Van Du Zee, Inc. v. Vigilant Insurance Company et al
Filing
41
OPINION & ORDER granting in part and denying in part 24 Motion for Summary Judgment. Partial Judgment shall be entered accordingly. Signed by Judge Jay A. Garcia-Gregory on 08/07/2014. (IL)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
VAN DU ZEE, INC.
Plaintiff,
CIVIL NO. 12-1806 (JAG)
v.
VIGILANT INSURANCE CO., et al.,
Defendants.
__________________________________
OPINION AND ORDER
GARCÍA-GREGORY, D.J.
Before the Court is Vigilant Insurance Co.’s (“Vigilant”),
Federal Insurance Co.’s (“Federal Insurance”), and DTC Engineers
& Constructors, LLC’s (“DTC”) motion for summary judgment under
Fed.
R.
Civ.
Plaintiff’s
Federal
P.
56.
complaint
Insurance’s
Defendants
with
ask
prejudice
counterclaim.
the
and
For
to
the
Court
to
grant
reasons
dismiss
DTC’s
and
discussed
below, Defendants’ motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
On September 28, 2012, Van Du Zee, Inc. (“Van Du Zee” or
“Plaintiff”) filed this breach of contract suit under Article
1210 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 §
3375 and Article 1230 of the Puerto Rico Civil Code, P.R. Laws
Ann.
Tit.
31
§
3451.
(Docket
No.
1).
Plaintiff
claims
that
CIVIL NO. 12-1806 (JAG)
2
Defendants are jointly and severally liable for failing to pay
Plaintiff under Plaintiff and DTC’s subcontract agreement (the
“Agreement”)
Insurance
and
the
issued
payment
on
bond
behalf
that
of
Vigilant
DTC.
and
Defendants
Federal
filed
a
counterclaim, demanding amounts associated with correcting and
completing
January
Plaintiff’s
15,
2014,
deficient
Defendants
work.
filed
(Docket
a
No.
motion
13).
for
On
summary
judgment. (Docket No. 24).
About a month later, Plaintiff’s counsel moved to withdraw
from representation for Plaintiff’s failure to provide adequate
factual
information
judgment.
comply
(Docket
with
the
to
No.
oppose
28).
Court’s
Defendants’
Plaintiff
orders
and
motion
for
subsequently
deadlines
to
summary
failed
retain
to
new
counsel and to show cause why the case should not be dismissed
for
lack
of
prosecution.
(Docket
Nos.
29,
30).
To
date,
Plaintiff has not filed an opposition to Defendants’ motion.
STANDARD OF LAW
A
motion
for
summary
judgment
will
be
granted
“if
the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is in genuine
dispute if it could be resolved in favor of either party, and it
CIVIL NO. 12-1806 (JAG)
3
is material if it potentially affects the outcome of the case.
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F. 3d 6, 19 (1st Cir.
2004).
The party moving for summary judgment bears the burden of
showing the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Once the moving
party has properly supported [its] motion for summary judgment,
the burden shifts to the nonmoving party . . . .” Santiago-Ramos
v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.
2000) (citing DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.
1997)). The nonmovant must demonstrate “through submissions of
evidentiary
quality[]
that
a
trial
worthy
issue
persists.”
Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)
(internal citations omitted).
In
evaluating
a
motion
for
summary
judgment,
the
court
“must view the entire record in the light most hospitable to the
party
opposing
summary
judgment,
indulging
in
all
reasonable
inferences in that party's favor.” Griggs-Ryan v. Smith, 904 F.
2d
112,
115
(1st
Cir.
1990).
The
court
may
safely
ignore
“conclusory allegations, improbable inferences, and unsupported
speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.
2d
5,
8
throughout
(1st
Cir.
this
determinations
or
1990).
process,
weigh
It
is
courts
the
important
cannot
evidence,
as
to
make
these
note
that,
credibility
are
jury
CIVIL NO. 12-1806 (JAG)
4
functions and not those of a judge. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
THE FACTS
On
September
8,
2009,
DTC
and
the
U.S.
