OPINION ISSUED JUNE 29, 2001
DIVISION OF ENVIRONMENTAL PROTECTION
DIVISION OF CORRECTIONS
Claimant appeared pro se.
Jendonnae L. Houdyschell, Assistant Attorney General, for
This claim was submitted for decision based upon the
allegations in the Notice of Claim and respondent's Answer.
Claimant seeks $189.00 for providing a Sludge Land Application
Fee as required by law for Huttonsville Correctional Center, a
facility of respondent in Huttonsville. The documentation for
these services was not processed for payment within the appropriate
fiscal year; therefore, claimant has not been paid. In its Answer,
respondent admits the validity of the claim as well as the amount,
and states that there were sufficient funds expired in the
appropriate fiscal year from which the invoice could have been
Accordingly, the Court makes an award to claimant in the
amount of $189.00.
Award of $189.00.
Crime Victims Compensation Fund
ORDER ISSUED AUGUST 3, 2000
Deborah A. Waltman
O R D E R
Claimant appeared in person and by counsel, David H. Wilmoth.
Joy Cavallo, Assistant Attorney General, for the State of West
An application of the claimant, Deborah A. Waltman, for an award under the West Virginia Crime Victims Compensation Act, was
filed July 8, 1998. The report of the Claim Investigator, filed
November 4, 1998, recommended that no award be granted, to which
the claimant timely responded. An Order was issued December 10,
1998, upholding the Investigator's recommendation, in response to
which the claimant's request for hearing was filed January 4, 1999.
This matter came on for hearing September 17, 1999, the claimant
appearing in person and by counsel, David H. Wilmoth, and the State
of West Virginia by counsel, Joy Cavallo, Assistant Attorney
The claimant's 15-year-old son was shot and killed on November
9, 1997, in Beverly, Randolph County, West Virginia, by another
This Court's initial decision was based on the victim's
alleged contributory misconduct. The victim and several friends,
including the offender, had, prior to the shooting, been engaged in
extensive and continued illegal activity. According to the State
Police report, at approximately 6:00 p.m. on November 8, 1997, the
victim and his friends began walking through the town of Bailey
drinking alcohol. They then broke into an abandoned camper, stole
several weapons and a small amount of cash, and walked to Wildwood
where they stole a truck. By then it was midnight.
The crime spree continued when the boys stole some checks
which they forged to pay for gas at approximately 2:00 a.m. They
proceeded to break into a gun shop in Elkins, where they drove the
stolen truck into a creek. At noon, they called a cab to take them
back to Beverly. The fatal shooting occurred about one hour later
at one of the boys' residences.
The Court concludes that the series of criminal acts which
occurred over the 18-hour period did constitute contributory
misconduct on the part of the victim such that an award should be
denied. It is truly tragic that a young life was lost, and this
Court's sympathy is extended to the family. However, nothing
adduced at the full evidentiary hearing compels the Court to hold
reverse its prior ruling.
Therefore, no award can be granted.
ORDER ISSUED AUGUST 3, 2000
ROSA LEE SMITH
O R D E R
Eric G. Smith, 20-year-old son of the claimant, and
hereinafter designated as the victim, was shot and killed on March
25, 1998, at about 8:00 p.m. in Huntington, Cabell County, West Virginia, by Meredith Vanhoose, hereinafter the offender, who at
the same time shot and killed one Nicholas Flowers. The offender
was indicted on two counts of first-degree murder by the Cabell
County Grand Jury, but has not yet been tried.
The claim was filed in this Court on the 20th day of August, 1999,
and was assigned to a Claim Investigator, as required by law, for
a written report of his investigation of the crime and for
recommendation as to an award, if any. The investigation of the
crime by the Claim Investigator was based on the handwritten field
report conducted by the Huntington Police Department, dated March
26, 1998 (one day after the homicide), and signed by Officer S.M.
Bowles. On page 4 of the Huntington report of March 26, 1998,
there is a handwritten, undated supplement to the original report
attributed to but not signed by Corporal T. Murphy, a detective who
apparently had been sent to the scene of the crime to make an
investigation. Corporal Murphy reported: "Victim and Nicholas
Flower (sic) came to offenders residence to purchase marijuana.
