2011 Ohio 7010
Ohio Ct. Cl.2011Background
- Plaintiff TritonServices, Inc. sued University of Cincinnati for contract breach on a public campus modernization project.
- HVAC portion bid by Triton was initially rejected; injunction later awarded Triton and contract awarded to Triton following litigation.
- Project involved multiple prime contractors; completion dates were aligned to June 27, 2008 for most, with Empire designated Lead Contractor.
- Change Order 005H (CO5) was proposed to accelerate Triton’s schedule by 40 days for $35,000, allegedly to align with other contractors' completion dates.
- CO5 language, signed December 28, 2007, included a clause that it covered asbestos abatement-related acceleration costs, according to plaintiff's interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was CO5 a valid contract amendment with full settlement of related claims? | Samarghandi signed CO5 believing it only covered a 40-day acceleration for $35,000 with no asbestos claims. | CO5 expressly covered acceleration and related costs, including potential asbestos abatement impacts; it precludes further claims. | CO5 binding; precludes loss of productivity and asbestos-related claims. |
| Did plaintiff preserve its loss of productivity claim under Article 8 notice and claim procedures? | Delays from ACM and schedule disruptions were defendant-controlled; daily logs and notices were provided. | Plaintiff failed to provide timely written notice within 10 days and failed to submit a compliant time impact analysis. | Loss of productivity claim waived for lack of timely written notice and proper Article 8 compliance. |
| Was liquidated damages liability properly determined given notice and extension requirements? | Defendant mishandled schedule; damages were improperly assessed in retaliation for claims. | Plaintiff failed to request an extension and did not complete work by contract completion; damages were appropriate. | Plaintiff waived mitigation rights and liquidated damages were properly assessed due to failure to request extensions; defendant prevailed. |
| Did defendant’s conduct or contractual provisions create a bona fide dispute about delays or extensions? | Defendant controlled scheduling and failed to manage Empire and scheduling consultants; this caused delays. | Contractual notice and extension procedures govern claims; no timely notice or extensions were provided by plaintiff. | No actionable delay extension; contract provisions control; defendant prevailed. |
Key Cases Cited
- Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, 15 Ohio St.3d 321 (1984) (contract terms control interpretation when clear and unambiguous)
- Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978) (plain meaning governs contract interpretation)
- Altman Co. v. Primo Painting, Inc., Franklin App. No. 97APE09-1254 (1998) (signature evidence can be rebutted to show lack of meeting of minds)
- DiGioia Bros. Excavating, Inc. v. City of Cleveland, 135 Ohio App.3d 436 (1999) (change orders preclude extra compensation outside negotiated terms)
- Stoll v. United Magazine Co., 2004-Ohio-2523 (2004) (meeting of the minds required; contract terms control interpretation)
- Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635 (1992) (contractual interpretation not based on equity when language is unambiguous)
- Cleveland Const., Inc. v. Kent State Univ., 2010-Ohio-2906 (Ohio) (waiver and contract interpretation issues examined against the contract terms)
- High Voltage Systems Div., The L.E. Myers Co. v. Ohio Dept. of Transp., Franklin App. No. 78AP-88 (1978) (construction contracts and change orders governing compensation)