Lorig Construction Company v. State of Illinois

OPINION

MCGLYNN, J.

Claimant, Lorig Construction Company, filed an amended complaint to name it as the proper party to pursue this claim. Midwest Fence Corporation had filed the original complaint in this claim.

Claimant brings this claim against Respondent for payment for certain work performed on a roadway under the jurisdiction of the Illinois Department of Transportation (“IDOT”). Respondent denies any liability in this claim. The parties have jointly waived a hearing of this claim and, instead, have chosen to submit a joint stipulation of undisputed facts and briefs to decide the merits of this claim.

This claim involves a project encompassed by IDOT Contract 60366 entered into by Claimant. During 2009, Claimant was the general contractor on the project. At the request of IDOT, Claimant repaired two temporary impact attenuators on the project that had been damaged by vehicular traffic near 103rd Street and the I-57 Expressway in Chicago, Illinois. No date of final inspection had been provided in writing to Claimant by IDOT during this time. Claimant submitted invoices to IDOT for the repair work in the sum of $8,610.34. IDOT refused to pay the invoices because it believes the work should have been part of the original contract.

LEGAL ANALYSIS

In the absence of an ambiguity, the construction of a contract must be ascertained by the language utilized in the contract. R. W. Dunteman Co. v. State of Illinois, 52 Ill. Ct. Cl. 33, 72 (1999). IDOT declined to pay the invoices because it asserts the scope of work under the contract included Claimant “maintaining” the impact attenuators and that such maintenance “shall be the responsibility of the Contractor.” IDOT claims that maintenance includes repairs such as here where vehicular traffic has damaged the attenuators. Claimant argues that the more specific Special Provisions of the contract refer only to “maintenance” and not “repair.” Therefore, Claimant is not responsible under the contract to repair damage caused by vehicular traffic and should be paid separate and apart from the contract between the parties.

However, the issue is not whether a discrepancy exists between the definitions of maintenance versus repair. Rather, the issue is Claimant's responsibility to maintain the [*90] temporary impact attenuators at their proper working condition under the broader Standard Specifications of the contract. The Standard Specifications of the contract provides that:

The contractor shall protect and maintain the work until the date of final

inspection is provided in writing to the Contractor, by the Department… The

contractor shall assume the sole responsibility for risk of loss to the work from or

by any cause whatsoever, without regard to its state of completion. The contractor

shall rebuild, repair, restore, replace, and make good all lost, destroyed, or

damaged work to the condition required by the contract and shall bear all the

expense and costs to do so…

Claimant argues that the more specific Special Provisions takes precedence over the more general Standard Specifications of the contract. Indeed, if contractual provisions conflict or create an ambiguity, the more specific provision controls. Coe v. BDO Seidman, L.L.P., 2015 IL App (1st) 142215, ¶27. The Special Provisions outline the specific contractual requirements of furnishing, installing, maintaining, and removing of the temporary impact attenuators. The Special Provisions do not include repair of the attenuators. The focus of these provisions is on the normal installation and maintenance of the attenuators. In contrast, the Standard Specifications merely add to the requirements of the contract. The additional requirements include that Claimant assumes sole responsibility for loss to the work from or by any cause whatsoever. This sole responsibility encompasses repairing and making good on any damaged work including damage caused by vehicular traffic as in this claim. The responsibility for repairing this type of damage is above and beyond the normal installation and maintenance encompassed by the Special Provisions. Thus, the Special Provisions and the Standard Specifications do not conflict with each other.

To interpret the contract otherwise would lead to the incongruous interpretation that one provision of the contract would require repairing the attenuators while another provision of the contract would not require such repairs. Courts should make reasonable efforts to harmonize apparently conflicting provisions. Coe, supra. More importantly, the rights and obligations of the parties are determined from the plain and unambiguous wording of the contract. R. W. Dunteman Co., supra. The Standard Specifications of the contract are plain and unambiguous as to Claimant's obligations to repair all work and maintain the risk of loss until a date of final inspection is provided in writing by the IDOT. The more specific Special Provisions of the contract do not alter or amend the obligations imposed by the Standard Specifications.

Finally, it is a well-settled principal of law that in dealing with an agent of the State, one must ascertain at his peril the authority of the agent and the mere assertions of the agent are not sufficient to bind the State. New Life Development Corp. v. State of Illinois, 45 Ill. Ct. Cl. 65, 88 (1992). Claimant argues that it should be paid because of the apparent authority of the Resident Engineer stating that Claimant would be paid and relies on Agles v. State of Illinois, 37 Ill. Ct. Cl. 134 (1984). However, this claim is distinguished from Agles. First, in emergency situations, the State is bound by the contracts entered into by those with apparent authority in such situations, since it is obvious that the only actual authority is in the hands of the purchasing departments rather than in the hands of the individuals who authorize the work. Agles, at 142. Here, repairing the traffic attenuators is not an emergency. Furthermore, there was no separate [*91] contract entered into to repair the traffic attenuators. Second, a specific provision in the contract states that the Resident Engineer recommending or approving any work will not create liability for IDOT. Third, the foregoing contract provision, coupled with the Standard Specifications of the contract, put Claimant on notice that it would not be paid for the repair work as additional or separate work.

In conclusion, Claimant has failed to prove its claim by a preponderance of the evidence and, therefore, the claim is denied.

IT IS HEREBY ORDERED that this claim is hereby denied and dismissed with prejudice.