text:
    (No. 82-CC-0336
    Leo S. Dugosh and Therese Dugosh, Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 28, 1985.

    John C. Hedrich, for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim for crop loss allegedly resulting from the failure of the State of Illinois to maintain drainage under and through the Illinois-Mississippi Canal.

A hearing was held where evidence was received from testimony of witnesses and exhibits. Inspection of the site was made by the commissioner in the company of the parties and their attorneys. The parties have filed their briefs and the commissioner has duly filed his report.

In 1894, the United States of America had condemned certain farmland in Bureau County for the construction of the Illinois-Mississippi Canal. The canal was 80 feet wide at the waterline and seven feet deep.

The pertinent part of the condemnation petition filed in U.S. District Court for the Northern District of Illinois alleged:

“That the United States will properly connect the tile drains now laid in said lands wherever the same are cut by said canal, carry the same under said canal and give the same a proper outlet on the south side thereof; so that after the completion of said canal, said lands will be as thoroughly drained as they are at the present time.”

Claimants’ land, then owned by a predecessor in title, was part of the land condemned. The natural drainage of the land was south toward the canal by means of a natural drainage ditch which drained approximately two square miles of farmland with the water ultimately flowing into a creek known as Bureau Creek. The canal blocked this drainage. To correct this, so that Claimants’ land would continue to drain properly, the United States laid two 48-inch drainage tubes under the canal at a point where the natural drainage ditch would empty into the tubes, thereby carrying the surface water under the canal. These tubes were officially called Culvert #4. The United States obtained an easement from the property owner on the south side of the canal to construct a ditch carrying this water from the mouth of the tubes on the south side of the canal, south into Bureau Creek. In addition, the United States laid 1900 feet of 10-inch tile along the north side of the canal to drain into the two tubes.

The property specifically involved in this claim is a partially tillable 21-acre field bought by Claimants in 1966 and bordering on the north bank of the canal. In 1967, Claimants notified the Department of the Army Corps of Engineers that the tubes and the ditch south of the canal were plugged and the Corps of Engineers did the necessary remedial work in 1968 to restore the drainage.

The State of Illinois took title to the canal from the United States government in 1970. In early 1972, the culverts under the canal again began to fill. The State of Illinois was notified that the drainage structures were blocked and not providing proper drainage. An award was made to the Claimants in Dugosh v. State (1976), 31 Ill. Ct. Cl. 493, for damages to their property during the years 1973 and 1974. A further award was made to Claimants in Dugosh v. State (1981), 34 Ill. Ct. Cl. 117, for damage to their property during the years 1975,1976 and 1977. The present claim is for damage because of flooding of Claimants’ field for the years 1978, 1979, 1980 and 1981.

The issue presented is whether the State of Illinois connected the tile drains in the Claimants’ land, carried them under the Illinois-Mississippi Canal and gave them a proper outlet on the south side thereof, so that the Claimants’ lands were as thoroughly drained as they were before the canal was constructed.

The Respondent contends that the site in question is in a flood plain and the land would be flooded during certain times of the year, even if the canal was not there. They further contend that the 10-inch field drain tile ran some water all year long.

The Claimants assert that although much of the land in the area was flooded by heavy spring rains, the land was farmable during the crop season. They contend that drainage was not proper because the outlet of the 10-inch field drainage tile was covered by mud which inhibited water flow, Culvert #4 was completely blocked, and a 48-inch tube installed by the State of Illinois was half full of dirt and debris.

The statement in the condemnation proceedings in the U.S. District Court, that the United States would properly connect tile drains wherever the same were cut by the canal and carry them under the canal and give them a proper outlet on the south side thereof, so that after the completion of the canal the lands would be as thoroughly drained as they were at the present time, is a promise to the landowner. A promise is an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future. (American Law Institute, Restatement of Contracts, section 2.) A promise or covenant to maintain tile and drainage running from one landowner to another is a covenant running with the land that runs to the successors in title of both the dominant and servient land. Sterling Hydraulic Co. v. Williams (1872), 66 Ill. 393; Dorsey v. St. Louis A. & T.H.R. Co. (1871), 58 Ill. 65.

The State of Illinois succeeded to the United States government’s duty to maintain drainage through the canal. The right to drainage ran to the successive owners of the dominant land. We find that the drainage was not maintained so that crops could be grown on a portion of the Claimants’ field during the normal crop production time of the year.

The record indicates that Claimants lost the use of approximately seven acres of cropland during the years 1978 through 1981, both inclusive, and no more than seven acres. Accordingly, the Claimants are entitled to receive an award of $3,640.00 for the years 1978 through 1981, said award being arrived at by unrebutted testimony that the fair rental value for the years 1978 and 1979 was in the amount of $125 per acre, and for the years 1980 and 1981 was in the amount of $135 per acre.

It is hereby ordered that Claimants be, and hereby are, awarded the sum of $3,640.00.


source: Caselaw Access Project

author: Roe, C.J.

license: Public Domain

text:
    (No. 82-CC-0349
    Al Barnes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 10, 1984.

    Lynn Chipperfield and Michael B. Smallwood, for Claimant.
    Neil F. Hartigan, Attorney General (John L. Gilbert, Special Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court on Respondents’ motion to dismiss Counts I and II of Claimant’s amended complaint. Although Claimant presents several issues for review, we need only to determine whether this claim is barred by the applicable statute of limitations. The resolution of that issue is dispositive of this claim. Therefore, we find it unnecessary to address the additional issues raised.

On August 21, 1981, Claimant, A1 Barnes, filed a complaint against Respondents, Southern Illinois University at Edwardsville (SIE-E) and A. R. Howard, alleging Claimant suffered great monetary loss because he was wrongfully classified for a civil service position. An amended two-count complaint seeking damages for a breach of contract was filed on April 15,1983. Count I seeks recovery for monetary damages. Count II seeks recovery for punitive damages. The amended complaint seeks recovery under section 8(b) of the Court of Claims Act. Ill. Rev. Stat. 1983, ch. 37, par. 439.8(b).

Claimant alleges the following: that he became an employee of SIE-E, pursuant to the request and hiring of A. R. Howard on January 1, 1969, and continued until August 31, 1981; that he was paid well below the compensation generally paid for his type of work as “a manager of sports publicity”, in violation of “An Act to create the State Universities Civil Service System” (Ill. Rev. Stat., ch. 241/2, par. 38b3), which provides for equal pay for equal work generally paid in the locality, thus resulting in loss of wages to Claimant of $117,345.00.

Claimant further alleges that during this entire period he performed the duties of a manager of sports publicity pursuant to the instructions of SIU-E and Howard and made numerous inquiries of “defendant Howard and many SIU-E employees and representatives” as to his correct classification; that they refused to give him a proper examination to place him in the aforesaid category of manager of sports publicity; that on one occasion after his employment commenced in 1969, representatives in the particular department advised him that such position did not exist; that Respondent, Howard, informed him at the time of commencement of his employment, that in approximately six months, his compensation would be raised to the common guild scale in the area, which raise he never did receive; that the conduct of Respondents constituted an attempt to defraud Claimant of his rightful classification within the Civil Service System of the State and was “willful, malicious and culpably negligent.” Based upon the aforesaid averments, Claimant seeks punitive damages of $500,000.00 in Count II of the amended complaint. The issue to be decided is when Claimant’s cause of action accrued. (Emphasis supplied.)

The record does not disclose in what capacity A. R. Howard serves the University, nor the approximate dates Claimant made his “numerous inquiries” or to whom they were made, when, where and how, and such other information which would disclose all facts that would be pertinent.

In its motion to dismiss, Respondents argue that Counts I and II, on their face, clearly sound in tort as contemplated under section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)), notwithstanding Claimant’s allegation that said counts are brought in contract. Respondents further argue that the claim was not timely filed and is forever barred from prosecution, having not been filed within the time limit set forth in section 22(g) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.22(g)). This statute requires all claims to be filed within two years after they first accrue. Further, Respondents argue that on the face of the complaint, the claim first accrued on January 1, 1969. Respondents argue that since Claimant pleads that “from time to time, he made numerous inquiries of the Respondent”, he was aware that his claim first accrued on January 1, 1969, and accordingly, failed to file a timely claim. Respondents further contend that, assuming arguendo, without admission, recovery is sought under section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(b)) in contract, this claim would still be barred under section 22(a) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.22(a)), having been filed more than five years after it first accrued on January 1,1969.

Claimant, in his objections to the motion to dismiss, complains of a continuing injustice which began on January 1, 1969, and ended with his leaving his employment on August 31, 1981, contending that his claim is a continuing claim and as such that the statute of limitations is not a defense, citing Benvenuiti v. State, 25 Ill. Ct. Cl. 207; City of Chicago v. State, 4 Ill. Ct. Cl. 345. Further, Claimant argues that in light of the fact this action was filed immediately after the continuing injustices came to an end, and it is irrelevant for the purposes of limitations whether the claim sounds in contract under section 8(b) (five-year limitation) or in tort under section 8(d) (two-year limitation) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, pars. 439.8(b),(d)).

