Opinion
97 CV 0285 MS; A105379
Submitted on remand November 6, 2002.
Filed: January 8, 2003
On remand from the Oregon Supreme Court, Coats v. ODOT , 334 Or. 587, 54 P.3d 610 (2002).
Appeal from Circuit Court, Deschutes County. Michael C. Sullivan, Judge.
Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, for appellant.
Martin E. Hansen, Philip R. Anderson, and Karnopp, Petersen, Noteboom, Hansen, Arnett Sayeg, LLP, for respondent.
Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.
HASELTON, P.J.
Affirmed.
This case is before us on remand from the Oregon Supreme Court. Coats v. ODOT , 334 Or. 587, 54 P.3d 610 (2002). We affirm.
The Supreme Court concluded that we erred in basing our initial decision, Coats v. ODOT , 170 Or. App. 32, 11 P.3d 258 (2000), on defendant's argument concerning the construction of the term "upon all public works" as used in ORS 279.350, as implemented in OAR 830-016-0004 (1997) and OAR 839-016-0035. The court determined that "the validity of BOLI's rules is not relevant to resolving whether ODOT is liable for breach of contract * * *. The circuit court, therefore, lacked jurisdiction to review BOLI's rules." 334 Or. at 597. The court concluded:
"The circuit court's interpretation of OAR 839-016-0004(19)(c) as a term of the contract provided the basis for its subsequent conclusion that plaintiff had complied with that contractual provision, had not breached the contract, and was entitled to summary judgment. That contract interpretation, rather than the administrative law issue that the circuit court did not (and could not) reach, also is the legal issue that the Court of Appeals should have considered on review. We remand to give that court the opportunity to do so."
We note that neither defendant nor plaintiff argued to this court that any issue of contract interpretation — as distinct from an issue of statutory and rule construction and independent of the validity of the rules — was presented on appeal.
The issue, as framed by the Oregon Supreme Court for us to decide on remand, is whether the parties' contract, which incorporated the BOLI administrative rules and definitions found in OAR 839-016-0004(19) (1997), required plaintiff to pay prevailing wage to workers at his borrow pit located 8 to 10 miles from the construction site. Generally, contractors such as plaintiff are required to pay the "prevailing rate of wage" to workers on "public works." ORS 279.350. BOLI rules implementing that statute provide relevant definitions for "public works" and, in OAR 839-016-0004(19) (1997), specifically define "site of work." Plaintiff maintains that, with respect to this dispute, the workers at his borrow pit were exempted from the prevailing wage requirements for workers on the "site of work," given the following provisions of OAR 839-016-0004(19) (1997):
"(b) Except as provided in paragraph (c) of this section * * * borrow pits * * * and similar facilities, are part of the site of work provided they are dedicated exclusively, or nearly so, to the performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them. Such facilities which are established by a supplier of materials for the project after the opening of bids shall be deemed to be dedicated exclusively to the performance of the contract or project.
"(c) * * * [B]orrow pits * * * and similar facilities of a commercial supplier or materialman which are established by a supplier of materials for the project before opening of bids and not on the project site, are not included in the site of work. Such permanent, previously established facilities are not part of the site of the work, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a contract or project."
(Emphasis added.)
The trial court found that plaintiff's borrow pit was established prior to the opening of bids and was not on the project site. Consequently, the court determined that, under OAR 839-016-0004(19)(c) (1997), plaintiff was not required to pay prevailing wage rates to the borrow pit workers. It is that "contractual" determination that we are directed to review on remand. Coats, 334 Or. at 598.
The court observed, in part:
"Based on the uncontroverted facts from the affidavits and the exhibits, the mining site owned by [plaintiff] was established prior to the opening of bids. The fact that a different kind of material was taken from the actual hole or a different kind of material other than the rock, is irrelevant. It was taken from the mining site. I think these are all facts that are uncontroverted."
In reviewing interpretations of disputed contractual provisions, we examine "the text of the disputed provision, in the context of the document as a whole." Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019 (1997). A contract is ambiguous if it can reasonably be given more than one plausible interpretation, North Pacific Ins. Co. v. Hamilton , 332 Or. 20, 25, 22 P.3d 739 (2001), but "[u]nambiguous contracts must be enforced according to their terms." OSEA v. Rainier School Dist. No. 13, 311 Or. 188, 194, 808 P.2d 83 (1991). If a contract is ambiguous, we may look to extrinsic evidence of the parties' intent and to maxims of construction. Yogman, 325 Or. at 363-64.
The contract here, which concerns a highway construction project, incorporates by reference certain "standard specifications." Standard Specification 00170.00 requires plaintiff to "[c]omply with all laws, ordinances, codes, regulations and rules, collectively referred to as `laws' in this Section, that relate to the work or to those engaged in the work." That specification's definition of "laws" unambiguously includes administrative rules such as OAR 839-016-0004(19)(c) (1997), because that administrative rule relates to when prevailing wage rates are to be paid to workers upon public works and thus relates "to those engaged in the work" at issue in the contract.
With that understanding, we turn to the trial court's "interpretation of [OAR 839-016-0004(19)(c) (1997)] as a term of the contract." Coats, 334 Or. at 587. The trial court's allowance of summary judgment on that basis depended on two subsidiary determinations: (1) plaintiff's borrow pit was "established * * * before the opening of bids" on the highway project; and (2) plaintiff's borrow pit "was not on the project site." Defendant, on appeal, does not contest the correctness of the trial court's first, "established * * * before the opening of bids," determination. In particular, defendant does not assert that there is any disputed issue of material fact or law that plaintiff's borrow pit was "established" when he first began extracting bentonite from his ranch in 1995, approximately two years before the bids were opened on this project.
The case reduces, then, to the second subsidiary element — whether plaintiff's borrow pit was "not on the project site," as required by OAR 839-016-0004(19)(c) (1997) as incorporated by reference into the parties' contract. As we noted in our previous opinion, the borrow pit is "approximately 8 to 10 miles from the road construction site." Coats, 170 Or. App. at 34. Defendant does not, on appeal, advance any argument specifically relating to the proper understanding and application of the phrase "not on the project site," OAR 839-016-0004(19)(c) (1997), as incorporated by reference into the parties' contract. We acknowledge, however, that defendant's arguments concerning the proper construction of "upon all public works," ORS 279.350(1), could apply equally to the phrase "not on the project site" as used in OAR 839-016-0004(19)(c) (1997), as incorporated by reference into the parties' contract. Nevertheless, even if so viewed, defendant's argument still fails for essentially the same semantic reason that underlay our initial opinion. There, we concluded that plaintiff's borrow pit was not "upon" the public work because "upon," as used in ORS 279.350(1), connoted a closer physical relationship than the 8 to 10 miles that separated plaintiff's borrow pit from the road construction project. Coats, 170 Or. App. at 41. We perceive no material distinction between "upon" and "on" as employed in the context of OAR 839-016-0004(19)(c) (1997), as incorporated into the parties' contract. Thus, as a matter of "contractual" construction, plaintiff's borrow pit was "not on the project site."
The trial court correctly concluded that plaintiff's borrow pit was established prior to the opening of bids on the project at issue here and that the borrow pit was not "on" the project site because it was located 8 to 10 miles away. Consequently, the trial court properly granted plaintiff's motion and denied defendant's motion for summary judgment.
Affirmed.