Everman's Elect. Co., Inc. v. Evan Johnson & Sons Constr., Inc., et al.
| Docket Number: | 2005-CA-01544-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-08-2007 Opinion Author: GRIFFIS, J. Holding: Affirmed in Part, Reversed & Remanded in Part |
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| Additional Case Information: |
Topic: Negligent performance of contractual duty - Delay damages - Liquidated damages - Waiver - Third party beneficiary Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 06-29-2005 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: SUMMARY JUDGMENT ENTERED. Case Number: A2402-2003-257 |
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| Party Name: | Attorney Name: | |||
| Appellant: | SHEILA F. HOWARD |
PAUL D. WALLEY |
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| Appellee: | SARA G. MCCLURE | MARY MARGARET BOWERS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Negligent performance of contractual duty - Delay damages - Liquidated damages - Waiver - Third party beneficiary |
| Summary of the Facts: | Everman’s Electric Company, Inc. brought an action against Evan Johnson & Sons Construction, Inc. and W.G. Yates Construction Company, Inc. for damages arising out of work performed at a construction project, on which all three were co-prime contractors. The court granted summary judgment in favor of Johnson and Yates. Everman appeals. |
| Summary of Opinion Analysis: | Everman argues that Mississippi has long recognized the rule that engineers/architects are liable to a contractor or third party not in privity when damaged by the negligent performance of a contractual duty owed to the owner. Everman’s complaint asserted two claims – delay damages and liquidated damages. If Everman caused a delay in construction, the liquidated damages clause applied, and Everman was liable to BPSD for liquidated damages in the amount of $1,000 a day. If Everman’s work was delayed through no fault of its own, then the delay clause applied, and Everman was entitled to additional time. The plain language of the contract prohibits the imposition of liability against Yates for delay damages. Indeed, the contract itself provides for the sole and exclusive remedy for any damages from such delays was in the form of an extension of the contract time but no increase in the contract sum. These are the very damages alleged in Count I. Additionally, the liquidated damages in Count II are also delay damages because, they are monetary claims of any nature arising from or attributable to delay by any cause whatsoever. Therefore, Yates was certainly entitled to summary judgment based on the contract documents in place. However, the contract does not expressly waive delay damages against Johnson. The only way this clause would extend to Johnson would be if it were an agent or employee of BPSD or Yates. For the first time on appeal, Johnson claims to be BPSD’s agent. However, Johnson points to no evidence in the record that it was BPSD’s agent. Having the affirmative of the matter, Johnson was required to produce the evidence. In addition, the fact that Johnson was an independent contractor is undisputed by the evidence. Everman agreed that its own acceptance of final payment would act as a release of claims against the owner. Neither Patterson nor Everman agreed to release the other contractors. Thus, the court’s grant of summary judgment that held that Everman waived its claim against Johnson is reversed and remanded. Johnson argues it owed no duties to Everman. Everman, Yates, and Johnson were separate “co-prime” contractors for BPSD. Their contracts all incorporated the same documents. By express terms, Everman was made a direct third party beneficiary to Yates’s and Johnson’s contracts with BPSD. Johnson had a duty to coordinate its work with Everman. Mr. Everman testified that Johnson breached this duty by not working according to posted schedules. He further testified that when he asked Johnson where it planned on working, Johnson referred him to the posted schedule that Johnson was not following. This was enough to create a genuine dispute of material fact as to whether Johnson negligently breached its duty to coordinate with Everman and thus caused Everman delay damages. |
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