ANN ALDRICH, District Judge.
JWP/Hyre Electric Company of Indiana, Inc. brought this diversity action for breach of contract against Mentor Exempted Village School District (MEVSD) and several other contractors, including John F. Cleary Construction Company, for additional expenses incurred in the construction of the Mentor High School Fine Arts Facility. Clear has filed a cross-claim against MEVSD. MEVSD has now moved for summary judgment against JWP/Hyre and Cleary. For
In August, 1992, MEVSD put out an invitation to bid on the construction of a fine arts facility at Mentor High School. The facility was to include a 1,500-seat auditorium, multi-media facilities, offices, and classrooms. MEVSD did not hire a general contractor; rather, it divided the project into trade areas and entered directly into a separate contract for each trade area. JWP/Hyre was awarded the contract for the electrical work, while Cleary received the contract for the finishing work, such as interior carpentry, ceilings, flooring, and painting. In addition to hiring the individual contractors, MEVSD hired R.P. Carbone Construction Co. as construction manager for the project.
The project was initially slated to be completed in June, 1993. However, construction quickly fell behind schedule. The structural steel was not delivered and erected on time. This prevented the roofs and exterior walls of the project from being completed before the beginning of winter. As a result, the winter weather turned the working area into a morass. In order to install an underground conduit under these conditions, JWP/Hyre incurred additional expenses. In addition, other contractors working in the auditorium damaged the underground conduit, forcing JWP/Hyre to redo much of its earlier work.
JWP/Hyre also alleges that the design of the project was deficient. Specifically, the seating dimensions for the auditorium did not match the locations for the electrical boxes, resulting in delay and excess labor costs. Also, the seats for the auditorium came with a brace, not shown on the plans, which obstructed JWP/Hyre's access to the electrical boxes.
The drywall contractor, Duale Construction, declared insolvency and defaulted on its contract. This delayed the drywall installation. JWP/Hyre typically coordinates its work closely with the drywall contractor. However, the delay in the installation of the drywall required JWP/Hyre to use its crews inefficiently. JWP/Hyre also alleges that it had to hire extra supervisory personnel due to the numerous difficulties in the project.
Cleary also claims to have suffered from the delays in the project. Because Cleary was hired to do the finishing work, it could not proceed until much of the other work was complete. Also, Cleary had to work in difficult conditions and had to work quickly to make up lost time. As a result, Cleary incurred additional labor and other costs.
On October 7, 1993, JWP/Hyre sent a letter to Carbone, demanding additional compensation from MEVSD. JWP/Hyre sought compensation for the following: (1) unresolved change order requests; (2) direct additional costs based on conditions caused by others; (3) indirect additional costs based on those same conditions. JWP/Hyre sought approximately $39,000 for the change order requests, $280,000 for direct costs, and $46,000 for indirect costs. MEVSD offered JWP/Hyre $22,000 to settle the change order dispute, but refused to pay any additional compensation for the delays or the project conditions, on the ground that such compensation was barred by the contract. JWP/Hyre then brought the instant action.
The procedural history of this case is fairly complex. JWP/Hyre brought the original complaint against MEVSD, alleging that MEVSD breached its contract with JWP/Hyre by: (1) failing to pay for the additional work done; (2) failing to pay JWP/Hyre its retainage;
JWP/Hyre then filed an amended complaint, adding the joined contractors as defendants. MEVSD impleaded Carbone and HWH Architects-Engineers-Planners, Inc. (the architect of the project) as third-party defendants. MEVSD also filed a cross-claim against each codefendant, alleging that they are obligated by contract to defend MEVSD and to indemnify it for any damages that may result. Cleary then filed a cross-claim against MEVSD, alleging that it was owed approximately $465,324 for original contract work, additions to that work, and additional work and expenses due to delays attributable to MEVSD.
Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:
The nature of materials properly presented in a summary judgment pleading is set forth in Federal Rule of Civil Procedure 56(e):
However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. at 2512.
In this case, MEVSD argues that JWP/Hyre's and Cleary's claims for breach of contract based on the delays in the project
A. Paragraph 8.3.5 (No Damages for Delay Clause)
MEVSD points first to Paragraph 8.3.5 of the supplemental conditions to the contract which provides:
The Contractor agrees that whether or not any delay shall be the basis for an extension of time he shall have no claim against the Owner for a payment or allowance of any kind for damage, loss or expense resulting from delays; nor shall the interruptions to, or suspension of, his work to enable other contractors to perform their work [sic]. The only remedy available shall be an extension of time.
(Emphasis added). Such "no damages for delay" clauses are valid and enforceable under Ohio law. Burns Bros. Plumbers, Inc. v. Groves Ventures Co., 412 F.2d 202, 207 (6th Cir.1969); Carrabine Constr. Co. v. Chrysler Realty Corp., 25 Ohio St.3d 222, 495 N.E.2d 952, 957 (1986) However, they are not enforced where the delay for which recovery is sought was not reasonably contemplated by the parties at the time of contracting. Carrabine, 495 N.E.2d at 957; Nix, Inc. v. City of Columbus, 111 Ohio App. 133, 171 N.E.2d 197, 204-05 (1959); Avon Excavating Co. v. City of Parma, LEXIS 41557, slip op. at 12 (Ohio Ct.App.1980). Whether the delay in a particular case was reasonably contemplated is a question of fact for the jury. See Avon Excavating, slip op. at 12. In the current case, JWP/Hyre and Cleary have produced evidence that the delays that actually occurred were not in the contemplation of the parties at the time of contracting. See, e.g., Affidavit of John Cleary (Cleary Aff.), ¶ 19; Affidavit of John Kroehle (Kroehle Aff.), ¶¶ 12-13; Affidavit of E.C. Corfias (Corfias Aff.), ¶ 28. Therefore, there is a genuine issue of material fact as to whether the parties contemplated the delay and summary judgment is inappropriate.
