Hartford Accident & Indemnity Co. v. District of Columbia

tempt of the court’s final for his order apart turn over title

refusal However, Cooperative. Lau-

ment units purged

rins himself of re contempt

turning ownership mutual contracts

Cooperative. 13,1979, On October the trial contempt

court set aside the The order.

appeal the contempt accordingly citation Corp., v. moot. Marshall Whittaker Ber Forge

wick & Fabricating

1141, 1145(3d 1979); Cyclopedia Cir. 15A (3d Supp. Procedure

Federal 87.104 ed.

1981).

XI summary, the trial err in court did not

concluding that their defendants breached fiduciary

contractual and Accord- duties.

ingly, rulings affirm the trial court’s damages.

liability and We also affirm injunction of an barring

issuance the sale of

apartment units GDLC. The

defendant Laurins’ civil contempt citation

moot.

HARTFORD ACCIDENT AND INDEM- COMPANY, Appellant,

NITY

v. COLUMBIA,

DISTRICT et OF

al., Appellees. COLUMBIA, al., OF

DISTRICT et

Cross-Appellants,

HARTFORD ACCIDENT AND INDEM- COMPANY, Cross-Appellee.

NITY 80-581,

Nos. 80-748. Appeals.

District Columbia Court

Argued 6,May

Decided Feb.

Weiss, performed electrical work on the project. In accordance l-804a, amended, Pub.L.No.93-89, as 305, Weiss, Stat. contractor, furnished a bond se- persons protect cured from sup- Hartford plying labor and material under contract.2 complaint a In June 1978 Heller filed against claiming Weiss and Hartford Heller’s property was vandalized as a result provide adequate of Weiss’ failure securi- George C., B. Reynolds, Washington, D. addition, ty job at site. Pelland, with whom Washington, Francis J. sought recovery of costs incurred as a result C.,D. brief, was on the for Hartford Acc. performance An delays. amended com- and Co. Indem. 24, 1979, plaint, August filed added a claim Christopher Kerns, Washington, C., M. D. for the unpaid balance of contract. The Columbia, the District of et al. $31,179against trial court awarded Weiss (in- and Hartford for the contract balance NEWMAN, Before Judge, Chief and $5,700 $1,949 cluding damages, vandalism FERREN, MACK and Judges. Associate $15,258 change, conduit $8,272, 4” original # contract MACK, Judge: Associate $2,500 balance); for the of a This action brought was under D.C.Code estimate; $1,200 for off-site l-804b1 in the name of the District Delay damages costs. totalling of Columbia for and on behalf of Heller $24,169 against were awarded Weiss while (Heller) Electric Inc. against Weiss only delay damages in were awarded Construction (Weiss) Inc. and Weiss’ surety, against Hartford. Both Hartford and Hel- Hartford Indemnity Accident and Company judgment. ler from the We affirm (Hartford). part in part. and reverse in In 1975the District of Columbia entered While raises several issues on a public into contract with Weiss for the appeal, primarily alleged it is construction of the Wheatley Playground permitting court erred in the amended Heller, Addition. as a subcontractor of to relate back to the date of the (b) Every part: Section l-804b states in relevant suit instituted under this section brought in shall be the name of the District of Rights § l-804b. of laborers and material- person suing, for the use of the in Columbia payment men to sue on bonds—Prior notice Superior of the District of Colum- required of claim in certain cases—Time limi- bia, irrespective controversy of the amount in brought tations —Suit to be name in of Dis- suit, shall be com- in such but no such suit trict of Columbia. year expiration one after (a) Every menced after the person who has furnished labor day on of the was which the last labor prosecution or material in the of the work by performed supplied provided him. contract, or material for in such payment liable The District of Columbia shall which a bond furnished payment any expenses paid this costs or Act and who has not been full any expiration period therefor before ninety such suit. of a days day after the on which last of effect, provides payment “an al 2. In bond performed the labor was done or him or remedy ordi liens ternative narily mechanics’ supplied material was or furnished him private made, available construction for which such claim shall have right amount, projects.” J. W. Bateson & Co. Board to sue on such bond for the the U.S. 586, Trustees, thereof, unpaid 55 L.Ed.2d at S.Ct. balance prose- time of cute said action to institution such suit judgment and execu- final justly tion for the sum or sums due him .... notification complaint; (2) July 1979 Heller received original hold- ing delay damages; liable for termi Weiss was its subcontract with denying permission to Hartford filed amended promptly nated. Heller and Weiss to amend their answer add for the balance complaint adding a claim compulsory counterclaim. Thus, the new due under the subcontract.