Offender & his wife had been arguing over the off. (sic) having an
affair. Offender's wife stated that she was having affair with
Nicholas and another person in order to get the offender to stop
arguing. Victim & Nicholas arrive to buy marijuana. Offender gets
rifle and shoots victim in head as well as Flowers. Offender was
charged & arrested on 2 counts of murder - Indicted and currently
pending in circuit court."
Obviously, Corporal Murphy's report was not a part of the
original report of March 26, 1998, a date on which Vanhoose could
not have been indicted.
The Claim Investigator, citing the Huntington Police
Department report made one day after the homicide, and supplemented
some time later, found as a matter of fact that the victim had gone
to the Vanhoose residence to buy marijuana, concluding that his
presence in the Vanhoose residence was sufficient evidence of a
decision to make a buy. Standing alone, as it does, seems to fall
short of proving a buy or an attempt to buy a controlled substance.
The Claim Investigator recommended that no award be made on
the basis of West Virginia Code §14-2A-3(l), defining "Contributory
misconduct" that has a causal relationship to the criminally
injurious conduct giving rise to the claim.
The reviewing judge, on 23 March 2000, adopted the findings
and recommendation of the Claim Investigator, and ordered that no
award be made.
The claimant objected to the Order of the reviewing judge, and
requested an evidentiary hearing.
On 29 June 2000, the claim came on for hearing on its merits,
Neither party denies that Eric G. Smith died as a result of
the criminally injurious conduct of Meredith Vanhoose the 25th day
of March, 1998, in Huntington, West Virginia.
The only issue is whether Eric G. Smith was guilty of
contributory misconduct having a causal relationship to the criminally injurious conduct of the offender, Vanhoose. The Crime
Victim Compensation Fund, the respondent, having asserted an
affirmative defense, has the burden of proving this defense, by a
preponderance of the evidence.
Ms. Smith, the claimant, understandably had little to offer in
testimony as to the violent crime resulting in her son's death,
except that he was a good boy, not addicted to marijuana, and had
only wanted to come home for his supper on the day of his death.
She testified also on the funeral expenses, paid by her, and the
Her only witness was Christopher D. Chiles, Prosecuting
Attorney of Cabell County for the last 18 years, who testified:
1.) That he had been working on this case, preparing for
trial for 2 years; and that it had been investigated thoroughly by
his office "hundreds and hundreds of man-hours, " and that he
thought he knew more than anybody, with the possible exception of
Detective Murphy, about the facts, events, and acts preceding the
2.) On the basis of the investigation and reports made by and
to his office, he had determined that the offender was a violent
man, who suspected that his wife, Michelle Vanhoose, was having an
extra-marital affair with another man or men, and continually beat
her in efforts to make her identify the man or men sleeping with
her; that about a week before the homicides, hoping that if she
would stop the beatings by giving him the names of said men, she
identified Flowers and Eric Smith as the men with whom she had been
having affairs, saying, "You're right. I've been sleeping with
them;" that a week or so later, Flowers and Eric Smith came to the
Vanhoose residence, and Flowers asked Meredith Vanhoose for a
joint; that Vanhoose returned with a deer rifle and killed both of
them at short range, and called police and said his wife had killed
two intruders to the residence; that in her statement to the
police, after 25 March 1998, Michelle Vanhoose did not say that
Eric Smith attempted to buy or otherwise obtain marijuana from the
offender; and that Michelle Vanhoose, who has obtained a divorce in
Kentucky (now on appeal by Meredith Vanhoose), wishes to testify
against her former husband at his trial on the charges of murder,
and will do so if the appeal of the divorce decree is rejected.
It further appears from the testimony of Mr. Chiles, which was
based upon the investigation of his office, that Flowers, Smith,
and Meredith Vanhoose had known each other for about 2 or 3 months,
having attended as classmates a local vocational school.
On 25 March 1998, Flowers, then in the company of one John
Dunfee, had solicited marijuana from Vanhoose, but was rejected.
Later he met Eric Smith and promised him a ride home, but they
stopped first at the Vanhoose residence, where Flowers renewed his
request for marijuana.
