C a Hull Company Inc v. Department of Transportation ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
C. A. HULL COMPANY, INC., UNPUBLISHED
December 23, 2014
Plaintiff-Appellant,
v No. 317789
Court of Claims
DEPARTMENT OF TRANSPORTATION, LC No. 13-000063-MK
Defendant-Appellee.
Before: M. J. KELLY, P.J., and CAVANAGH and METER, JJ.
PER CURIAM.
This breach-of-contract case concerns a dispute over what areas of a bridge were to be
painted under a construction contract. The Court of Claims granted defendant’s motion for
summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact). Plaintiff
appeals as of right. We affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I. FACTUAL BACKGROUND
The contract at issue concerned work being done on 23 bridges along I-675 in Saginaw
County. This dispute centers on provisions of the contract dealing with painting the Henry
Marsh Bridge, the largest of the 23 bridges and the only one to extend over water. Plaintiff
contends that after it finished performing under the contract, defendant demanded plaintiff
complete additional painting. Defendant claims that it was not asking plaintiff to do anything
other than perform its contractual obligation. Plaintiff completed the additional work and this
litigation followed.
The roadway of the bridge is supported by several beams that run parallel to the roadway
and that rest on the support columns. The contract between plaintiff and defendant identifies
four fascia beams, two for the bridge that makes up the northbound portion of interstate and two
for the bridge that makes up the southbound portion of interstate. The beams are made of several
segments connected by 537 splices. At the end of each beam segment there is the end
diaphragm, a portion of steel that is perpendicular to all the fascia beams. At the end diaphragm
the beams are held together by a pin and hanger assembly. The portion where the pieces come
together and the splice is made is referred to as the “centerline.”
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The main portion of the contract that is disputed is project plan sheet 59 (sheet 59). Sheet
59 specifically concerns the Henry Marsh Bridge, and under the heading “PAINTING NOTES,”
the document states:
The area within 3 feet each side of the centerline of the pin and hanger assemblies
that are being replaced shall be coated prior to installing the new link plates and
pins. Proposed link plates shall be shop coated.
The estimated area of structured steel to be coated is 48,250 square feet. This
area of structural steel to be coated includes the end diaphragms, end diaphragm
connection plates and the fascia side and bottom of each fascia beam.
***
For additional notes see the miscellaneous structural steel details sheet 1E.
The parties dispute what is included in the 48,250 square feet estimate, and whether the
estimate represents the total amount or only part of painting that was required to be completed.
Plaintiff contends that the estimate represents the entire amount of painting required.
Specifically, plaintiff contends that it was required to paint three feet each side of the centerline
of the pin and hanger assemblies, the end diaphragms and their connection plates, and the fascia
side and bottom of each fascia beam within three feet of the centerline of the pin and hanger
assembly. Defendant contends that the estimate is meant to include only part of the painting that
was to be done. Specifically, defendant contends that estimate includes painting of the end
diaphragms, end diaphragm connection plates, and the fascia side and bottom of the two
outermost fascia beams along the entire length of the bridge. Defendant also contends that
plaintiff was to separately paint the pin and hanger assemblies and the interior beams, including
the interior fascia beams, within three feet each side of the centerline, but that this painting is not
included in the estimate on sheet 59.
II. STANDARD OF REVIEW
Both parties moved for summary disposition, arguing that the contract was unambiguous.
We review de novo the trial court’s decision on the parties’ motions for summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Similarly, whether language in
a contract is ambiguous is a question of law that we review de novo. Klapp v United Ins Group
Agency, Inc, 468 Mich 459, 462; 663 NW2d 447 (2003).
III. ANALYSIS
“A contract must be interpreted according to its plain and ordinary meaning.” Alpha
Capital Mgt Inc v Rentenbach, 287 Mich App 589, 611; 792 NW2d 344 (2010). “If the
contractual language is unambiguous, courts must interpret and enforce the contract as written . .
. .” In re Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008). “A contract is ambiguous if its
provisions may reasonably be understood in different ways,” Universal Underwriters Ins Co v
Kneeland, 464 Mich 491, 496; 628 NW2d 491 (2001), or where provisions within the contract
irreconcilably conflict with each other, Klapp, 468 Mich at 467. If there are two reasonable
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interpretations of a contract, factual development is necessary and summary disposition is
inappropriate. Meagher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d 401 (1997).
However, inartful wording or a clumsy arrangement of words will not make a contract
ambiguous if the contract “admits of but one interpretation . . . .” Id.After review, we conclude that the contract is ambiguous and that, therefore, factual
development is necessary and summary disposition in favor of neither party is inappropriate.
