Boh Brothers Construction Company, L.L.C. VS State of Louisiana, Through the Department of Transportation & Development
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1793 BOH BROS CONSTRUCfION CO L Lc VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Judgment rendered March 27 2009 Appealed from the 19th Judicial District Court 9 in and for the Parish of East Baton Honorable Curtis A H Rouge Louisiana Trial Court No 557 041 Calloway Judge ATTORNEYS FOR BRUCE SHREVES JAMES A PLAINTIFF APPELLEE BURTON NEW ORLEANS LA BOH BROS CONSTRUCTION AND CO LL c TERRENCE L BRENNAN NEW ORLEANS LA CHERYL L DUVIEILH ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLANT STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT BEFORE TAAI D PETTIGREW McDONALD AND HUGHES ll cl L PETTIGREW J pertinent hereto Soh Bros Construction Co At all times State of DOTD related Louisiana through the Department of Transportation bound were a a valid contract concerning the obtained Manufab Pearlington MississippL Manufab submitted the stockpiled materials and Boh Thereafter August 2005 s warehouse in exposure of the the cost an invoice storm the DOTD refused to pay or of the subsequent letter requested are as not considered Stockpiled or follows dated in the contract created Material DOTD in which in paid Boh for by Hurricane Katrina already were stored to some The of the the site and within the on permanent part of the finished project May 15 2006 DOTD again advised that the to the contractor or material Bearings manufactured and stored part of the work Stored warehouse policy that the obligation to bear the expense eligible for reimbursement cost was not DOTD continued DOTD is or will become a to Boh certain intradepartmental correspondence dated February to the work relates to materials In a Boh damaged materials for the project but of project s right Of way that supply its in irreparable damage was on to for the materials to Boh surge 23 2006 this denial repairing damage based to bridge and replacement Boh requested that DOTD pay or replacement According a bearings and other Mississippi where the materials refabrication and of refabrication and Development paid Manufab materials to saltwater caused required stored them provided for in turn in inundated Manufab materials and As Manufabn fabricated gears the materials and turn submitted an invoice to DOTD and and the In connection with its contract with DOTD including specialized project Soh construction of purchase order contract with Manufab Inc materials for the materials by in Iberia Parish improvements entered into L Lc at the supplier s facility As stated in Subsection 109 07 DOTD is not responsible for such supplier Payment for materials until incorporated into the work Boh filed Boh sought an 213 Hurricane Katrina action for breach of contract 43 315 against DOTD on July 9 2007 Therein plus judicial interest for the damages allegedly caused by In the alternative Soh prayed for declaratory relief 2 DOTD promptly filed The motions DOTD s were motion judgment on heard but motions for summary 10 2008 It is from this 213 judgment is whether 43 315 in favor of Soh contract at issue the conduct trial court novo review de s site Summary judgment genuine not presented legally was incorporated into the same is 2001 2115 4 p properly granted criteria that govern the issue of material fact App if the 1 Cir 8 6 03 Henderson v 859 So 2d 122 pleadings depositions answers to together with affidavits if any show that there file on La courts appellate and that mover is entitled to judgment as a matter is of La Code Civ P art 966 B law When parties the contract s be issue determination of whether summary judgment is appropriate interrogatories and admissions no narrow appropriate employing the of the evidence Kingpin Development Co 126 appealed arguing the trial The is determining whether summary judgment a a Act of God damaged by an In signed interest for DOTD s provided that DOTD responsible for stockpiled materials stored off the project work and The trial court plus judicial that DOTD has judgment The trial court denied summary judgment in favor of Boh granting summary judgment review cross court on March April 15 2008 awarding Boh court erred in our parties then filed by the trial granted breach of contract for The responsive pleadings p 4 1 16 04 Ginger La App document review is not valid contract and material facts Mae Financial Services p La 10 17 03 11 subject La An question of law and App LLC 857 SO 2d 546 at the contract analysis of the to the appellate trial court level manifest simply whether the trial court 2002 1632 are not in 548 v error 1 Cir 5 28 03 writ denied 2003 2983 3 La ambiguity review that is not founded upon but rather within rule of law the is based four In such cases v upon corners an of the appellate Delahoussaye 858 So 2d 469 478 writ denied 855 SO 2d 764 would Ameribank FSB 2002 legally correct Claitor was conflict judgment A determination of the existence or absence of an findings made independent a to the case is a matter of law and summary 864 So 2d 634 any factual by 1 Cir 9 26 03 in a contract entails a review is bound application appropriate 2492 are 2003 1820 