Army
Corps
of
Engineers (“the USCE” or “Owner”) entered into a contract (the
“Prime Contract”) for the design and construction of the Armed
Forces
Reserve
Center
at
Fort
Buchanan,
Puerto
Rico
(“the
Project”). (SUF ¶ 5).1 Federal Insurance issued a bond on behalf
of DTC in connection with the Prime Contract and the Project.
(Id. ¶ 6). DTC in turn entered into the Agreement with Van Du
Zee and conveyed its rights thereunder to Federal Insurance as
security for its bond. (Id. ¶¶ 7-8).
After beginning work on the Project, Van Du Zee submitted a
claim to Federal Insurance for $41,700.00, which Van Du Zee
later amended to $88,500.00, comprised of amounts allegedly due
by DTC under the terms of the Agreement. (Id. ¶¶ 14-15). Part of
that claim was for change orders. DTC never approved any change
orders in writing as required by the Agreement. (Id. ¶¶ 38, 4041). After it had exercised its right to complete the Project,
Federal
Insurance
denied
the
$88,500.00
claim
due
to
1
All facts are drawn from Defendants’ Statement of Uncontested Facts, Docket
No. 24-1 (“SUF”), unless otherwise noted. Because Plaintiff did not oppose
Defendants’ motion for summary judgment, the Court ordered that Defendants’
facts be deemed admitted. (See Docket No. 40).
CIVIL NO. 12-1806 (JAG)
5
deficiencies in Van Du Zee’s work. (Id. ¶¶ 9, 20). Two days
later,
Federal
Insurance
informed
Van
Du
Zee
of
certain
deficiencies in its work, and Van Du Zee, though it agreed to
correct them, ultimately never returned to the Project site to
do so. (Id. ¶¶ 21-23).
Van Du Zee’s work was deficient for several reasons: DTC
paid $4,136.00 to Van Du Zee’s labor and materials suppliers
because Van Du Zee failed to pay them; when Van Du Zee abandoned
the Project, it owed over $30,000.00 to material suppliers; the
Project’s
Architect/Engineer
never
certified
that
Van
Du
Zee
completed its work; and the USCE could not accept beneficial
occupancy of the Project in the state that Van Du Zee left its
work. (Id. ¶¶ 16-19, 30).
Under the Agreement, Federal Insurance and DTC could, at
their option, terminate Van Du Zee for default for failure to
cure
deficient
work
within
three
days
of
receiving
written
notice of the deficiencies. (Id. ¶ 24). Such notice of default
triggered Federal Insurance’s and/or DTC’s right to terminate
Plaintiff. (Id.). On January 20, 2012, Federal Insurance gave
Van Du Zee formal notice of Van Du Zee’s failure to perform
under
the
Agreement
and
Federal
Insurance’s
intention
to
CIVIL NO. 12-1806 (JAG)
6
terminate Van Du Zee’s right to complete the Agreement.2 (Id. ¶
28). Van Du Zee did not correct the deficient work within three
days,
and
on
February
10,
2012,
Federal
Insurance
formally
declared Van Du Zee in contractual default and terminated its
right to proceed under the Agreement. (Id. ¶ 29).3 The Agreement
further
final
provided
and
that
binding
this
unless,
notice
within
and
five
termination
(5)
“shall
business
days
be
of
receipt, [Van Du Zee] files a notification in writing of its
intent to arbitrate the controversy” under the terms of the
Agreement,
constitutes
and
that
“an
failure
absolute
to
bar
file
and
this
complete
notification
waiver
of
Subcontractor’s right to recover on account of such claim.”4 (Id.
¶¶ 32, 36). Van Du Zee never filed those notifications following
Federal
Insurance’s
denial
of
its
claim,
notice
of
Federal
Insurance’s intent to declare contractual default, or its actual
declaration of default. (Id. ¶¶ 33-35).
2
We note that SUF ¶28 cites the date of this correspondence as January 12,
2012. However, based on the exhibit cited, this appears to be a typographical
error. The mistake is not material and so the Court adopts the date on the
exhibit cited.