From the information in the report of investigation made by
this office, Mr. Chiles concludes that there is no evidence that
Eric Smith attempted to acquire marijuana or intended to do so, by purchase or otherwise; and he further concludes that he was a
bystander, who with Flowers was killed by Meredith Vanhoose on the
basis of his wife's allegations that she had been having affairs
The report of investigation dated 26 March 1998, made by the
Huntington Police Department and made a part of the record in the
hearing before this Court, contains a report of the Office of Chief
Medical Examiner of the State of West Virginia, as to the
postmortem examination of Eric G. Smith, conducted on 26 May 1998,
in which Zia Sabet, M.D., Chief Pathologist of that office, found:
Blood: Ethyl alcohol - positive 0.06%.
Urine: Negative for barbiturates, benzodiazepines, cocaine,
marijuana, opiate, amphetamine, propoxyphene, phencyclidine (PCP),
tricyclic antidepressant (TCA). Basic drug screen - negative.
Mark Timothy Murphy, also referred to herein as Corporal
Murphy and Detective Murphy, of the Huntington City Police
Department, was called by the respondent to testify as to his
investigation of the crime, and essentially corroborated the
version detailed by Prosecuting Attorney Chiles, as to the events
giving rise to the homicides, and concurred in the opinion that
Eric Smith, though a witness to Flowers' solicitation for
marijuana, was not a party to the transaction, and was waiting for
a ride to his own home.
There were no other witnesses.
The Court believes that there is no hard evidence in the
record that Eric G. Smith was engaged in a controlled substance
transaction. The most that can be said is that he was present at
one, apparently by accident, but being present at one and being a
party to such a transaction are quite different. Absent a showing
of participation in such a transaction, no contributory misconduct
The Court makes an award to the claimant of $4,000.00, the
maximum that can be made, for the funeral expenses of Eric G.Smith,
as set out below.
Rosa Lee Smith
4851 Darnell Rd.
Huntington WV 25705
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
HIGHER EDUCATION POLICY COMMISSION
Gene W. Bailey, II, Attorney at Law, for claimant.
James R. Watson, Attorney at Law, for respondent.
Claimant contractor, TMARO Corporation, brought this action
upon a construction contract entered into with the respondent,
Higher Education Policy Commission, for the construction of the
Gaston Caperton Center, a facility for Fairmont State College. The
Gaston Caperton Center is located in Clarksburg, Harrison County.
The original contract cost for the project is in the amount of
$5,942,000.00. Claimant asserts that it has not been paid under
the terms of its contract for all of the work it performed; that it
incurred additional costs for the HVAC system; and that respondent
is wrongfully withholding the retainage on the contract, all to the
detriment of the claimant. The total amount of the claim before
the Court is in the sum of $98,970.00. The Court heard this claim
over a three day period in April 2002 during which time the Court
and the parties took a view of the Gaston Caperton Center. The
Court is of the opinion to grant an award in this claim for the
reasons set forth herein below.
Claimant TMARO Corporation, hereinafter referred to as TMARO,
and respondent Higher Education Policy Commission, hereinafter
referred to as HEPC, entered into a contract on November 11, 1997,
for the construction of a classroom building known as the Gaston
Caperton Center which is part of the extended campus of Fairmont
State College. Construction began in the spring 1998 with
substantial completion occurring on June 24, 1999. During
construction, various issues arose on the part of TMARO for certain
change proposals which now constitute Count I of this claim. Count
II of the claim was an issue of potable water on the project which
count was withdrawn by TMARO at the start of the hearing. After
the completion of punch list items, final completion was to occur
forty-five days later on or about August 13, 1999. At that time
there were problems on the project with the balancing of the HVAC
(heating, ventilation, and air conditioning) system for the
building. Thereafter issues arose regarding the HVAC system which
constitute Count III. HEPC maintained that it would withhold the
retainage on the contract until such time the HVAC system was
operating properly. HEPC has continued to deny payment of the
retainage to TMARO. The amount of the retainage constitutes Count
IV of this claim.
HEPC takes the position that TMARO has been paid in full for
its work on the Gaston Caperton Center; that liquidated damages
should be assessed against TMARO since all of its work on the
project was not completed until August 2001; and further, that
there should be a setoff awarded to HEPC on amounts it asserts is
owed by TMARO to it for additional work performed by its
architectural firm and for certain engineering work which became
necessary after the project was substantially completed.