We have carefully examined the pleadings and record as they relate to the issue to be determined by this Court and find as follows:

The Claimant’s pleadings are replete with allegations that Respondents’ conduct was wilful, malicious and culpably negligent, as well as Respondents’ failure to advise Claimant as to information relative to his position. Obviously, the aforesaid earmarks this claim as one in tort arising out of a contractual relationship of employment which would be governed by the two-year limit for filing a claim from the time it first accrues. Ill. Rev. Stat. 1983, ch. 37, par. 439.22(g).

A brief outline of recent Illinois decisions with regard to when a cause of action accrues so as to mark the beginning of the limitations period is warranted. The rule is that in a tort action arising out of a contractual relationship, the statute of limitations commences to run at the time the breach of duty first occurs. (Sabath v. Morris Handler Co., 102 Ill. App. 2d 218, 243 N.E.2d 723; Aetna Life & Casualty Co. v. Lubianco, 43 Ill. App. 3d 765, 357 N.E.2d 621.) From the facts alleged by Claimant in the case at bar, the Respondents’ breach of duty occurred no later than six months from January 1, 1969, when he did not receive his increase as stated by Respondent Howard, which, although not clear from the record, could have been the terms of employment. If not at that date, certainly it can be concluded that at the dates of the numerous inquiries made by Claimant with regard to his classification, his dissatisfaction was apparent, and in his mind, there was a breach of duty on the part of Respondents.

Further, there can be no denying the fact that the breach was a serious one inasmuch as the resultant underpayment of compensation was a substantial amount of 75 percent of his promised pay as related to his actual compensation received. (Exhibit “A” of amended complaint.) There can be no denying the fact that Claimant’s substantial underpayment received by him in his second or third paycheck gave him an immediate cause of action.

We do not agree with Claimant’s contention that his claim is a continuing one and that the cases decided by this Court (Benvenuiti v. State, supra; City of Chicago v. State, supra) support his contention. The cases so cited involved contracts for the construction of public works projects and the furnishing of utilities to a municipality, in which cases this Court held that because of the very nature of the contract there had to be a completion of the contract before the statute would toll, and such rule was specifically applicable in cases of public works projects and in furnishing of utilities to municipalities on a contract basis, to be considered as a whole.

The Claimant’s contention that his claim is a continuing one is untenable, because, if otherwise, a statute of limitations might never commence to run and actions could be filed 15 or 20 years from the date a claim first accrues. The need and purpose for such statutes was well stated in Isham v. Cudlip, 33 Ill. App. 2d 254, 179 N.E.2d 25:

“The purpose of the statute of limitations is to require litigation to be brought at a time which would permit facts to be provided with some certainty and before they become obscure by reason of lapse of time.”

From the foregoing facts it is apparent that Claimant was well aware that his rights were wrongfully invaded as early as 1969, and he should have exhausted all of his administrative remedies and filed his claim in 1969 when his cause of action first accrued. (Ill. Rev. Stat., ch. 37, par. 439.24-5.) Normally, a cause of action accrues when the party entitled thereto could first institute an action and the statute of limitations begins to run from that time. (Meyers v. Green, 5 Ill. App. 3d 316, 284 N.E.2d 349; Kozasa v. Guardian Elec., 99 Ill. App. 3d 669, 425 N.E.2d 113; Davis v. Munie, 235 Ill. 620, 85 N.E. 943.) The mere fact that the extent of damages is not immediately ascertainable does not postpone the accrual of the claim. Austin v. House of Vision, 101 Ill. App. 2d 251, 243 N.E.2d 297.

Count II is dismissed as punitive damages are not recoverable under a contract action.

For all of the foregoing reasons, it is the finding of this Court that since the claim was not filed within the period provided for by statute, the Respondents’ motion to dismiss is in order, and the claim is hereby denied.


author: POCH, J. POCH, J.

text:
    (No. 82-CC-0524
    Aetna Casualty & Surety Co. and Ar-Mer Enterprises, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 14, 1984.

      Order on petition for rehearing filed July 9, 1984.

    Casey & Casey (Esteban F. Sanchez and Edward F. Casey, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an accident that occurred on September 16,1980.

At about 2:00 a.m. on September 16, 1980, Jerry Kirby was driving Claimant’s 1973 Peterbilt truck along Route 71 in a northbound direction. Two hours later, about 4:00 a.m., Mr. Kirby was traveling south on that same highway when he came upon a hole 2M or 3 feet square on a bridge. The hole was completely through the bridge. Because Mr. Kirby had Claimant’s truck in the northbound lane while going over the bridge he was unable to avoid the hole, and sustained damages to Claimant’s truck in the amount of three thousand five hundred ninety five and 40/100 ($3,595.40) dollars.

When driving over this road at 2:00 a.m., Mr. Kirby did not notice any signs before the bridge or a metal plate on the bridge. Mr. Kirby testified that when he investigated after the accident he found the plate was off the highway altogether.

An Illinois Department of Transportation maintenance crew had performed temporary repairs on the site of the accident on September 13,1980. The crew placed a steel plate weighing approximately 1,500 pounds on the hole and secured it with cold patch mix. Testimony showed that the crew had placed two “bump” signs and kerosene pots at either end of the bridge to slow traffic.

Claimant asserts that the Department was negligent when it failed to secure the steel plate with anchor bolts.

Mr. Roger Cosgrove, a civil engineer with the Department, testified that there are three acceptable methods available to secure such plates. He stated that securing the plate with cold patch mix is an acceptable method. From the record the Court was unable to find that a different method would have been more effective.

The testimony indicates that the steel plate was dislodged sometime between 2:00 a.m. and 4:00 a.m., which was the time of the accident.

In Siege v. State (1971), 27 Ill. Ct. Cl. 399, the Court held that for recovery to be possible it must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative, that warning signs be posted. The State must have either actual or constructive notice of the defect.

From the testimony it is clear that the State did not have sufficient notice of the defect.

Based upon careful examination of the entire record in this cause, we hold that Claimant failed to prove by a preponderance of the evidence that the Respondent was negligent.

It is hereby ordered that this claim be, and hereby is, denied.

ORDER ON PETITION FOR REHEARING

POCH, J.

This cause comes to be heard on the petition for rehearing filed by Claimant seeking rehearing from the decision of this Court of February 14, 1984, due notice being given and the Respondent having filed an answer to the Claimant’s petition for rehearing, and the Court being fully advised, hereby:

Finds that the petition for rehearing filed by Claimant does not state with any merit any alleged errors overlooked by the Court. Pursuant to Rule 22 of this Court, there is no legal or factual reason to reverse or modify this Court’s opinion of February 14, 1984, dismissing the claim.

It is hereby ordered:

That the petition for rehearing filed by Claimant, be, and the same is hereby denied.


author: Holderman, J.

text:
    (No. 82-CC-0621
    Roosevelt McCoy, Jr., Annette Griffin and Willie Logan, Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 27, 1985.

    Ronald M. Gonsky, Ltd., for Claimants.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

On October 18,1980, between 10:30 p.m. and 11:00 p.m. Claimant Roosevelt McCoy, Jr., drove his automobile through a safety zone marked by flares and collided with Respondent’s tow truck. Claimants Willie Logan and Annette Griffin were passengers in the McCoy automobile at the time of the incident. Claimants McCoy and Logan seek damages from the State of Illinois and allege that Robert Hanson, the State driver, negligently backed the Respondent’s tow truck into Claimant McCoy’s car.

Robert Hanson, who had served in the emergency traffic patrol of Chicago for 11 years, observed a four-car accident in the right-hand lane of the Dan Ryan Expressway. The wreckage was about 50 feet north of the end of the far right-hand lane of the Dan Ryan. That lane becomes the exit ramp from the Dan Ryan to the Eisenhower Expressway.

Hanson placed his tow truck immediately behind the last of the four cars in the accident. He was then approached by one of the drivers who had been involved in the accident and was told there were injured drivers and passengers. Hanson then immediately called for help on his radio.

Hanson then marked the accident area with flares to warn the approaching public of the accident. He then set several flares, one for every other white lane-marking line, along the length of the accident scene. These flares were placed along the left boundary of the right lane for five or six car lengths. Before Hanson marked the area with flares, he tried to ascertain whether he could provide first aid to any of the accident victims. The flares Hanson set usually burn for 20 minutes.

Also at the scene of the accident was a police car, an ambulance and another tow truck. At no time did any of these vehicles or the tow truck of Respondent block the exit ramp to the Eisenhower Expressway.

