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West Virginia Legislative Claims Commission

Volume Number: 30
Category(s): DRAINS AND SEWERS
Opinion Issued June 15, 2015
MALCOLM SHAFER
VS.
DIVISION OF HIGHWAYS
(CC-13-0364)
     Claimant appeared in person and by counsel, Christopher S. Butch.
     C. Brian Matko, Attorney at Law, for Respondent.
     PER CURIAM:
      Claimant brought this action for property damage to a culvert and pipe bridge in his driveway, which he alleges occurred as a result of trucks owned and operated by West Virginia Paving, a contractor for Respondent, parking on the bridge. Claimant’s residence is located at 26 Withrow Drive, Elkview, Kanawha County. Claimant asserts that several large trucks hauling asphalt traveled over and parked on his bridge, which he claims was designed for car and light pickup truck traffic only. Claimant contends that the weight of the trucks caused the pipe underneath the bridge to buckle and become offset at its joint, resulting in the potential for extensive damage to his residence and surrounding property should the pipe become blocked by debris. It is undisputed that West Virginia Paving was operating as a contractor for Respondent at the time of the incident. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
      Claimant testified that the pipe bridge in his driveway was constructed on June 20, 2012, by himself and his cousin. Claimant stated that he witnessed West Virginia Paving trucks in his driveway and on adjoining property on August 8, 2012, and immediately after the trucks passed over his bridge to dump their loads, he noticed that his pipe bridge was partially smashed. Claimant was neither advised of the work nor asked whether the trucks could use his bridge. On the day of the incident, Claimant contacted officials from Respondent and West Virginia Paving regarding the damage, and states that he was assured the bridge would be repaired. Claimant continued to contact both entities regarding repairs over the next several months, and although officials visited Claimant’s property and acknowledged the damage, no repairs have yet been performed. Claimant obtained an estimate to repair the bridge, which totaled $10,223.70. Claimant was advised by his homeowner’s insurance company that his policy would not cover the repairs. Claimant brought this action to recover the costs necessary to complete the repairs and avoid further damage to his property.
      David Withrow, a truck driver employed by Dallas Moore who was present at the time of the incident, testified that he noticed five or six trucks loaded with asphalt that had crossed Claimant’s bridge and were parked on the other side. Mr. Withrow radioed the trucks’ drivers and advised that a new culvert had been placed underneath the bridge, and they should not be parked or driving in that area. He testified that depending on the type, the trucks in question can weigh from 77,000 to 80,000 pounds. Mr. Withrow stated that there were other places in the vicinity where the trucks could have parked without traveling over Claimant’s bridge.
      David Holbert, president of Holbert Contracting, testified as Claimant’s expert witness in contracting, with experience in construction and maintenance of bridges similar to Claimant’s. Mr. Holbert stated that he visually inspected Claimant’s bridge in August 2014, and determined that all of the existing double-walled corrugated plastic pipe must be removed and replaced, along with adding new gravel around the pipe, to properly repair the damage. The estimated cost of $10,223.70 includes the use of an excavator, an operator, a loader, gravel, labor, removing existing material, and other necessary costs. Mr. Holbert testified that this amount is reasonable for repairs of this nature. He further stated that in his opinion, the bridge was properly constructed given the type of traffic for which it was designed.
      Respondent contends that it is not responsible for the damage to Claimant’s pipe bridge. Respondent presented no witnesses.
      Upon consideration of the facts, the evidence presented, and the arguments of counsel, the Court is of the opinion that Respondent is liable for the damage to Claimant’s pipe bridge. There is no dispute that a valid construction contract was in place between Respondent and West Virginia Paving at the time of the incident, and that West Virginia Paving trucks loaded with asphalt crossed Claimant’s bridge, causing the newly installed culvert underneath to buckle and become offset. Thus, Respondent is ultimately responsible for the damage caused by the contractor in light of the contract. The Court therefore finds that the Respondent was negligent in this matter, and an award should be granted to Claimant.
      The Court is aware that the contract governing the work performed by West Virginia Paving for Respondent at the time of the incident contained an indemnity provision. Counsel for Respondent advised the Court that he had been in contact with representatives from West Virginia Paving, who stated that the company would not pay for the repairs to Claimant’s bridge. Counsel provided the Court with copies of several documents, including the Purchase Order for the job in question. The Purchase Order incorporated a list of supplemental specifications for the contracted work. Section 107.14 of the specifications, as amended, states the following, in pertinent part:
     
      The Contractor shall indemnify and save harmless the Division, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the Contractor, its subcontractors and/or consultants; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of the Contractor, its subcontractors and/or consultants . . . .
     
      Counsel for the Respondent mailed a letter to Bob Brookover of West Virginia Paving dated February 10, 2015, copies of which were provided to Claimant’s counsel and the Court. In the letter, Counsel stated that if West Virginia Paving disputed the present claim, it was requested pursuant to specification 107.14 to appear and defend the claim against Respondent in this Court. Counsel also advised West Virginia Paving of the hearing date, time, and location. The Court notes that no representative for West Virginia Paving appeared at the February 25, 2015, hearing.
      This Court addressed a similar set of facts in Elmo Greer & Sons, Inc. v. Division of Highways, 19 Ct. Cl. 165 (1992). In that case, a third party contractor brought a claim against Respondent for damages resulting from the failure of an adjacent contractor to complete construction pursuant to a contract. The Court granted an award in favor of the claimant, and because the parties’ contract contained a “hold harmless” clause similar to the provision quoted above, Respondent subsequently filed a claim for indemnity in Circuit Court against the adjacent contractor. The Circuit Court granted summary judgment in favor of Respondent, and the contractor appealed. The West Virginia Supreme Court of Appeals affirmed the Circuit Court’s ruling in favor of the Commissioner, holding as follows:
     
      6. Where an indemnitor is given reasonable notice by an indemnitee of a claim that is covered by the indemnity agreement and is afforded an opportunity to defend the claim and fails to do so, the indemnitor is then bound by the judgment against the indemnitee if it was rendered without collusion on the part of the indemnitee.
     
      7. When the State or one of its agencies is sued in the Court of Claims and the State has an indemnity agreement with a third party indemnitor, upon reasonable notice by the State or its agency to defend under the indemnity agreement, the indemnitor must either defend the suit or intervene under Rule 24(a)(2) of the West Virginia Rules of Civil Procedure and assert any defenses it claims would enable it to avoid the duty to defend the indemnitee under the indemnity agreement. The failure to take either step forecloses the indemnitor from contesting the validity of the judgment rendered against the indemnitee on any grounds except a claim that the indemnitee allowed the judgment to be obtained by collusion in the Court of Claims.
     
     VanKirk v. Green Construction Co., 195 W.Va. 714, 466 S.E.2d 782 (1995), at Syl. Pt. 6, 7.
     
      As in VanKirk, this Court in the instant case finds that the language of specification 107.14 of the parties’ contract creates an indemnity obligation, and that reasonable notice was given to West Virginia Paving to appear in this Court and defend the action. Because West Virginia Paving did not appear for the hearing, move to intervene, or otherwise respond to the notice, it is bound by the judgment granted herein against Respondent pursuant to the indemnity agreement. The Court therefore finds that Respondent may seek reimbursement from West Virginia Paving for any damages arising from this claim.
      It is the opinion of the Court of Claims that the Claimant should be awarded the sum of $10,223.70.
      Award of $10,223.70.
     
Summary:
     


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