3
We note that SUF ¶29 cites the date of this correspondence as February 14,
2012. However, based on the exhibit cited, this appears to be a typographical
error. The mistake is not material and so the Court adopts the date on the
exhibit cited.
4
We note that Defendants’ motion quotes the Agreement as establishing a
fifteen day period to notify Plaintiff’s intent to arbitrate a decision by
the contractor. We assume, however, that this is a typographical error as the
contract provides that Plaintiff has ten days to submit a claim as to which
Contractor shall issue a decision, and five days to file notification of its
intent to arbitrate that decision. (Agreement § 9(b)). The difference is
immaterial to this Court’s ruling.
CIVIL NO. 12-1806 (JAG)
After
retaining
Project
7
consultants
and
construction
managers to investigate the work that needed to be corrected
and/or completed, Federal Insurance retained contractor Consigli
Construction, Co. (“Consigli”) to correct and complete Van Du
Zee’s
deficient
work.
(Id.
¶¶
10-11).
Consigli
in
turn
subcontracted Terrasol Engineering Group, LLC (“Terrasol”) to
perform the aforementioned work. (Id. ¶ 12). The total amount
that Federal Insurance has expended to correct and complete the
work is $210,349.78. (Id. ¶ 44).
ANALYSIS5
Construction contracts are interpreted using the same rules
for
contract
governs
“the
interpretation
determination
generally.
of
the
The
parties’
parties’
intent
rights
and
obligations under the contract.” Levine v. Advest, Inc., 714 A.
2d 649, 656 (Conn. 1998). Where the contract language is clear
and
unambiguous,
its
plain
meaning
determines
the
parties’
intent. DeCarlo and Doll, Inc. v. Dilozir, 698 A. 2d 318, 321
(Conn. App. 1997). Contract language is clear and unambiguous
where it “has a definite and precise meaning . . . concerning
5
As a preliminary matter, we note that the agreement at the center of this
dispute includes a choice of law provision providing that the Agreement
“shall be governed by and construed in accordance with the laws of the State
of Connecticut without regard to conflict of law principles.” (SUF ¶ 37).
Accordingly, we apply Connecticut law to this case.
CIVIL NO. 12-1806 (JAG)
8
which there is no reasonable basis for a difference of opinion.”
Levine, 714 A. 2d at 657 (internal quotations omitted).
Whether summary judgment may be granted in this case thus
turns on whether the parties’ intent is clear from the contract
and whether the relevant provisions are otherwise enforceable.
I.
Dismissal of Plaintiff’s Complaint with Prejudice
Plaintiff’s claim for $88,500.00 under the Agreement has
three
components:
(i)
$32,000.00
for
delay
damages,
(ii)
$14,800.00 for change orders, and (iii) $41,700.96 for final
payment (the original contract amount minus the money already
received
behalf).6
by
Plaintiff
Defendants
and
argue
any
payments
that
made
these
on
Plaintiff’s
claims
are
all
contractually barred and should be dismissed with prejudice. The
Court agrees. We address each of these components below.
A. Plaintiff’s Claim for Delay Damages
Under § 6(d) of the Agreement, in the event that DTC or the
USCE delay Plaintiff’s performance, Plaintiff is entitled to an
equitable
extension
of
time
from
the
USCE
as
the
“sole
and
exclusive remedy” for such delay. (Docket No. 24-4, Agreement §
6(d)). These provisions are valid under Connecticut law. See,
e.g., FCM Group, Inc. v. Miller, 17 A. 3d 40, 63 (Conn. 2011)
6
The Court is mindful that the amounts for these three claims do not add up
to the total amount alleged by Plaintiff. It is, however, irrelevant, given
our ruling.
CIVIL NO. 12-1806 (JAG)
(quoting
United
States
ex
9
rel.
Straus
Systems,
Inc.
v.
Associated Indemnity Co., 969 F. 2d 83, 85 (5th Cir. 1992)) (“A
provision in the contract for an extension of time in case of
delay
caused
by
the
contractor
has
been
held
to
afford
the
subcontractor an exclusive remedy, precluding the recovery of
damages from the contractor.”).
