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Pioneer Valley Concrete Service, Inc. v. Jag I, LLC

United States District Court, Second Circuit

December 2, 2013

JAG I, LLC, Defendant.

PAUL A. FEIGENBAUM, ESQ. MAZZOTTA, SIEGEL & VAGIANELIS, P.C., Albany, New York, Attorneys for Plaintiff.

ROBERT L. ADAMS, ESQ., MARTIN, SHUDT, WALLACE, DILORENZO & JOHNSON, Troy, New York, Attorneys for Defendant.


MAE A. D'AGOSTINO, District Judge.


On October 29, 2010, Plaintiff Pioneer Valley Concrete Service, Inc. ("Pioneer") filed this action for breach of contract arising out of certain concrete work performed by Defendant JAG I, LLC ("JAG") on the Rensselaer Polytechnic Institute ("RPI") Athletic Village Flatwork Project in Troy, New York (the "RPI Project").

The Court held a bench trial on September 9, 2013, and September 11, 2013, through September 12, 2013. At the trial, Plaintiff called as witnesses Daniel Smith, President of Pioneer, Michael Rockwell, a former flatwork foreman at JAG responsible for the RPI Project, Wayne Alderman, a foreman at Pioneer who was responsible for certain repair work at the RPI Project, and as an expert David J. Rossetti, President of DJ Rossetti Inc. Defendant called Timothy Barber, the principal of JAG. On rebuttal, Plaintiff called Alex Tverdokhlevbov ("Alex T."), the foreman at Pioneer responsible for the RPI Project.

Having reviewed the parties' pre-trial submissions and the trial transcript, the Court makes the following findings of fact and conclusions of law.


A. The Parties and Jurisdiction

1. Pioneer is a Massachusetts corporation having its principal place of business in the State of Massachusetts and is authorized to do business in the State of New York. Dkt. No. 32, Jurisdiction and Venue, ¶ 1.

2. JAG is a New York limited liability company having its principal place of business in Queensbury, New York. Id., ¶ 2.

3. This Court has jurisdiction over the subject matter of the instant claims pursuant to 28 U.S.C. § 1332(a)(1), in that Plaintiff Pioneer and Defendant JAG are citizens of different states and the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs. Id., ¶ 3.

B. The Relevant Agreements

4. In February 2008, Plaintiff Pioneer, as subcontractor, entered into a contract with The Whiting-Turner Contracting Co. ("Whiting-Turner"), the general contractor, for work to be performed for the RPI Project (the "Whiting-Turner Contract"). Dkt. No. 32, Undisputed Facts, ¶ 1; Plf's Exh. 1.

5. The scope of Pioneer's work under the Whiting-Turner Contract included, inter alia, the installation of the concrete flatwork (concrete slabs on grade, or ground, and elevated concrete slabs on deck, e.g., steel decking). Dkt. No. 32, Undisputed Facts, ¶ 2.

6. As Pioneer's work progressed, it became clear to Pioneer that it would be more efficient to hire a local sub-subcontractor to perform the placement (or pouring) of the concrete and the surface finishing of the concrete for the slabs on grade and slabs on deck at the RPI Project. Id., ¶ 3.

7. JAG was recommended to a principal of Pioneer, Daniel Smith, by an equipment supplier to JAG. Mr. Smith then checked JAG's web site. Id., ¶ 4.

8. At a project on which JAG was working near Pioneer's office in Chicopee, Massachusetts, Mr. Smith then approached a principal of Defendant JAG, Timothy Barber, to ascertain if JAG would be interested in working as a sub-subcontractor for Pioneer and perform the placement (or pouring) of the concrete and the surface finishing of the concrete for the slabs on grade and slabs on deck at the RPI Project. Id., ¶ 5.

9. Mr. Smith explained the RPI Project and the scope of work to Mr. Barber. He also told Mr. Barber that Pioneer was very busy and asked if JAG would be willing to help on the flatwork portion of the RPI Project because the RPI Project is physically closer to JAG than to Pioneer. Id., ¶ 6.

10. Subsequently, Mr. Smith and Mr. Barber met at the RPI Project site before JAG began its work, and Mr. Smith told Mr. Barber what the specifications for the flatwork placement and finishing were. Id., ¶ 7.

11. The specifications for the flatwork placement and finishing were set forth in a series of addenda to the Whiting-Turner Contract, and were incorporated therein. Plf's Exh. 1, Art. 1.

12. The RPI Project's arena area included placement of slab on grade where the gymnasium floor was located (the "Gymnasium Floors"). Dkt. No. 32, Undisputed Facts, ¶ 16.

13. The specifications in the Whiting-Turner Contract for the Gymnasium Floors required a "Trowel Finish, " which provided as follows:

After floating, begin first trowel finish operation using a power-driven trowel. Begin final troweling when surface produces a ringing sound as trowel is moved over surface. Consolidate concrete surface by final hand-troweling operation, free of trowel marks, uniform in texture and appearance, and with a surface plane tolerance not exceeding 3/18" in 10' when tested with a 10' straightedge or to a flatness number for the floor surface (FF) not less than 30 and levelness number (FL) not less than 20. Grind smooth surface defects which would telegraph through applied floor covering system.

