CHAMPAGNE-WEBBER INC V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
CHAMPAGNE-WEBBER, INC.,
UNPUBLISHED
November 16, 2001
Plaintiff-Appellant,
v
No. 217994
Court of Claims
LC No. 96-016459-CM
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Before: Holbrook, Jr., P.J., and Hood and Griffin, JJ.
PER CURIAM.
In this breach of contract cause of action, plaintiff appeals as of right from the trial court’s
grant of summary disposition for defendant pursuant to MCR 2.116(C)(10). We affirm.
The case involves a construction contract awarded to plaintiff by defendant. Plaintiff
contracted to construct approximately seven miles of Interstate 94. The construction contract
was awarded on May 5, 1992, with an open to traffic date set for October 28, 1992. The contract
price was a little less than sixteen million dollars. Plaintiff was awarded a $450,000 incentive for
finishing the project ahead of schedule. The maximum incentive that could be awarded under the
contract was $600,000. Plaintiff brought suit for damages it alleges it incurred due to delays
caused by defendant.
Plaintiff argues that the trial court erred in granting summary disposition to defendant
because a genuine dispute existed concerning whether defendant owed plaintiff payment for a
variety of costs incurred in excess of the type and amount agreed to in their construction contract
– costs, plaintiff asserts, that were not contemplated by the contract nor barred by its notice
provisions. We disagree. This Court reviews de novo decisions on motions for summary
disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
A motion pursuant to MCR 2.116(C)(10) tests the factual basis underlying a
plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when, except
for the amount of damages, there is no genuine issue concerning any material fact
and the moving party is entitled to damages as a matter of law. A court reviewing
such a motion must consider the pleadings, affidavits, depositions, admissions,
and any other evidence in favor of the opposing party and grant the benefit of any
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reasonable doubt to the opposing party. [Stehlik v Johnson (On Rehearing), 206
Mich App 83, 85; 520 NW2d 633 (1994).]
First, plaintiff argues that the contract’s plain language does not bar recovery for costs
incurred due to heavy rains that fell in the summer of 1992. Plaintiff’s argument here is twofold.
First, plaintiff argues that while the contract does prohibit extensions of time due to weather
conditions, the contract does not specifically state that a contractor cannot claim the extra costs
associated with adverse weather conditions. Second, plaintiff argues that delays caused by
defendant’s actions resulted in the loss of “float” days built into the schedule, which in turn
“push[ed] the contractor into horrific weather conditions.”
The contract clearly states that “[n]o extension of time will be granted for any weather
conditions or because of seasonal limitations.” It also contains the following provision: “The
project is on an expedited schedule . . . . The contractor will be expected to mobilize sufficient
manpower and equipment and to work the required overtime to maintain the expedited
schedule.” Plaintiff is correct that read, in isolation, the former provision does not specifically
state that a contractor cannot claim the extra costs associated with adverse weather conditions.
However, except for certain exceptions that don’t apply here, a contract provision should not be
read in isolation. Michigan Twp Participating Plan v Pavolich, 232 Mich App 378, 383; 591
NW2d 325 (1998). Instead, the agreement is read as a whole in order to ascertain the parties’
intent. Id.
When read together, the two provisions quoted above clearly indicate that plaintiff is not
due compensation for delays caused by adverse weather conditions. First, we reject plaintiff’s
contention that it only assumed the risk for foreseeable, regular weather conditions. The contract
unambiguously states that no extension of time will be given for “any weather condition.” The
adjective “any” indicates that no extension is to be given for whatever weather condition arises,
no matter how severe.1 If the contract meant to provide for an exception in the event of, for
example, higher than average rainfall, such language could have been inserted, as it was for
“increases in contract qualities or extra work,” “labor disputes,” and “delays in delivery of
critical materials.”2 Second, the risk that adverse weather could throw off the expedited schedule
1
The logical flipside of plaintiff’s “regular weather” argument would be that it would not be due
excessive incentive payments if the summer of 1992 had turned out to be one of the driest on
record, thereby allowing for the work to be completed even sooner than it was. This argument
would also be without merit. Plaintiff assumed the risk associated with bad weather and was
accordingly due the potential benefit of good weather.
