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United Tel. Co. of Ohio v. Williams Excavating12/31/1997
SHAW, Judge.
This opinion consolidates the two appeals by appellant Williams Excavating, Inc. ("Williams") and appellant Southwest Licking Community Water and Sewer District ("Southwest"), which arise from three separate sewer construction projects that are the subject of various claims filed by the parties to the instant appellate action. In addition, the cross-appeal by United Telephone Company of Ohio ("United Telephone") is now before this court.
Southwest is an Ohio public authority which has jurisdiction over three townships near Pataskala, Ohio, in Licking County. In 1990, Southwest entered into a written contract with Bischoff & Associates, Inc. ("Bischoff") for it to provide professional engineering services in connection with the following three sanitary sewer improvement projects: Beechwood Trails Sanitary Sewer Improvements Contracts A and B ("Beechwood Trails"), Summit Station Sanitary Sewer Improvements Phase 2A ("Summit Station"), and U.S. Route 40 Environs Contracts A and B ("Environs"). The work included preparation of the project plans for the installation of sewer lines that would serve the three project areassThese plans included certain underground utilities present within the construction sites.
In September 1992, Williams was awarded the Beechwood Trails construction project by competitive bidding in the amount of more than $3.6 million. Hence, Williams entered into a contract with Southwest for the project. Williams was also subsequently awarded the contracts for the Summit Station and Environs projects, the approximate amounts of $883,000 and $1.7 million, respectively.
The record shows that when Williams began to excavate the Beechwood Trails site in November 1992, Williams encountered underground telephone lines in the proposed sewer line path. No such lines were shown on the bid set of plans. Although telephone line locations were designated on the plans to the other two projects, the evidence shows that Williams also encountered underground lines not as marked on the plans during excavation for the proposed sewer lines. As a consequence, it was necessary for underground telephone lines in certain areas to be relocated, thereby delaying the projects. Williams was unable to complete its work as originally scheduled.
This case commenced when United Telephone brought suit against Williams alleging that Williams negligently cut its underground telephone lines during excavation activities in the Beechwood Trails subdivision. Pertinent to this appeal, Williams's second amended counterclaim asserts various negligence claims for violations of R.C. 153.64. Specifically, Williams alleged that United Telephone negligently mismarked or failed to mark the location of its underground telephone lines at all three construction sites in issue. Williams also alleged that United Telephone negligently failed to inform or misinformed Southwest as to the existence and location of its underground utility lines, resulting in plans and specifications which were false and misleading. Williams sought to recover damages due to project delays and for the extra materials and work performed.
Williams also filed a third-party complaint against Southwest. In its complaint, Williams alleged that Southwest negligently failed to mark or mismarked the existence and location of United Telephone's underground lines on the bid plans. Williams also asserted unjust enrichment and breach of contract against Southwest. In its claims, Williams sought to recover damages resulting from project delays and for the extra materials and work required.
Southwest, in turn, filed a fourth-party complaint against Bischoff
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