Heller on claims that the “same transaction” claim arose from denying trial court erred in complaint—namely, the subcon the initial failing interest on certain claims and In view of and Heller. tract between Weiss supervisory time amendment' made the fact that and unabsorbed overhead. trial, May several months before time to pre notice and ample Hartford had I. claim. the new pare its defense allegation initially We address Hartford’s Hepp, v. Protection Co. Rural Fire allowing Hel- that the trial court erred in 355, (9th 1966). Accordingly, we 362 Cir. 24, August ler’s 1979 amended amendment to relating find the back of the unpaid balance on the subcontract original complaint to have the the date of filing of to relate back to the date of the proper. been 29, the 1978.3 complaint—June initial 15(c) provides for Super.Ct.Civ.R. Hartford, relying on Lite-Air Prod relating the of an to the back amendment ucts, Deposit Mary & Co. of Fidelity v. Inc. “[wjhenever original pleading date of the 801, 804(E.D.Pa.1977) land, F.Supp. 437 the amend claim or defense asserted J. Carlin Construction United States v. P. conduct, pleading ed arose out of the trans 1001, Co., (E.D.N.Y.1965), F.Supp. 254 1002 attempted action or occurrence set forth or the trial court erred next claims that original pleadings”4 set be forth in the surety liable for holding payment bond added). Further, amended (emphasis resulting subcontractor damages to the initial complaint relates back where “the delay performance. from a that complaint put the defendant on notice interpreted the While some courts have range a certain of matters was in contro (the counterpart federal Act6 Miller complaint falls versy and the amended recovery from seq.) denying as range.” Airways Jackson l-804a et § within that v. 1366, Co., (N.D. adopt Parking F.Supp. damages, 1382 delay 297 Ga.1969).5 found in United of the Act interpretation v. Piracci Construc- Mariana States f/u/b complaint alleged jur The June 1978 (D.D.C.1975). Co., Inc., F.Supp. 405 904 Superior pursuant to isdiction of the be that decision to We find the rationale of l-804b and 11-921 D.C.Code §§ was de- The bond persuasive. put that Hel Weiss and Hartford notice supplying signed protect subcontractors seeking damages ler was for breach of the project. government prime labor and material a contract and subcontract. Sup- Flynn’s Elec. United States f/u/b Camden 3. It is that no labor or Hartford’s contention Co., year F.Supp. performed by ply 27 within one Home Indem. Ins. work was Co. v. complaint, filing (E.D.Pa.1965); R. re- E. & of the amended as States f/u/b United Thus, l-804b(b). quired by Guy § H. James Constr. Constr. Co. (M.D.Tenn.1972). generally com- the count is unless the amended F.Supp. barred See plaint Columbia, D.C.App., relates back to the date Strother v. District of complaint. affirmatively (1977), initial which A.2d issue of whether resolved the narrow Super.Ct.Civ.R. 15(c), is on Fed. which based legal capaci- seeking amendment ty liberally. 15(c), applied Dawn R.Civ.P. brings plaintiff suit relates back in which Co., Inc., D.C.Mun.App., Equipment v. Stern original filing. date of the (1957). 134 A.2d 341 seq. 6.See 40 U.S.C. 270a et § See, e.g., Security v. United States Ins. Co. 1964); (9th Haydis, f/u/b 338 F.2d 444 Cir. Thus, expenses previously granted incurred the subcon- defendants had been answer; tractor a delay (3) result of the permission are within to amend their two Further, the clear purpose granted of the statute. prior continuances had been public completion public request; (4) request interest in defendants’ projects promoted “by prior reducing possi- approximately made two weeks date; bility delay govern- that will frustrate the scheduled trial and with the exer- objective disputes mental diligence, quality due between cise of inferior reasonable its subs.” Id. at 907. Ac- fixtures could have been detected earlier. cordingly, we hold a “surety that l-804b record, this we find On is liable to a subcontractor for increased judge deny- did abuse her discretion actually delay costs incurred due to ing answer to the motion to amend include material, labor or to the extent such a counterclaim. is not attributable to the subcontractor.” contends that Hartford further Id. at 906. considering erred in claims for alleges also Hartford of a water estimate judge abused her discretion when she de Specifically, and for of materials. nied it permission and Weiss to amend their alleges the claims are not answer to include compulsory counter and, cognizable any l-804b claim that Heller quality installed inferior event, (2) the claims were not included in fixtures in a violation of the subcontract pleadings. the specifications. and cognizable We find these costs to be un- support of the motion to amend their prepared der l-804b. The estimate was answer, appellant and Weiss contended that and, effect, direction of Weiss they first became aware of the inferior part of storage became the contract. The quality of the April fixtures in 1980 when necessary of material became when off-site the contractor hired complete the electri- project began the roof at the site leaking. cal project work the informed them that recovery storage We also note that of costs certain installed fixtures were inferior permissible under the Miller Act. United those set out the specifications. contract v. Piracci States f/u/b Mariana Construc- Co., Inc., supra.