A. PLAINTIFF’S INTERPRETATION
Upon receiving the bid documents, plaintiff’s subcontractor added up the surface area
that it believed was included in the estimate and arrived at 48,075 square feet. While plaintiff’s
estimate under its interpretation is close to the contractual estimate, as a whole the passage from
sheet 59 quoted above does not clearly support plaintiff’s interpretation. The second sentence of
the second paragraph refers to “this area of structured steel.” “[T]his area” is defined in the
preceding sentence as “48,250 square feet.” The second sentence goes on to provide a specific
list of what is included in the 48,250 square foot estimate: “the end diaphragms, end diaphragm
connection plates and the fascia side and bottom of each fascia beam.” The second sentence
mentions nothing about pin and hanger assemblies or link plates and pins. However, plaintiff
argues, sheet 59 specifically directs the reader to project plan sheet 1E, which contains a table
with notes on pin and hanger assemblies for the other 22 bridges in the project, a section called
“suspender notes,” and a section called “painting notes.” Plaintiff argues that a sentence at the
bottom of the table—“** estimated area of cleaning and coating includes the amount for pin and
hanger joint area”—can be used to conclude that the estimate on sheet 59 includes the painting of
pin and hanger assemblies.
This interpretation is unreasonable. First, the instructions on sheet 59 that direct the
reader to sheet 1E are clearly under a heading called “PAINTING NOTES.” Thus, it is
reasonable to conclude that the “additional notes” sheet 59 refers to are only the similar painting
notes found on sheet IE. Second, it is reasonable to conclude that when there are four sentences
beneath a table, the first beginning with “*,” the second with “**,” the third with “***,” and the
fourth with “****,” these sentences are simply used to explain a part of the table that
corresponds with the applicable number of asterisks. See The Gregg Reference Manual (New
York: Glencoe/McGraw-Hill, 2001), ¶ 292, p 80 (“The asterisk may be used to refer the reader
to a footnote placed at the bottom of a page or table.”). It is an unreasonable interpretation to
conclude that such an explanation device could be used to describe something unrelated to the
table, chart, or graph that it was appended to.
Plaintiff also argues that the estimate on sheet 59 must include the painting associated
with the pin and hanger assemblies; plaintiff states that the first paragraph cannot simply be an
instruction on when to paint those assemblies because that instruction is already given in the
standard specifications. Neither party disputes that the standard specifications, which are
published on defendant’s website, are part of the contract. It is not rewritten for every single
project defendant bids out. It is understandable in these circumstances that the general
instructions in the standard specifications would at times be duplicative of the specific
instructions on the project plan sheets. In any event, to the extent that it is surplusage to include
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this instruction twice, surplus language alone cannot be used to create an ambiguity. Michigan
Twp Participating Plan v Pavolich, 232 Mich App 378, 387-388; 591 NW2d 325 (1998).
Plaintiff also posits that because there are four fascia beams, there can only be two
interpretations of the disputed contractual provisions on sheet 59, its own interpretation or one
that includes painting the bottom and fascia side of all four fascia beams, not simply the outside
fascia beams as defendant asserts. Plaintiff argues that given the fact that there are four fascia
beams, if the instructions on sheet 59 directed the painting of the entire bottom and entire fascia
side of each fascia beam, that would mean all four fascia beams had to be painted, and painting
that portion of all four fascia beams yields a figure far in excess of 48,250 square feet. Plaintiff
then argues that because that interpretation cannot be correct, its interpretation must be.
However, this argument fails to take into account that there is another possible interpretation of
these paragraphs—the one that defendant posits.
In sum, plaintiff cannot show that that the interpretation it posits is the unambiguous
meaning of the contract. Therefore, it is not entitled to summary disposition and we affirm that
portion of the order of the Court of Claims that denied summary disposition to plaintiff.
B. DEFENDANT’S INTERPRETATION
While the disputed contractual provisions do not unambiguously support plaintiff’s
interpretation, they also do not support defendant’s interpretation. Defendant asserts that the
instructions on sheet 59 only include the outer two fascia beams, and thus the estimate on sheet
59 includes painting of the end diaphragms, end diaphragm connection plates, and the fascia side
and bottom of only the outer two fascia beams.
The first sentence of the second paragraph excerpted from sheet 59 estimates the square
feet to be painted, and the second sentence lists what is included in that estimate. The list does
not include pin and hanger assemblies. However, the word “includes” does not necessarily mean
that the list following it is exhaustive. The usage notes under the word “include” in the Random
House College Dictionary (1997) state that the word “may indicate one, several, or all parts . . .
.” Simply because the list does not specify the painting associated with the pin and hanger
assemblies does not mean it is an unreasonable interpretation to include it in the estimate.
Indeed, the painting of the pin and hanger assemblies is specifically discussed in the immediately
preceding paragraph.
IV. CONCLUSION
The contract between the parties is ambiguous. Because there are two reasonable
interpretations of this contract, factual development is necessary and summary disposition is
inappropriate. Meagher, 222 Mich App at 722.
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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