United States District Court, C.D. Illinois, Urbana Division
THE UNITED STATES OF AMERICA, for the use and benefit of DUCE CONSTRUCTION COMPANY, an Illinois corporation, Plaintiff,
CARLSON BROS., INC, and LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation, Defendants.
JONATHAN E. HAWLEY U.S. MAGISTRATE JUDGE
the Court are the parties’ cross motions for partial
summary judgment (D. 26 & 27). For the reasons stated,
infra, the motions are denied.
and Duce entered into a subcontract agreement providing that
Duce would perform earthwork, excavation and site utility
work at a project in Champaign, Illinois known as the
Providence at Sycamore and Providence at Thornberry projects.
The parties agree that Carlson owes Duce $261, 852.41 on the
contract, but dispute whether Carlson owes Duce an additional
during the course of the project it became apparent that Duce
needed to perform additional work outside the scope of the
original agreement. According to Duce, Carlson’s
project manager, Tom Newquist, asked Duce to perform the work
to avoid a delay in the construction schedule,
notwithstanding the fact that Duce did not have an
opportunity to comply with the contract’s requirement
that all change orders be submitted in writing in advance of
the work. Carlson has presented no evidence to contradict the
testimony of Duce’s project manager, Daniel Wilson,
that Newquist told him not to stop work despite not having
submitted a written change order, but Carlson argues that the
written change order provision in the contract nevertheless
precludes Duce from recovering for the additional work.
Carlson’s motion for partial summary judgment, it
argues that it is entitled to summary judgment on
Duce’s claim for interest and attorneys fees, because
it deposited $261, 852.41 with an escrow agent for the
benefit of Duce upon completion of the project. Duce, on the
other hand, argues that the contract provides for interest
and attorney fees on accounts more than 30 days past due (D.
26-1 at p. 21) and, notwithstanding that the funds are in the
hands of the escrow agent, Duce still to this day has not
received those funds because the escrow agent refuses to
release them until Duce signs a lien waiver-something Duce
refuses to do because there remains a dispute regarding the
additional $85, 871.75 for work beyond the scope of the
also argues it is entitled to summary judgment on the issue
regarding the amount due in excess of the original
subcontract amount, arguing that it is undisputed that Duce
did not follow the written change order procedure in the
contract. Duce responds, however, that Carlson agreed to an
oral modification of this provision when inducing it to
continue working without following the procedure in order to
avoid any delay in the project schedule.
Duce’s motion for partial summary judgment, it argues
that it is entitled to summary judgment on the $261, 852.41
for work that is not in dispute, plus interest and attorney
fees, given that it has yet to receive the payment. Carlson
does not dispute that it owes Duce the $261, 852.41, but
argues that Duce is not entitled to interest and attorney
fees because it turned the funds over to the escrow agent.
The fact that the escrow agent has not released the funds to
Duce relieved Carlson of its obligation and the fact that
those funds have yet to be released to Duce is not its fault.
also argues that it is entitled to summary judgment regarding
the amount outside the scope of the contract agreement
because, notwithstanding the fact that the change order
procedure was not followed, the parties orally modified this
provision to keep the project on schedule. Carlson’s
response is essentially that the written change order in the
contract is absolute.