In addition to the line of flares which marked the scene of the accident, Hanson turned on all of the tow truck’s emergency lights, which were tow revolving yellow lights, four high-intensity rear flashers, a red flasher and two roof top, high intensity flashers also alternating. The flashing blue lights of the police car were also turned on, as well as the flashing lights of the paramedics’ vehicle.

Hanson then started removing the vehicles from the right lane of the expressway after he checked with the paramedics, who were assisting with the victim lying alongside the third car, to see if he could tow the third car. He was backing his tow truck toward the third car when he looked through the rear window to be certain where the paramedics were working. He was approximately two car lengths from the third car in the right lane and was backing his truck at approximately two miles per hour when Claimant McCoy’s car left the center lane of the northbound Dan Ryan lanes and crossed between the tow truck and the third car. The left rear of the tow truck, which was perpendicular to the Claimant’s car, hit the car’s left rear quarter panel.

It appears therefore that the oncoming traffic was given ample warning by the emergency lights of the tow truck, the police car and the ambulance, all of which were visible for a very considerable distance. Despite this, the Claimant’s car crossed into the area where the State was endeavoring to clear out the disabled cars so that normal traffic could resume.

There is some question raised by Claimant McCoy’s testimony that he thought the flares were out, but even if they were, the flashing lights on three, and possibly four, vehicles at the scene should have given ample warning to the traveling public that there were problems ahead. The evidence regarding the flashing lights is completely uncontradicted and Claimant McCoy admitted that the flashing lights on the lead tow truck were operating.

This case proceeds under the tort of negligence, whose elements are well defined by case law. Claimants must show by a preponderance of the evidence that Respondent owed Claimant a duty, and that duty was breached by a negligent act or omission which proximately caused a compensable injury. 89 Ill. App. 3d 865, 409 N.E.2d 336.

At no time was the exit from the Dan Ryan to the Eisenhower Expressway blocked. Testimony indicates that McCoy’s automobile suddenly traversed the safety zone to gain access to the westbound Eisenhower exit ramp. This was when the accident between the tow truck and the Claimant’s car occurred.

It is the Court’s opinion that Respondent was in no way negligent in attempting to clear away the wreckage of the accident and that the entire fault lay with the Claimant driver.

Award denied.


text:
    (No. 82-CC-0669
    Frank Linden and Patricia Linden, Individually, and as Special Administrators of the Estate of Mary K. Linden, Deceased, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 25, 1985.

    Foss, Schuman & Drake, for Claimants.
    Neil F. Hartigan, Attorney General (John J. Perconti, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming to be heard on the joint stipulation of the parties hereto, the Court being fully advised in the premises,

Finds:

That this is a wrongful death action brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)).

On December 25,1980, Claimants’ decedent, Mary K. Linden, was fatally injured in an automobile collision while driving northbound on U.S. Highway 14, approximately 7/10 of a mile north of Illinois Highway 68 in Barrington Township, Illinois.

The parties hereto have agreed to a settlement of this claim, and Respondent agrees to an entry of an award in favor of Claimants in the amount of one thousand dollars and no cents ($1,000.00) in full satisfaction of this claim.

It is hereby ordered that the Claimants, Frank Linden and Patricia Linden, individually, and as special administrators of the estate of Mary K. Linden, deceased, be and hereby are awarded the sum of one thousand dollars and no cents ($1,000.00), in full satisfaction of this claim.


text:
    (No. 82-CC-0910
    Junior B. Beranek, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed June 11, 1982.

      Order on motion for rehearing filed July 26, 1982.

      Opinion filed December 14, 1984.

    Junior B. Beranek, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
    Roe, C.J.

      Roe, C.J.
   OPINION

Roe, C.J.

Claimant, an employee of the Respondent’s Department of Rehabilitation at the Illinois School for the Deaf in Jacksonville, Illinois, brought this claim seeking back wages. He alleged in his complaint that he demanded payment of certain back wages from his employer and the Respondent’s former department of personnel and his demand was refused.

This matter came on for hearing on March 18,1983, after the Court had sustained two motions to dismiss. At the Claimant’s request, however, a hearing was granted based upon the Claimant’s representations that he could better present his case by way of testimony.

The claim arises from the Claimant’s interpretation of certain arbitration and bargaining awards and agreements which are commonly referred to as the Sol Elkin award of May 18,1981, together with a memorandum of understanding dated September 21, 1981. The Claimant contends that under the arbitration award and memorandum of understanding dated September 21, 1981, he should be given retroactive pay of $849.30 for the 1980-1981 school year and $207.70 for the 1982 school year.

The central issue throughout the case centers on the authority of a Mr. Walther, the union representative, and a Mr. Vallone, management’s representative, on both the documents described above. In addition to the case at bar, the Claimant filed a grievance based on these documents. The grievance was withdrawn by Mr. Walther at the 4A grievance level proceeding — prearbitration. Claimant testified that Mr. Walther had no authority to withdraw this grievance and had been expressly told by him not to file a withdrawal.

As part of its defense the Respondent presented testimony from Carol Hibma, the labor relations administrator with the Department of Rehabilitation Services. At the time of the Elkin decision she was the labor relations administrator of the department of personnel. She testified that she was familiar with the decision, the agreements, and procedures and that the Claimant had been paid in full pursuant thereto.

Having reviewed the testimony and evidence, we find that the Claimant has failed to prove by the preponderance of the evidence that he is entitled to an award. Further, we find that he has failed to exhaust his remedies as required by section 25 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.24-5) and Rule 6 of the Rules of the Court of Claims. To hold otherwise would allow a dissatisfied union member to disavow the authority of his union representative and circumvent the Personnel Code and collective bargaining agreements and to come here for resolution of a grievance. This case clearly presents the need for the aforementioned section 25 and Rule 6.

Claim denied.


text:
    (No. 82-CC-1407
    Stratford Homes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 10, 1984.

    Alan E. Grischke, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn W. Schock and Mary Mulhern, Assistant Attorneys General, of counsel), for Respondent.
   Holderman, J.

On October 1, 1980, Lincoln Land Special Education, a State agency acting on behalf of the Department of Corrections, entered into a contract with Classroom Distributors of Tomah, Wisconsin, to purchase a mobile modular classroom unit. On March 3, 1981, Classroom ordered a unit for the Lincoln Land contract from Claimant Stratford Homes. Claimant transported the unit to the Joliet Correctional Center and installed the unit on the premises. Lincoln Land made payments on the unit to Classroom’s assignee, the Bank of Tomah, as per contract, and the unit has been paid for in full. Classroom, however, failed to pay Stratford for its work on the unit. Classroom has filed for Chapter 11 bankruptcy relief. Stratford claims the State of Illinois, Department of Corrections, should pay for Classroom’s default because the State failed to obtain a bond from Classroom which would have protected Stratford from this situation.

It is Respondent’s contention that there are two issues to be decided in this case:

1. Whether the sale and installation of a mobile classroom unit constitutes a “public work” within the meaning of the Bond Act; and

2. Whether the State is liable to a supplier, not in privity of contract with the State and who has not been paid by the State’s promisor, for not requiring its promisor, who has fully performed and been paid in full by the State, to post a bond.

The Bond Act was intended to protect subcontractors and materialmen working on major public construction projects within the State from a general contractor’s default because the use of a mechanic’s lien against a public work is prohibited. (Board of Education Northfield Township H.S. Dist. 225 v. Pacific National Fire Insurance Co. (1958), 19 Ill. App. 2d 290, 153 N.E.2d 498.) To extend the Act to cover sales of commodities would unduly burden commerce by increasing the time and other costs of doing business.

It is Respondent’s contention that this transaction was a purchase and sale of a commodity and therefore not a construction project. In support of its contention, Respondent sets forth that all State construction projects are required to go through the Capital Development Board (CDB). Respondent points out that not one of the 10 classroom units purchased went through CDB. This argument is based primarily on the fact that the modular classroom units are not considered construction projects because they are already put together before being brought to the site, and they are not considered permanent construction because they are used temporarily until permanent buildings meeting the Board of Education code can be built. It is Respondent’s further contention that if Stratford believed its relationship with Classroom was that of a subcontractor to a general contractor involved in a construction project, then Stratford was obliged to protect itself before doing work for Classroom by checking to see if Classroom had posted a bond. Stratford either negligently failed to look out for its own interests, or Stratford assumed the risk, based on a satisfactory four-year business relationship with Classroom, that Classroom would pay for materials and labor supplied by Stratford. Respondent points out that if Stratford was neither negligent nor assumed the risk, then it must also have regarded Classroom’s order as one for a commodity and Classroom’s contract with Lincoln Land as a commodity purchase.

The language of the Bond Act precludes a suit against the State on a negligence theory for failing to obtain a bond for a public works project. Section 2 of the Bond Act expressly states:

“that this Act shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract (for public work), as the case may be, liable to such subcontractor materialman or laborer to any greater extent than it was liable under the law as it stood before the adoption of this Act.” Ill. Rev. Stat. 1981, ch. 29, par. 16.

