Thomas E. Potter and Thad S. Huffman, Attorneys at Law, for claimant.
Anthony G. Halkias, Attorney at Law, for respondent.


Claimant, The Lane Construction Corporation, herein presented a claim
against the
respondent, the West Virginia Department of Highways, for damages in
connection with
construction of 6.963 miles of the Highland Scenic Highway, also known
as West Virginia Route
150, in Pocahontas County. The alleged damages are generally itemized as

1977 Fill Bench Delay $814,580.19
1979 Slide Delay 102,577.22
1980 Costs 1,062,187.70
1980 Escalation for Paving 10,116.30

The contract was advertised for bids as a "Federal Aid Project
HSH-1(1)." Claimant
submitted the lowest bid, in the amount of $11,467,571.20 and was
awarded the contract on
May 14, 1977. The project was through the Monongahela National Forest,
heavily wooded,
rugged terrain, all high in the mountains. It ran from its westerly end,
about two miles east of the
Williams River, at Station 822, to its easterly end at Station 1189 + 59
at Route 219. To the
south was the Edray Fish Hatchery. To the north was the headwaters of
the Elk River. The
climate conditions were variable and severe, much rain and cold,
limiting the length of a
construction season. The environmental considerations posed limitations.
Timber cut in clearing
the right of way was required to be hauled out of the project area, not
wasted. Under Section
642.3.2 of the contract Supplemental Specifications, limitations as to
the area of clearing and
grubbing and excavations were clearly spelled out.

"... To provide a positive guide in this are no more than 750,000
square feet each of erodible
soil will be exposed as a result of (1) clearing and grubbing and (2)
excavation, embankment,
borrow or waste for a maximum cumulative total of 1,500,000 square feet
without the approval
of the Engineer. Approval to proceed beyond this point will be
contingent upon (1) the
Engineer's satisfaction, based on performance, as to the Contractor's
ability to proceed with his
operation and yet maintain pollution control at the level contemplated
by this special provision,
and (2) Seeding and Mulching of disturbed areas at the Contractor's

The Claimant's Contractor's Proposal, and the resulting contract,
called for completion of the
project by June 30, 1980. At the pre-construction conference, held on
May 3, 1977, the
claimant presented its intended schedule for construction. The claimant
anticipated completing
the project in 1979. Upon cross examination, Byron F. Wetmore,
claimant's Executive Vice
President, conceded that "... we thought we would have to have relief on
that 1,500,000 square
feet." The contemplated schedule called for commencement of this work on
the project, nearly
seven miles, by the end of July, 1977. "We realized there was a
restriction in the specification
and hoped we could overcome it." What made him think he could overcome
such a restriction?
"We've had it before and have overcome it." He also admitted that he had
learned "... that some
of the people that had constructed some of the earlier work had gone
broke trying to finish
work that took them two or three years longer than they anticipated to
do it."

The claimant's intended construction schedule also showed project
excavation work to begin
June 1, 1977, and the construction work continuing through a 1977
construction season ending
November 15. By Stipulation, the parties agreed that project excavation
work began June 27,
and Wetmore conceded that claimant closed down the job, for the winter,
on about October
16th or 17th. "The weather was of such magnitude at that time that we
could not work after
October 15." Thus, the 1977 construction season was somewhat shorter
than the claimant had

Generally, this project was a cut and fill type operation. The
respondent had provided the
plans showing the levels at which rock might be found. Claimant was
required to excavate to the
rock level, then fill, over the rock, with select rock material for
drainage, and with earth and
rock back to the desired grade. Most of these fill benches were in the
easterly half of the
project. Also, the respondent had indicated the rock quarry location as
being just easterly from
a forest road which could provide contractor access to the project at
about Station 982, early
the mid-point of the project. For several reasons, the claimant elected
to begin construction at
that mid-point. Weight limitations denied use of Route 39 as access to
the westerly end of the
project. Claimant would need rock, in the fill bench operations, and the
rock quarry was shown
as being at Stations 980-988, not conveniently accessible had the
excavation work been started
at Route 219, the easterly end of the project. As it turned out, that
rock quarry was not
satisfactory, and rock had to be hauled from another quarry further
east. The claimant's plan
was to do the more difficult easterly half of the project first. Then,
as paving was progressing
westerly from Route 219, the excavation and grading work would be
progressing from that
mid-point westerly, to the westerly end of the project, readied for
paving when the paving
reached that mid-point.

Not long after the excavation work began, the claimant began to find
that the rock was not at
the elevations shown on the plans, and in some cases, the rock was not a
hard, firm rock base,
but soft shale. The first such experience was one where the rock was at
a higher elevation than
shown. Subsequent excavation areas proved rock at lower elevations than
shown. There were
about six such areas. In each case, when the indicated elevation was
reached, and rock was not
found, a few more feet were excavated at respondent's direction. Mr.
Wetmore conceded that it
is not uncommon to run into such circumstances in the field. However, he
added, "The normal
reaction is that usually it is done on a continuing basis as differences
are found. Normally,
decisions are made quickly as to where the elevations are to be
established and the redesigns
are done, if you will, on a piecemeal basis sometimes, which allows the
work to be progressed."

