Opinion
No. 2008 CA 1793.
March 31, 2009.
APPEALED FROM THE 19TH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, LOUISIANA TRAIL COURT NO. 557, 041 HONORABLE CURTIS A. CALLOWAY, JUDGE.
H. BRUCE SHREVES, JAMES A. BURTON, NEW ORLEANS, LA, AND, TERRENCE L. BRENNAN, NEW ORLEANS, LA, ATTORNEYS FOR PLAINTIFF-APPELLEE BOH BROS. CONSTRUCTION CO., L.L.C.
CHERYL L. DUVIEILH, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLANT STATE OF LOUSIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
I respectfully dissent. I do not find that materials stored by an out-of-state manufacturer in its warehouse are the responsibility of DOTD under the contract. I believe the Act of God provision, when applied within the context of the contract, applies to materials at the worksite that have not yet gotten final acceptance by DOTD. Contract specification 107.19 provides in its entirety:
CONTRACTOR'S RESPONSIBILITY FOR WORK. Until final acceptance, the contractor shall have the charge and care of the work and shall take every precaution against damage to any part thereof by action of the elements, vandalism, theft or from other cause, whether arising from execution or non-execution of the work. The contractor shall rebuild, repair restore or pay for damages, including theft and vandalism, to the work before final acceptance and shall bear the expense thereof, except for the following:
(a) Guard rail and permanent impact attenuators, shall be repaired as soon as possible after damage. If the engineer determines that the contractor's operation did not contribute to the damages, the Department will reimburse the contractor for such repairs by force account in accordance with Subsection 109.04.
(b) Damage due to Acts of God such as earthquake, tidal wave, tornado, hurricane or other cataclysmic phenomenon of nature or acts of governmental authorities.
In case of suspension of work, the contractor shall be responsible for the project. The contractor shall take such precautions as necessary to prevent damage to the project, maintain traffic, provide for normal drainage and erect any necessary temporary structures, signs or other facilities at no direct pay. During such period of suspension, the contractor shall acceptably maintain all living material in newly established plantings, seedings and soddings furnished under the contract, and shall take adequate precautions to protect new tree growth and other important vegetative growth against damage. Should suspension of the work not be attributed to any actions of the contractor, the contractor shall be reimbursed for additional work under appropriate pay items or in accordance with Subsection 109.04.
The reference to the immediate repair of guard rails and permanent impact attenuators, as well as the reference to traffic maintenance, show that this section of the contract concerns the worksite and the stockpiled materials at the worksite. While perhaps this provision could have been more artfully drafted, I believe its intent is clear.