Generally legal agreements have the effect of law upon the parties and bind themselves therefrom So 2d 1094 In other words and the courts intent of the p 7 634 SO 2d 466 3 11 94 La are 1 Cir 6 20 97 703 So 2d 29 10 31 97 they 2046 Woodrow Wilson Const Co 2346 p 7 1 94 3 La 1 Cir App 6 17 94 writ denied 96 1751 97 1911 635 SO 2d 758 La by the words of the contract La Civ Code art Inc 93 94 1206 La MMR Radon Constructors v 638 to the true according Ashland Oil Inc 1036 La is the law between them parties v 16 p 759 writ denied 639 SO 2d 1167 When the words of consequences La 4 8 94 La absurd consequences no Inc 92 1545 94 0906 This intent is to be determined explicit and lead to clear 92 1544 to such contracts 696 SO 2d 1031 when are between the La Civ Code art 2045 Sanders parties App Inc writ denied give legal effect to they performance of the obligations flowing lolin v 479 a contract obligated full a Inc Belle Pass Terminal 1 Cir App they shall be held to as no clear and are Belle Pass Terminal interpretation establish that Civ Code art 2046 La pursuing its spirit 1015 to no absurd in search of the parties intent La 92 1544 at 17 634 So 2d at 479 Inc when unambiguous the letter of that clause should SO 2d 1013 explicit and lead further interpretation may be made Civ Code art 2046 The rules of contract a a clause in not be contract is clear and disregarded under comment b Inc Belle Pass Terminal 1986 a Cashio v the pretext of Shoriak 481 92 1544 at 17 634 So 2d at 479 To determine the their meaning of words used in La generally prevailing meaning of different conforms meanings to the susceptible effective and not with provisions so must be every meanings one interpreted La must be as Civ court should If a word is Code art a 2048 susceptible A provision meaning that renders La Civ Code art it 2049 interpreted in light of the other given the meaning suggested by the contract 4 give them having the meaning that best interpreted with in a contract must be a 2047 that renders it ineffective provision that each is contract Civ Code art object of the contract of different Furthermore it a as a whole La Civ Code art controls the 2050 Moreover Smith general in the Burton v interpretation of contracts the specific 2004 2675 p 6 La App 1 Cir 12 22 05 928 So 2d 74 79 With these rules of contract mind we review de the novo the Louisiana Standard interpretation and summary judgment practice provisions of the contract set forth the agreed to by the parties Specifications for Roads and Bridges 2000 Edition comprised part of the agreement for the project provisions As in The question parties intentions with respect in Red Book following Red Book to the issues before us 101 03 DEFINITIONS Materials Any substances used in the work equipment and incidentals necessary for successful completion of the project and the carrying out of all obligations imposed by the contract Work of labor furnishing The materials services 107 19 CONTRACTOR S RESPONSIBILITY FOR WORK the contractor acceptance shall have the charge precaution against damage from or execution rebuild to the work or or pay for Until final of the work and to any of the work The contractor shall damages including theft and vandalism execution non repair restore theft care part thereof by action from other cause whether arising shall take every of the elements vandalism and before final acceptance and shall bear the expense thereof except for the following b tornado earthquake tidal wave other cataclysmic phenomenon of nature or acts of Damage due hurricane governmental or to Acts of God such as authorities 109 07 PAYMENT FOR STOCKPILED OR STORED MATERIAL Payment for stockpiled or stored material will be considered only for materials anticipated to be stored for periods in excess It shall be the contractor s responsibility to of 90 calendar days protect the material from damage while in storage a General ownership of materials for which advancements have been made by Department shall not vest in the Department until such materials are incorporated in the work and the work accepted by the Department The making of advancements by the Department shall not release the contractor from the responsibility for any portion thereof Title and the DOTD insists the trial court erred in not stockpiled stored material provision of the contained in Section 109 07 DOTD affording the appropriate weight contract was not urging that pursuant vested with title 5 or to the to the language ownership of the materials until such materials materials did be not become the work until incorporation responsible for repair not incorporated into the work DOTD further argues that moveable were to the materials yet been incorporated into the Thus DOTD stored materials does not responsibilities with respect to make advance to the risk of loss of the materials Section 107 19 which limits the contractor forth that the contractor shall tidal as responsibility s restore or pay for hurricane wave maintains that based on the the contractor s scope of are s that clear and that the or payment for or the parties interpretation of for the work by clearly setting to the work before final d amage due to Acts of God cataclysmic phenomenon