Ross Group Construction Corporation, The v. Riggs Contracting, Inc. et al
Filing
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OPINION AND ORDER by Judge Claire V Eagan that the settlement conference remains set before Magistrate Judge T. Lane Wilson on December 13, 2012 at 9:30 a.m.; that the jury trial on damages remain set for February 19, 2013 at 9:15 a.m. ; granting in part and denying in part 23 Motion for Summary Judgment; denying 24 Motion for Summary Judgment (Re: 2 Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
THE ROSS GROUP CONSTRUCTION
CORPORATION,
Plaintiff,
v.
RIGGS CONTRACTING, INC., d/b/a
RIGGS CONTRACTING CONCRETE
SPECIALISTS, and SAFECO INSURANCE
COMPANY OF AMERICA,
Defendants.
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Case No. 12-CV-0246-CVE-FHM
OPINION AND ORDER
Before the Court is plaintiff The Ross Group Construction Corporation’s (Ross) motion for
summary judgment (Dkt. # 23) and defendants Riggs Contracting, Inc. (Riggs) and Safeco Insurance
Company of America’s (Safeco) motion for summary judgment (Dkt. # 24). This case arises out of
a construction contract between Ross, the general contractor, and Riggs, the subcontractor, to
perform structural concrete work on the KC-135 Maintenance Hangar at Tinker Air Force Base.
Ross contends that there was a mutually agreed construction schedule that Ross could change at will,
and that Riggs was not entitled to ask for additional compensation when the schedule was delayed.
Ross also asserts that Riggs is liable for the damages that Ross suffered when it contracted with third
parties to complete the work described in the subcontract with Riggs. Riggs contends that Ross
could not change the construction schedule without Riggs’ consent and that, because Riggs did not
agree to a revised schedule once delays made adherence to the original schedule impossible, Riggs
was not required to perform under the subcontract.
I.
Ross contracted with the United States Army Corps of Engineers (USACE) to construct the
KC-135 Maintenance Hangar at Tinker Air Force Base. Dkt. # 23, at 1; Dkt. # 28, at 31. Ross
solicited bids from subcontractors, including bids for the structural concrete work. Dkt. ## 24-2,
24-3. Riggs submitted a bid and was awarded a subcontract to perform the structural concrete work.
Dkt. # 24-3. Ross requested that Riggs begin the “submittal” process before a written subcontract
was executed. Dkt. # 24-1, at 2. Submittals are “a written statement or explanation of how the trade
contractors intend to comply with the plans and specifications, what equipment they plan to furnish
and install, and similar technical construction information.” Id. Riggs began preparing and sending
submittals to Ross. Id. In September 2009, Riggs received from Ross an unsigned proposed written
subcontract agreement that was backdated to July 28, 2009. Id. Riggs made three changes,
including that the subcontract work would be performed according to a mutually agreeable
construction schedule. Dkt. # 25-1, at 2. On October 5, 2009, Ross sent Riggs a proposed project
work schedule, which called for work to begin in October 2009. Dkt. # 23-1, at 25; Dkt. # 24-6.
On October 6, 2009, Riggs and Ross agreed to that project schedule. Dkt. # 23-1, at 36; Dkt. # 24-7.
In December 2009, Ross sent Riggs a backdated subcontract that included all of Riggs’
proposed changes. Dkt. # 23-1, at 1; Dkt. # 24-8. Riggs signed the subcontract on December 10,
2009, and Ross signed the subcontract on December 19, 2009. The subcontract total payment was
to be $679,532. Dkt. # 23-1, at 1. On January 14, 2010, Riggs, as principal, and Safeco, as surety,
executed a performance bond in the amount of $679,532. Id. at 22.
At the time the subcontract was executed, the agreed start date for the project had passed,
and Riggs’ work could not begin in accordance with the agreed schedule because the government
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had encountered site problems. Dkt. # 24-1, at 3; Dkt. # 24-28. On April 22, 2010, Riggs notified
Ross that Riggs was relocating much of its business to the Arizona market and that the delay in the
project start date would be problematic for Riggs “with regard to available manpower and the ability
to maintain the project schedule.” Dkt. # 24-1, at 4; Dkt. # 24-9. Riggs sent a letter to Ross on June
7, 2010, reiterating that a postponed start date was not “mutually agreeable.” Dkt. # 24-10, at 1.