Here, no evidence shows that either DTC or the USCE delayed
Plaintiff’s
performance
under
the
Agreement,
so
an
equitable
extension of time is unavailable to Plaintiff. By the terms of
the
Agreement,
Plaintiff
has
no
available
remedy
for
delay
case
shall
damages.
Section
6(d)
also
provides
that
“[i]n
no
Subcontractor be entitled to any . . . damages or additional
compensation as a consequence of such delays . . . unless, as a
condition precedent, Owner is liable and pays Contractor for
such delays.” (Agreement § 6(d)). No-damage-for-delay clauses
are “generally valid and enforceable and . . . not contrary to
public policy.” White Oak Corp. v. Dept. of Transportation, 585
A. 2d 1199, 1203 (Conn. 1991).7 Plaintiff has neither alleged nor
offered any evidence to establish that the actions of DTC or the
USCE prompted its claim for delay damages. The Court thus finds
7
We note that this general rule is subject to four exceptional circumstances,
which are neither raised by the parties nor applicable here. White Oak Corp.,
585 A. 2d at 1203.
CIVIL NO. 12-1806 (JAG)
10
that Plaintiff’s claim for $32,000.00 in delay damages must be
dismissed with prejudice.8
B. Plaintiff’s Claim for Change Orders
Plaintiff
claims
$14,800.00
for
damages
resulting
from
change orders. Section 7(a) of the Agreement generally prohibits
Plaintiff from recovering damages resulting from change orders,
“unless such order is given IN WRITING and is signed by an
OFFICER
OF
THE
CONTRACTOR.”
(Agreement
§
7(a),
emphasis
in
original). Section 7(a) also provides that in the event that Van
Du Zee did not meet these conditions, it agreed to “waive any
claim for extra compensation or time extension therefor or on
account
thereof
Contract
.
Documents
.
.
or
except
if
the
as
provided
Contractor
under
the
actually
Prime
receives
payment for same from Owner.” (Id.).
These types of contract clauses are valid and enforceable
where
the
Corporation
1890).
By
relevant
of
St.
language
Francis’s
Plaintiff’s
own
is
explicit.
Church,
admission,
22
DTC
A.
See
O’Keefe
325,
327
never
gave
v.
(Conn.
written
approval for any change orders. (SUF ¶ 41). Since the change
order provision is enforceable and its requirements have not
been met, the Court dismisses Plaintiff’s claim for $14,800.00.
8
Given our ruling, we need not reach the issue of whether Plaintiff is
precluded from claiming an equitable extension of time.
CIVIL NO. 12-1806 (JAG)
11
C. Plaintiff’s Claim for Final Payment
Plaintiff claims $41,700.96 for final payment allegedly due
under the Agreement. Under § 2(f) of the Agreement, Plaintiff
becomes
entitled
conditions.
Since
to
final
payment
the
issue
of
upon
fulfilling
Plaintiff’s
entitlement
ten
to
payment hinges on whether it has fulfilled these conditions, we
limit our discussion here to the four conditions on which we
find that Plaintiff has defaulted.
Plaintiff
has
defaulted,
first,
on
§
2(f)’s
requirement
that “Subcontractor’s work [is] accepted by [the USCE] and [DTC
and/or Federal Insurance].” (Agreement § 2(f)(i)). As Defendants
point out, Plaintiff has provided no evidence to establish that
its work was accepted by the USCE or DTC. On the other hand, the
following
evidence
establishes
that
Plaintiff’s
work
was
not
accepted by DTC: Federal Insurance denied Van Du Zee’s change
orders claim and informed Van Du Zee of the deficiencies in its
work,
leading
to
that
denial;
Van
Du
Zee
itself
recognized
additional deficiencies in its work, and, though it agreed to
submit a solution, never returned to the Project site to correct
those
deficiencies;
and
Terrasol
ultimately
corrected
and
completed Van Du Zee’s deficient work.
