OPINION ISSUED JANUARY 28, 2000
MUSTAPHA M. NASSER
REGIONAL JAIL AND CORRECTIONAL
Claimant appeared pro se.
Joy M. Cavallo, Assistant Attorney General, for respondent.
This claim was submitted for decision based upon the
allegations in the Notice of Claim and respondent's Answer.
Claimant, an employee of respondent at the Southwestern
Regional Jail in Logan County, seeks reimbursement of $97.00 for
items of personal clothing that were damaged in his work locker by
mice. In its Answer, respondent admits the validity of the claim
as well as the amount, and states that the claim is fair and
reasonable. Respondent does not have a fiscal method to pay a
claim of this nature.
The Court, having reviewed the facts and circumstances in this
claim, has determined that the claimant is entitled to a recovery
for his damaged property. Accordingly, the Court makes an award
to claimant in the amount of $97.00.
Award of $97.00.
ORDERED ENTERED MAY 26, 2000
IN THE COURT OF CLAIMS STATE OF WEST VIRGINIA
NITRO ELECTRIC COMPANY,
REGIONAL JAIL AND
DOCKET NO. CC-95-109
Respondent and Third-Party
SILLING ASSOCIATES, INC.,
CARLTON, INC., and
INSURANCE COMPANY OF NORTH AMERICA,
On the 26th day of May, 2000, the parties to this action,
Claimant Nitro Electric Company, Respondent and Third-Party
Claimant Regional Jail and Correctional Facility Authority, and
Intervenors Silling Associates, Inc., Carlton, Inc., and Insurance
Company of North America, came before the Court and requested that
the Court enter this Consent Order and Award in order to effect a
final resolution of the claims of the parties asserted in this
UPON CONSIDERATION of the following, the agreements of the parties
hereto, the arguments of counsel, and the consent of the Executive
Director of the Regional Jail and Correctional Facility Authority
and the Office of the Attorney General of the State of West
Virginia, it is hereby ORDERED as follows:
1.Prior to June 1, 1990, the RJCFA undertook to plan, design,
and construct a prison facility to be known as the Mount Olive
Correctional Complex, located on Cannelton Hollow Road, County
Route 2, Smithers, Fayette County, West Virginia ("Project").
2.On or about June 8, 1990, the RJCFA entered into a contract
with Silling Associates, Inc. ("Silling") pursuant to which Silling
undertook to provide architectural, construction administration,
and project management services related to the design and
construction of the Project ("RJCFA/Silling Contract").
3.On or about June 4, 1992, the RJCFA entered into a contract
with Carlton, Inc. ("Carlton") pursuant to which Carlton was to
perform all work designated by the Contract Documents as that to be
performed by the General Construction Contractor ("RJCFA/Carlton
4.On or about June 4, 1992, Insurance Company of North America
("INA") issued a performance bond wherein Carlton was named as
principal, and INA was named as surety, with regard to the
RJCFA/Carlton Contract ("INA Performance Bond").
5.On or about June 4, 1992, INA, issued a labor and material
payment bond wherein Carlton was named as principal, and INA was
named as surety, with regard to the RJCFA/Carlton Contract ("INA
6.On or about June 3, 1992, the RJCFA entered into a contract
with Claimant Nitro, pursuant to which Nitro was to perform all
work designated by the Contract Documents as that to be performed
by the Electrical Contractor ("RJCFA/Nitro Contract").
7 . During the course of the construction of the Project, Nitro
contended that it was damaged as a result of, among other things,
(1) Carlton's failure to perform properly its scheduling and
coordination responsibilities and its work pursuant to the
RJCFA/Carlton Contract, (2) Silling's failure to properly perform
its construction administration and project management services
pursuant to the RJCFA/Silling Contract, and (-'I) the RJCFA's failure to provide information timely from its security hardware
supplier, failure to require Carlton to perform its scheduling and
coordination responsibilities, failure to require Silling to
perform its construction administration and project administration
ser vices, and the issuance of directives to accelerate the
completion of the Project in the face of delays for which Nitro
contended extensions of time to the performance of the RJCFA/Nitro
Contract were due to be granted (collectively "Nitro Claims").
8.By cover letter dated January 30, 1995, Claimant Nitro
forwarded to the RJCFA and Silling, Nitro's claim for damages in
the sum of $3,039,966, with a supporting Request for Additional
Compensation dated January, 1995, and a Labor Impact Analysis dated
January, 1995, prepared by an expert in the field of construction
labor productivity loss and damages assessment, all supporting the
claim of Nitro in the amount of $3,039,966.