The Court will address this claim for purposes of this opinion
by each Count set forth by the TMARO.
During construction of the Gaston Caperton Center, TMARO
submitted various change proposal requests for additional payments
to be made for work performed beyond the scope of the project. The
change proposals were reviewed by HEPC's architectural firm on the
project, Gates Calloway Moore & West, and were denied for payment.
Each of these change proposals is discussed herein below:
Change Proposal No. 015 - The subcontractor for excavation on
this project was Laurita Excavating. It mobilized its equipment at
the project site in the spring 1998; however, on April 29, 1998,
TMARO was directed by the representative of the architectural firm,
Gates Calloway Moore & West, to halt excavation work because the
soil compaction required by the specifications in the contract
could not be met. The soil was determined to be unsuitable thus
creating problems with stabilization for the parking lot. At that
time the engineers determined that it would be necessary to design
a "bridge layer" to resolve the soil issue. Laurita Excavating had
to decide whether to leave its equipment on the project perhaps
causing an additional cost to HEPC for idle equipment charges or to
remove the equipment from the project site until the engineers
determined a solution to the unsuitable soil problem. Laurita
Excavating made the decision to move the equipment off site
whereupon there is an outstanding charge for remobilization of the
equipment from and back to the project site. HEPC denied the
remobilization charge for which TMARO now claims the amount of
HEPC asserts that the remobilization claim should be denied as
the subcontract was a lump sum bid; therefore, there is no one to
determine whether or not the bid was based upon additional
The Court is of the opinion that the remobilization charge is
a reasonable charge for the subcontractor Laurita Excavating. The
Court is well aware that idle equipment charges would greatly
exceed the remobilization charge put forth by the subcontractor
herein. It was estimated that idle equipment charges for four
pieces of excavating equipment would be approximately $800.00 per
day Laurita Excavating based this estimate on a McGraw-Hill rental
rate blue book publication for a dozer, a roller, an excavator, and
a loader. and the equipment would have been idle for at least
eight days. It is unreasonable to assume that a subcontractor
would plan to have equipment at a construction site for periods
when it is not in use and not need that equipment for other
contract obligations. Therefore, the Court is of the opinion to
make an award in the amount of $1,560.00 for Change Proposal No.
Change Proposal No. 034 - The construction site for this project
was on acreage that had been the site of an old hospital which had
been razed for a parking lot at some time in the past. Therefore,
TMARO's subcontractor for excavation, Laurita Excavating,
encountered foundation walls, brick, terra-cotta pipes, and other debris during excavation. Although the contract documents indicate
that undercut excavation should not be beyond the one foot to two
foot depth, the architect's representative on the project approved
undercuts to two feet and, in some instances, to three feet. On
this particular project the authorization to undercut to three feet
was not an unusual occurrence due to the amount of debris
encountered during excavation. On the last day (a Friday) that
Laurita Excavating was performing its final excavation on the
project in an area for the roadway adjacent to the new building, it
encountered materials which it determined should be removed.
Laurita Excavating was completing its work on the project so it
performed a three foot cut based upon previous approvals it had
been given in other areas on the project. In fact, the excavation
was completed on this date and the excavating equipment was moved
off the project site. Since the undercut was below the two-foot
approved cut limit specified in the plans for the project, HEPC
denied payment for the extra foot of excavation and backfill. It
is the position of HEPC that the contractor did not have the
required permission to make the additional one-foot cut and should
not be paid even though the architect's subcontractor geotechnical
engineering firm, Triad Engineering, may have had authority to
approve a cut below the two-foot level, and did approve the
undercut to three feet. HEPC asserts that Triad did not have
authority to give this approval. TMARO makes a claim in the amount
of $1,966.00 for this extra foot of excavation and backfill. The
Court has determined that the excavating company performed the
undercut in good faith and reliance upon personnel on the project
from Triad Engineering. It is not the fault of TMARO that the
appropriate personnel for HEPC were not available to be consulted
on the project on a Friday afternoon while the cut was being made
by the subcontractor. For HEPC now to complain that the extra
one-foot undercut was made without authority appears to the Court
to be an issue totally within HEPC's own control if the appropriate
personnel had been available on the project. It was the
responsibility of the architect and the owner, HEPC, to make sure
persons appropriate for decision-making purposes were available and
were present to make the measurements needed for the calculation of
material removed and backfill placed. TMARO acted within reason
based upon former decisions made for undercutting areas with
debris; therefore, the work performed in the roadway cannot now be
said to have been performed without proper authorization. For that
reason, the Court makes an award to TMARO in the amount of
$1,966.00 for the extra work performed which constitutes Change
Proposal No. 034.