On June 8, 2010, Riggs offered, for an additional payment of $144,166, to perform the subcontract
if the work were to begin within 30 days of the date of the letter. Dkt. # 24-11. Ross responded that
it would not issue a “change order” for additional costs due to delay because, under article VIII of
the subcontract, Riggs’ “sole remedy for delay shall be an extension of time.” Dkt. # 24-12, at 1.
Ross also attached a revised project schedule to its letter. Dkt. # 24-12, at 2. On June 10, 2010,
Riggs responded that the revised project schedule was nearly eight months past the agreed start date
and that there was no mutually agreeable construction schedule. Dkt. # 24-13. Riggs further stated
that it would not proceed without a price increase. Id. On June 14, 2010, Ross again refused to
issue a change order and stated that “[t]he current Contractor’s construction schedule for [Riggs’]
scope of work has been mutually agreed to by [Riggs] and [Ross] and remains unchanged.” Dkt.
# 24-14.
Ross issued notices of default to Riggs on June 25, June 29, July 2, and August 24, 2010.
Dkt. ## 24-15, 24-18, 24-20, 24-29. Ross stated that Riggs had failed to provide submittals to Ross.
Riggs responded to the notices, and claimed that it had provided the submittals, and that several
submittals were rejected and were being held because of the continued project delay. Dkt. ## 24-16,
24-17, 24-19, 24-21. More specifically, Riggs stated that the remaining submittals needed input
from Ross and USACE to be properly submitted, which Riggs claimed was standard protocol for
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projects with USACE. Dkt. # 24-16. On August 5, 2010, Ross offered to provide reasonable
assistance to Riggs in submitting a “pass-through” claim to USACE for increased costs due to delay,
which was allowed by the subcontract. Dkt. # 28, at 35.
On August 27, 2010, Ross issued a notice of termination to Riggs, stating that Riggs “ha[d]
failed to commence and continue correction of the defaults” set forth in the notices of default, “much
less prosecute its work under the terms of the Subcontract Agreement . . . with ‘the utmost of
diligence.’” Dkt. # 23-1, at 39, 40. Ross also, contemporaneous with the notice, “demand[ed] that
[Riggs’] performance bond surety complete [Riggs’] scope of work under the Subcontract.” Id.
Pursuant to article XIII of the subcontract, Ross had the right, “without prejudice to any other
remedy,” to terminate Riggs if Riggs “fail[ed] or neglect[ed] to carry out the Work in strict
compliance with the Subcontract and Contract Documents or is otherwise in default of any of its
obligations.” Dkt. # 24-8, at 6. Further, the subcontract also allowed Ross to terminate Riggs “for
convenience,” which included termination without notice and without reason. Id. at 6-7. If Ross
“improperly terminated” Riggs for cause, that termination would be “automatically converted to a
termination for convenience.” Id. However, Riggs continued to deny that it was in default because,
it argued, the site was never made available to Riggs to commence work. After terminating Riggs’
right to complete the work, Ross executed two subcontract agreements with third parties. Dkt. # 231, at 41-62. On October 16, 2010, Ross executed a subcontract for $1,028,702. with JTB Concrete
Construction Company, and, on October 8, 2010, with Professional Rebar Installers, Inc., for $7,500.
Id.
On April 27, 2012, Ross filed a complaint alleging two claims: breach of contract and action
on the performance bond. Dkt. # 2. On Ross’ breach of contract claim against Riggs, Ross seeks
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$349,170, plus prejudgment and post-judgment interest, attorney fees, and costs. Id. at 5. Ross
seeks the same amount against both Riggs and Safeco, jointly and severally, on its claim on the
performance bond. Id.
II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
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whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
III.
The key provisions of the subcontract that will direct the analysis are:
ARTICLE III. CONSTRUCTION SCHEDULE: Time is of the essence and Subcontractor
shall commence and prosecute the Work with the utmost of diligence to final completion in
accordance with Contractor’s mutually agreeable construction schedule and directions,
furnishing all supervision, labor, material and equipment for forty (40) hours each calendar
week or as necessary to comply with such schedule and directions. . . .
