Stark Excavating v. Carter Const. Services
967 N.E.2d 465
Ill. App. Ct.2012Background
- Stark filed a third-amended complaint against Carter alleging breach of contract for winter protection, other extras, and retainage, plus quasi-contractual claims (quantum meruit and unjust enrichment) for winter protection costs.
- The contract excluded winter protection of concrete/subgrade, but winter-related costs were discussed, and Stark sought to adjust bids for winter conditions in 2005.
- Stark submitted revised bids in October 2005; Carter entered a subcontract with Stark on October 17, 2005, for various works including winter-related contingencies, with written approval required for extras.
- Stark warned in December 2005 that additional costs for winter protection were outside the contract and would be documented; Carter stated it would not sign preapproved work orders for winter protection.
- Trial court granted partial summary judgment in 2009 finding winter protection was outside the contract and not ordered or agreed to be paid for; later proceedings dismissed other counts.
- On appeal, the court reversed the summary judgment on the contract claim for winter protection and remanded for further proceedings on both contract and quasi-contractual theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stark may recover for winter protection as extra work under Watson. | Stark argues winter protection was necessary and Carter ordered/accepted it; it should be paid as extra. | Winter protection was outside the contract scope; no written authorization or clear agreement to pay extra existed. | Questions of fact prevent summary judgment; facts could support extra-work recovery under Watson. |
| Whether Stark may recover for winter protection under quasi-contractual theories. | Even with an express contract, Stark can recover for noninclusively authorized winter protection due to unjust enrichment/quantum meruit. | Quasi-contractual recovery cannot override an express contract for covered items; winter protection here was excluded from contract. | Genuine issues of material fact exist; court erred in dismissing counts II and III; remand on quasi-contractual claims. |
Key Cases Cited
- Watson Lumber Co. v. Guennewig, 79 Ill.App.2d 377 (Ill. App. 1967) (set the Watson test for recovery of extras and elements required)
- Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill.App.3d 305 (Ill. App. 2002) (contract interpretation when unambiguous)
- Dean v. Rutherford, 49 Ill.App.3d 768 (Ill. App. 1977) (implied warranty to work in a reasonably workmanlike manner)
- Hayes Mechanical, Inc. v. First Industrial, L.P., 351 Ill.App.3d 1 (Ill. App. 2004) (distinguishes quantum meruit vs. unjust enrichment)
- Barry Mogul & Associates, Inc. v. Terrestris Development Co., 267 Ill.App.3d 742 (Ill. App. 1994) (general rule: no quasi-contractual recovery where express contract exists)