Change Proposal No. 047 - The electrical subcontractor for TMARO on
this project, William R. Sharpe Incorporated, submitted its bid
based upon the electrical drawings provided to it for its bid.
These drawings depicted only the electrical portion of the job.
During construction, there were two sets of automatic doors with
door openers to the building being installed by the glass and glazing subcontractor and these doors required electrical wiring
and connections in order to operate. It was not within the scope
of that subcontractor to wire the doors so this became the
responsibility of the electrical subcontractor. The work performed
by the electrical subcontractor involved the installation of four
duplex receptacles per door with the necessary wiring to electrical
panels located approximately 200 feet from the receptacles at one
end of the building. TMARO now claims that this was additional
work not within its original bid; therefore, TMARO makes this claim
in the amount of $2,971.00 for this work. HEPC asserts that TMARO
was responsible for the bid and making sure that all components of
the plans were included in its bid on the project. The plans did
depict the doors and one would assume that wiring may be needed,
but the electrical subcontractor submitted its bid based upon the
exact drawings which it received since to guess what other wiring
may or may not be needed on the project could have jeopardized its
award of the bid. Thus, the subcontractor bid the job based
completely upon its set of drawings. The Court has had sufficient
experience with construction contract claims heard previously to
understand the position of the subcontractor. What is not shown
specifically on drawings is not put in a bid. To do otherwise puts
a subcontractor at a disadvantage with other bidders. Therefore,
the Court has determined that an award be made to TMARO for Change
Proposal No. 047 in the amount of $2,971.00 for the extra work
performed in wiring the receptacles for the automatic doors.
Change Proposal No. 055a - TMARO alleges that there came a
point on the project where HEPC decided to eliminate the
installation of a range, range hood and exhaust duct for the range
from the contract and, in so doing, it gave a credit to TMARO for
this work. The controversy between the parties is that TMARO
claims a reasonable credit of $629.00 should be given HEPC rather
than the amount of $1,280.00 taken by HEPC. TMARO alleges that
this credit taken by HEPC is too much and it claims that the amount
of $651.00 is due it for this item. The subcontractor for the duct
work was Air Systems Sheet Metal which also installed the duct work
for the dryer vent. HEPC based the deduction upon the unit cost
for the dryer vent which TMARO claims was not comparing "apples to
apples" since the dryer vent was a different installation
situation. The dryer vent was an "add on" to the contract and
required complicated duct work through a completed wall. The range
hood duct required roof penetration which was a "straight shot" and
it was not as complicated as the dryer vent installation. The
subcontractor's bid document revealed an amount of $154.13 for the
range hood duct work; however, TMARO agrees to a credit amount of
$629.00. The Court recognizes that this is a relatively small
item, but the credit offered by TMARO appears to be fair and
reasonable. Thus, an award in the amount of $651.00 ($1,280.00
less $629.00) is granted for Change Proposal No. 055a.
Change Proposal No. 075 and Change Proposal No. 086 - These
two change proposals will be considered by the Court together as these two claims are based upon the same reasoning by TMARO. In
the course of construction of the third floor of the building,
TMARO requested permission from the architect to lower the ceiling
of the third floor hallway in order to fit the duct work and other
equipment above the ceiling. Permission was granted by the
architect. As construction of two conference rooms on this floor
was being performed, TMARO determined that the ceilings in these
two rooms would need to be lowered as well due to the fixtures
required to be placed above the ceiling. The parties agreed that
a solution to the lowering of the ceiling resulted in drywall
bulkheads being placed in these rooms and in one conference room it
was necessary to change an area of clear glass on the window to
Spandrel glass (opaque glass with no visibility from outside the
building since such a view would be of the duct work and pipes
above the ceiling). This extra work resulted in extra expenses to
TMARO of $847.00 for drywall bulkheads and $548.00 for the Spandrel
glass. There was an abundance of testimony on these two items.
