oral direction shall, however, be as promptly as possible confirmed in writing. In all other cases extra work shall be performed only after delivery to the Contractor of the Engineer's written order or direction therefor.

Section G-5.01 ("Authority of Engineer"), which § G-4.03 references, provides, in pertinent part:

The Engineer shall have authority to require the Contractor to perform extra work, including changes in work, whether or not the work to be changed shall already have been partly or completely performed; provided, however, that the exercise of such authority shall be limited to cases in which in the opinion of the Engineer it is necessary in order to provide for some unforeseen contingency arising in the course of the performance of the Contract, or shall otherwise be in furtherance of and subordinate to the carrying out of the objective of the Contract, and shall not be for the purpose of requiring the performance of new work, unrelated thereto.

When Wildner sought compensation under these provisions for the additional work performed, the OTC paid extra for the additional square footage, but not for removal of the "abnormally thick" existing paint. The OTC claimed that Wildner was responsible for determining how much work would be required to remove the paint before it bid on the contract under § G-2.04 ("Examination of Plans, Specifications, Special Provisions and Site of Work"). Section G-2.04 provides:

The Bidder is required to examine carefully the site of the Work, the Proposal, the Plans and the Specifications, and to read and fully acquaint himself with all other Contract Documents for the work contemplated. The Bidder, in submitting a Proposal, warrants that he has investigated and is acquainted with the conditions to be encountered in performing the Work, including the character, quality and quantities of work to be performed and materials to be furnished, the prevailing hourly wage rates for the area in which the Work is to be performed, and the requirements of the Contract. Submission of a Proposal shall be considered conclusive evidence that the Bidder has sufficient time to make such examination and did make such examinations and knows all conditions which will affect the Work, or has voluntarily assumed all risks incident to his failure to make such examination and obtain such knowledge.

It is the obligation of the Bidder to make his own investigation of subsurface conditions prior to submitting his Proposal. The Bidder may examine at the office of the Commission the records of all borings, test excavations, and other subsurface investigation, if any, made for design purposes of the Commission prior to the construction of the Work, the records of which may or may not be shown on the Plans. Said borings, test excavations, and other subsurface investigations are not warranted to show the actual subsurface conditions. The Contractor agrees that he will make no claims against the Commission, if in carrying out the Work he finds that the actual conditions encountered do not conform to those indicated by said borings, test excavations and other subsurface investigations.

The OTC did give Wildner an extension of time in which to complete performance, however.

As a condition of being awarded the contract, Wildner was required to deposit $75,760 in escrow with Society National Bank. On September 27, 1994, upon the completion of the project, Wildner requested the release of those funds. The OTC did not release the funds. When Wildner brought the original complaint in this case, the OTC filed a counterclaim for $30,000. Wildner then requested the release of the funds in excess of the $30,000 counterclaim, but the OTC again refused. After an exchange of correspondence,...