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Tyger Construction Co. v. Commonwealth9/28/1993
OPINION BY JUDGE JAMES W. BENTON, JR.
Tyger Construction Company, Incorporated, and Pensacola Construction Company, joint venturers doing business as Tyger-Pensacola (Tyger), appeal from the circuit Judge's grant of partial summary judgment in favor of the Department of Highways and Transportation (VDOT). The circuit Judge ruled that Tyger, a general contractor, who entered into a contract in 1985 with VDOT to construct portions of an interstate highway, could not assert a claim that its subcontractor incurred additional work not anticipated by Tyger in its contract with VDOT. Tyger contends that the circuit Judge erred in finding that Tyger was not the proper party to assert the claim. We reverse the decision.
I.
The pleadings established that after the making of the construction contract between Tyger and VDOT, Tyger, with the approval of VDOT, entered into a subcontract with the Norfolk Dredging Company to perform the dredging of areas designated as the North
Island and South Island. During the progress of construction, the subcontractor encountered subsurface conditions at the North Island site that the subcontractor deemed to be substantially different than those described in the contract documents provided by VDOT. The subcontractor sent Tyger a "notice of an impending claim," stating that the subcontractor had encountered material at the North Island "not contemplated by the contract plans and specifications." The subcontractor informed Tyger that those conditions were "reducing the operating time and capability of the equipment below that normally expected for the soil materials anticipated in this project." As a result of these conditions, the subcontractor was required to perform additional dredging work at North Island.
Tyger filed a claim with VDOT asserting the changed conditions and added expenses. VDOT denied the claim. Following the denial of the claim, Tyger timely filed a petition in the circuit court pursuant to Code ยง 33.1-386 seeking payment for the expenses of the additional dredging. Tyger contended that the additional work constituted "extra work" within the meaning of Section 104.03 of the VDOT Road and Bridge Specifications and that the specifications constituted a part of the contract between the subcontractor, Tyger, and VDOT. The trial Judge ruled that APAC-Virginia, Inc. v. Virginia Dep't of Highways & Transportation, 9 Va. App. 450, 388 S.E.2d 841 (1990) was dispositive of the case and granted the Commonwealth's motion for partial summary judgment. The remaining claims in Tyger's petition were settled and dismissed in a final order.
Tyger asserts on this appeal, as it did in the circuit court, that this case is distinguishable from APAC-Virginia because Tyger alleged in its pleadings that it was injured by VDOT conduct and because Tyger seeks to recover on its own behalf damages it incurred as a result of VDOT's conduct. VDOT argues that "the trial court [granted summary judgment] because Tyger was asserting [the subcontractor's] claim for damages ... and because it believed the APAC case was dispositive of such a claim." The parties agree that this Court has jurisdiction over the appeal. Commonwealth v. E. W. Yeatts, Inc., 233 Va. 17, 24, 353 S.E.2d 717, 721 (1987).
II.
In APAC-Virginia, this Court addressed principles concerning privity of contract.
The common law requirement of privity of contract is well established
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