Summary 2011 WY 82

Summary of Decision May 23, 2011


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Case Name: Strong Construction, Inc. v. City of Torrington,

Citation: 2011 WY 82

Docket Number: S-10-0171

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462280

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Douglas W. Weaver, Wheatland, Wyoming.

Representing Appellee (Plaintiff): James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming.

Date of Decision: May 23, 2011

Facts: Appellee filed suit against Appellant alleging breach of contract based on Appellant’s failure to supply and install water pump motors that conformed to contract specifications. After a bench trial, the district court entered judgment in favor of the Appellee. Strong challenges the district court’s decision.

Issues: Whether the court erred when it held Appellant breached the agreement with the Appellee and awarded Appellee damages and attorney fees. Whether Appellee’s claim was barred by the one year warranty period, pursuant to the Standard General Conditions of the construction contract. Whether Appellant is obligated to pay any portion of the judgment attributed to Appellee’s City Engineers’ negligence.

Holdings: Before the district court’s conclusion that Appellant breached the Agreement with the City can be addressed, it must be determined if the City engineer received the specifications for review as required by the contract. Based on a review of the record, there is ample evidence to support the district court’s decision that the specifications were provided to the City Engineer prior to approval of the project submittals and that the engineer relied on the information it contained in approving the project submittals.

Where a building contract refers to the plans and specifications and makes them a part of itself, the contract is to be construed as to its terms and scope together with the plans and specifications. Where the plans and specifications are by express terms made a part of the contract, the terms of the plans and specifications will control with the same force as if they were physically incorporated in the very contract itself. The specification criteria in the parties’ Agreement required Appellant to furnish complete details of the pump and motor it intended to supply and to provide those submittals to the City Engineer for approval prior to acceptance of the pump and motor for installation. The information about the motors in question in the Guidelines provided constitute a “Shop Drawing” as that term is defined in the General Conditions provision of the contract and, as a result, they were incorporated into the Agreement upon City Engineer’s approval of that document. Therefore, the district court did not err in determining that Appellant breached the Agreement with the City by failing to provide motors that conformed to the specifications in the parties’ Agreement.

The Appellee’s breach of contract claim is not barred by the provision of the contract that sets forth a warranty that the contractor will repair defects for a specified period of time. The Appellee did not allege that the work was defective. Rather, the claim was that Appellant breached the contract by failing to provide motors that conformed to agreed-upon specifications.

Appellant contends the damages awarded by the district court should be apportioned according to the respective degrees of fault of the parties under a negligence theory of liability. After concluding that Appellant breached the Agreement with the Appellee, it was found that several of the parties in the process were negligent. The court, however, did not apportion the damages. Since the breach of contract claim involves Appellant’s failure to supply the motor identified in the guidelines that were approved by the city engineer, the provision in the contract that would hold the Appellee responsible for the negligence of the City Engineer for the “specification of a specific means, method, technique, sequence, or procedure of construction” does not relieve Appellant of its liability.

Appellant urges the adoption of the principles of comparative fault in the context of a claim for breach of contract. However, with no cogent argument or pertinent authority suggesting that the tort concept of fault has a counterpart in a breach of contract action, or that contractual damages should be similarly apportioned was presented. In order to recover for breach of contract, the nonbreaching party must prove that it has substantially performed the conditions of the breaching party’s performance (or that performance was excused). If it fails to do so, it obtains no recovery. If it does establish this predicate, it is entitled to recover all damages foreseeably caused by the other party’s breach. Contract damages normally are awarded on an all-or-nothing basis. While the breaching party is liable only for damages foreseeably caused by its breach, there is no apportionment of that amount even if less than perfect performance of the conditions by the nonbreaching party contributed in some measure to the loss. Parties to a contract have the power to specifically delineate the scope of their liability at the time the contract is formed. Thus, there is nothing unfair in defining a contracting party’s liability by the scope of its promise as reflected by the agreement of the parties. Indeed, this is required by the very nature of contract law, where potential liability is determined in advance by the parties.

Although Wyo. Stat. 1-1-109 dealing with comparative fault has been extended to strict tort liability and products liability actions, the statute does not provide any indication that comparative fault is applicable to a breach of contract action. The comparative fault statute applies to tort claims where a party seeks personal injury or property damages caused by the fault of another. The Appellee, however, did not pursue a claim for personal injury or property damage in this case. The comparative fault statute is not applicable to this breach of contract action.

Affirmed.

J. Burke delivered the opinion for the court.