In Emulsicoat, Inc. v. City of Hoopeston (1981), 99 Ill. App. 3d 835, 425 N.E.2d 1349, in a carefully considered opinion, the Illinois appellate court for the first time interpreted section 2 of the Bond Act. The Emulsicoat court clearly states that the Bond Act and the Immunity Act preserved the State’s immunity where the State fails to require a bond as well as where a bond is procured. Emulsicoat, Inc. v. City of Hoopeston (1981), 99 Ill. App. 3d 835, 838,425 N.E.2d 1349, 1352.

The facts of Emulsicoat are stronger but nevertheless analogous to those of this case. The plaintiff subcontractor furnished labor and materials to a general contractor who had a construction contract with the defendant municipality. The plaintiff claimed the municipality negligently failed to obtain a contractor’s bond as required by section 1 of the Bond Act (Ill. Rev. Stat., ch. 29, par. 15). The Emulsicoat plaintiff, unlike the Claimant in this case, undeniably was a subcontractor who had performed work on what was undisputedly a public construction project and was thus clearly an intended beneficiary of the Bond Act. Nevertheless, the appellate court denied the plaintiff relief against the municipality because the municipality’s failure to obtain a bond was not a breach of the statute and did not cast liability upon the municipality. The legislature intended that governmental immunity be retained and so it included the limitation on liability provision in section 2 to make its intent clear.

It is the Court’s opinion that the opinion in the Emulsicoat case, cited above, must determine the decision of the Court. The Court therefore must deny an award and this cause is dismissed.


text:
    (No. 82-CC-1455
    Little City Foundation, Claimant, v. Illinois Department of Children and Family Services, Respondent.

      Order granting summary judgment filed July 2, 1984.

    John George, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter is before this Court on the motion of Claimant, Little City Foundation, for summary judgment in its favor and against the Respondent, Illinois Department of Children & Family Services, all parties represented by counsel, and the Court being fully advised in the premises,

This Court finds that:

1. On or about June 30, 1980, Claimant and Respondent entered into a valid and binding “Purchase of Service Contract” to be effective July 1, 1980, and terminate June 30,1981.

2. Attached to and a part of the contract was a valid and binding “Contract Addendum” which in its pertinent part provided:

“2. The Illinois Department of Children and Family Services and the Contractor will abide by the conditions of any changes in rate made by D.M.H.D.D. pursuant to granted rate appeals.”

3. Claimant has fully performed all terms and obligations under said contract.

4. The Illinois Department of Mental Health and Developmental Disabilities, on September 25, 1981, granted the Claimant a rate increase of $2.60 (6.2%) increase over the current rate being given to the Claimant.

5. The rate increase granted on September 25,1981, was binding upon the Claimant and Respondent pursuant to the contract entered into on or about June 30,1980.

6. The rate increase of $2.60 awarded by the Illinois Department of Mental Health and Developmental Disabilities, when multiplied by the number of children being serviced under the contract between the Claimant and Respondent, and that figure multiplied by 365 days in fiscal year 1981, shows that there is a total due Claimant from Respondent pursuant to the contract of $26,985.40 after allowing all just credits.

7. Respondent has failed to show any genuine issue of material fact existing between the Claimant and the Respondent.

8. Claimant is entitled to summary judgment in its favor under law.

It is hereby ordered that:

1. Claimant’s motion for summary judgment in its favor and against the Respondent is granted.

2. Judgment is entered for the Claimant and against the Respondent in the amount of $26,985.40.


text:
    (Nos. 82-CC-1829, 83-CC-1937
    Commonwealth Edison Company, Claimant, v. The State of Illinois, Respondent.

      Order filed December 14, 1984.

    James G. Poskozim, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter coming to be heard on the motion of the Respondent for summary judgment in favor of the Respondent and against the Claimant and the objection thereto filed by the Claimant, due notice having been given and the Court being fully advised; Finds that the Claimant, Commonwealth Edison, is before the Court seeking payment of gross charges for electricity which were billed to a State agency but not paid. This Court has previously determined that such gross charges are actually a penalty assessed against the State agency. As such, they are not recoverable from the State because it is not liable for the payment of interest or penalties, in the absence of a statute subjecting it to such liability. Illinois Power Co. v. State (1975), 30 Ill. Ct. Cl. 506.

It is hereby ordered that the motion of the Respondent be, and the same is, hereby granted and the claim is hereby denied.


author: Roe, C.J. Roe, C.J.

text:
    (No. 82-CC-2208
    Eastern Cyclone Industries Inc., f/k/a ECI Air-Flyte Corp., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 26, 1984.

      Order on Court’s motion filed February 21, 1985.

    James S. Barber and Gary L. Starkman, of Arvey, Hodes, Costello & Burman, for Claimant.
    Neil F. Hartigan, Attorney General (Mary A. Mulhern, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimant, Eastern Cyclone Industries, brought this claim seeking damages for breach of contract, fraud, and tortious misrepresentation. The facts, as stipulated by the parties, are essentially as follows.

The Claimant is in the business of installing pneumatic conveyors and laundry equipment. On May 16, 1977, the parties contracted for the sale and installation of a pneumatic laundry conveyor and chute system for soiled linen and trash at the University of Illinois Replacement Hospital (“the hospital”) in Chicago, Illinois. The contract was numbered 7-1487-4 by the Respondent. The Claimant installed the laundry conveyor and chute system and has been paid in toto for that portion of its work.

On July 17, 1978, the Respondent’s construction management company, Morse/UBM Joint Venture, asked the Claimant to “proceed with construction” of revisions to the pneumatic linen and trash lines in the basement of the hospital (“relocation work”). The Claimant agreed to do the relocation work for $13,200.00. About a year later the user agency, the University of Illinois, also asked for the Claimant to sell to it and install a Model 140 Linen Collector and the Claimant did furnish and install it at the hospital.

On March 5,1980, the Claimant submitted a request for proposal and change order on the linen collector for a $34,000.00 contract sum increase. By July 8, 1980, all recommendation and approval signatures had been obtained on the change order except for the final signature of the Respondent (CDB approval) in Springfield, Illinois. Because of the amount of the change order, CDB approval was required. Robert Pierce, the CDB’s manager of its northern regional office, sent the change order to D. Springer, the CDB’s Change Order Administrator in Springfield on July 8, 1980. On or about July 15, 1980, Mr. Springer returned the change order to Mr. Pierce unsigned because a drawing had not been submitted with it, even though the user agency, the construction manager, the architect, the engineer and/or the Respondent had a drawing on hand at the time which showed the work related to the change order.

In September of 1980, the Claimant completed the relocation work and by November of 1980 the installation of the linen collector had been completed.

During September and November of 1980 there were sufficient unobligated funds to approve and pay the Claimant the $34,000.00 for the linen collector and the $13,200.00 for the relocation work.

It was not until December 29,1980, that the change order for the linen collector was resubmitted to the CDB’s Springfield office with the drawing for final approval. A week later the Claimant submitted the change order for the relocation work. Sometime in January of 1981, the change order for relocation work had been approved by the user agency’s Ken Belford and had been recommended for approval by both the project’s architect and construction manager. One Brian O’Connor’s signature was stipulated to be the final signature necessary prior to submittal of the change order to the CDB’s Springfield office. Mr. O’Connor never signed the change order and it was never submitted for reasons that the parties agree are unknown.

In January of 1981 there were still ample unobligated appropriated funds in the hospital project construction account to approve and pay the Claimant for the work performed pursuant to both change orders.

On June 4, 1981, the Claimant submitted to the Respondent a contractor’s affidavit and sworn statement for $47,200.00 for payment for the work covered by both change orders.

At the end of fiscal year 1981 there was $59,571.32 of unobligated funds on hand in the construction account for the hospital project.

On July 29, 1981, the CDB wrote to the Claimant that:

“All appropriate parties have authorized your final payment. However, your change orders Nos. PC-1 and PC-2 (the Relocation Work and Linen Collector, respectively) have yet to be approved due to lack of funds remaining for this project. We regret any inconvenience or hardship this may cause your firm and intend to approve your contract changes as funds become available. .Until that time, we can pay you the current balance remaining in your account.
“Should you find the delay in the change order approval unacceptable, your recourse is in the Court of Claims.” (Parenthetical explanation added by the stipulation.)

In conclusion, the stipulation states that all problems have been corrected under warranty and the Respondent represented that the amount of released funds which currently are unobligated in the hospital project are $1,807.47.

The Claimant in its complaint and amendment thereto has raised three theories of recovery including breach of contract, fraud, and tortious misrepresentation. The claim is before the Court on the Claimant’s motion for summary judgment. Based on the record before us we are unable to say that the Claimant is entitled to judgment as a matter of law.

