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Gillingham Construction7/22/2005
2005 Opinion No. 95
The decision of the district court is reversed and remanded.
Gillingham Construction, Inc. (Gillingham) appeals from an order granting Judgment Notwithstanding the Verdict or, in the Alternative, a New Trial entered by the district court setting aside a jury verdict following trial for breach of a construction contract against Newby-Wiggins Construction, Inc. (Newby-Wiggins).
I. FACTUAL AND PROCEDURAL BANKGROUND
On June 13, 1993, the State of Idaho (the State) awarded Newby-Wiggins Construction, Inc., (Newby-Wiggins) the Prime Construction Contract (Prime Contract) for the regional headquarters building of the Idaho Department of Parks and Recreation on Warm Springs Avenue in Boise, Idaho (the Project). Section 3.2.1 of the general conditions of the Prime Contract stated:
The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner pursuant to Subparagraph 2.2.2 and shall at once report to the Architect errors, inconsistencies or omissions discovered. The Contractor shall not be liable to the Owner or Architect for damage resulting from errors, inconsistencies or omissions in the Contract Documents unless the Contractor recognized such error, inconsistency or omission and knowingly failed to report it to the Architect.
If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect, the Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction.
Section 3.2.2 further stated:
The Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing activities. Errors, inconsistencies or omissions discovered shall be reported to the Architect at once.
Gillingham does demolition, excavation and grading work. Newby-Wiggins and Gillingham executed an agreement on July 19, 1993, whereby Newby-Wiggins agreed to pay Gillingham a lump sum payment of $284,635 for work on the project. Gillingham's subcontract expressly excluded survey work and in addition contained the following language:
Subcontractor shall review the Prime Contract, and Subcontractor agrees in respect to the Work to be bound to Contractor by all the obligations set forth in the Prime Contract that the Contractor has assumed.
Gillingham began work under the subcontract in the fall of 1993. After completing approximately 85% of its work, Gillingham's project superintendent, Robert Allen (Allen), discovered a problem with the existing site elevations which were much higher than those previously reported on the Project's site plans and specifications. Allen informed Newby-Wiggins of the problem, and Newby-Wiggins told Gillingham to stop work until the problem could be resolved. Gillingham stopped its excavation work and removed some of its equipment from the site. On November 1, 1993, Gillingham resumed work and moved its equipment back onto the site. However, seven days later Gillingham had to again stop work due to weather-related delays. Gillingham eventually completed its work in the spring of 1994 based upon new site drawings.
Gillingham alleged it was required to perform extra excavation work as a result of the higher elevation and requested additional compensation for the extra work, plus the time its equipment sat idle, and the costs of mo
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