of nature facts of this It set forth in the contract hinges damages case and this Soh provision of the replacement of the materials falls outside of to DOTD Work included the explicit by Hurricane Katrina specifically and as interpretation of the contract provisions project Boh before final acceptance except for caused other responsibility and thus falls As the contractor on the project Boh urges thoroughly reviewed the evidence in the record and the applicable law and agree with Boh of the contract or undisputed contract the expense of restoration We have accepted on matter acceptance and shall bear the expense thereof except for such to a hurricane compromise acceptance of the work Soh contends proper resolution of this However DOTD to DOTD clearly defines work as the furnishing of materials for the project acknowledges that Section 109 07 which allows DOTD stockpiled not work clearly defined risk of loss of the materials due that Section 101 03 would damaged by Hurricane Katrina because they had Boh argues that while title and ownership did not pass the limited yet asserts it was damage due The terms and furnishing of materials for the responsible for all damage to the work to Acts of God such as This Section of the Red Book which is the mentions Acts of God provisions clearly controls this situation the damage only provision DOTD s argument general provisions dealing with stockpiled stored materials somehow alter the specific proviSions of Section 107 19 regarding damages due aptly points out strained and illogical 6 to Acts of God is as Boh DOTD failed to bear its burden of issues of material fact producing evidence that there concerning its judgment appeal in Therefore accordance with Uniform Rules costs in the amount of 1 375 00 genuine responsibility for the refabrication and replacement of the damaged materials for the project in favor of Boh was warranted were we affirm the trial Courts of against DOTD AFFIRMED 7 Accordingly summary court s April or judgment 15 Appeal Rule 2 16 1B and 2008 assess STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1793 BOH BROS CONSTRUCTION CO LLc VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATOIN AND DEVELOPMENT MAR 3 1 2009 Appealed from the 19th Judicial In and for the Parish of East Baton Trail Court Honorable Curtis H District Court No A BRUCE SHREVES 557 041 Calloway Judge ATTORNEYS FOR PLAINTIFF APPELLEE JAMES A BURTON NEW ORLEANS Rouge Louisiana LA BOH BROS CONSTRUCTION AND CO LLc TERRENCE L BRENNAN NEW ORLEANS LA CHERYL L DUVIEILH ATTORNEY FOR BATON ROUGE LA DEF ENDANT APPE LLANT STATE OF LOUSIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT ki fl d t McDONALD J I DISSENTING respectfully dissent I do not find that materials stored manufacturer in its warehouse believe the Act of God applies DOTD to materials Contract are provision the responsibility when specification 107 19 not provides an out of state of DOTD under the contract applied within the the worksite that have at by context of the contract yet gotten final acceptance in its I by entirety CONTRACTOR S RESPONSIBILITY FOR WORK Until final acceptance the contractor shall have the charge and care of the work and shall take every precaution against damage to any part thereof by action of the elements vandalism theft or from other arising from execution or non execution of the work The contractor shall rebuild repair restore or pay for damages including theft and vandalism to the work before final acceptance and shall bear the expense thereof except for the following a Guard rail and permanent impact attenuators shall be repaired as soon as possible after damage If the engineer determines that the contractor s operation did not contribute to the damages the Department will reimburse the contractor for such repairs by force account in accordance cause whether with Subsection 109 04 Damage due b to Acts of God such tornado hurricane nature acts or or earthquake tidal wave cataclysmic phenomenon of other as of governmental authorities suspension of work the contractor shall be responsible for the project The contractor shall take such precautions as necessary to prevent damage to the project maintain traffic provide for normal drainage and erect any necessary temporary structures signs or other facilities at no direct pay During such period of suspension the contractor shall acceptably maintain all living material in newly established plantings seedings and soddings furnished under the contract and shall take adequate precautions to protect new tree growth and other important vegetative growth against Should suspension of the work not be attributed to any damage In case of actions of the contractor the contractor shall be reimbursed for additional work under appropriate pay items or in accordance with Subsection 109 04 The reference attenuators as to the well as immediate contract concerns While perhaps intent is clear guard rails the reference to traffic maintenance of the this repaIr of the worksite and the provision and permanent impact show that this section at the worksite artfully drafted I believe its stockpiled materials could have been more
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