TMARO's position is that the hallway ceiling had to lowered to
accommodate the duct work to be installed with the other lines to
be placed above the ceiling. When this ceiling was lowered, the
sprinkler system pipe would not go directly into the rooms and a
diffuser and a VAV box (variable air volume box) would not fit in
the space above the planned ceiling level in one room so the
lowering of the ceilings was necessary. Further, the VAV box is
for the HVAC system, and, as such, it must be accessible to the
owner of the building for maintenance purposes, e.g., changing
filters. The change proposals submitted by TMARO for work
performed for the drywall bulkheads and the Spandrel glass was
denied by HEPC.HEPC asserts that this whole issue was created
by TMARO when its subcontractors did not coordinate their work for
the installation of the sprinkler system, ducts, electrical
conduits, plumbing and any other item which had to run concurrently
above the hallway ceiling on the third floor. Since it is the
responsibility of the general contractor on a project to submit
coordination drawings to the architect, any issues of the many
systems that are located above the ceiling having room to fit is
the responsibility of the general contractor. On this project, the
lack of subcontractor coordination brought about the problem on the
third floor so HEPC is not liable to TMARO for any extra work it
had to perform in the conference rooms.
The Court had the opportunity to view this situation when it
took a view of the building and actually peered into the ceiling
area in the conference room with the Spandrel glass issue.
Although HEPC vehemently denies the cost for these two change
proposals, the Court has determined that TMARO may make a recovery
in both instances. Therefore, the Court makes an award of $847.00
for Change Proposal No. 075 for the drywall bulkheads and $548.00
for Change Proposal No. 086 for the Spandrel glass.
Change Proposal No. 083 - This request is for extending the
water supply and the drain lines to the ice maker in the kitchen. The work was performed by TMARO's plumbing subcontractor, Mid-State
Mechanical, during the installation of an ice maker. However, the
drawings for the plumbing subcontractor did not depict these lines.
TMARO alleges that the work was added to the scope of the project
for which it now claims the amount of $573.00. HEPC asserts that
even though the lines were not on the plans, the subcontractor
should have interpreted the fact that an ice maker shown would
necessarily imply that there would be piping needed to connect the
ice maker to the nearest supply line and drain. Although there was
a note on the plans for the ice maker to be connected, TMARO could
not know whether that meant providing the plumbing lines or that
the connection fittings should be tied in as for other appliances.
Therefore, the Court has determined that TMARO may make a recovery
for the supply lines to the ice maker in the amount of $573.00 for
Change Proposal No. 083.
The award to TMARO for Count I is $9,116.00 plus interest
calculated from August 14, 1999, to January 3, 2003, in the amount
of $2,648.94 for a total award of $11,764.94. .
This concludes the discussion of Count I and the Court will
now address Count II very briefly. Count II involved an issue of
TMARO's responsibility for supplying potable water on the project
and the issue was resolved by the parties at the beginning of the
hearing. Thus, it is no longer a part of this claim.
COUNT IIICount III was brought for the costs incurred by TMARO in
its attempts to balance the HVAC (heating, ventilation, and air
conditioning) system after completion of the project. TMARO's
subcontractors, Hydrair Balance Company, Mid State Mechanical, and
Honeywell, as well as TMARO itself incurred extra costs in
addressing the problems with the HVAC system. Hydrair Balance
Company (hereinafter referred to as Hydrair) sent a technician to
the project site for the purpose of "balancing" the HVAC system.