Essentially, the argument that the contract was breached by the Respondent is simply that the Claimant performed its part of the agreement for the changes and that the Respondent did not pay the Claimant. The Respondent seeks to deny the existence of the agreement. The Respondent cited Section 7-01 of Article 7 of the general conditions of the contract which Respondent stated provided as follows:

“GENERAL. CDB may, at any time, without notice to the sureties, order changes in the contract time or in work germane to the Contract. The Contractor may initiate requests for changes. Upon issuance of a change order, the Contractor shall promptly proceed with the work as changed. No work shall be changed without written approval of CDB.”

The Respondent argues there was no written approval by a person who had authority and it is well-settled law that when dealing with an agent of the State, one is bound to know the extent of his authority, citing Wilder Mobile Homes, Inc. v. State (1979), 33 Ill. Ct. Cl. 227. Further, Respondent argues that undue delay in approval of the change orders, if any, is no excuse for the Claimant to have proceeded on its own without approval.

A careful and thorough examination of the entire record in this matter reveals no such language in Article 7 of the contract nor is there even an Article 7. The copy of the contract amended to the complaint and elsewhere in the record contains only two pages consisting of four Articles. The Claimant did not comment on this argument. A genuine issue of material fact is thus presented and thus we are unable to find that the Claimant is entitled to judgment as a matter of law as to this issue.

Aside from the merits of the breach issue on the contract is the Respondent’s interposition of the insufficiency or lack of funds defense. At this time it is abundantly clear to this Court that there are now insufficient funds remaining with which to pay this claim. Regardless of the merits of the Claimant’s theory of recovery based on breach of contract we are constrained by law to deny recovery on that basis.

Section 30 of “an Act in relation to State Finance” (Ill. Rev. Stat. 1981, ch. 127, par. 166) provides as follows:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

Even if there were sufficient funds to cover the costs of the change orders when they were negotiated (even if never finally approved), there are now insufficient funds to pay claims arising from this project. Claimant cited Schutte and Koerting Co. v. State (1957), 22 Ill. Ct. Cl. 591, as authority to pay this claim. Schutte, supra, was overruled in Hall v. State, 78-CC-0895, decided December 27,1979, reported at 33 Ill. Ct. Cl. 364, but as an unpublished opinion. There, that Court stated:

“However, in Schutte, (supra), rather than to deny all claims outright, this Court took one step beyond their holding in Board of School Inspectors of the City of Peoria v. State, (supra) and held that where sufficient funds were available at the time the contract was entered into, the Court would honor the contract even though the contract was not paid before the funds available were totally expended.
The Court went on in the Schutte, (supra), case to hold that any contract entered into, after the appropriation had become totally obligated, would be denied.
It is important in applying the principle set out in Schutte (supra) to distinguish between the balance of the appropriation left unobligated and the balance of the appropriation actually remaining on hand. To allow a claim, simply because the amount actually being held on the date the obligation is incurred equals or exceeds the obligation, could lead to overspending by the agency and deficiency appropriating by this Court.
This approach also could not guarantee that invoice vouchers prepared after the funds are fully obligated would not be processed and paid leaving no funds for obligations incurred at an earlier date. For this reason, we repudiate that portion of Schutte and Koerting Co., Et Al. v. State of Illinois, 22 Ill. Ct. Cl. 591, case which allows awards simply because the line item appropriation was not shown on the books of the agency as being fully obligated on the date the ‘debt’ was incurred ....
It is inherent in the administration of State government that expenditures should not exceed appropriations previously made with the possible exception set forth in the case of Fergus v. Brady, (supra) where the expenditure is strictly prescribed by the legislature and the spending agency is compelled by circumstances and law to obligate the State. This appears to be a permissible (and expeditious) delegation of authority by the Legislature.
Without strict and well enforced guidelines, the spending of State officials could become rampant.”

Under the holding in Hall, supra, this claim cannot be paid because there are now insufficient funds remaining to pay the claim. The fact that there may have been sufficient unobligated funds remaining when the work was begun or partially sufficient unobligated funds available when the work was completed is not relevant at this time. For us to make an award on the breach of contract theory under this set of facts could only be described as making a deficiency appropriation and a usurpation of the legislative prerogative.

Citing State Employees Retirement System v. State (1970), 32 Ill. Ct. Cl. 158, Claimant argues that, even where the payment would exceed the sum appropriated, this Court can make an award where the obligation is expressly required by law. This exception to the rule is extremely narrow and must be cautiously applied. In Fergus v. Brady (1927), 277 Ill. 272, 115 N.E. 393, a case often cited in opinions of this Court, the Illinois Supreme Court stated at page 279:

“That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois Penitentiary which had been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, food, clothe and guard prisoners convicted of crimes and placed in their care, involving the expenditure of money, which may vary on account of the cost of clothing, food and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates.”

Claimant urges us to find express authorization in section 9.02 of the Illinois Purchasing Act. In relevant part said statute provides as follows:

“No amounts of funds in addition to that provided for in a contract for repairs, maintenance, remodelling, renovation or construction may be obligated or expended unless the additional work to be performed or materials to be furnished is germane to the original contract.
Even if germane to the original contract, no additional expenditures or obligations may, in their total combined amounts, be in excess of the percentages of the original amount set forth in subsection (b) of this section, unless they have received prior written approval of the Capital Development Board.
In event that the total of the combined additional expenditures or obligations exceed the percentages of the original contract amount set forth in subsection (b) of this section then the Capital Development Board shall investigate all additional expenditures or obligations and state in detail the reasons for such approval or disapproval.
(b) . . .
Whenever the contract amount is in excess of $500,000.00, the percentage shall be 3% of the amount about $500,000.00 plus $25,000.00.”

Although the extra work, the relocation and linen collector work, were germane to the original contract, we do not view the quoted language as expressly requiring payment.

Authorization for virtually every expenditure of State funds can be traced to a statute or an inference to be drawn from statute. The question is often one of degree. The situation here with this “authorization” we do not feel, rises to the level described in Fergus, supra. The obligation should contain the same element of need and exigent circumstances or at the very least be a clear and unequivocal directive to pay or incur an obligation. The “authorization” quoted above is rather a limitation on an agency’s power to spend. It does not say that the State shall pay for the work contemplated by the change orders herein. The statute allows the agency to forego other provisions of the Illinois Purchasing Act and the rules and regulations thereunder when certain extras on contracts fall within the parameters of the statute. This “authorization” must be limited to availability of the appropriations.

We cannot make an award on the breach of contract theory, despite the obvious equities in favor of the Claimant, under the facts of this case. To do so would be to condone irresponsible overspending by State agencies.

Claims based on fraud and tortious misrepresentation sound in tort and as such are not susceptible to the defense of lack or insufficiency of appropriations in this Court.

The courts do not always clearly distinguish between fraud and tortious misrepresentation. (Mother Earth Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 418 N.E.2d 506, states that the tort of misrepresentation involves fraud. It appears that the key differences for purposes of our discussion here are the elements of scienter and the burden of proof. For a statement to constitute fraud it must be shown to be (1) material, (2) false, (3) known by the person making it to be false, believed by the person making it to be false, or made in culpable ignorance (sometimes referred to as being made with reckless disregard) of its truth or falsity, (4) justifiably relied upon by the victim, (5) made for the purpose of inducing the reliance, and (6) such that the victim’s reliance caused him to suffer pecuniary loss. The party claiming fraud has the burden of proving its case by clear and convincing evidence.

As alleged in the Claimant’s amendment to its complaint (count II, par. 30) and as set forth in Claimant’s memorandum in support of summary judgment, the following statement taken from a letter from the CDB to the Claimant dated July 29,1981, was the actionable misstatement:

“All appropriate parties have authorized your final payment. However, your change orders Nos. PC-1 and PC-2 (the Relocation Work and Linen Collector, respectively) have yet to be approved due to lack of funds remaining for this project. We regret any inconvenience or hardship this may cause your firm and intend to approve your contract changes as funds become available. Until that time we can pay you the current balance remaining in your account.
Should you find the delay in the change order approval unacceptable, your recourse is in the Court of Claims.” (Parenthetical explanation added).

It was agreed that as of the date the letter was written approximately $26,721.00 of unobligated funds remained in the construction account, enough to have paid the Claimant for all of Change Order 30-PC-2 and part of 30-PC-l.

The Respondent rationalizes the apparent misrepresentation by pointing out that there is nothing in the record to indicate the total amount of other change orders pending at the time and adding that it believed that there were insufficient funds to pay all the change orders in progress. Respondent also asks us to take judicial notice of the fact that there are six other claims involving the University of Illinois Replacement Hospital seeking a total of $2,069,852.15 including:

1) Woodwork Corporation of America v. State, No. 80-CC-1336 for $400,000.00;

2) F. E. Moran, Inc. v. State, No. 82-CC-0397 for $35,000.00;

3) Bertrand Goldberg Associates v. State, No. 82-CC-2060 for $693,123.66;

4) L. K. Comstock & Co., Inc. v. State, No. 82-CC-2350 for $299,207.34;

5) Morse/Diesel, Inc. v. State, No. 83-CC-0155 for $609,590.39;

6) Robertshaw Controls Co. v. State, No. 83-CC-2560 for $32,930.76.

