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United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp.

United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp.

United States Court of Appeals for the Second Circuit

April 12, 1996, Argued ; September 6, 1996, Decided

Docket Nos. 95-7791, 95-7830, 95-7841, 95-7850

Opinion

 [*157]  MORAN, Senior District Judge:

"Major construction projects generate major construction litigation. Management of either is perilous." 2 

This is an appeal from the final judgment of the United States District Court for the Southern District of New York (Denny Chin, J.) entered on July 12, 1995, following a jury verdict in favor of plaintiff Evergreen Pipeline Construction Co., Inc. (EPC or Evergreen) and against defendant Merritt Meridian Construction Corp. (MMCC or Merritt), and its surety, General Insurance Company of America (GICA or General). The district court's opinion is reported at United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt-Meridian Constr. Corp., 890 F. Supp. 1213 (S.D.N.Y. 1995). Merritt is challenging certain of the district court's evidentiary and post-trial rulings and the sufficiency of the evidence to support the jury's [**3]  verdict in favor of Evergreen. Evergreen is challenging the dismissal of two of its claims and is seeking greater sanctions and reimbursement for its costs. We conclude that a new trial is required as to one issue, further consideration (and possibly a new trial) as to another, and in other respects we affirm.

BACKGROUND

Merritt entered into a general contract with the United States Department of Army Corps of Engineers (Corps) for the modernization and expansion of academic facilities, Phase 1B, at the United States Military Academy, West Point, New York. The contract amount was $ 12,500,000.

Jack DeLello (DeLello) and Dennis Capolino (MMCC's corporate secretary) entered into the subcontract at issue in this case on August 13, 1987. DeLello's company, Evergreen,  [*158]  specializes in pipeline installation and was to perform the pipe-trenching and installation work for $ 400,000, trench rock-blasting and removal for $ 90 per cubic yard, and mass rock-blasting and removal for $ 35 per cubic yard, beginning August 17, 1987.

The following recitation of the facts (which are in accord with the jury's findings) is taken from Judge Gerard L. Goettel's 3 Memorandum Decision of [**4]  October 1, 1991:

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95 F.3d 153 *; 1996 U.S. App. LEXIS 23316 **; 45 Fed. R. Evid. Serv. (Callaghan) 745; 41 Cont. Cas. Fed. (CCH) P76,981

UNITED STATES OF AMERICA, for the use and benefit of EVERGREEN PIPELINE CONSTRUCTION CO., INC., Plaintiff, EVERGREEN PIPELINE CONSTRUCTION CO., INC., Plaintiff-Appellant/Cross-Appellee, v. MERRITT MERIDIAN CONSTRUCTION CORP. and GENERAL INSURANCE COMPANY OF AMERICA, Defendants-Appellees/Cross-Appellants. MERRITT MERIDIAN CONSTRUCTION CORP., Third Party Plaintiff-Appellant/Cross-Appellee, v. TRANSAMERICA PREMIER INSURANCE COMPANY, INC., Third Party Defendant-Appellee/Cross-Appellant.

Prior History:  [**1]  Appeals from a judgment of the United States District Court for the Southern District of New York, DENNY CHIN, Judge, entered after a jury trial, awarding damages for breach of contract and attorneys' fees and costs.

Disposition: Affirmed in part, vacated and remanded in part.

CORE TERMS

costs, district court, damages, delay damages, extra work, rock, delays, punitive damages, blasting, process server, subcontract, calculated, shifted, claim for punitive damages, witness fees, surveying, drilling, matter of law, jury award, new trial, documents, surveyors, argues, breach of contract, prima facie, tort claim, defendants', sanctions, cubic yard, contractee

Civil Procedure, Remedies, Damages, Punitive Damages, Contracts Law, Types of Damages, Torts, Punitive Damages, General Overview, Breach, Business Torts, Measurement of Damages, Foreseeable Damages, Compensatory Damages, Bad Faith Breach of Contract, Appeals, Standards of Review, Trials, Judgment as Matter of Law, Third Parties, Evidence, Procedural Matters, Preliminary Questions, Judicial Intervention in Trials, Comments by Judges, Summations, Admissibility, Rulings on Evidence, Judicial Officers, Judges, Summary Judgment, Opposing Materials, Jury Trials, Jury Instructions, Province of Court & Jury, Abuse of Discretion, Sanctions, Costs & Attorney Fees, Costs, Costs Recoverable, Witnesses, Inferences & Presumptions, Computer & Internet Law, Civil Actions, Damages