This is normally a final step in the installation of the HVAC
system as the technician adjusts each room individually for air
flows and water flows so the system works correctly. It was
estimated that this effort would take four days; however, TMARO
contends that Hydrair's technician spent an additional 100 hours in
an attempt to balance the HVAC system. In actuality, the balancing
of the HVAC system was never accomplished on this project. After
much wrangling over the HVAC system, both parties engaged the
services of independent consultants to find an explanation for the
problems with the HVAC system. It was eventually determined that
there are design issues with the HVAC system and these problems had
not been resolved even at the time of the hearing. However, TMARO
contends that it is owed a total of $30,890.00 broken down as
$12,887.00 for TMARO and $18,003.00 for its subcontractors for all
of its efforts in attempting to meet the demands of HEPC in
addressing issues with the HVAC system. HEPC asserts that the
documentation for services rendered by Hydrair is insufficient to
establish that the technician spent 100 extra hours on this
project. It cannot prove or disprove this assertion. Further, HEPC asserts that it bore costs associated with the HVAC system
that constitute a set off on this item. Its consultant employed in
January 2000, Elwood S. Tower Corporation - Consulting Engineering,
hereinafter referred to as Tower Engineering, conducted an
inspection of the HVAC system and rendered an expert opinion as to
the design and construction of this system. During its inspection
Tower Engineering determined that various items that make up the
HVAC system were not installed correctly, e.g., some VAV boxes were
not properly piped, there were supports missing, the boiler was not
piped in accordance with the manufacturer's specifications, there
were unnecessary "elbows" which affected the amount of water
circulating creating added pressure in the system; additionally, an
impeller did not meet specifications. TMARO made the corrections
which the consultant found , but the system still did not function
as anticipated. Tower Engineering ultimately concluded that there
were design deficiencies in the HVAC system; thus, the system was
not able to function properly as anticipated by HEPC.
The HVAC system issues are quite complicated, but the
underlying issue is that the HVAC system has been established to
the satisfaction of both parties to have design deficiencies.
Thus, the only issue is how to determine what amount is due TMARO
and whether HEPC is entitled to a set off for the consultant it
engaged to inspect the HVAC system, and if so, what amount is fair
and reasonable to both parties. Tower Engineering submitted an
invoice for its services to HEPC in the sum of $12,263.50 and it
estimates that of that amount thirty percent (30%) of the invoice
was for time spent in determining those parts of the HVAC system
which were not installed correctly by TMARO. The Court is of the
opinion that a fair and reasonable set off for the time spent by
the consultant on construction issues versus design issues is
twenty-five percent (25%) of the consultant's services to HEPC.
The documentation submitted by TMARO for its additional expense
appears to the Court to be fair and reasonable. Accordingly, an
award is granted to TMARO for the HVAC system expenses in the
amount of $30,890.00 less the set off of $3,065.88 for a total
award of $27,824.12 for the HVAC system deficiencies.
In Count IV TMARO claims that it is entitled to recover the
full amount of retainage on this contract being held by HEPC.
TMARO's position is that the retainage was being held based upon
the inability of TMARO to balance the HVAC system. Once it was
determined that the HVAC system had design deficiencies for which
TMARO is not responsible, then the retainage became due and owning
to it by HEPC. HEPC, however, takes the position that the
retainage was being held not only for the issues relating to the
HVAC system, but also for the sewer line corrections TMARO first
received notice that there were problems with the sewer line in
November 1999. which had to be made when it was determined that
there were sags in the sewer line beneath the building and in the
lines on the exterior of the building. The Court notes that there was specific reference to the retainage being held by HEPC for the
HVAC system in correspondence to TMARO dated November 30, 1999. It
appears to the Court that the punch list items were completed
although there were warranty issues, e.g., the floor refinishing
being redone for a multipurpose room, and later there was the sewer
line issue, but for all intents and purposes the retainage was due
at the time that the parties were in agreement that the HVAC system
could not be balanced because there were design deficiencies.
Warranty issues are not the basis for denying a contractor the
retainage on a contract as the purpose of retainage is to provide
security for the owner for the completion of the project. In this
claim, the Gaston Caperton Center had substantial completion as of
June 23, 1999. The building was occupied by Fairmont State College
in August 1999 with classes beginning on schedule. The building
had been built by HEPC for this purpose. It is generally
anticipated that there may be warranty issues after the
construction of a building as occurred herein with the roof
problems as raised by HEPC and a myriad of other small issues;
however, there are maintenance warranties for these items.
Warranty issues do not give the owner (HEPC) the right to withhold
retainage on the contract when the project is completed. The Court
does recognize that the HVAC system problems have been on-going for
more than two years. Accordingly, the Court makes an award to
TMARO in the amount of $59,252.00 plus interest based upon the
dates when Tower Engineering determined that the HVAC system was
malfunctioning because of design deficiencies rather than
construction issues and taking into consideration the date at which
the construction deficiencies were remedied. The date which will
be used by the Court is September 30, 2001, for the completion of
its work as the record establishes that Tower Engineering submitted
its invoice for the consulting services in October 2001. Interest
will be calculated from October 1, 2001, to the date of the
issuance of this opinion on January 3, 2003. The interest is
calculated in accordance with the terms of the contract at
$6,574.09 for a total award of $65,826.09 for the retainage being
held by HPEC.