We do take notice of the fact that those claims are on file but unless the Respondent is willing to concede for the record that there is any merit to them (which Respondent had not done at the time the briefs were filed in this case — in fact a general denial was deemed filed in every one of them) we cannot find their existence relevant to the issues herein. Moreover, any merit to those claims may indicate widespread fraud in the inducement of all the claimants to perform work while the CDB knew or should have known that an insufficient amount of funds was available to pay for the goods and services rendered.

However, assuming arguendo that the first three elements of fraud set forth above have been shown, we are of the opinion that the last three elements are unsupported by the record. The quoted misstatement was not shown to have been made to induce reliance. Falsely representing that Respondent lacked funds to pay the Claimant can hardly be described as an inducement to be relied upon and the Claimant was told it had recourse in the Court of Claims.

We also do not think the record shows that the Claimant did rely on the alleged misstatement. It is the Claimant’s position that as of July 29, 1981, it had already completed its construction. There does not appear to have been anything the Claimant could have done to collect its bill. The only apparent alternative was to file suit in the Court of Claims which was suggested in the letter but which the Claimant did not do until eight months later.

Forebearance from taking action, under certain circumstances, can satisfy the reliance requirement, but there is nothing in the record to indicate how Claimant’s inaction caused pecuniary loss. The pecuniary loss had been suffered prior to the making of the alleged misstatement and it does not appear in the record how the Claimant’s position changed in any way after the alleged misstatement.

Accordingly, the Claimant’s motion for summary judgment on the fraud count is hereby denied.

The tort of negligent misrepresentation, Claimant’s third theory of recovery in this claim, entails the basic elements of a negligence action including duty, breach of duty, proximate cause, and damages. The element of scienter required in an action for fraudulent misrepresentation is not present. A misrepresentation need only to have been shown to be negligent. The burden of proof is by the lesser standard of preponderance of the evidence rather than by clear and convincing evidence.

City Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 214 N.E.2d 612, and Duhl v. Nash Realty Inc. (1982), 102 Ill. App. 3d 483, 429 N.E.2d 1267, (the latter cited by the Claimant), have endorsed the American Law Institute’s stance on what constitutes negligent misrepresentation:

“One who in the course of his business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by reliance upon the information if
(a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and
(b) harm is suffered
(1) by the person or one of the class of persons for whose guidance the information was supplied; and
(2) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.”

Typical cases involve errors by public weighers, accountants, appraisers, and architects.

The Claimant alleges that the CDB’s statement of July 29, 1981, quoted earlier, was the negligent misrepresentation. The duty of the CDB was alleged to be to pay the Claimant for the work it did and/or exercise due care in the connection therewith. (Count III, par. 77). Claimant elaborated on the Respondent’s duty in its brief by stating that the Respondent had a duty to pay the Claimant before (the Respondent) depleted the construction funds account and/or not to deceive the Claimant into believing there were insufficient unobligated funds to pay while the Respondent paid other contractors instead of the Claimant. Claimant also added in its brief the allegation that the Respondent had a duty to process change orders timely. It is clear that the misrepresentation alleged could only have breached the alleged duty not to deceive the Claimant into believing that there were insufficient funds available to pay the Claimant (assuming the existence of such a duty) and then no harm was shown. The Claimant has not demonstrated reliance. The Claimant’s harm was suffered prior to the misstatement and not because of it. According to standard negligence analysis the alleged misstatement was not shown to be the proximate cause of the Claimant’s damages. Accordingly, Claimant’s motion for summary judgment on the negligent misrepresentation count is hereby denied.

There is nothing in the record to support the prayer for relief seeking costs, attorney’s fees, and punitive damages and therefore these too cannot be awarded on the motion for summary judgment.

Seven months after the alleged misstatement, on February 3,1982, the CDB, apparently at the Claimant’s behest, acknowledged in writing that the Claimant had satisfactorily completed all the work on the original contract, the relocation work, and on the linen collector. The CDB wrote Claimant as follows:

“Per your request, we are writing to acknowledge that ECI has satisfactorily completed all work on both the original contract of $509,000.00 and the pending change orders nos. 30-PC-l and 30-PC-2 in the amounts of $34,000.00 and $13,200.00, respectively.
We reiterate our intent to approve your contract changes as funds become available and shall expedite any further payments due ECI when the system’s problems covered under warranty have been corrected.”

It was stipulated that all problems have been corrected under the warranty. There is nothing in the record as to what these problems were or when they were corrected.

However, in conclusion we find that the Claimant has provided $47,200.00 worth of goods and services to the Respondent and to the Respondent’s satisfaction. The Respondent is unable to pay for these goods and services now due to lack of funds, but the Respondent would pay for them if funds were available now. The record as it presently exists does not support Claimant’s allegations of fraud or negligent misrepresentation. Motion for summary judgment denied.

ORDER ON COURT’S MOTION

Roe, C.J.

This cause comes on to be heard on the Court’s own motion, and the Court being fully advised;

The Court hereby finds that the Claimant’s cause of action has been satisfied.

Wherefore, it is hereby ordered that this cause be, and hereby is, dismissed.

      . Claimant’s original contract was in the amount of $507,000.00. Their change orders totalling $47,200.00 are far in excess of the 3? limit and prior written approval from the CDB was not obtained.

      . The most significant difference concerns the potential for, and virtually unlimited liability to, unknown plaintiffs as noted by Justice Cardozo in the leading case of Ultramares Corporation v. Touche (1931), 255 N.Y. 170, 174 N.E. 441, and which was restricted in Illinois by the Illinois Supreme Court in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656. The ambit of liability for negligent misrepresentation is more confined (than for fraud) and will only attach if reliance by the particular plaintiff could be contemplated. This important difference is not of consequence in the claim at bar.


text:
    (No. 82-CC-2244
    Fidelity Deposit Company of Maryland, Claimant, v. The State of Illinois, Respondent.

      Order filed December 13, 1984.

    McNeela & Griffin, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Erin M. O’Connell, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim is before the Court on the joint stipulation filed by the parties on November 7,1983. By order of this Court dated January 5, 1984, the case was continued until submission of additional information by the Respondent. That information was provided September 12, 1984. The case is now before us for decision.

The parties stipulated as follows:

1. Claimant is a bonding company which pursuant to its bond became the contractor of record for plumbing work completed at New Sycamore Junior High School, Sycamore, Illinois.

2. Claimant hired Great Lakes Plumbing and Heating Company to perform the contract work.

3. In the course of completing the work, Great Lakes encountered conditions not anticipated in the original contract, namely a high water table and running sand.

4. These conditions necessitated renting dewatering equipment so that the plumbing work could be completed.

5. Claimant and Respondent have agreed that the amount of Claimant’s claim for the additional expense of the equipment rental is $5,500.00.

6. The parties agree that Claimant should be awarded $5,500.00 as a complete satisfaction of Claimant’s claim.

This Court is not bound by such settlements, but neither does it seek to interpose a controversy where none appears to exist. We encourage settlement where the case warrants it and will not reject a settlement out of hand. Although this settlement appears fair and reasonable and entered into at arms length we unfortunately are constrained by operation of law to reject the settlement and deny the claim.

The additional information elicited by our order of January 5, 1985, reveals that all funds appropriated by the legislature and released by the Governor have been expended. For this reason we are unable to acquiesce in making an award. We do note for the record however that on July 26, 1978, the director of the Capital Development Board (the Respondent herein) requested, the director of the Bureau of the Budget recommended, and the Governor approved, a cancellation of released funds in the amount of $16,210.00 for the stated purpose that the contracts awarded for the project plus contingencies were less than the amount of funds released, and that therefore that amount of money was not required. We further note for the record that on June 23,1981, the Director of the Capital Development Board requested, the director of the Bureau of the Budget recommended, and the Governor approved another cancellation of released funds in the amount of $40,531.00 for the stated purpose that the project was complete. Thus, it appears at one time there were more than sufficient funds appropriated and released to have covered this settlement but due to the events described above their release was cancelled.

Claim denied.


text:
    (No. 82-CC-2265
    Timothy N. Kurowski, Claimant, v. The State of Illinois, Respondent.

      Order filed December 13, 1984.

    Louis G. Davidson & Associates, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the motion of Respondent to dismiss the claim herein with prejudice, due notice having been given the parties hereto and the Court being fully advised in the premises:

The court finds that the instant claim, sounding in tort, is for personal injuries and was filed on March 30, 1982, seeking the maximum award of $100,000.00.

