$______ VERDICT - BREACH OF CONSTRUCTION CONTRACT - PLAINTIFF CONTRACTOR ASSERTS DEFENDANT CAUSED DELAYS IN BRIDGE AND ROAD PROJECT BY FAILING TO MOVE UTILITIES AND PLAINTIFF OWED DELAY-RELATED COMPENSATION AND BALANCE OF CONTRACT.

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Further, citing Nichols v. Benton, 718 So. 2d 925, 928 (Fla. 1st DCA

1998), the plaintiff argued that his educational history evidence

was irrelevant because it was too remote in time. The defendants

sought to introduce evidence of the plaintiff’s behavior in high

school though he was age 42 at the time of the subject accident and

age 44 at the time of trial. The evidence was more prejudicial than

probative and the court did not abuse its discretion in concluding

evidence of the plaintiff’s adolescent temperament and an expul-

sion for fighting over 20 years before the accident would be unduly

prejudicial and lacking in any probative value.

As to the comparative negligence statute argument, the plaintiff

asserted that there was no evidence that the plaintiff was driving

too fast under the circumstances. While direct evidence is not re-

quired to trigger reading of the statute, some evidence is. The

plaintiff held that there was no evidence in this case. The plaintiff

testified that he was driving at or below the speed limit, approxi-

mately 30-35 mph, and that the conditions were sunny and dry

with no circumstances to make the plaintiff’s speed unsafe. Like-

wise, the plaintiff maintained that the court did not abuse its dis-

cretion in refusing to take judicial notice of, and permit

questioning on, North Carolina’s pandemic orders.

The plaintiff asserted that the defendant was attempting to manu-

facture a prejudicial change in testimony regarding a gap in the

plaintiff’s treatment. However, the defendants mischaracterized the

plaintiff’s testimony. The plaintiff testified that he was uncomfort-

able with one specific provider and defense counsel never specifi-

cally asked the plaintiff why he stopped treating in North Carolina

or why he had a gap in treatment. Further the state’s pandemic or-

ders were not dispositive of whether the plaintiff’s providers were

open or available to treat him and allowing the orders to be ad-

mitted or the subject of questioning would have resulted in a

Binger violation (Binger v. King Pest Control, 401 So. 2d 1310,

1313-14 (Fla. 1981) because the defense did not include the

pandemic orders in their pretrial exhibit list.

The plaintiff disagreed that the verdict was against the weight of

the evidence because it was neither inconsistent, nor did it lack jus-

tification. The evidence at trial was that there was nothing else that

could be done for the plaintiff and that he would have to live with

his outcome. The plaintiff did not seek future medical damages, so

the issue was not, as the defendants put it, that the plaintiff failed

to prove his case. The plaintiff argued that it was not inconsistent

for a jury to find that the plaintiff will experience future pain and

suffering, yet will not benefit from future medical treatment arising

from the subject injury. Lastly, the plaintiff refuted the defendants’

claim that a new trial was warranted based on purported juror

nondisclosure. The plaintiff held that the defendants could not sat-

isfy the first or third prongs of the De La Rosa test and, as such, did

not meet the qualifications for new trial based on juror misconduct.

The defendants’ motion is pending.

$429,667 VERDICT – BREACH OF CONSTRUCTION CONTRACT – PLAINTIFF

CONTRACTOR ASSERTS DEFENDANT CAUSED DELAYS IN BRIDGE AND ROAD PROJECT

BY FAILING TO MOVE UTILITIES AND PLAINTIFF OWED DELAY-RELATED

COMPENSATION AND BALANCE OF CONTRACT.

Palm Beach County, FL

The plaintiff filed this breach of contract action

arising from the parties’ contract for bridge

replacement and associated road work at

Sandalfoot Boulevard and Southwest 3rd Street in

Boca Raton. The defendant maintained that the

plaintiff failed to take sufficient action as required

under the contract to have the utilities removed or

relocated.

In 2018, the plaintiff contractor and the defendant

county entered into a contract for construction services

on Sandalfoot Boulevard and State Road 7 and the

Southwest 3rd Street and State Road 7 Bridge Replace-

ments Project. In order for the plaintiff to complete the

project, certain utilities required removal or relocation.

The plaintiff argued that the utilities that required removal

or relocation before the plaintiff could perform its work

were not timely removed or relocated, causing delay

and disruption to the plaintiff’s work. The plaintiff con-

tended that the defendant county should not have is-

sued the Notice to Proceed because AT&T had not yet

relocated its conduits from the old bridges and be-

cause the county failed to provide for the timely reloca-

tion of those conduits as well as a fiber-optic cable that

was in conflict with a traffic signal mast arm.

The plaintiff claimed it was owed compensation for util-

ity-related delays during the project and for having

completed all the contract work. The plaintiff sought the

remainder of the contract balance for having allegedly

completed all of its contractual work.

The defendant maintained that the plaintiff caused a

delay in completion of the project, and that the plaintiff

deficiently performed work near a bus shelter. The de-

fendant pointed to a clause in the contract disallowing

delay compensation except in the case of bad faith or

interference. The defendant counterclaimed for liqui-

dated damages for the plaintiff having not completed

the contract work and for damages because of the

plaintiff’s negligent work on a water main that damaged

a bus shelter during the project.

At the close of the plaintiff’s case-in-chief, the defendant

moved for a directed verdict on all of the plaintiff’s

claims. The court granted the defendant directed ver-

dict on the plaintiff’s claim involving the Notice to Pro-

ceed. The remaining issues went to the jury.

The jury awarded the plaintiff $429,667 for its breach of

contract claims. The jury awarded the defendant/coun-

terclaim plaintiff 75 days of liquidated damages for its

own breach claim. The jury found for the plaintiff on the

defendant’s counterclaim for negligence.

SUMMARIES WITH TRIAL ANALYSIS 7

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