170 So. 3d 186
La. Ct. App.2015Background
- City contracted with F.G. Sullivan, Jr., Contractor in 2001 to widen Tiger Bend Road and install an underground drainage system; Sullivan subcontracted drainage to RCS.
- Contract and DOTD directive provided for reimbursement of idle/standby equipment under a formula tied to Blue Book rates.
- City represented utilities would be removed by April 1, 2001; undisclosed utilities remained in the ROW and caused repeated delays.
- Sullivan claimed idle-equipment and increased-overhead damages (and sought RCS’s claimed losses); City paid principal contract but denied these additional sums.
- At bench trial the court awarded Sullivan ~$957,736 (idle equipment + overhead) but denied RCS’s claimed costs; on appeal the court affirmed in part, reversed/calculated idle-equipment de novo, and modified the award to $187,432.04.
Issues
| Issue | Sullivan's Argument | City of Baton Rouge's Argument | Held |
|---|---|---|---|
| Trial continuance denial | City needed more time because its damages expert (Daigle) was unavailable for health reasons | Court erred by refusing continuance under La. C.C.P. art. 1602 | Denial affirmed: City failed to show due diligence or provide medical proof; no abuse of discretion |
| Use of opposing expert's deposition at trial | Deposition admissible because witness unavailable on cardiologist's advice and parties had stipulation | Objection: no proof of unavailability, no subpoena, deposition was for discovery not trial | Sustained: trial court did not abuse discretion; deposition excluded (no sufficient proof of unavailability; exceptional-circumstances argument fails) |
| Quantum of damages for idle equipment and overhead | Sullivan relied on expert Myers calculating 303-day delay and detailed equipment list leading to large idle-equipment award; overhead computed pro rata | City challenged Myers’s timing, methodology, and assumptions about which equipment was idle and when | Court found Myers’s timing methodology unsound for idle equipment (de novo review): awarded idle-equipment for 54 items on 49 documented utility-delay days ($124,741.64); overhead award ($62,690.40) upheld as within trial court discretion |
| Recovery of subcontractor (RCS) costs via general contractor | Sullivan sought to recover RCS’s claimed increased costs as part of Sullivan’s damages | City argued RCS is not a party and Sullivan had no judicially imposed liability to RCS | Denied: general contractor cannot recover subcontractor pass-through losses absent judicially imposed liability or other proof of obligation; trial court did not err |
Key Cases Cited
- Keller Construction Corporation v. George W. McCoy & Co., Inc., 119 So.2d 450 (La. 1960) (general contractor may recover subcontractor expenses only where contractor is judicially held liable or otherwise sustains the loss)
- Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006) (expert testimony credibility respected unless reasons are patently unsound)
- Wooley v. Lucksinger, 61 So.3d 507 (La. 2011) (appellate de novo review appropriate where trial court relied on unsound expert opinion)
- McCarty Corp. v. Industrial Scaffolding, Inc., 413 So.2d 1322 (La. App. 1 Cir. 1982) (overhead/indirect expenses need not be proved item-by-item; pro rata allocation accepted)