Subcontractor shall furnish all necessary information and will cooperate and assist in the
establishing and updating of the construction schedule and in the coordination of the
performance of the Work so as to minimize conflict or interference within the work of
others. . . .
In agreeing to perform the Work within the specified time limits, Subcontractor has taken
into account and made allowances for the delays which should be reasonably anticipated and
further recognizes that time extensions will be granted only as provided for in the Contract
Documents.
Dkt. # 24-8, at 2 (emphasis in original).
ARTICLE VIII. CHANGES, EXTENSION OF TIME AND PASS-THROUGH CLAIMS:
Contractor may at any time during the progress of the Work and without the prior consent
of any surety or sureties make any changes of and/or to the Work, including, without
limitation, the type, nature, scope or size of the Work, without invalidating this Subcontract.
Before proceeding with any change, Subcontractor shall obtain written authorization or
‘change order’ from Contractor. All such written authorization or ‘change orders’ will
become a part of this Subcontract and no additional compensation, extensions of time or
other changes will be recognized or paid for unless a written authorization or a ‘change
order’ for such has been obtained from Contractor. Failure to give written notice to
Contractor within ten (10) calendar days after receipt of revised Contract Documents shall
be construed as an agreement on the part of the Subcontractor to make any changes to the
Work required thereby without additional compensation or extension of time. . . .
Subcontractor agrees that Subcontractor’s sole remedy for delay shall be an extension of
time and that Subcontractor shall make no demand for damages or extended overhead.
Subcontractor further agrees that Subcontractor shall not be entitled to payment or
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compensation of any kind from Contractor or the Owner for direct, indirect or impact
damages arising because of any hindrance or delay from any cause whatsoever.
All claims which will affect or become part of a claim which Contractor is required to make
under its contract with Owner within a specified time period or in a specified manner shall
be made by Subcontractor as provided herein. Subcontractor shall provide Contractor with
written notice and all particulars of such a “pass-through” claim, including all supporting
documentation, within 10 working days preceding the time by which Contractor’s claim
under its contract with the owner must be made.
Id. at 5.
ARTICLE XIII. SUBCONTRACTOR’S DEFAULT – TERMINATION FOR CAUSE: If
Subcontractor fails or neglects to carry out the Work in strict compliance with the
Subcontract and Contract Documents or is otherwise in default of any of its obligations
thereunder, and fails to commence and continue correction of such default(s) or neglect with
diligence and promptness as Contractor, in its sole discretion deems necessary, Contractor
may, after 48 hours following delivery to Subcontractor of written notice thereof and without
prejudice to any other remedy Contractor may have, (i) supplement Subcontractor’s
performance with additional material supplies, equipment or labor, pay for same and deduct
the amount therefor from any money then or thereafter due Subcontractor (if such offset is
not sufficient, Subcontract hereby agrees to pay any deficiency promptly upon demand), or
(ii) terminate Subcontractor’s continued performance under the Subcontract. Termination
of performance may be immediate (without prior notice) in the event of conditions hazardous
to persons or property. Any such termination of performance shall be deemed to be for
cause.
Upon a termination of Subcontractor’s continuing performance under the Subcontract for
cause, Contractor may, without limitation of any other available remedies, proceed as
follows: . . . (ii) by certified mail addressed to Subcontractor’s surety, if any, require the
surety to provide such materials, supplies, tools, equipment, machinery, labor, services and
other items as may be necessary to complete the Work in strict compliance with the
Subcontract and Contract Documents. Contractor shall apply any unpaid balance under the
Subcontract to pay for all such completion costs; provided, that Contractor may first require
Subcontractor or its surety, if any, to fund any anticipated excess completion costs. In all
such events, if the unpaid balance of the Subcontract exceeds the costs of completing the
Subcontractor’s Work together with interest on such costs and together with any offsets and
deductions available to the Contractor, such excess shall be paid to the Subcontractor.
However, if the total of all such costs, interest, deductions and offsets exceed any such
unpaid balance under the Subcontract, Subcontractor or Subcontractor’s surety shall pay the
difference to Contractor upon demand.