Section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)) provides for a $100,000.00 limitation on any Court of Claims award of damages in cases sounding in tort. Further, section 26 of the Act provides that there shall be but one satisfaction of any claim or cause of action in this Court, and any recovery awarded by us shall, be subject to the right of set-off.

Claimant concurrently filed another cause in the Circuit Court of Cook County entitled Kurowski v. City of Chicago, No. 81 L 21396. This cause arose from the same occurrence that gave rise to the instant claim.

The circuit court action was settled for $115,000.00, which would completely set off any possible recovery Claimant could receive in this Court. The instant cause, therefore, has been rendered moot.

It is therefore ordered that Respondent’s motion be, and the same is, hereby granted, and the instant cause is hereby dismissed, with prejudice.


author: Raucci, J.

text:
    (No. 82-CC-2390
    H & H Plumbing, Heating and Electric Co., a corporation, Claimant, v. The State of Illinois, Capital Development Board, Respondent.

      Opinion filed September 21, 1984.

    Donald G. Musick, for Claimant.
    Neil F. Hartigan, Attorney General (William G. Webber, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This action arises out of the dispute between Claimant, a contracting firm, hereinafter referred to as H & H, and the State of Illinois arising out of Claimant’s bid and construction work on the Ziegler Elementary School.

H & H had submitted a bid to the Capital Development Board, hereinafter referred to as CDB, for construction work at the Ziegler Elementary School, which work included a sewage treatment plant facility. The bid submitted by H & H, which was approved and accepted by CDB, did not specify the amount of the bid necessarily attributable to that portion of the work pertaining to the sewage treatment plant facility.

Subsequently, no permit could be obtained from the Environmental Protection Agency for the sewage treatment plant facility and the contract for that portion of the work was not fulfilled by the CDB.

The dispute out of which this action arises developed between H & H and CDB. H & H claimed that out of their total bid, only $59,548 should be deducted. CDB, on the other hand, believed that the amount that should be deducted as a result of the cancellation of the sewage treatment plant facility was $87,466.93. One hundred dollars was tendered by Respondent, which tender was rejected by Claimant. Thereafter, the amount to be paid by CDB to H & H was in dispute in the sum of $28,018.93.

H & H brought suit against the State of Illinois for the sum of $28,018.93.

H & H’s project manager estimator, William Hertenstein, testified that he was the project manager on the Ziegler School job. He was asked to make a calculation of the cost of constructing the sewer treatment plant had H & H proceeded to complete it in accordance with the original plans and specifications. Hertenstein had prepared the construction estimate for the purpose of bidding the total job at the Ziegler School. The figures included a 15% charge for overhead and profit.

On cross-examination, Hertenstein testified that the estimate was prepared at a time when it had not been determined who was going to continue with the work. It was prepared at a time when an attempt was being made to determine what the costs were for that portion of the job that was not to be completed. Prior to the preparation of the estimate, an issue had arisen with respect to whether that portion of the work was going to be done but it had not been positively determined that H & H was not going to do that portion of the work. It was becoming apparent that EPA was not going to approve the sewage treatment plant so an alternate system was going to have to be installed and it was necessary to know how much the proposed system cost in relation to what another system would cost. The figures on his estimate were simply drawn from the original estimate that had originally been approved by the CDB. The cost of the sewage treatment plant from the supplier was verified in May of 1980 by letter from the supplier to H & H.

Hertenstein testified that the supplier responded to his request for a copy of the original quote and advised that the original quote was $43,263, thereby confirming their original quote.

Therefore, the dispute between the parties revolves about the cost of the sewage treatment plant which had to be deducted from the total competitive bid of H & H since it was never installed. H & H takes the position that the sewage treatment plant, as bid by them, would only have cost $43,263, and that it is the amount which should have been deducted from their competitive bid as a result of the failure to construct the sewage treatment plant; Respondent, on the other hand, maintained that the amount that should have been deducted from the competitive bid as a result of the non-completion of the sewage treatment plant was $87,466.93. Respondent could not simply draw the figures from the original estimate or bid since the bid figures were “total price” and were not broken down so that the cost of the sewage treatment plant could be readily ascertainable therefrom.

In short, Claimant seeks to establish the correctness of its position through the testimony of Hertenstein, who prepared the original bids and who testified unequivocably that the cost of the plant was approximately $43,000.00. The State seeks to establish that the cost of the plant was $87,500 based on figures extrapolated from copies of letters addressed by Hertenstein to CDR and the architects on the job, which can be interpreted as suggesting that the price of the sewage treatment plant was considerably more than $43,000.00. Hertenstein explains these discrepancies by pointing out that the figures in those letters represent figures obtained by him from manufacturers of sewage treatment plants with respect to anticipated price increases. For example, in one letter Hertenstein warns about a possible price increase of sewage treatment plants in the area of 7 to 12%. In a subsequent letter, he warns that the price increase threatened by the manufacturers of sewage treatment plants could be as much as $8,750.00. From this, the State reasons that the cost of the original plant must have been $87,500, since a price increase of 10% totaling $8,750 would have, of necessity, been figured on an original price of $87,500.00.

Hertenstein stated that the figures used by him in his letter of warning to the CDR and the architect, regarding the need to decide whether EPA approval could or could not be obtained on the original sewage treatment plant proposal, came from third-party sources in the manufacturing and sales end of the sewage treatment plant business. Therefore, Hertenstein says that such figures need not necessarily reconcile with his figures utilized in the preparation of H & H Plumbing’s bid for the Ziegler School contract. Furthermore, there is evidence in the record that the sellers of the sewage treatment facility bid under H & H Plumbing’s original proposal reconfirmed that the price for such sewage treatment facilities was, at the time the job was bid, in the area of $43,000.00.

Respondent does not in any way dispute Claimant’s entitlement to be paid for lost profit as a result of the fact that the sewage treatment facility did not receive EPA approval and could not be installed. Respondent’s sole contention is that Claimant has not deducted enough money from the bid for the cost of the sewage treatment facility. Respondent adduced no testimony as to the actual cost of the sewage treatment facility but seeks to establish such position solely on the basis of incongruities and discrepancies in assertions made by agents of H & H in correspondence concerning a need to expedite the decision on whether or not the facility was to be installed. Claimant, on the other hand, has produced direct evidence of the figures used in the original bid, which when deducted from the amount of the original bid show that Claimant is entitled to a sum of $28,018.93. Claimant has met its burden of proof.

It is therefore ordered that Claimant be awarded twenty-eight thousand eighteen and 93/100 dollars ($28,018.93) in full satisfaction of this claim.


text:
    (No. 82-CC-2470
    Darrel B. Marquis, d/b/a Marquis Brothers, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 28, 1985.

    Pierson & Maloney, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim brought by Darrel B. Marquis, d/b/a Marquis Brothers, against the State of Illinois whereby Claimant seeks recovery of $2,384.44, the undisputed amount of damage to Claimant’s truck sustained as the result of an accident in which Claimant’s vehicle collided with a State snowplow operated by Andrew Taliani, a State employee. A hearing was held before a commissioner on June 23, 1983. All briefs have been submitted and the commissioner has duly filed his report.

The accident occurred at 12:30 p.m., on March 4, 1982, on U.S. Route 6 and Route 34 at the west edge of Sheffield, in Bureau County, Illinois, when Claimant, traveling westbound behind the snowplow, entered the eastbound lane of travel and attempted to pass the snowplow. As Claimant began accelerating to pass, Mr. Taliani turned the snowplow to the left from the westbound lane into the eastbound lane in an attempt to make a U-turn on said highway. It was Taliani’s intent to turn around at that point and proceed back eastward on Route 6.

Claimant contends that the accident and the damage to his vehicle were the proximate result of Mr. Taliani’s negligent operation of the snowplow. According to Claimant, Taliani failed to keep a proper lookout for Claimant’s vehicle, failed to see it when he easily should have, and turned his vehicle to the left into the path of Claimant’s passing vehicle when he should have known that the turn could not be made with reasonable safety. Additionally, Claimant contends that Taliani failed to give an appropriate left turn signal as required by the Illinois Vehicle Code (Ill. Rev. Stat., ch. 951/2, par. 11 — 804), which if true, is a statutory violation and is prima facie evidence of negligence. Old Second National Bank of Aurora v. Bauman (1980), 86 Ill. App. 3d 315, 408 N.E.2d 224.

The State denies that Mr. Taliani was negligent and contends that even if he was, Claimant’s own negligence should reduce his award proportionately. Claimant denies any negligence on his part.

Operators of State vehicles are charged with the same duty of care as other drivers upon the highway, and the State is liable for damages proximately caused by the operator’s negligent acts. (Santiago v. State (1977), 31 Ill. Ct. Cl. 332.) At the time of the accident, therefore, Mr. Taliani was charged with the common law duty to exercise ordinary care at all times to avoid a collision. See I.P.I., 2nd, 70.01.

