Bowes Construction, Inc. v. South Dakota Department of Transportation
793 N.W.2d 36
S.D.2010Background
- Bowes Construction, Inc. subcontracted to produce aggregate for three SD Department of Transportation asphalt projects.
- Subcontracts incorporated SD 220, the SD QC/QA program, and required Bowes’ mix designs to pass the Department’s sodium-sulfate-soundness test.
- Bowes claimed the Department rejected its material based on a test performed without the double pour, arguing SD 220 is ambiguous and requires the double pour.
- The Department historically used a double pour, but SD 220 does not mandate it; trial evidence showed mixed practices over time.
- Bowes tested its own mix designs via third-party labs (Maxim, GeoTek) with results differing from the Department’s results, largely benefiting Bowes.
- The Department ultimately allowed Bowes to proceed on the Highway 37 and 47 projects with designs Bowes produced, after differing test results; Bowes sued in May 2006 for breach of contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Bowes prove a breach by the Department regarding the double pour? | Bowes argues SD 220 is ambiguous and requires the double pour; Department breached by not performing it. | SD 220 is unambiguous; no double pour requirement, so no breach. | Court did not decide on ambiguity; ultimately Bowes failed to prove damages from any breach. |
| Did Bowes prove causation of damages from any breach? | Non-double-pour testing caused higher losses, leading to breach damages. | Testing without the double pour did not materially increase losses; damages not proven. | Bowes failed to establish damages causally connected to the alleged breach. |
Key Cases Cited
- Fisher Sand & Gravel Co. v. S.D. Dep't of Transp., 558 N.W.2d 864 (S.D. 1997) (direct sueability of subcontractors against state DOT for breach)
- Sweetman Constr. Co. v. S.D. Dep't of Transp., 293 N.W.2d 457 (S.D. 1980) (breach of contract framework and damages proof)
- Guthmiller v. Deloitte & Touche, L.L.P., 699 N.W.2d 493 (S.D. 2005) (elements and proof of breach and damages)
- McKie v. Huntley, 620 N.W.2d 599 (S.D. 2000) (causation and damages principles in contract cases)
- Krzycki v. Genoa Nat’l Bank, 496 N.W.2d 916 (Neb. 1993) (causation and damages standards referenced)