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Under no circumstances shall Contractor be liable to Subcontractor for any damages, special,
compensatory, punitive or otherwise, due to the breach of any express or implied duty or
obligation by Contractor arising under this Subcontract.
Id. at 6.
ARTICLE XVI. HEADINGS: The descriptive headings of the Articles of this Subcontract
are for convenience of reference only and shall not be considered in the construction or
interpretation of any provision.
Id.
ARTICLE XXI. TERMINATION WITHOUT CAUSE: Contractor may at any time and
without notice to any surety or sureties terminate Subcontractor’s continued performance
under the Subcontract for the convenience of Contractor without articulating any reason and
without any default under the Subcontract. Any such termination shall be deemed to be
“without cause.” Upon receipt of any such notice, subcontractor will cease all work under
this Subcontract, and this Subcontract shall terminate effective as of the date such notice is
received by Subcontractor. . . .
If Contractor is ever found to have improperly terminated Subcontractor’s continued
performance under this Subcontract for cause, such termination shall be automatically
converted to a termination for convenience (without cause) and Subcontractor shall be
limited in its recovery strictly to the compensation provided for in this article.
Under no circumstances shall Contractor be liable to Subcontractor for any damages, special,
compensatory, punitive or otherwise, due to the breach of any express or implied duty or
obligation by Contractor arising under this Subcontract.
Id. at 7.
IV.
Ross argues that the term “mutually agreeable” plainly means that the parties were to agree
to the original schedule only, which Ross could then change or alter pursuant to article VIII of the
subcontract. Dkt. ## 23, 23-1. Riggs argues that the term “mutually agreeable” means that both
Riggs and Ross were required to agree to any construction schedule, and that each subsequent
revised version would supplant the previous, resulting in a singular mutually agreed schedule at any
time. Riggs further contends that, absent Riggs’ agreement, Ross could not require Riggs to perform
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under a schedule with a start date that was several months later than the one in the agreed October
2009 schedule. Dkt. # 27, at 16. In other words, Riggs argues that its refusal to agree to a revised
schedule, absent additional compensation from Ross, released it from any obligation to perform
under the subcontract, even though the schedule was already delayed at the time Riggs signed the
subcontract.
“[T]he cardinal rule in contract interpretation is to determine and give effect to the intent of
the parties.” In re Kaufman, 37 P.3d 845, 853 (Okla. 2001); Otis Elevator Co. v. Midland Red Oak
Realty, Inc., 483 F.3d 1095, 1101-02 (10th Cir. 2007) (applying Oklahoma law).1 “It is well settled
that effect should be given, if possible, to every word, phrase, clause, and sentence of a contract, and
apparently conflicting provisions should be reconciled if that can be done by any reasonable
construction.” Cities Service Gas Co. v. Kelly-Dempsey & Co., 111 F.2d 247, 249 (10th Cir. 1940)
(applying Oklahoma law). “If a contract is complete in itself, and when viewed as a totality, is
unambiguous, its language is the only legitimate evidence of what the parties intended. That
intention cannot be divined from extrinsic evidence but must be gathered from a four-corners’
examination of the instrument.” Pitco Prod. Co. v. Chaparral Energy, Inc., 63 P.3d 541, 546 (Okla.
2003) (citations omitted); Otis Elevator Co., 483 F.3d at 1102. Further, “[w]hether a contract is
ambiguous and hence requires extrinsic evidence to clarify the doubt is a question of law for the
courts.” GEICO Gen. Ins. Co. v. Nw. Pac. Indem. Co., 115 P.3d 856, 858 (Okla. 2005) (quotation
omitted).
1
The subcontract includes a choice of law clause, whereby the parties agreed that Oklahoma
law would govern any subcontract dispute. Dkt. # 24-8, at 6.
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“‘A contract is ambiguous if it is reasonably susceptible to at least two different
constructions’ such that ‘reasonably intelligent men[ ] on reading the contract would honestly differ
as to its meaning.’” Otis Elevator Co., 483 F.3d at 1102 (quoting Pitco Prod. Co., 63 P.3d at 545-46,
n. 19) (alterations in Otis Elevator Co.). “The mere fact the parties disagree or press for a different
construction does not make an agreement ambiguous.” Id. (citing Pitco Prod. Co., 63 P.3d at 545).
