Stark Excavating v. Carter Construction Services
2012 IL App (4th) 110357
| Ill. App. Ct. | 2012Background
- Stark filed a third-amended complaint alleging breach of contract for winter protection work, other extras, and retainage, plus quantum meruit and unjust enrichment claims for winter protection costs.
- The subcontract with Carter excluded winter protection of concrete or subgrade from the contract price, though winter-related costs were contemplated; Stark sought payment for winter protection as an extra.
- Carter moved to dismiss and later moved for summary judgment; the trial court found winter protection was excluded and denied payment under Watson, granting summary judgment to Carter.
- Stark’s December 2005 letters showed Stark intended to document costs outside the contract; Carter would not sign non‑preapproved work orders, but Stark proceeded.
- The trial court granted summary judgment on the winter protection extra, and Stark sued on quasi-contractual theories; the court later dismissed counts II and III, then Stark amended, and the case was appealed.
- The appellate court reversed and remanded, holding a triable issue of fact existed as to whether Stark could recover winter-protection costs under Watson-based analysis and that quasi-contractual claims could proceed, while affirming dismissal of the contract claim on count I was improper in light of factual questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stark can recover for winter protection as an extra under Watson. | Stark could prove the winter protection work was beyond the contract and ordered by Carter, with a written waiver not needed. | Winter protection was expressly excluded from the contract and not approved as an extra. | There are genuine issues of material fact; summary judgment was improper. |
| Whether Stark may recover for winter protection under quasi-contractual theories. | Quasi-contractual recovery is available because winter protection was not covered by the contract. | No recovery under quasi-contractual theories if contract covers the subject matter. | Genuine issues of material fact exist; quasi-contractual claims should proceed. |
Key Cases Cited
- Watson Lumber Co. v. Guennewig, 79 Ill. App. 2d 377 (Ill. App. 1967) (test for extras: five Watson elements; clear and convincing proof where needed; extras outside contract)
- Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill. App. 3d 305 (Ill. App. 2002) (contract interpretation and ambiguity guiding intent)
- Dean v. Rutherford, 49 Ill. App. 3d 768 (Ill. App. 1977) (construction implied warranty of workmanlike performance)
- Hayes Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1 (Ill. App. 2004) (quasi-contractual recovery limits under contract)
- Midwest Emergency Associates-Elgin, Ltd. v. Harmony Health Plan of Illinois, Inc., 382 Ill. App. 3d 973 (Ill. App. 2008) (unjust enrichment/quantum meruit under contract)