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Construction Law

: The South Carolina Construction Law Blog

"In Place" Provision Held Unambiguous

By Ryan McCabe

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St. Mary Parish hired a general contractor to spread a sand drainage layer at the base of a landfill, install a geotextile fabric over the sand, then cover the fabric with a layer of clay. The terms of the contract stated that the sand and clay would be measured "by the cubic yard of in-place material based on surveys conducted by owner of pre- and post-installation conditions." The contractor spread approximately 98,000 cubic yards of sand and 111,000 cubic yards of clay. The Parish only paid for 52,000 cubic yards of sand and 53,000 cubic yards of clay, so the contractor sued to collect $800,000. As part of its suit, the contractor filed a motion for summary judgment on the issue that the contract is ambiguous.

The Parish's interpretation of the contract was that the parties would measure the sand and clay before and after installation to determine the measured amount. The contractor, however, argued that the contract was ambiguous because the phrase "in place" was not defined and did not indicate if the material was to be measured in a compacted or non-compacted form.

The court disagreed that the contract phrase was ambiguous, and held that "in place material" is a term of art recognized in the industry to indicate the "volume of fill in the cell after installation." This volume is based on the area filled, not the amount of sand or clay actually brought to the site and installed. Testimony by the contractor's representative that he understood in place material to mean "length times width times depth" further impaired the contractor's argument for ambiguity. The court denied the contractor's motion for summary judgment as to this issue.

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Full post as published by The South Carolina Construction Law Blog on October 21, 2010 (boomark / email).