Respondent's alleged delay in making decisions and giving the claimant
redesigns is the basis
for claimant's 1977 Fill Bench Delay claim in the total amount of
$814,580.19. Of this total,
$709,473.65 appears to be for idled equipment. $72,800.00 is for
stockpiling fill bench
materials, for having to move such materials twice instead of once.
$9,219.00 is for salaried idle
supervisory personnel. $32,306.54 is for higher labor cost for work done
in the 1978 and 1979
seasons instead of, as planned, in the 1977 season. The evidence was
conflicting as to the length
of the delays with reference to the problem areas. Mike O'Neil
respondent's geologist, was
notified on August 4 and came to the sight on August 8. On August 19,
respondent began bore
drilling under his direction. There was conflicting evidence as to
whether the several sites were
bore in a progressive order of priority requested by claimant, but it
was apparent that the
presence of the drilling rig caused problems for the claimant. According
to O'Neil, as a solution
and redesign was accomplished, in a few days in most instances, the
claimant was furnished with
a temporary redesign and, within a day or so thereafter, was formally
furnished with the redesign
plan. Claimant contends that the respondent was not that prompt; that
the delays varied from 3.4
weeks to 9.3 weeks; that the redesign on the Station 1090 area,
representing 120,000 cubic
yards of material, was not presented until April 13, 1978, 35.5 weeks
after the respondent was
notified of the problem on August 6, 1977, but one must remember that
weather closed down
the project for the winter on about October 15, 1977, until claimant
resumed work in April of
1978. Of course, the respondent had no control over the kinds and
numbers of items of
equipment the claimant brought to the job, or kept there from time to
time. It seems a fair
conclusion that more equipment was on the job site, in the claimant's
desire and intention to
complete the contract by the end of the 1979 season, that if the
claimant had planned for use of
the full time allowed for completion, to June 30, 1980.
Claimant contended that, at the end of the 1978 construction season,
claimant was near to
being back on its own schedule for the project and intended to finish
the project by the end of
the 1979 construction season.

As the 1979 construction season began, slips and slides over the
previous winter months were
apparent in the westerly half of the project area. Claimant presented
evidence that respondent
was dilatory in providing redesigns for these slide areas. One potential
slide area, at Station 965,
just west from the center of the project, was noted by claimant about
May 19 and brought to
the respondent's attention. By September 5, when Hurricane David rains
caused a "catastrophic
slide" there, the respondent had still given no direction. Of course,
this slide limited claimant's
access westerly. Claimant's listing of its 1979 damages begins as of
September 6 and continues
through September 29, and is wholly for idled equipment in the amount of
$102,577.22. Except
for the occurrence of that slide, claimant contends it would have
finished the project in six or
seven weeks, before the end of the 1979 construction season. A slide
design correction was
supplied on September 26. Clearing the slide took about five or six
weeks, and claimant was
paid under force account for that work. The project was closed down for
the winter on
November 30. Claimant's contention is that the September 5 slide, and
the resulting delay,
would not have occurred had the respondent taken timely action with
reference to how the area
at Station 965 was to be stabilized after it was brought to the
respondent's attention about May

Thus, the claimant claims the excess of its 1980 costs. At the contract
price, claimant was paid
$233,396.00 for the contract work done in 1980, this being $1,062,187.70
less than its listing
of actual costs.

Also, claimant's paving subcontractor, Pocahontas Construction Company,
was only
committed to its bid or subcontract prices to June 30, 1980, the date
the contract was required
to be completed. For paving work after that date, higher prices had to
be paid by the claimant in
the excess amount of $100,116.30.

Throughout the presentation of this case, it was emphasized that the
claimant was fully paid for
the expected contract work at the contract prices and was fully paid
through change orders and
force account, for extra excavation, obtaining rock from an alternate
quarry area and for slide
correction. No liquidated damages were assessed for the delay in
completion, for the period
from July 1 to October 9, 1980.

From all of the evidence, it appears to the Court that the claimant did
suffer some delay and
idling of some equipment while fill benches were being redesigned. With
reference to the slide at
Station 965, it was under observation and study from May 5, 1979, with a
temporary correction
for by-pass, until the slide occurred on September 5. The Court refuses
to find the respondent
responsible for the occurrence or consequences of that slide. The
claimant was awarded the
additional force account work of correcting the slide and no liquidated
damages were assessed
for the extra time used to complete the contract.

The Order entered by this Court on February 28, 1983, is hereby set

Upon due consideration of all the evidence presented, and in equity and
good conscience, the
Court makes an award to the claimant in the amount of $322,241.52

In accordance with the provisions of West Virginia Code §14-3-1,
interest at 6% per annum
is calculated on this award based on the final acceptance date of the
project of October 9,
1980. Interest is allowed from the one hundred and fifty-first day after
the date of final
acceptance, March 8, 1981, until the issuance date of this opinion,
January 15, 1988.

Award of $322,241.52 with interest in the amount
of $132,690.00, for a total award of $454,931.52.

Judge Hanlon did not participate in the hearing or decision of this

*The West Virginia Legislature did not include the payment of this
claim in the 1988 Claims
Bill as the project was a "Federal Aid Project".