“To determine whether a contract is ambiguous, a court must look to the language of the entire
agreement, which must be ‘given its plain and ordinary meaning unless some technical term is used
in a manner intended to convey a specific technical concept.’” Id. (quoting Pitco Prod. Co., 63 P.3d
at 546) (citing Okla. Stat. tit. 15, § 160).
The central point of disagreement between Ross and Riggs is whether Ross was entitled to
modify the original mutually agreed upon construction schedule or whether Riggs was required to
agree to a new schedule when the commencement date changed by several months. Mutual is not
a “technical term [ ] used in a manner intended to convey a specific technical concept.” Otis
Elevator Co., 483 F.3d at 1102. Mutual is defined as “shared in common” or “joint.” MerriamWebster Dictionary 768 (10th ed. 1993). When Riggs and Ross agreed that there would be a
“mutually agreeable” construction schedule, the parties clearly intended that both parties would
agree to the schedule. When read as a whole, the subcontract does not permit Ross to change the
mutually agreed construction schedule at will. Instead, article VIII permits Ross to change the
“Work,” including the “type, nature, scope or size of the Work.” Dkt. # 23-1, at 5. It does not
include the schedule in the description of “Work.” Id. It is therefore clear that Riggs was required
to proceed only under a “mutually agreeable” construction schedule, agreed to by both Riggs and
Ross, and not thereafter altered by Ross alone.
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If the phrase “mutually agreeable” were construed, as Ross argues that it should be, to mean
that the parties had to agree only to the original schedule, the result would nullify the “mutually
agreeable” language because Ross would have the ability to revise the construction schedule without
Riggs’ agreement. Similarly, if “mutually agreeable” were read as Riggs argues that it should be,
the result is equally unreasonable. Riggs would need only to refuse to agree to a schedule to be
excused from any performance under the subcontract. This would be true even under facts such as
these where Riggs knew that there was a delay of at least two months at the time that it signed the
subcontract. The subcontract clauses providing remedies for delay (Dkt. # 24-8, at 5) and directing
the subcontractor to participate in revising the schedule (Dkt. # 24-8, at 2) would be meaningless.
Therefore, the Court finds that “mutually agreeable” is not ambiguous and that agreement of both
parties to the schedule and any revisions was required.
Riggs also argues that it was entitled to refuse to perform, absent additional compensation,
because of workforce relocation and other economic factors. In other words, Riggs argues that,
although it knew the schedule was delayed by at least two months at the time it signed the
subcontract agreement, it could refuse to agree to a revised schedule unless Ross agreed to additional
compensation. However, increased cost of performance does not create an impossibility, or even
impracticability, to performance that would excuse a party’s performance. Golsen v. ONG Western,
Inc., 756 P.2d 1209, 1213 (Okla. 1988); Steenberg Constr. Co. v. Prepakt Concrete Co., 381 F.2d
768, 773 (10th Cir. 1967); see W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 768 n. 12
(1983). Riggs refused to perform for wholly economic reasons. In Steenberg Construction Co., the
Tenth Circuit found that the subcontractor was excused from performance only after
“insurmountable” weather difficulties, which the subcontractor faced because of the contractor’s
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delays. 381 F.2d at 774. Further, the Tenth Circuit noted that, had the subcontractor been informed
of the delay, and had the parties agreed to “work out a mutually satisfactory progress schedule . .
. in conformity with a contemplated revised work schedule,” then “mere difficulty, hardship or
economic unfeasability of performance [would be] no excuse for [the subcontractor’s] abandonment
of the work.” Id. at 773. In this case, Riggs was not merely informed of the delays, but Riggs knew
that the start date for the project was delayed by at least two months at the time Riggs signed the
subcontract. Further, because the subcontract provides that Riggs would perform according to a
“mutually agreeable construction schedule” and that Riggs would “cooperate and assist in the
establishing and updating of the construction schedule,” the subcontract clearly contemplates the
possibility of a revised construction schedule. Dkt. # 24-8, at 2. Riggs’ economic difficulties did
not create an impossibility of performance that would render its performance excused.
