Opinion
CV90-1199; CA A72905
On respondent City of Pendleton's motion for reconsideration filed March 12, 1993 Reconsideration allowed; opinion ( 118 Or. App. 137, 846 P.2d 441) modified and adhered to as modified May 19, 1993
Appeal from Circuit Court, Umatilla County.
Robert B. Abrams, Judge.
Thomas A. Bittner and Schulte, Anderson, DeFrancq, Downes Carter, Portland, for motion.
Adam Kimmell and Ericsson, Kimmell Lewis, Portland, contra.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
EDMONDS, J.
Reconsideration allowed; opinion modified and adhered to as modified.
Defendant City of Pendleton (City) moves for reconsideration of our opinion reversing the summary judgment in its favor and remanding plaintiff's claim. 118 Or. App. 137, 846 P.2d 441 (1993). We allow reconsideration and modify our opinion, but adhere to it.
In our earlier opinion, to determine what the parties intended by the phrase "extra work," we looked at the contract language that "extra work" was work that "cannot be classified under any of the items for which unit prices are listed." 118 Or App at 142. As City contends, we should have quoted the provision that says that "extra work" is "work necessary or required to carry out the intent of [the] Contract Documents by changes clearly not indicated in the Contract Documents." The soil compaction that plaintiff had contracted to do is included in the scope of the work specified by the contract. Therefore, we adhere to our holding that the "extra work" notice provisions do not apply to plaintiff's claim.
Reconsideration allowed; opinion modified and adhered to as modified.