MEVSD argues that the delay in this case was within the contemplation of the parties as a matter of law. It relies on Burns and Carrabine, in which the courts enforced similar clauses. See Burns, 412 F.2d at 207; Carrabine, 495 N.E.2d at 957. Both cases are easily distinguished from the present case, however. In both cases, the contractor explicitly promised to be responsible for the cause of the delay. In Carrabine, the delay was due to a failure to obtain the necessary building permits and licenses, and the contract explicitly placed the burden of complying with the local ordinances on the contractor. Carrabine, 495 N.E.2d at 957. In Burns, the delay was due to flooding of the Ohio River. Burns, 412 F.2d at 207. The bidding specifications warned all bidders that flooding was possible. Id. The court also noted that flooding of the Ohio River was predictable. Id. Accordingly, the court in each case held that the contractor contemplated the delay when it entered into the contract and that the no damages for delay clause was enforceable. Id.; Carrabine, 495 N.E.2d at 957.
In the present case, however, JWP/Hyre and Cleary did not promise to prevent delays caused by other contractors, or by MEVSD. To the contrary, MEVSD promised that Carbone would supervise and coordinate the work of all the contractors so that JWP/Hyre and Cleary could plan and perform the work properly. See Contract, ¶¶ 2.2.3 and 2.3.7. In other words, JWP/Hyre and Cleary allege that MEVSD promised to avoid these types of delays. This is the precise opposite of Carrabine and Burns, where the contractors explicitly took on the responsibility for the delays at issue.
In Avon Excavating, the contract was for sewer work. Avon Excavating, slip op. at 12. The contractor alleged that the city forced him to begin work in awkward places, i.e., other than the terminus of the sewer lines, resulting in a delay. Id. The court ruled that whether the resulting delay was within the contemplation of the parties was a question for the jury, despite contract language that precluded delay damages. Id.
The case before the Court mirrors both Nix and Avon Excavating. Just as the plaintiff in Nix alleged that the city's failure to keep its promise to obtain the right of way caused the delay, JWP/Hyre and Cleary have presented evidence that MEVSD's failure to keep its promise to coordinate the work caused delays. See, e.g., Kroehle Aff., ¶¶ 12, 14, and 16; Corfias Aff., ¶ 24. Similarly, as the plaintiff in Avon Excavating alleged that the city's order to begin work in awkward places caused the delay, JWP/Hyre and Cleary have presented evidence that MEVSD ordered them to perform work in ways which did not efficiently utilize their workers, causing delays. See e.g., Kroehle Aff., ¶ 7; Corfias Aff., ¶¶ 18 and 20. This Court cannot conclude that the delays here were contemplated as a matter of law and therefore, summary judgment is inappropriate.
B. Paragraph 8.3.12
MEVSD argues that the damages are barred by Paragraph 8.3.12 of the contract, which provides:
(Emphasis added). In order for this clause to bar a claim for damages, the following must have occurred: (1) the trade contractor must have either not been given or declined an extension of time; and (2) the damages must stem from an extension of time given to another contractor. As JWP/Hyre points out, MEVSD has produced no evidence that the damages which JWP/Hyre and Cleary seek stem from an extension of time given to another contractor. Moreover, it has not even submitted evidence of an extension of time given to another contractor. Therefore, this clause does not bar the damages sought and summary judgment is inappropriate.
C. Paragraph 8.3.1.
MEVSD also argues that paragraph 8.3.1 bars JWP/Hyre's and Cleary's claims for damages due to delay. Paragraph 8.3.1, as amended by supplemental condition 8.3.1, provides:
MEVSD argues that this clause, by providing only for an extension of time, implies that an increase in compensation is not available. However, the express language of the contract negates that implication. Paragraph 8.3.4 provides:
The contract itself provides that Paragraph 8.3.1 does not bar the claims and summary judgment is not appropriate on this ground.
D. Paragraph 8.3.13
MEVSD also argues that JWP/Hyre's and Cleary's claims are barred by paragraph 8.3.13, which provides:
(Emphasis added). By its very language, this clause does not bar claims based on delay where the delay is not of a type ordinarily experienced in similar projects. JWP/Hyre and Cleary have submitted evidence that indicates that the delays were "extreme and unusual" for a project of this size and complexity, and not those ordinarily experienced. See, e.g., Cleary Aff., ¶ 19; Kroehle Aff., ¶ 12; Corfias Aff., ¶ 28. Therefore, a genuine question of material fact exists as to the operation of this clause, and summary judgment is not appropriate on this ground.
E. Ultimate Liability
Finally, MEVSD argues that summary judgment should be granted because it will not be ultimately liable for the damages sought by JWP/Hyre and Cleary. MEVSD points to paragraph 6.2.5, which provides:
This clause does not exculpate MEVSD from liability vis-a-vis JWP/Hyre and Cleary, however. Rather, it provides for indemnification from the other contractors. The fact that MEVSD is indemnified does not bar the claim or require JWP/Hyre and Cleary to make the claim directly against the other contractors. Instead, if MEVSD has breached its contractual duties to JWP/Hyre and Cleary, they have a right to sue MEVSD directly, and MEVSD can then collect from the responsible parties.
For the foregoing reasons, this Court concludes that JWP/Hyre's and Cleary's claims for damages due to delay
IT IS SO ORDERED.