Second,
Plaintiff
has
defaulted
on
§
2(f)’s
requirement
that it provide “satisfactory proof of payment of all amounts”
CIVIL NO. 12-1806 (JAG)
12
it owed under the Agreement. (Agreement § 2(f)(iii)). It is
uncontested that Van Du Zee owed over $30,000.00 to material
suppliers in connection with the Agreement. Indeed, in light of
these outstanding debts and Plaintiff’s awareness that its work
was never accepted, it would have been impossible for Plaintiff
to provide proof of payment. As such, Plaintiff has defaulted on
this condition.
Third, § 2(f) requires that Plaintiff’s work “is complete
as confirmed by Architect/ Engineer.” (Agreement § 2(f)(v)). No
such
confirmation
occurred.
(SUF
¶
19).
Plaintiff
has
thus
defaulted on this condition.
Fourth,
Plaintiff
has
defaulted
on
§
2(f)’s
requirement
that the USCE accept “beneficial occupancy of the Project” as a
result
of
Plaintiff’s
performance
under
the
Agreement.
(Agreement § 2(f)(x)). Simply put, this never happened. (SUF ¶
30).
As established above, Plaintiff has not fulfilled several
of the Agreement’s conditions for final payment.9 Plaintiff is
9
Because we find that several of § 2(f) requirements were not met, we need
not decide whether the fact that Plaintiff had outstanding debts at the time
it abandoned the Project violates § 2(f)(ii)’s requirement that Plaintiff
execute and deliver “a complete and final release of Contractor, Owner and
Contractor’s Surety,” and waive or release all lien rights. (Agreement §
2(f)). For the same reason, we need not decide whether Federal Insurance’s
requiring a schedule for correction of deficiencies and an explanation of
certain repairs was reasonable such that Van Du Zee’s subsequent failure to
provide the same violates § 2(f)(viii)’s requirement that Van Du Zee submit
CIVIL NO. 12-1806 (JAG)
therefore
not
entitled
to
13
final
payment
in
the
amount
of
$41,700.96. This claim will be dismissed.
II.
Final and Binding Declaration of Plaintiff’s Default
and Waiver of Plaintiff’s Claims and Defenses
Defendants
declaration
Plaintiff
of
has,
Agreement,
argue
Van
Du
as
a
which
that
Zee’s
result,
stipulates
because
default
is
waived
that
Federal
final
its
Insurance’s
and
claims
binding,
under
will
controversies
the
be
arbitrated or waived. (Agreement § 9(b)).
Whether
the
parties
intended
to
form
an
arbitration
agreement is a question of law. Nussbaum v. Kimberly Timbers,
Ltd., 856 A. 2d 364, 369 (Conn. 2004); Levine, 714 A. 2d at 657.
Written agreements to arbitrate disputes are “valid, irrevocable
and enforceable, except when there exists sufficient cause at
law
or
in
equity
for
the
avoidance
of
generally.” Conn. Gen. Stat. Ann. § 52-408.
written
contracts
Here, we find no
such cause that would render this provision invalid.
Moreover, it is undisputed that Plaintiff did not submit
notice of its intent to arbitrate within five days of being
served
with
Federal
Court
therefore
Insurance’s
finds
that
declaration
Federal
of
default.
Insurance’s
The
decision
“such other documents . . . as Contractor may reasonably require . . .”
(Agreement § 2(f)).
CIVIL NO. 12-1806 (JAG)
constituted
a
final
and
14
binding
declaration
of
Plaintiff’s
default.
Whether
Plaintiff
waived
its
claims
and
defenses,
as
Defendants argue in their motion, is usually a matter of fact,
but may be established through “clear and definitive contract
language
.
.
.
as
a
matter
of
law.”
One
Country,
LLC.
v.
Johnson, 49 A. 3d 1030, 1034 (Conn. App. Ct. 2012). In Pero
Bldg. Co., Inc. v. Smith, 504 A. 2d 524 (Conn. App. Ct. 1986),
the Appellate Court of Connecticut upheld a general contractor’s
contractual waiver of his right to file a mechanic’s lien on the
property that was the subject of the construction. Id. at 526.
Specifically, the lower court’s refusal to grant a discharge of
the plaintiff’s mechanic’s lien was held erroneous “because the
language of the agreement between the parties was clear and
definitive
and
.
.
