Opinion
Case No. 02-83984-SSM, (Jointly Administered)
October 28, 2003
George J. Pierson, Esquire, Peckar Abramson, P.C., River Edge, NJ, for the reorganized debtors
Lawrence E. Rifken, Esquire, McGuireWoods LLP, McLean, VA, for the reorganized debtors
Robert A. King, Esquire, Reed Smith, LLP, Pittsburgh, PA, for Limbach Company LLC and Limbach Company LLC/Parker Associates
Malcolm Mitchell, Esquire, Vorys, Sater, Seymour Pease, L.L.P., Alexandria, VA, for the Official Committee of Unsecured Creditors
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
A hearing was held in open court on October 23, 2003, on the motion (Doc. #4171) of the reorganized debtors for partial summary judgment with respect to Claims No. 4388 and 4389 filed by Limbach Company LLC and Limbach Company LLC/Parker Associates (collectively, "Limbach"). Limbach and the reorganized debtors were present by counsel.
Upon consideration of the motion, the affidavits and exhibits, and the argument of counsel, and for the reasons stated orally on the record, it is
ORDERED:
1. The motion for partial summary judgment is granted. The court finds and determines that subparagraph 17.4.2 of the contracts cannot be read as entitling Limbach, upon termination for convenience, to be paid all direct costs actually incurred in the performance of the contract plus a percentage profit on those costs — in effect transforming the contract upon termination for convenience from a fixed-price contract into a cost-plus contract — but rather must be read as allowing the recovery only of (a) amounts owed under the contract (including any change orders) through the date of termination, (b) the direct costs incurred as a result of the termination, and (c) a reasonable profit calculated as a percentage of those costs under subparagraph 14.1.5.
2. The clerk shall mail a copy of this order, or give electronic notice of its entry, to the parties listed below.