“Leave to file an omitted counterclaim beyond the proper time limitations should While the amended does not granted court, be where the in its discre- specify preparing the of the costs estimate tion, determines that the omission the material, deposition of of storing or the ‘oversight, inadvertence, result of or excus- president, prior four months Heller’s taken justice able neglect,’ or so where demands.” trial, appellant appellee’s notified of in Borst, Bronson 404 D.C.App., A.2d damages tention to for these items. seek (1979) quoting Super.Ct.Civ.R. from Co., Darby, Fisher & Inc. v. D.C. See Jess 13(f). Randolph also In- See v. Franklin (1953); Randolph cf. Mun.App., 96 A.2d 270 Co., D.C.App., vestment A.2d Co., D.C.App., 398 v. Franklin Investment (en (1979) banc); Moore v. A.2d 350-51 the of reviewing trial court’s exercise Moore, D.C.App., 391 A.2d discretion, we consider several factors in- notice, appellant’s (1978). In view of this cluding “the requests, number such the claims was not ability against defend the trial, length pendency of the of the the did not err prejudiced and the trial court continuances, previous number considering them. motive, dilatory existence of bad faith counterclaim, merit and the ex- Finally, Hartford contends that prejudice to party.” istence of the other support evidence does not the award Bronson, supra at 963. $8,502 $3,700 delay damages, for for off-site Review of a water the record discloses: costs earlier; estimate; $5,700 suit had years commenced two for vandalism $1,949 that as 1976Heller damages; telephone early for entrance cates November $15,258 change the order in order “BCD sent to Weiss an estimate for $1,949.08. Although No. 4.” sum of com- damages in plaint alleged vandalism record, Having hold reviewed the we $6,548, May note that in sum of we that, 4,” exception with No. replacement expenditures Weiss authorized judgment upon trial court’s based $5,700, totalling the amount awarded sufficient evidence.7 United States f/u/b Thus, arose court. at the time the debt Inc., Mariana v. Piracei Construction was, liability surety and its at a Weiss supra at 907 n.7. minimum, $5,700. Since the 4,” With note respect “BCD No. damages change order and the vandalism agreed that District Columbia liquidated, we remand to trial were $15,258 completion of the work prejudg- to award instructions appellee that worth $400 concedes work interest. ment performed. Thus, court’s judge’s the trial appeals Heller also $14,- award of should be reduced to dam refusal to award extended overhead awarding while ages such against Hartford contends damages against Weiss. Heller II. decision was based on judge’s Heller, relying On on D.C. that an erroneous belief overhead 1973, 15-108,8 that Code claims a surety. are from damages not recoverable judge finding erred in amount due dispute contract remained un- The court found that with entry judgment failing til was insufficient to Hartford the evidence interest. prove “out-of-pocket unabsorbed extended Thus, recognized the trial court overhead.” Specifically, contends certain may awarded that overhead costs claims the out- liquidated namely, were — party where the demon- contract; standing under the balance certainty speci- strates with reasonable vandalism; losses as a of incurred result ficity that the increased costs resulted from order; telephone change change order Mariana v. delay. United f/u/b States No. 4.” Co., Inc., at supra Piracci Construction liquidated A debt is if “at time it n.7. arose, easily it sum ascertainable say cannot On this record we Huge, U.S.App.D.C. certain.” Kiser v. finding court’s of insufficient evidence 407, 421, 1237, is evidence to plainly wrong or without Having pleadings, ex reviewed the it. 17-305. support judgment, hibits and we note that alleges Finally, Heller by unpaid amounts for claimed Heller declining delay to award court erred in of for or balance the contract and supervi damages days for 71 of additional throughout der “BCD 4” No. fluctuated sion. litigation liquidated. and were thus not $1,949.08 that the evidence respect of for The trial court found With award days but order, “something less than telephone change suggested the record indi- to recov- of Columbia 7. While summarized its rior of the District Heller’s exhibits at trial Court claims, pay- president job is supervisor liquidated on which interest Heller’s er a debt concerning judg- gave addition, testimony usage by by In them. law detailed contract or able given op- appellant’s plaintiff counsel shall include interest ment for the portunity pretrial Heller’s records. principal review it the time when was debt from payable, rate the con- fixed due tract, 8. Section states: any, paid. if until In an in the States District action United Supe- for or the Court the District Columbia test, exactly many days how at do I not believe the trial court’s prepared say.” Alternatively, this time appellee sup- damages court held that an award of portable on this record. supervisory charged where the time was projects unjust

