Engineers: Get Your Quantities Right

January 30, 2009

A recent Court of Appeals Decision out of District 2, Becker v. Crispell-Snyder, Inc., et al., found that a developer can have third-party beneficiary status when a municipality insists that it use the municipal engineer for work on its development.

In this particular case, the Town of Somers recruited Richard and Jon Becker to build a subdivision in the Town. An oral contract with the Town and the engineering firm, Crispell-Snyder, was made for the express purpose of furthering the subdivision development. The Town insisted that the Beckers were obligated to pay Crispell-Snyder’s bill, creating a creditor/debtor relationship. These facts gave the Beckers their third-party beneficiary status and allowed the Beckers to sue on the contract between the Town and Crispell-Snyder.

The Trial Court and jury awarded damages to the Beckers, finding that Crispell-Snyder caused more work than necessary, overcharged the Beckers for change orders and negligently handled the excavator’s bid.

At trial, the jury found that Crispell-Snyder’s contract was implicit that it would only bill for reasonable and necessary work. The jury found that Crispell-Snyder billed for unreasonable and unnecessary work. The Beckers were able to have Crispell-Snyder pay for a change order requiring fly ash, since the fly ash did not assist in the compaction. A second change order concerned the rerouting of the sanitary sewer and force main stemming from delayed construction. This work had to be done before the road could be paved. The design that should have been done was not. Therefore, the road was paved without the pipe. After paving, Crispell-Snyder knew that there was an obstruction because someone placed extra concrete near the manhole in the middle of the road. This obstruction meant they could not drill to install the sewer. The jury had all the evidence it needed to find that the “unforeseen condition” Crispell-Snyder claimed was there was a condition resulting from Crispell-Snyder’s own decision not to go ahead with the sewer and pipe main before the road was paved.

Also, the jury found that Crispell-Snyder billed the Beckers for its over-inspecting. Crispell-Snyder breached its contract by charging for its over-inspecting, and the jury awarded the Beckers $12,000.

Most expensively, Crispell-Snyder was found to be liable for an excavator’s claim for extra excavation. The jury found that the reason the excavator had a claim was because Crispell-Snyder negligently provided exact quantities in its specifications, known in the record as the “manual.” As a result, the excavator had to move more dirt than originally thought. The Beckers’ expert also explained why putting specific quantities in the manual is a negligent act and, therefore, the jury had sufficient information to charge Crispell-Snyder with this extra cost.

This is an important case because it raises the issue of a Town or municipality requiring developers to use specific engineers on projects and the engineering firm’s liability.

For more information about "Engineers: Get Your Quantities Right," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743.