Numerous provisions in the subcontract make it obvious that both Riggs and Ross anticipated
possible project delays. The subcontract provides that “Subcontractor shall furnish all necessary
information and will cooperate and assist in the establishing and updating of the construction
schedule.” Dkt. # 23-1, at 2. Further, the subcontract specifically states that “Subcontractor has
taken into account and made allowances for the delays which should be reasonably expected.” And,
finally, in article VIII, the subcontract states that “Subcontractor’s sole remedy for delay shall be
an extension of time and that Subcontractor shall make no demand for damages or extended
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overhead.”2 Id. at 5. Therefore, the parties clearly contemplated that work on the project might be
delayed at some point. In fact, at the time the parties signed the subcontract, December 2009, the
agreed upon commencement date of October 2009 had already passed. Riggs argues that the
language “mutually agreeable” was inserted specifically to keep Riggs from being caught in a “time
trap” where the subcontract became economically disadvantageous. However, the subcontract,
when read as a whole, clearly contemplates delays and specifically states that “Subcontractor shall
. . . assist in the establishing and updating of the construction schedule,” Dkt. # 24-8, at 2, and that
“Subcontractor has taken into account and made allowances for the delays which should be
reasonably anticipated,” id. The phrase “mutually agreeable” cannot override other subcontract
clauses. Instead, “effect should be given . . . to every word, phrase, clause, and sentence.” Cities
Service Gas Co., 111 F.2d at 249. While Riggs was not required to proceed without a mutually
agreed construction schedule, it also had the obligation to “cooperate and assist in the establishing
and updating of the construction schedule.” Id. at 2. It did not have the option to refuse to perform
merely due to a change in the schedule, especially because Riggs knew that the schedule was
delayed at the time that it signed the subcontract. Therefore, the Court finds that Riggs breached
the subcontract when it refused to complete the work defined in the subcontract unless it received
the requested additional compensation.
2
Although the descriptive heading of article VIII relates to changes to the work, the nodamages-for-delay clause contained therein is not limited to delays caused by change orders.
Further, article XVI provides that descriptive headings “are for convenience of reference
only and shall not be considered in the construction or interpretation of any provision.” Dkt.
# 24-8, at 6. Thus, the Court finds that the no-damages-for-delay clause is applicable to the
delay at issue here.
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Riggs also argues that it was excused from performance because Ross materially breached
the subcontract by failing to make the site available to Riggs so that work could proceed in
accordance with the agreed schedule. However, Ross made no such promise in the subcontract, and,
therefore, a failure to make the site available on a date certain was not a material breach that would
excuse Riggs’ performance.
Finally, Riggs asserts that, even if it is liable for damages, Riggs should be given the chance
to investigate the alleged damages suffered by Ross. Ross contends that Riggs is liable for the
difference in the amount of the subcontract with Riggs and the subcontracts that Ross ultimately
entered into with third parties. Because Ross was required to execute new subcontracts with third
parties at a higher cost than the subcontract with Riggs, Ross is entitled to damages. Dkt. # 24-8,
at 6. However, the scope of work listed in article II in the subcontract with Riggs is different from
that listed in the subcontract with Professional Rebar Installers, Inc. Dkt. # 23-1, at 2, 63. And,
although the scope of work listed in article II of the subcontract with Riggs is identical to that listed
in the subcontract with JTB Concrete Construction Company, the work listed in exhibit six of those
subcontracts differs. Id. at 2, 19, 42, 59. Therefore, there is a genuine dispute regarding the amount
of damages to which Ross is entitled, and Ross’ motion as to the amount of damages should be
denied.
IT IS THEREFORE ORDERED that Ross’ motion for summary judgment (Dkt. # 23) is
granted in part and denied in part: it is granted as to Ross’ claims for breach of contract and
action on the performance bond; it is denied as to the amount of damages. Defendants Riggs and
Safeco’s motion for summary judgment (Dkt. # 24) is denied.
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IT IS FURTHER ORDERED that the settlement conference remains set before Magistrate
Judge T. Lane Wilson on December 13, 2012 at 9:30 a.m.
IT IS FURTHER ORDERED that the jury trial on damages remains set for February 19,
2013 at 9:15 a.m.
DATED this 14th day of November, 2012.
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