2
These three contract provisions provide:
No extensions of time will be allowed for increases in contract quantities or extra
work unless if [sic] can be shown that such increases or extras affect the critical
item of work.
No extensions of time will be granted for labor disputes unless it can be shown
that such disputes are industry wide.
(continued…)
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is expressly allocated to plaintiff, who is also required to mobilize the equipment and manpower
needed to maintain the expedited schedule. Thus, plaintiff is required to employ the men and
material needed to maintain the schedule in the light of any and all weather conditions that occur.
We also find no merit in plaintiff’s second argument. Plaintiff asserts that it incurred
extra expenses associated with paving the highway. Plaintiff contends that due to defendant’s
alleged interference, plaintiff “was forced” to keep a paving “crew on site despite predicted or
actual adverse weather,” “was forced to mobilize a second batch plant in order to increase
production potential,” and incurred costs associated with “the use of equipment beyond the dates
they were supposed to be used.” Despite plaintiff’s assertion that allegedly adverse interference
by defendant delayed the project by fourteen days, plaintiff admits in its brief on appeal that it
began paving on June 21, 1992, which was two days after it planned to begin this work.
Nonetheless, plaintiff argues that had not defendant delayed work on the project, plaintiff would
have gained 14 days on its paving schedule, which would have allowed it to have work crews
stay home on rainy days.
Assuming arguendo that the project was delayed by fourteen days due to defendant’s
actions, we conclude that plaintiff has failed to show genuine issues of material fact regarding
whether this delay was the result of bad faith or the active interference of defendant. Phoenix
Contractors, Inc v General Motors Corp, 135 Mich App 787, 792-793; 355 NW2d 673 (1984).
Plaintiff claims that defendant delayed the project in six ways. First, plaintiff asserts that
the contract was awarded late because it was awarded the afternoon of May 5, 1992. This
argument is without merit. The term “by” is defined as meaning “on or before a certain time.”
Black’s Law Dictionary (6th ed), p 201. Further, the contract indicates that it is only
“anticipated,” not certain, that the contract would be awarded by May 5. We also note that the
contract includes the following clearly-worded provision: “In no case, shall any work be
commenced prior to receipt of formal notice of award by” defendant. Thus, while plaintiff might
have been expecting the contract to be awarded before May 5, defendant cannot be said to have
acted in bad faith by awarding it on May 5.
Second, the fact that plaintiff may have had some disagreements with defendant’s density
checkers does not mean that they were incompetent or that defendant acted in bad faith.
Considering the evidence in the appropriate light, we conclude that plaintiff has failed to show
that a genuine issue of disputed fact exists on whether defendant acted unreasonably in using
these particular density checkers. Phoenix, supra at 794. We also find meritless plaintiff’s third
contention that defendant did not act promptly in inspecting the grade on the portion of the
highway falling between Hannan and Haggerty Roads. Significantly, the record does not contain
(…continued)
***
No extension of time will be granted for delays in delivery of critical materials
unless the delay can be shown to be industry wide and the delay affects the critical
item of work. [Emphasis added.]
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documentary evidence establishing when the situation was reported to defendant.3 Assuming
that it was discovered and reported on Saturday, June 13, 1992, we do not believe that
defendant’s inspection on Monday, June 15, was unreasonable.
Plaintiff’s fourth, fifth, and sixth contentions are also without merit. Plaintiff was paid
for the extra bridge work, failed to provide adequate notice of the staking error claim, and the
prohibition against hauling on July 4 was unambiguously stated in the contract.
Given our resolution of the above issues, we need not address plaintiff’s assertion that it
gave defendant proper notice of its claims under the contract provisions, or that, in the
alternative, defendant waived them. We note, however, that this argument is also without merit.
The unambiguous terms of the contract state that timely, specific written notice was to be given
concerning the nature of the claim and the financial loss incurred, for “each and every claim.”
Plaintiff failed to provide such notice.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Harold Hood
/s/ Richard Allen Griffin
3
Entries in the date and day sections of the Inspector’s Daily Report where the problem is
mentioned have been blacked out.
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