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NELSE MORTENSEN & CO. v. UNITED STATES

July 1, 1969

NELSE MORTENSEN & CO., Inc., Plaintiff,
v.
UNITED STATES of America and Washington Water Power Company, Defendants. UNITED STATES of America, Third Party Plaintiff, v. John R. CULLER, Fulton G. Gale, Jr., Carroll Martell, Kenneth P. Norrie, Walter Z. Davis, Royal A. McClure, Thomas R. Adkison, Bruce W. Walker, John W. McGough, and Edna D. Spafford as Executrix of the Estate of Russell M. Spafford, Deceased, Third Party Defendants



The opinion of the court was delivered by: EAST

 EAST, Senior District Judge (sitting by designation).

 The plaintiff, Nelse Mortensen & Co., Inc., (Contractor) seeks Tucker Act, Title 28, Sec. 1346(a)(2) relief from the defendant United States of America (Government) upon an alleged breach by the Government of an implied warranty flowing from a building contract (T.Ex. 102 and 102-A) *fn1" in that the Government supplied Contractor with alleged inaccurate architectural and structural plans and drawings, particularly drawing 1-1 (T.Ex. 103), Existing Survey (i.e., delineation thereon of an incorrect location and direction of the conduit).

 Contractor joined defendant Washington Water Power Company (Power), the owner and user of an underground high-tension "P & S" electrical conductors with concrete envelope (conduit) located under Main (northerly) and Monroe (westerly) Streets bordering the building site, as a proper, but not a necessary, party defendant.

 It appears that Power's conduit was inadvertently, as distinguished from intentionally, fractured during the course of the Contractor's excavation work for the building with a resulting cost and expense to Power for repairs exceeding $10,000 and that Power had threatened the contractor with suit or action to collect.

 Power counterclaimed against the Contractor for the reasonable and necessary cost and expense of repair in an amount exceeding $10,000 claiming to have third party beneficiary rights and status under the building contract, *fn2" and further cross-claimed against the Government under the Tucker Act, seeking to recover its cost and expense of repairs in an amount not to exceed $10,000 should recovery not be had from the Contractor.

 The Government's during-trial motions:

 1. For summary judgment against Contractor on grounds of lack of jurisdiction, was denied; *fn3"

 2. For summary judgment against Power on its cross-complaint on grounds of lack of jurisdiction, was allowed; and

 Power's during-trial motion for judgment against Contractor on its counterclaim in the amount of $10,268.81 was allowed.

 The Government cross-complained against defendants John R. Culler, Fulton G. Gale, Jr., Carroll Martell, Kenneth P. Norrie, Walter Z. Davis, Royal A. McClure, Thomas R. Adkison, Bruce W. Walker, John W. McGough (Architects) and Edna D. Spafford as Executrix of the Estate of Russell M. Spafford, Deceased (Surveyor) alleging their responsibility for the inaccuracies in drawing 1-1 under Article XVI of their Architects' contract (T. Ex. 101).

 It appearing "In order that architects could render their professional service, a survey of the property was required," so through the provisions of Article VI of T.Ex. 101, Surveyor Russell M. Spafford was selected and retained as the surveyor. Thereafter, Spafford issued and published his survey as drawing 1-1. Spafford's drawing 1-1 became a part of the Architects' architectural and structural plans and drawings furnished the Government and in turn to the Contractor for prebidding and construction advice and direction. Spafford's delineation of the location of Power's conduit on drawing 1-1 proved to be inaccurate. Architects cross-complained against Edna H. Spafford as Executrix of the Estate of Russell M. Spafford, Deceased, for indemnity. The issues under the Government's cross-complaint against the Architects and the Architects' cross-complaint against the Spafford estate raised the query, "Was Spafford the agent of the Government or the Architects in issuing and publishing his survey?"

 During trial the Court segregated the cross-complaint of the Government against the Architects and the cross-complaint of the Architects against the Estate of Russell M. Spafford until an adjudication of the Contractor's Tucker Act claims against the Government was had.

 PREPARATION AND CONTRACTOR'S USE OF DRAWINGS 1-1 AND 9-E-1

 I find from all of the evidence and the admitted facts of the pretrial order herein that:

 
Spafford's delineation of the location of the conduit on his Existing Survey, drawing 1-1, and denoting the same by a broken straight line interspersed with the letter "P" and labeled "Underground Power Lines" was inaccurate in that he placed the conduit some 35 feet at the most easterly point of interest and some 20 feet at the most westerly point of interest northerly (away from the excavation site) of its true location;
 
Spafford certified his drawing 1-1 as follows:
 
"I hereby certify that the drawing correctly shows the boundaries of the property described above and that streets, alleys, sidewalks, curbs, encroachments and surface and subsurface utilities are properly and correctly indicated. Signed R. M. Spafford, Land Survey, State of Washington, No. 7462, date December 18, 1962.",
 
and presented it initially to the Architects, but the "* * * drawing was not checked for accuracy of the survey by the architects * * *" (Pretrial Order, Contention of Architects) before delivery to the Government and subsequently to the Contractor;
 
Pittsburgh Testing Laboratory was engaged by the Architects pursuant to the terms of the architectural contract to perform footing test drilling, and during such drilling operations the conduit was struck by a drill. However, the knowledge obtained through this incident and the test borings was not disclosed to the Government or the Contractor; *fn4"
 
The true course and actual location of the conduit was not in a straight line but bears southwesterly in a slow curve from some 35 feet at the northeasterly point of interest to some 1 or 2 feet at the northwesterly point of interest northerly of the called-for excavation and shoring perimeter, which actually placed the conduit in an immediate zone of danger from the caller-for excavation work by the contractor;
 
Drawing 1-1 is not a pure undimensional drawing as distances are noted on some lines and not on others, and it is specified thereon to have been drawn to a scale of 1 inch to 20 feet;
 
Depending upon the good use of architects' and contractors' respective rulers, a tolerance of 10% is reasonable in using and depending upon such a drawing by a building contractor in prebid and excavation work planning and execution, unless, of course, and until actual knowledge or reasonable notice to the contrary enters the picture;
 
By absorbing the full 10% tolerance in the use and reliance upon drawing 1-1, the conduit's location thereon was well without any reasonable foreseeable zone of danger outside the north perimeter of the called-for excavation work and the shoring and resulting banks;
 
The later-occurring abnormal sluffing, cave-in and fracturing of the conduit could not have been reasonably foreseen at that time;
 
Subsection h. in the Section 7.03 mentioned in Footnote 2 provides, inter alia:
 
"Contractor shall contact Utility Companies for information pertaining to location and construction of existing utilities."
 
Contractor's supervisory personnel made no self-initiated inquiries of either Power or Spokane City Engineer as to the location of the underground conduit and had no independent knowledge of the actual location of the conduit nor any notice that drawing 1-1 was inaccurate as to the location of the conduit and relied upon drawing 1-1 and its teachings in making the estimate of the situation for the prebid and ultimate excavation work planning and execution; and
 
Drawing 9-E-1 (T.Ex. 108) was a part of the electrical plans for the building dealing with street lighting and electrical power sources and would not under good construction practices and did not enter the Contractor's reading of the architectural and construction plans and drawings and making of an estimate of the situation for excavation and reasonable adequate shoring.

 It is my opinion that since the Government desired a survey as to the location of a known adjacent underground power conduit (outside the shoring perimeter of the excavation) and/or the Architects did furnish the Contractor with such survey, the Contractor was relieved from any duty to independently determine the location of such conduit ...


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