9.On or about April 21, 1995, Nitro filed a Verified Notice of
Claim ("Verified Claim") in the Court of Claims for the State of
West Virginia, said action styled Nitro Electric Company v. West
Virginia Regional Jail and Correctional Facility Authority, State
of West Virginia, Claim No. CC-95-109 ("Court of Claims Action"),
seeking damages of $3,039,966, interest, attorneys' fees, and other
unspecified relief for claims relating to the RJCFA/Nitro Contract,
Nitro Claims, and Project.
10.On or about December 10, 1999, Silling filed its Motion to
Intervene in the Court of Claims Action in response to a demand
from the RJCFA that Silling defend the RJCFA in the Court of Claims
Action ("Silling Intervention").
11.On or about January 20, 2000, Carlton and INA filed their
Motion to Intervene in the Court of Claims Action in response to a
demand from the RJCFA that Carlton and INA defend the RJCFA in the
Court of Claims Action ("Carlton/INA intervention").
12.The RJCFA as Respondent, and Carlton, INA, and Silling, as
Intervenors herein, conducted extensive document and deposition
discovery directed at Nitro's claim for damages totaling
$3,0-'19,966. The parties reviewed thoroughly the Project records
generated and maintained by the RJCFA, Nitro, Carlton, Silling, and
other contractors and subcontractors not parties to this action.
Nitro's job cost reports, financial information, and claim back-up
were produced and thoroughly reviewed by representatives and
counsel for the RJCFA, Carlton, INA, and Silling, as well as
experts retained by the Respondent and Intervenors to review
Nitro's claims. No fewer than eight (8) depositions of Nitro
Project personnel were conducted, consuming over fifteen (15) days.
In addition, the RJCFA and the Intervenors conducted a twelve hour
deposition of Nitro's productivity and damages expert.
13. Upon conclusion ol' the discovery, the parties engaged in
protracted settlement negotiations. As a result of the settlement
negotiations, Claimant Nitro, Respondent RJCFA, and Intervenors
Carlton, INA, and Silling reached a settlement of the Nitro Claims,
as well as a resolution of all claims and disputes relating to the RJCFA/Nitro Contract and RJCFA/Carlton Contract.
14.The terms of the settlement which resolved Nitro's claims
totaling $3,039,966, plus interest, are as follows:
a)Carlton, INA, and Silling will collectively pay to Nitro the
sum of $1,213,000.
b)The RJCFA will pay to Nitro from special revenue fund
#6676-2000-0615-099 the unpaid contract amount of $82,917 currently
retained under the RJCFA/Nitro Contract.
C)The RJCFA consents to an Award in favor of Nitro in the amount
of $204,083, to settle any and all disputes, including, without
limitation, Nitro's claims for alleged acceleration efforts it
undertook, and the resultant costs it incurred, to deliver to the
RJCFA the Project on a date in advance of the date the Project
would have been delivered to the RJCFA had Nitro been granted time
extensions 's accordance with the terms of the RJCFA/Nitro
15. The RJCFA, through its counsel, and in conjunction with
non-testifying experts retained to review the Nitro, Claims,
consents to entry of this Order in that its terms represent fair
compensation to Nitro, and eliminate an exposure of the RJCFA to
the Nitro Claims in the principal amount of $3,039,966, which with
interest at the statutory rate of 10% per annum create a total
potential liability and exposure to the RJCFA in excess of
$4,500,000. In addition, the settlement of this matter will allow
the RJCFA and Attorney General to avoid the attorneys' fees and
experts' fees and expenses which would attend conducting the trial
during the weeks of May 15-19 and June 12-16, 2000, and thereafter,
if necessary, as well as additional discovery scheduled during the
16.All claims, counterclaims, cross-claims and third-party claims
filed in this Action by any of the parties will be withdrawn with
prejudice upon Nitro's receipt of the settlement proceeds set forth
in paragraph nos. 1 and 2 of the Settlement Agreement and Mutual
Release entered into by and among the parties.
17.The parties acknowledge that the actual payment of said sum of
$204,083 is contingent upon this Consent Order and Award's approval
by the Legislature of the State of West Virginia by way of
appropriation from the general revenue fund, and thatsaid amount
shall not be paid from the operating budget of the RJCFA.
18.By execution of this Consent Order and Award, the RJCFA
represents that it is in the best interests of the State of West
Virginia and the RJCFA to resolve the disputes referenced herein
pursuant to the terms of this Consent Order and Award.
UPON CONSIDERATION of the foregoing, this Court hereby enters
an Award in favor of Claimant Nitro Electric Company and against
the Respondent Regional Jail and Correctional Facility Authority in
the amount of Two Hundred and Four Thousand Dollars ($204,083.00).
SO ORDERED, this 26th day of May, 2000.