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American Construction & Environmental Services11/7/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. INTRODUCTION
This is an appeal from a judgment entered after a court trial of several claims relating to the installation of an underground dual- compartment fuel tank at Mohammed Mosleh's gasoline station. American Construction & Environmental Services Inc. argues the trial court erred by holding it liable for damages for improperly installing the underground tank. We affirm.
II. STATEMENT OF FACTS
Mosleh owns a gasoline station, repair center and mini-mart in El Sobrante. He was required to upgrade his gas station in order to comply with government standards. Mosleh employed Gard Consulting Services (Gard) to draft plans and specifications for his renovation project.
In December 1998, Mosleh entered into an agreement with American Construction (the American Construction Agreement). American Construction agreed to remove the existing underground tanks at Mosleh's gas station, install new tanks and petroleum equipment which Mosleh was to furnish, and perform related EPA upgrade work pursuant to the Gard plans. Mosleh agreed to pay American Construction $107,600.00 to perform this work.
Article 9.1 of the American Construction Agreement stated: "The Contractor shall supervise and direct the Work using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract unless Contract Documents give other specific instructions concerning these maters."
Mosleh entered into an agreement to purchase new underground fuel tanks for his gas station from Petrowest Equipment, Inc. A copy of the Petrowest agreement is not in the appellate record and there was little testimony about it at trial. Mosleh testified that he gave Petrowest copies of the plans and specifications that Gard had prepared. Those plans provided for two tanks. A single compartment 12,000-gallon tank was to be installed along the west border of the gasoline pump islands and was to be used for regular gasoline. A dual container tank was to be installed along the east border with a 5,000 gallon compartment located on the north-east to be attached to a diesel pump and a 7,000 gallon compartment on the south-east side to be attached to a premium gasoline pump. Mosleh admitted during trial that there was no written communication from Petrowest indicating that the dual container tank would be marked or labeled so that the respective containers could be distinguished from the outside of the tank.
After some delay, the details of which are not relevant here, the tanks were delivered to Mosleh's gas station. Present was a crew from American Construction, headed by foreman Christopher Lowery. Mosleh arrived after the single compartment tank had already been placed in the ground. The dual compartment tank was still on the truck and Mosleh did not examine it before signing the bill of lading and accepting delivery.
Lowery testified that he has acted as American Construction's foreman for approximately twenty jobs involving work similar to that performed for Mosleh. This was the third time Lowery was responsible for installing a dual compartment tank. In one prior case, the tank had been marked to differentiate between the two com
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