Plf's Exh. 2, § 3.09(B)(3)(b) (emphasis added) (the "Gymnasium Floor Specs").

14. The Gymnasium Floor Specs could be satisfied if the Gymnasium Floors passed either the flatness number ( i.e., F-number or FF/FL) or 10' straightedge test. Id.; Transcript of Trial ("Tr."), Vol. II, at 98.

15. The Whiting-Turner Contract contained a "Miscellaneous" section, which provided, inter alia, that:

[t]he Contract Documents [including the Gymnasium Specs] are complementary and should be read so as to avoid inconsistent interpretations. In the event of variations, conflicts, ambiguities or inconsistencies between or among the terms, provisions or conditions of this Contract and any other Contract Documents, the terms provisions and conditions which grant greater rights or remedies to Construction Manager or impose higher standards with regard to the obligations, responsibilities and scope of work of the Contractor shall control....

Plf's Exh. 1, Art. 9(s).

16. The American Concrete Institute is the most widely accepted body for setting standards in the concrete industry. Tr., Vol. I, at 27.

17. The 10' straightedge method for testing floor flatness is set forth in a publication of the American Concrete Institute ("ACI") in ACI 302.1R-04, "Guide for Concrete Floor and Slab Construction, " reported by ACI Committee 302, §, which states, in pertinent part:

The older method of using a 10 ft (3 m) straightedge can also be used to measure floor flatness, but it is much less satisfactory than the F-number system. There is no nationally accepted method for taking measurements or for establishing compliance of a test surface using this tolerance approach. This lack of an accepted standard test procedure often leads to conflict and litigation....

Dkt. No. 32, Undisputed Facts, ¶ 8; Plf's Exh. 13, §

18. The F-number system for testing floor flatness and levelness is set forth in ACI 302.1R-04, "Guide for Concrete Floor and Slab Construction, " reported by ACI Committee 302, § Two separate F-numbers determine the flatness (FF) and levelness (FL) of the floor surface. The lower the F-numbers, the more irregularities in the floor surface. Tr., Vol. I, at 60-61; Plf's Exh. 13, §

19. The standard for testing concrete flatwork for flatness and levelness is set forth in ACI 117-10, Reported by ACI Committee 117, titled "Specification for Tolerances for Concrete Construction and Materials (ACI 117-10) and Commentary, " which provides:

Floor test surfaces shall be measured and reported within 72 hours after completion of slab concrete finished operations and before removal of any supporting shores.
The purpose of establishing a default 72-hour time limit on the measurement of floor surfaces is to avoid any possible conflict over the acceptability of the floor and to alert the Contractor of the need to modify finishing techniques of subsequent placements, if necessary, to achieve compliance. All slabs will shrink; joints and cracks in slabs-on-ground will curl with time, resulting in a surface that is less flat with the passage of time. If the needs of the user are such that a delay in testing is necessary to allow successful installation of subsequent Work, this requirement for delayed testing should be clearly stated in the specifications.

Def's Exh. 11, §

20. The Whiting-Turner Contract, Section 3.14, Inspection and Testing, provided as follows: "Floor flatness and levelness: The Testing Agency will measure floor surface profiles within 72 hours after concrete placement and calculate Floor Profile Numbers in accordance with [ACI publication] ASTM 1155...." Plf's Exh. 2, § 3.14(I).

21. On March 24, 2008, JAG presented a written proposal to Pioneer to place and finish approximately 250, 000 square feet of concrete slab on grade and slab on deck at the RPI Project for $0.60 per square foot. Dkt. No. 32, Undisputed Facts, ¶ 9; Plf's Exh. 4 (the "JAG Proposal").

22. The JAG Proposal stated, in relevant part:

All labor, equipment and supervision for the following Scope is inclusive....
Please note: JAG I, LLC is proud to inform you that we manage all of our projects with our own staff and equipment. Having JAG personnel and equipment on your project ensures us that you, our customer, will receive the highest standards of Safety, Quality and Integrity. ...
JAG I, LLC proposes to supply all labor, equipment, and supervision for the placement and finishing of the interior slabs on grade and interior slabs on deck as follows:
1. Project scope square footage areas are approximately 250, 000 SF.
2. Schedule and attend comprehensive pre-pour meetings as required.
3. Convey of concrete via concrete buggy or chute discharge shall be included. Where JAG deems necessary, Pioneer will supply concrete pump.
4. Chairing of wire mesh or rebar shall be included where necessary due to utilization of Somero SXP laser screed.
5. Professionally Place and Finish concrete slabs on grade & slabs on deck.
6. Saw cut in accordance with ACI or as specified.
7. American Concrete Institute Licensed and Certified Concrete Technicians and Flatwork Finishers will perform all work. Registered number furnished upon request.
1. All Edge forming shall be ...

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