other would result enrich-

ment. agree

We posting Heller that the Wheatley supervisory time to other

projects bookkeeping purposes for only does recovery unjust

not bar on the basis Accordingly,

enrichment.9 we remand the trial court for determination of the Larry BUMPER, Matter days number of additional supervisory Appellant. expended time by Heller. No. 80-966. conclusion, to the Appeals. District of Columbia Court of brought by (No. 80-748), we affirm the trial court’s holding that extended over- Nov. Submitted head damages are not recoverable Decided Feb. Hartford. We remand to the trial court for entry with respect interest

to the telephone vandalism claim and the

change order and determination of the

number of supervisory days incurred aas

result of the delay performance.

As (No. 80-

581), we affirm the trial court’s actions

permitting Heller’s amended

relate back to the date of

original complaint awarding and in dam-

ages work, prepara- entrance estimate, of a water

materials, vandalism and costs. With 4,” to “BCD No. we remand $14,858.

reduction of the award We find

no abuse of discretion in the trial court’s permission

denial of to Hartford and Weiss

to amend their answer to include a counter-

claim.

So ordered.

FERREN, Judge, concurring Associate

part dissenting part:

I generally opinion concur in the

court respect. but dissent in one In United

States f/u/b Mariana v. Piracci Construc (D.D.C.1975),

tion F.Supp. noted that claims for proved certainty

must be “with reasonable

and specificity.” Id. at 907 n.7. Given this compensa- hours. 9. Heller contends that it received no for these

Case Details

Case Name: Hartford Accident & Indemnity Co. v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Feb 2, 1982

Citation: 441 A.2d 969

Docket Number: 80-581, 80-748

Court Abbreviation: D.C.