Bates & Rogers Construction Corp. v. Department of Highways

Claimant, Bates & Rogers Construction Corporation, entered into a contract with the respondent for construction of a bridge ramp known as Project 1-10-77-3(97)99, C-7, Kanawha County, West Virginia. Claimant’s subcontractor, Charleston Concrete Floor Company, performed the deck overlay work with latex modified concrete. Claimant asserts that a loss of $11,424.65 resulted when respondent required the subcontractor to repair a portion of the deck overlay which did not meet specifications.

*226The placing of the latex modified concrete occurred in a sequence of 14 days. The work performed on each day was designated as a “pour.” On the first day, referred to by the parties as the first pour, the subcontractor used a heavy steel tined broom, to finish the surface, at the request of Kenneth Webb, an employee of the respondent. Problems were encountered by the subcontractor in using the heavy steel tined broom. The subcontractor then switched to a soft brush broom which performed satisfactorily. The subcontractor covered the surface with wet burlap for curing purposes. However, this first pour cracked and had to be replaced at a later date.

The subcontractor then experimented with different brooms in an attempt to achieve the finished surface desired by respondent. A reed tine broom was used on the second pour, a soft bristle broom on the third pour, and, finally, a single tine steel broom was used on the fifth pour which achieved the finish desired. This single tine steel broom was successfully used on the remainder of the pours with satisfactory results.

The subcontractor testified that he had placed latex modified concrete previously and always used a soft bristle broom for the finished surface. On this particular project a different finish with deeper grooves was desired. The specifications which apply to the placement of latex modified concrete refer to finishing with a broom but no specific broom is indicated.

The subcontractor used various brooms in an attempt to satisfy the respondent and achieve the finish desired. The experimental use of the heavy steel tined broom did not achieve the desired surface finish.

It is the opinion of the Court that the subcontractor should be reimbursed for the repairs to the deck overlay. Therefore, an award is made to claimant in the amount of $11,424.65, which amount was stipulated by the parties.

Award of $11,424.65.