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City of Westminster v. Centric-Jones Constructors9/11/2003
JUDGMENT AFFIRMED
Casebolt and Plank , JJ., concur
In this construction dispute, plaintiff, the City of Westminster (City), appeals the judgments entered against it and in favor of defendants, Centric-Jones Constructors and its affiliates (collectively Jones); Travelers Casualty & Surety Company; Aetna Casualty & Surety Company; and Bates Engineering, Inc. Jones cross-appeals the judgments entered against it and in favor of third-party defendants, Fischbach Masonry, Inc. and Reliance Insurance Company, only to the extent of further proceedings between the City and Jones. We affirm.
The City, as owner, and Jones, as prime contractor, entered into a contract to expand the City's water treatment plant. Travelers and Aetna (collectively Travelers) were sureties to Jones. Fischbach was a subcontractor to Jones and Reliance was its surety. Bates and other engineering firms performed all design work for the City.
The project involved design and construction of three structures, two of which are at the center of this appeal: a five-million-gallon, below ground concrete tank to hold treated water (clearwell); and a high service pumping station to move the treated water into the City's distribution system (HSPS).
In 1995, Jones began construction using designs and specifications prepared by the engineering firms. Work continued beyond the scheduled completion date. Disagreements among the City, Jones, and the engineering firms arose over water leakage from the clearwell into the underlying fill, wetting and destabilization of bedrock below the fill, and resulting movement of the clearwell. Other disagreements arose over structural problems in the walls and foundation of the nearby HSPS.
In late 1997, with most of the work done, the City terminated the contract and asserted a claim against Travelers under the performance bond. Travelers denied the claim on the basis of improper contract termination.
The City then hired new engineers. They recommended that the City demolish and rebuild the clearwell using a significantly different foundation design, demolish and rebuild the masonry walls of the HSPS to new specifications, and change the HSPS foundation. The City did so, although expenses substantially exceeded the original construction costs and the new specifications added features to both the clearwell and the HSPS.
The City sued Jones, Bates, and the other initial engineering firms for breach of contract and negligence, claiming as damages the entire cost of removing, redesigning, and rebuilding the clearwell; redesigning and rebuilding the HSPS walls; and modifying the HSPS foundation. The City also sued Travelers for breach of the performance bond and bad faith investigation of the City's claim.
Jones counterclaimed for lost profits from unfinished work based on wrongful termination of the contract and for nonpayment for work performed to the termination date. Jones also filed a third-party complaint against Fischbach and Reliance seeking indemnification for damages arising from work done by Fischbach on the HSPS walls.
The court entered summary judgments dismissing the claims against Bates, and in favor of Jones on the City's negligence claim. The other engineering firms then settled with the City.
At trial, after the City rested its case-in-chief, the court directed verdicts for all defendants and third-party defendants. The court concluded that the City had failed to present a reasonable basis on which the jury could apportion damages based on either the benefit of the City's bargain with Jones or Jones' breaches.
At the conclusion of its deliber
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