OPINION ISSUED JANUARY 12, 2000
THE CONTINENTAL INSURANCE COMPANY
WEST VIRGINIA STATE POLICE AND
DEPARTMENT OF ADMINISTRATION
Charles F. Bagley, III, Attorney at Law, for claimant.
John Poffenbarger and Brian Casto, Attorneys at Law, for
This claim was submitted to the Court for decision upon a
Stipulation entered into by claimant and respondent wherein certain
facts and circumstances of the claim were set forth as follows:
1. On May 6, 1996, claimant executed a performance bond as
surety for Jo-Del, Inc., a contractor for the construction of a
public improvement project known as "State Police Headquarters
Requisition No. DPS9606." The contractor and principal on the
bond, Jo-Del, Inc., failed to complete all the work on the project
in accordance with the terms of the contact, and subsequently,
defaulted on its payment obligations to numerous sub-contractors
and suppliers. Claimant, as surety, then paid the sub-contractors
and engaged another contractor to complete the project.
2. Claimant, in its performance as surety, was assessed
liquidated damages in the amount of $36,000.00 by respondent, and
then filed a claim in this Court to recover this amount. However,
claimant has agreed to relinquish and settle its claim against
respondent for the sum of $21,255.00.
3. Respondents agree that the amount of damages as agreed to
by the parties is a fair and reasonable settlement of the claim.
The Court, having reviewed the facts of the claim as stated in
the Stipulation, hereby adopts the statement of facts as its own.
Further, the Court has determined that the amount of the settlement
agreed to by the parties is fair and reasonable.
In view of the foregoing, the Court is of the opinion to and
does make an award in the amount of $21,255.00 to claimant.
Award of $21,255.00.
STIPULATION ENTERED JANUARY 19, 2000
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
v. CLAIM NO. CC-98-129
WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION, DIVISION OF HIGHWAYS,
On this day came the claimant, AT& T Corporation, by counsel,
Daniel T. Booth, and respondent, West Virginia Department of
Transportation, Division of Highways, by counsel, Andrew F. Tarr,
and announced to the Clerk of the Court of Claims that the parties
have agreed to stipulate to the above-referenced claim.
Specifically, the parties stipulate the following:
1. On or about April 17, 1996, in the course of excavating debris
caused by flooding, Ground Breakers, Inc., a contractor employed by
the respondent, accidentally cut a fiber optic cable owned and
operated by the claimant.
2. The location of the incident described in the preceding
paragraph 'Nas a stream in Mineral County, West Virginia.
3. As a result of the fiber optic cable being cut, claimant
4. Respondent admits to some, but not all, responsibility for the
events that led to the cutting of claimant's cable on Apri117,
1996, and further admits that the degree of its responsibility in
the events that precipitated the cutting of claimant's cable
creates a moral obligation on the part of respondent to provide
some compensation to claimant for its loss.
5. Respondent agrees to reimburse claimant in the total amount of
$90,000.00 for the damages suffered in this claim.
6. I The parties to this claim agree that the total sum of
$90,000.00 paid by respondent to claimant in Claim No. CC-98-129
acts as a full and complete settlement, compromise and resolution
of all matters in controversy in said claim and as a full and
complete satisfaction of any and all past and future claims
claimant may have against respondent arising from the matters
described in said claim.
WHEREFORE, in accordance with the agreement contained in this
stipulation, this Court makes an award of $90,000.00 to the
claimant in Claim Number CC-98-129.