.
the
intention
of
the
parties
was
“[f]ailure
of
unmistakable.” Id. at 527.
Here,
the
Agreement
provides
that
Subcontractor to submit timely its notice of claim or notice of
intent
to
arbitrate
shall
constitute
an
absolute
bar
and
complete waiver of Subcontractor’s right to recover on account
of such claim.”10 (Agreement § 9(b)). The language is clear and
10
The Court is mindful that Pero involved waiver of mechanic’s liens rather
than waiver of all claims in connection with certain work. However, Pero did
not purport to limit itself to the context of mechanic’s liens in addressing
contractual waiver as a matter of law. Indeed, the Connecticut Supreme Court
CIVIL NO. 12-1806 (JAG)
unambiguous,
as
it
15
establishes
explicit
requirements
for
Plaintiff to recover damages for its work under the Agreement.
It
also
lays
out
a
clear
cause-and-effect
relationship:
Plaintiff’s failure to adhere to those requirements as to a
particular
claim
results
in
a
waiver
of
that
claim.
It
is
undisputed that Plaintiff did not submit timely notice of the
claims it now attempts to recover. Plaintiff has thus waived
these claims.
III. DTC’s and Federal Insurance’s Counterclaim
In their counterclaim, DTC and Federal Insurance claim that
Plaintiff is liable for the costs, expenses, and attorneys’ fees
that they incurred as a result of Plaintiff’s default under the
Agreement. Section 4(b) of the Agreement delineates Van Du Zee’s
liability for certain categories of damages upon “any failure of
Subcontractor . . . to perform.” (Agreement § 4(b)). Under §
4(b)
of
the
Agreement,
Van
Du
Zee
is
liable
to
DTC
and/or
Federal Insurance for “(1) liquidated damages and other delay .
. . ; (2) Contractor’s increased costs, liquidated or actual, of
performance, . . . resulting from Subcontractor caused delays or
improper Subcontractor work; (3) warranty and rework costs; (4)
has cited Pero in the context of contractual waiver of a guarantor’s
subrogation rights. Connecticut Nat. Bank v. Douglas, 606 A. 2d 684, 691
(Conn. 1992). Pero is therefore binding.
CIVIL NO. 12-1806 (JAG)
16
liability to third parties; and (5) attorney’s fees and related
costs.” (Agreement § 4(b)). Once again, the contract language is
clear and unambiguous: Van Du Zee’s failure to perform results
in its liability for the damages specified in § 4(b). As held
above, Plaintiff has failed to perform as a matter of law. As
such, the Court finds Plaintiff liable under the Agreement.
As to the amount of damages, Plaintiff is liable for the
amounts
that
Defendants
reasonably
expended
to
complete
and
correct the deficient work minus the unpaid part of the original
contract price. Levesque v. D & M Builders, Inc., 365 A. 2d
1216,
1218
involving
(1976)
defective
(holding
or
that
for
unfinished
construction
construction,
contracts
the
proper
measure of damages is the reasonable cost of completing the
project minus the unpaid part of the original contract price).
Here,
Federal
Insurance
has
spent
$210,349.78
correcting
and
completing Plaintiff’s work. The Court, however, is not in a
position
to
Defendants’
damages,
rule
motion
and
will
hearing on damages.
on
the
reasonableness
is
therefore
be
referred
denied
to
a
as
of
to
this
the
magistrate
amount.
amount
judge
for
of
a
CIVIL NO. 12-1806 (JAG)
17
CONCLUSION
For
summary
the
reasons
judgment
is
stated
GRANTED
above,
IN
Defendants’
PART
and
motion
DENIED
IN
for
PART.
Plaintiffs’ complaint shall be dismissed with prejudice. As to
Defendant’s
counterclaim,
Defendant’s
motion
for
summary
judgment is granted as to Plaintiff’s liability and denied as to
the
amount
magistrate
of
judge
damages.
for
a
This
hearing
case
on
shall
be
damages.
referred
Partial
to
a
Judgment
shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 7th day of August, 2014.
S/ Jay A. García-Gregory
JAY A. GARCÍA-GREGORY
United States District Judge
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