Tom Savage Associates, Inc. v. State

Full title: RE: Tom Savage Associates, Inc. v. State of Delaware

Court: Superior Court of Delaware

Date published: Jun 28, 2000

C.A. No. 98C-11-057-WTQ (Del. Super. Ct. Jun. 28, 2000)

Opinion

C.A. No. 98C-11-057-WTQ.

Trial Held: June 21, 2000.

Decided: June 28, 2000.

Letter Opinion and Order After Nonjury Trial JUDGMENT FOR PLAINTIFF IN THE AMOUNT OF $7,500

WILLIAM T. QUILLEN, Judge.

Gentlemen:

The case in its overview is simple. The Plaintiff, Tom Savage Associates, Inc., claims it completed replacement and repair work at Woodburn (The Governor's House) in Dover and is therefore entitled to the retainage of $12,043.42 plus $16,250 for extra work which was made necessary by the State's own negligence. In particular, Savage says the State damaged the brickwork itself by using a salt material for snow and ice removal on uncured mortar.

The State, on the other hand, says the work was shoddy due to the use of improper materials and poor workmanship. The State says the retainage should be forfeited and Savage should be denied all recovery. The retainage appears to be a fair amount for the work remaining.

It appears that the $16,250 claim represents a partial effort to correct the situation and Savage stopped any remedial work upon learning of the salt application.

While the general statement of the case is simple, the resolution is not simple, unless one concludes that one side or the other is one hundred percent correct. Unfortunately, I cannot reach that conclusion. The Court finds it is more likely than not that salt was applied prematurely and that salt caused some of the problem. The Court also finds that both the workmanship and mortar were defective, causing some of the problem. Moreover, the mortar specification was not as finite as it might have been. So there is enough blame to go around and very little basis to arrive at a reasonable apportionment. But it seems clear that the infiltration of chloride from de-icing salts was not the sole or predominant cause of the need for subsequent repair. The ratio of fault should be approximately three to one.

I am satisfied that a fair solution of this case is to deny Savage's prayer for extra work, as the partial recompense for Savage's delinquencies, but to allow Savage $7,500 of the retainage. Judgment is entered in favor of Savage in the amount of $7,500. IT IS SO ORDERED.