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Strom Exc. & Gr. Co. v. Miller-davis Co.

OPINION FILED NOVEMBER 6, 1986.

ROY STROM EXCAVATING AND GRADING COMPANY, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

MILLER-DAVIS COMPANY, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE AND SEPARATE APPELLANT (THE ILLINOIS BUILDING AUTHORITY, DEFENDANT AND COUNTERDEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Rosemary Duschene LaPorta, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 29, 1986.

Illinois Building Authority (IBA), defendant, counterdefendant, appeals from that portion of the trial court's order that granted the claims filed against it by Miller-Davis Company (Miller-Davis), defendant-counterplaintiff, and Roy Strom Excavating and Grading Company, Inc. (Strom), plaintiff-counterdefendant. Miller-Davis appeals that part of the trial court's order that granted Strom's claims against it and denied its counterclaims against Strom.

The sole issue presented for review by IBA is whether the Court of Claims has exclusive jurisdiction to hear claims filed against it that arose from the contract between it and Miller-Davis.

Miller-Davis presents the following arguments for review: (1) whether the court erred in granting Strom's request for prejudgment interest; (2) whether exculpatory clauses in the contract take precedence over a change-conditions clause in the contract between it and Strom; (3) whether pertinent provisions of the contract required Strom to perform a soil analysis; and (4) whether Strom is responsible for extra costs incurred (by Miller-Davis) due to Strom's alleged failure to perform backfilling, pursuant to terms of the contract.

We affirm in part and reverse in part.

This lawsuit concerns claims arising from the construction of an instructional unit at the College of Du Page in Glen Ellyn. On July 24, 1970, IBA, as owner, awarded Miller-Davis the general contract to construct the unit. Miller-Davis then subcontracted the excavating and backfilling work to Strom for $575,000, pursuant to a written contract.

Upon its commencement of work on the project, Strom immediately encountered unforeseen soil problems. Poor soil conditions on the jobsite continued to plague the project, precipitating a substantial increase in the amount of time, labor, materials, and equipment estimated to complete the project. As a result of Strom's delay in completing its portion of the project, other parts of the project were also delayed.

Testimony at trial revealed that discovery of peat and unstable soil conditions was unexpected by all parties concerned. Miller-Davis' project superintendent, Harry Langlois, testified that in analyzing the contract documents and the borings, he did not see anything indicating peat pockets anywhere. Similarly, John Coletta, Miller-Davis' project engineer, testified that the unstable soil conditions were not foreseen by Miller-Davis because they did not appear on the soil-boring logs supplied by IBA.

G.F. Murphy & Associates, not a party to this action, was hired to design the building in question. G.F. Murphy engaged Soil Testing Services, not a party to this action, to perform subsurface-soil borings, tests, and analyses on the property that was to become the building site. IBA supplied the boring logs to bidders for the general contract. Upon awarding the general contract, the results of the soil-boring logs were incorporated into the contract between IBA and Miller-Davis. Miller-Davis, in turn, supplied the soil-boring logs to bidders for its excavation and backfilling subcontract. Strom was awarded the subcontract and the results of the soil-boring logs were incorporated into the contract between Strom and Miller-Davis.

Due to the unstable soil conditions, Strom made changes in material use, equipment use, and excavating procedures. The job was structured by Strom in accordance with the information provided on the soil-boring logs, which Miller-Davis furnished. Thus, the soil-boring logs were the primary source in determining the cost of completing the project, what would be required to complete it, and how it would be completed.

As a result of the extra costs incurred due to the unstable soil conditions, Strom, pursuant to a change-conditions clause in the contract, requested additional compensation from Miller-Davis. Miller-Davis did grant Strom some additional compensation, but not all it had requested. The record is not clear as to whether the additional compensation was granted pursuant to the change-conditions clause.

Miller-Davis requested Strom to compensate it for extra costs incurred due to Strom's delay in completing its portion of the project and indemnification from IBA on Strom's claims against it. After a thorough hearing on the various claims and counterclaims, the trial court issued a ...


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