We find that the State employee, Andrew Taliani, negligently operated the snowplow by driving it to the right, whereby his right wheels went onto the shoulder, and then making a left turn across the passing lane without adequately looking back to determine if the turn could be made in a reasonably safe manner. A driver’s duty is to see that which he clearly should see. (Payne v. Kingsley (1965), 57 Ill. App. 2d 245, 207 N.E.2d 177.) Taliani clearly should have seen Claimant’s vehicle if he looked before making the left turn.

We further find that the Claimant was also guilty of negligence, and therefore, his damages should be reduced pursuant to the doctrine of comparative negligence adopted in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) He should have foreseen that the snowplow would take unusual turns and, for that reason, should have exercised a greater degree of care for his safety and the protection of his property. It is the opinion of this Court that Claimant’s recovery should be reduced by 25% due to his negligence.

Based on the foregoing, it is hereby ordered that the Claimant be, and is, hereby awarded the sum of $1,788.33, which is the amount of damages stipulated by the parties, reduced by 25% for the percentage of negligence assigned to the Claimant.


author: Montana, C.J.

text:
    (No. 82-CC-2473
    Timothy P. Morrell, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 30, 1985.

    William S. Schildman, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim was brought by Timothy P. Morrell against the State of Illinois for salary he lost following his discharge by the Illinois Department of Children and Family Services. Claimant was suspended on January 27, 1981, and discharged on February 1, 1981. At that time, he was paid all salary due as well as the sum of $1,293.00 which represented accrued and unused vacation days.

Following a Civil Service hearing, Claimant was reinstated to his employment but was given a 60-day suspension. Claimant has received all back pay due him except for the period from March 28, 1981, the date on which his suspension terminated, through June 30,1981. No monies could be paid after that period because a new fiscal year began July 1 and all appropriations had lapsed. Therefore, this claim has resulted.

The parties agree that Claimant is due the sum of $5,981.66 in back salary for the period in question. They also agree that the sum of $2,840.00 should be deducted since Claimant received that amount in unemployment compensation. Claimant, therefore, contends that he should receive an award in the amount of $3,141.66. It is Respondent’s contention, however, that the accrued vacation money, in the amount of $1,293.00 paid to Claimant at the time of his discharge, should also be deducted. Respondent contends further that there should be an additional deduction in an unspecified amount, claiming that Claimant failed to mitigate his damages.

Respondent’s position on the issue of vacation pay must fail. As Claimant points out, had he not been discharged he would have been paid during the time that he was on actual vacation. When he was discharged he lost not only his salary but the ability to use his earned vacation. Since he could not do that, he was justly compensated. Moreover, the evidence is uncontroverted that when he was reinstated his vacation days began accruing at zero, not at the number of days for which he was paid.

The reason, therefore, that Claimant is receiving actual cash in an amount greater than what he would have received had he not been discharged, is because he lost the opportunity to actually take his vacation and, therefore, must be compensated over and above the amount of salary he would have received had he not been discharged.

It is also clear, as Claimant adequately demonstrated in his brief, that Claimant did in fact take reasonable steps to mitigate his damages.

It is, therefore, hereby ordered that the Claimant be, and hereby is, awarded the sum of $5,981.66 plus appropriate employer contributions and less appropriate employee deductions, including a deduction in the amount of $2,840.00 to be paid to the director of the Department of Employment Security, all as more fully set forth in the Appendix attached hereto and incorporated herein.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System

Employee’s contribution to State Employees’ Retirement Sys. 187.55

Employee’s contribution to FICA 397.78

State’s contribution to State

Employees’ Retirement System 448.62

State’s contribution to FICA 397.78

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 1196.34

To Illinois Department:

Claimant’s Illinois income tax 149.55

To Office of Employment Security:

Director Dept, of Employment Security 2840.00

To the Claimant:

Net Salary 1210.44

Total award $6828.06


text:
    (No. 82-CC-2647
    Talsma Builders, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed May 20, 1985.

    Saul J. Morse, Theodore J. Harvatin, and Gramlich & Morse, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant was the successful bidder on a project funded through the State of Illinois and directed by the Capital Development Board, for work on the Raster Elementary School in Chicago, Illinois. The total amount of the contract was approximately $1.3 million. There is no dispute as to the fact that the work was performed satisfactorily and in a workmanlike manner and that the Claimant was paid the full amount under the original contract.

The dispute centers around Claimant’s request for payment for work which it alleges was an extra under the contract. Claimant asserts that it removed excess excavated material below the sub-grade for which it was entitled to compensation at a unit price of $15.00 per unit. Claimant alleges it agreed to pay Latronica & Sons Excavating & Grading to haul 744 loads of excess sub-grade material, constituting 10,416 cubic yards, at a unit price of $15.00 per cubic yard, or $156,240.00, and, in addition, makes claim for cost and overhead in sum of $7,812.00, for a total claim of $164,052.00.

Respondent contends the work performed was not outside the scope of the contract; that the State did not agree to unit prices for hauling off site disputed materials; that Claimant’s proof was insufficient to show the number of cubic yards of disputed materials hauled off site; that neither quantum meruit nor estoppel lie against the State. Further, it raises the question whether the claim filed is, in fact, a claim on behalf of Latronica Excavating Company, a subcontractor of Claimant, and as such an improper subject for claim. The State further points out that a change order for such alleged additional work was not submitted until 14 months expired after the hauling was completed.

The first issue to be determined is the nature of the materials hauled out by Claimant’s subcontractor. Was it “excess sub-grade material” as contended by Claimant, or was it debris, footings or building materials and therefore included within the scope of the original contract, as argued by the State.

Claimant relies on the contract provision as appears at section 02210, part 3.02 (excavation) under subparagraph C which reads as follows:

“Cuts and fills are not necessarily balanced. Any additional fills required shall be paid for at the contract unit. Excess excavating materials shall be deposited by burying (as required) and spreading on the site as directed at no additional cost to the owner. In the event excess excavated material, below the sub-grade level is encountered, the Architect shall determine if this is to be distributed on-site or off-site and the Contractor shall be reimbursed at the Contract Unit Price.”

This raises the question of what is meant by “excess excavated material below the sub-grade level”.

The State, in reference to the above contract provision, argues that the term sub-grade is the prepared grade upon which the building footings and foundations, drives, parking lot and walks are constructed. It further contends there is nothing in the record to indicate how much material was hauled out down to the sub-grade nor how much was excavated and hauled out as site preparation and in removing existing underground foundations. As a further contention, it notes that the quoted contract clause requires that the architect determine whether to haul such materials “off-site” or not. Thirdly, the State argues that the clause calls for payment at “the unit price” and there was no unit price agreed upon since unit price was excluded from the contract. The State makes the argument that since unit prices were excluded, the contract became a lump sum contract.

From the record before the Court, the only evidence presented to determine whether the hauling was of debris or was of “excess sub-grade material” was testimony of Arthur A. Talsma, president of Claimant corporation, Kenneth Talsma, Claimant’s construction superintendent on the job, and Michael Latronica, an excavator and grader. Talsma said that debris which was included in the contract price was material on the surface visible to the eye, that was at grade level, and that sub-grade material refers to material below the grade or ground level and not visible to the eye at the time of beginning construction. According to this witness excess sub-grade material is material which if not removed, would have raised the “topo” elevation. He further stated he asked the architect if he wanted to revise the elevation by letting the material remain on site. However, for four months he received no response and rather than delay the completion of the project, the decision was made to haul the material away. This was done to conform with the original specifications, according to his testimony.

Such testimony fell short of proving what was meant by “below the sub-grade” level. Below the grade is not the equivalent of below the sub-grade.

Claimant has failed to meet it’s burden of proof that the materials removed were below the sub-grade level. Even if it were, he has failed to prove the quantity of such materials. If there were excess materials outside the contract, the procedure called for a change order before the work was done. This procedure was not followed before such removal and this was not authorized.

Although Claimant did request authorization for the additional work claimed by submitting a change order, as is customarily done, such authorization was never given by the owner or his authorized representative, and proceeding with the work without such authorization was the Claimant’s election and risk.

On the question of unit price, again the evidence is clear from Respondent’s exhibit No. 2, which is entitled owner-contractor-agreement, which said exhibit was duly admitted into the record, that Claimant acknowledged that unit prices would not apply and are excluded from the contract. Arthur G. Talsma testified that he executed the agreement on behalf of the Claimant, and that he also initialed and acknowledged that unit prices were not applicable. It is apparent from the evidence that Claimant agreed to construct the project for a lump sum price, subject, of course, to change orders by which additional work would be compensated at a price negotiated by the parties.

The Court holds that Claimant failed to meet its burden of proof in the following respects:

1. That the material was excess excavated material below the sub-grade level.

2. That the proper change order procedure was followed assuming the material was outside the scope of the Contract.

3. That unit price was applicable assuming the work was outside the Contract.

Claim is therefore denied.