The Court has also considered HEPC's assertion that it is
entitled to liquidated damages in the amount of $750.00 per day
from the date of substantial completion on June 23,1999, through
December 2001. It bases its position on the fact that the sewer
line beneath the building had to be replaced due to sags in the
line when the soil gave way under the sewer pipes. This
particular work was done by TMARO at its expense and at the
convenience of Fairmont State College so as to avoid any
disruptions to classes being held in the building. The sewer line
replacement work took until December 2001 because TMARO's
subcontractor worked around the class schedule for the college.
During this time, HEPC's architect provided engineering and
inspection services for which HEPC now asserts a set off in the
amount of $14,766.64 as well as the inconvenience to the college. The additional custodial services needed by the college were
reimbursed by TMARO's subcontractor as the work was accomplished.
Notwithstanding that the project was completed in August 1999, the
issue of liquidated damages was raised by the owner for the first
time when it filed its Answer to the claim. The Court is of the
opinion that the issue of liquidated damages was raised too late to
be considered as an element of set off in this claim. However, the
Court is of the further opinion that HEPC is entitled to a set off
of $14,766.64 for its direct costs related to the sewer line
correction work and the total award to TMARO will be reduced by
In accordance with the findings of fact as stated herein
above, the Court is of the opinion to and does make an award of
$105,415.15 reduced by the set off of $14,766.64 granted to HEPC
for a total award of $90,648.51. .
Award of $90,648.51.
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
FIRST VIRGINIA BANK-BLUE RIDGE
DIVISION OF MOTOR VEHICLES
Gregory S. Matney, Attorney at Law, for claimant.
Joy M. Bolling, Attorney at Law, for respondent.
Claimant First Virginia Bank-Blue Ridge brought this action to
recover the value of a lien that it asserts that respondent failed
to record on a title processed by respondent for a vehicle licensed
in West Virginia. Claimant alleges that there was sufficient
notice to respondent that claimant had a valid lien on the vehicle
at issue in this claim and that the respondent's negligent failure
to list claimant's lien on the title of said vehicle caused the
claimant damages in the amount of $25,000.00. The Court is of the
opinion to deny this claim for the reasons set forth below.
1. On August 15, 1997, Dick Myers Chevrolet-Geo, Inc.
purchased a 1996 Chevrolet S-10 which is the vehicle later
licensed in West Virginia and the subject matter of this claim.
2. On August 28, 1997, Dick Meyers Chevrolet-Geo, Inc. sold
the same 1996 Chevrolet S-10 truck to Daniel L. Mathias for
3. On August 28, 1997, Dick Meyers Chevrolet-Geo, Inc. also
prepared a re-assignment of title to Daniel L. Mathias, listing as
lien holder the claimant on a Commonwealth of Virginia
re-assignment of title form. There is nothing in the record to
demonstrate that a copy of the re-assignment of title was ever
received by respondent.
4. On December 8, 1997, Daniel L. Mathias applied to
respondent for a Certificate of Title to the same 1996 Chevrolet
S-10 truck, listing South Branch Valley National Bank as the
lienholder. Mr. Mathias did not list the claimant First Virginia
Bank-Blue Ridge on this application for title. Respondent then
issued a title to Mr. Mathias.
5. The claimant and respondent both show South Branch Valley
National Bank as the titled lienholder which is correct based upon
the evidence presented to the Court.
6. Nothing presented to the Court demonstrates that the
respondent had notice of claimant's lien when it issued the title
at issue in this claim.
The Court, having reviewed the chronology of the documents
filed in this claim, finds that the claimant has not met its burden
of proof in demonstrating that respondent had sufficient
documentation to be on notice that claimant had an existing lien on
the vehicle at issue in this claim prior to its issuance of the
Certificate of Title. Thus, claimant may not make a recovery in
In view of the foregoing, the Court is of the opinion to and does
deny this claim.