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Court upholds summary judgment in favor of New Castle

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The Indiana Court of Appeals has affirmed that a contractor and insurance company owe the city of New Castle more than $900,000 in damages and attorney fees for breaching a construction contract.

In Dave's Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana, No. 33A04-1104-PL-199, Dave’s Excavating and Liberty Mutual, which guarantied Dave’s performance with its performance bond, appealed the Henry Circuit Court’s decision granting summary judgment in favor of New Castle in its lawsuit for breach of contract. Dave’s was awarded a contract for a sanitation project but stopped work at one point because of “differing subsurface conditions” in accordance with Section 4.03 of the contract. Dave’s sought review from the engineer of the project as to how to handle the unexpected physical conditions of the land. The project engineer responded that Dave’s should return to work, but Dave’s interpreted the contract that the engineer should conduct an investigation before Dave’s resumed work.

The dispute led to delays in work and caused New Castle to have to hire another contractor to finish the work. New Castle filed suit against Dave’s for breach of construction contract and sought payment of the performance bond in the amount of $427,524.54 from Liberty Mutual.

The appellate court affirmed summary judgment in favor of the city, finding that Dave’s did breach the contract. The contract required that the city “review the pertinent condition,” which it did when the engineer reviewed the claim and determined that Dave’s wasn’t entitled to a price or time adjustment and should continue working, wrote Judge Edward Najam. Despite what Liberty Mutual argued, the contract did not require the city to “investigate” the physical site.

With regards to the performance bond, Liberty Mutual failed to exercise any of its options to mitigate under the performance bond. The evidence showed Liberty Mutual did not act promptly to assert its rights under the performance bond, as was required under Section 4.4. Liberty Mutual also specifically directed the city to mitigate its damages, which it did by hiring another contract to complete the project.

The judges also upheld the award of attorney fees for the city.

 

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  1. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  2. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  3. It's a capital offense...one for you Latin scholars..

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