Construction Financial, LLC as assigned of Best Western Paving Company v. Granite Construction Company; Industrial Asphalt
Published: Sep. 13, 1997 | Result Date: May 5, 1997 | Filing Date: Jan. 1, 1900 |Case number: 754929 Verdict – $244,172
Judge
Court
Orange Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Douglas D. Harding
(technical)
Defendant
Steven R. Marvin
(technical)
Michael Ravin
(technical)
Daniel P. Chapman
(technical)
Facts
Granite Construction Company entered into a prime contract with California Private Transportation Company for construction of approximately 11 miles of "fast track" lanes in the median of the SR 91 Freeway, just west of SR55 to the Riverside County line. Granite entered into a subcontract with Best Western Paving to pave the project. The plaintiff claimed Granite specified that Industrial Asphalt would be the supplier of asphalt for the project. Best Western had bid the project on the assumption that its paving crew would be able to average 3,000 tons per day. Best Western ran into immediate difficulties on the project, including equipment breakdowns, crew problems and nuclear gauge test results which indicated that the relative compaction of the asphalt paved by Best Western was under the 95 percent required by Caltrans specifications. Industrial Asphalt investigated the compaction difficulties and submitted opinions that the nuclear gauge was giving false readings. After adjustments were made to make up for possible minor errors in the nuclear gauge readings, Best Western was never able to achieve compaction of 95 percent on a consistent basis and never attained daily production higher than 1,850 tons. Best Western left the project after it paved approximately one-half of the total estimated tons of asphalt. Prior to filing the lawsuit, Best Western assigned its claims to plaintiff Construction Financial, LLC who then brought an action against defendants Granite Construction Company for breach of contract, abandonment of contract and "impossibility of performance," and against Granite's sureties, Federal Insurance Company and Fidelity and Deposit Company of Maryland Inc., for payment bond liability. Construction Financial also sued Industrial Asphalt for breach of the implied warranty of fitness. Granite sued Best Western for breach of contract and indemnity and sued Industrial Asphalt for indemnity. Granite also sued Best Western's surety, Golden Fable Insurance Company, on a claim arising from Best Western's failure to pay Industrial Asphalt for labor, equipment and material supplied by Industrial Asphalt to Best Western. Industrial Asphalt sued Best Western and Golden Eagle Insurance Company for non-payment based on an account stated. Industrial Asphalt also sued Granite's sureties on a payment bond claim for the same unpaid balance owed by Best Western.
Settlement Discussions
The plaintiff made C.C.P. º998 settlement demands to Granite Construction for $300,000 and to Industrial Asphalt for $75,000. Industrial Asphalt made a C.C.P. º998 offer of compromise for $74,999 to all parties. Granite Construction offered the plaintiff $50,000 during trial. A pretrial settlement had been agreed to between plaintiff and Industrial Asphalt. Granite claimed this settlement would leave Granite exposed to liability for all claims with no recourse ($815,626). Upon objection from Granite, the court denied a motion for a good faith settlement.
Damages
Construction Financial LLC claimed $360,000 (per the plaintiff) or in excess of $625,000 (per the defendants) in damages. Industrial Asphalt sought to recover $180,954 from Best Western on a theory of account stated, and against Fidelity & Deposit Company of Maryland and Federal Insurance Company for liability on a payment bond in the cross-complaint.
Other Information
SETTLEMENT CONFERENCE: A settlement conference was held before Lawrence J. Nokes of Nokes, Davis & Quinn sitting pro tem. It did not resolve the matter. Best Western will seek to recover attorney's fees against Granite Construction under the subcontract. The cross-complainant and Industrial Asphalt will seek to recover attorney's fees from Fidelity & Deposit Company of Maryland and Federal Insurance Company under the payment bond. POST TRIAL MOTIONS: In post trial motions to date, the court awarded interest to the cross-complainant Indrustrial Asphalt, but denied Best Western's request for interest. The verdict was reached one year and nine months after the case was filed.
Deliberation
2½ days
Poll
varied
Length
24 days
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