John E. Beard, III, Attorney at Law, Carolyn L. Marchetti, Attorney at
Peter J. Kalis, Attorney at Law, for claimants.
Henry C. Bias, Jr., Deputy Attorney General, Donald L. Darling, Deputy
Attorney General,
Ann Ewart, Assistant Attorney General, for respondent.


This claim arises out of contracts for the construction of a
multipurpose physical education
facility at Marshall University, Huntington, West Virginia.

By agreement dated the 26th day of September, 1977, the West Virginia
Board of Regents
entered into an architectural agreement with Robert J. Bennett, A.I.A.
and Associates and the
Eggers Group, which formed Bennett/Eggers Architects, a joint venture to
provide professional
architectural service essential to the design and construction.

Article 15 of the Agreement provided a fixed limit construction cost of
Sixteen Million Five
Hundred Ninety Thousand Dollars.

The joint venture group designed substantially the multipurpose
building as it exists today. The
first bid proposals were in the range of Twenty Million Dollars, a
considerable amount above
the fixed limit of construction as referenced in Article 15. The
Architects, after preparing an
addendum to the specification which is described Addendum Bulletin
Number 1, invited bids for
five prime contracts. They were of the opinion that this would bring
about the lowest bid
possible; however, the evidence shows that this bidding would increase
the construction period,
administrative and cost. Prior to receiving the bids, the architects
furnished to the Board of
Regents a project time schedule dated November 30, 1978 in the form of a
Bar Chart.

On March 1, 1979, the bid tabulations were made. The bleacher and
seating work contract
was awarded to American Desk Manufacturing Company. The swimming pool
contract was
awarded to Whitten Corporation. The electrical work was awarded to Kirby
Electric Service,
Inc. The mechanical work was awarded to Hughes-Bechtol, Inc., and the
general construction
work was awarded to Mellon-Stuart Company.
In August 1977, the Board of Regents had authorized the architects to
obtain sub-surface
data, both boring and laboratory testing service pertinent to the
foundation design for the facility.
In the same month, Mr. Robert J. Bennett, one of the architects,
requested a complete survey of
the project area from Lambert and Company of Huntington, West Virginia.
Lambert and
Company furnished to Mr. Bennett all the information requested by him
and prepared the site
plan, which is designated SU-1.

On December 20, 1977, Syska and Hennessy, Inc., Engineers, informed the
Eggers Group,
the architects, of their recommendations concerning the sanitary and
storm sewers in the
construction area and made a number of recommendations prior to the
start of construction. In
his letter of December 20, 1977, Kenneth E. Cline, P. E. was of the
opinion that the estimated
sewer relocation time would be approximately six months and needed a
solution to the matter as
the same may interfere with the scheduling of new construction.

A Notice to proceed was issued effective as of May 9, 1979. The
contract required that the
base contract was to be completed within 700 consecutive calendar days
from the date of the
notice to proceed, and the alternates to the Gullickson Hall were to be
completed within 150
calendar days after the completion of the base contract, thus making the
completion date for the
base contract work April 6, 1981 and the completion date for the
Gullickson Hall alterations
September 3, 1981.

Mellon-Stuart Company, by separate contract, was to coordinate
construction by conducting
progress and safety meetings by updating job progress schedules and by
expediting shop
drawings and correspondence.

The initial work on the project was the mass excavation and foundation
work to be performed
by Mellon-Stuart Company. The site plan identified certain utility lines
throughout the project
area. The plans specified no particular time for the relocation of the
utility lines. The removal of
the utilities and the relocation of the utilities and the street
abandonment were obviously the first
work to be performed. The party responsible for the relocation and/or
removal of the 36-inch
storm sewer and the 12-inch sanitary sewer was Hughes-Bechtol Company.
The electric lines
were the responsibility of Kirby Electric. The telephone lines were the
responsibility of the
telephone company. The main and service gas lines were the
responsibility of the gas company.

The design provided that the excavation go to a certain grade which the
architects determined
would be sufficiently compact to support a concrete slab. Additional
foundation work was the
underpinning of Gullickson Hall and the foundation concrete work
consisting of piles, pile caps,
and tie beams and foundation walls.

Mellon-Stuart filed with the architect a preliminary time schedule
designated on a Bar Chart.
This chart designates each sequence of work and the time allocated for
the work to be
performed. The schedule allowed one month from the date of the notice to
proceed to complete
the relocation of known utilities and the abandonment of the streets.
Based upon the notice to
proceed of May 9, 1979, the schedule was to start relocation of the
utilities on May 9, 1979
and to be completed on June 6, 1979. The mass excavation was to begin on
May 22, 1979 and
to be completed by September 22, 1979. The underpinning of the
Gullickson Hall was to begin
on June 13, 1979 and be completed by July 3, 1979. Pile Foundation work
was to begin in June
1979 and be completed in October 1979. Foundation walls were to be
started in August 1979
and be completed by October 24, 1979. Structural steel work was to start
on October 25,
1979 and to be completed in April of 1980. The original plan was to
complete the mass
excavation, pile driving and contract work in summer and fall of 1979.
The structural steel work
was to proceed through the winter for the completion of that work in
April 1980. The work did
not proceed as planned. Mellon-Stuart contends there were errors and
omissions in the site plan.
It was discovered that a gas service line at Gullickson Hall was located
approximately 35 feet
from Gullickson Hall rather than immediately adjacent to the building.
There was a six-inch high
pressure gas line known as the Devon Gas line running along the entire
length of the easterly side
of the excavation, which line was not shown in the contract documents or
the site plan. There
were also gas lines extending from Third Avenue into the project site
that were not shown on the
plans. There were other lines extending into the areas of the mass
excavation. Mellon-Stuart
contends that the State failed to relocate these utilities in a timely

The evidence indicates that contrary to the schedule, Virginia Avenue
was not abandoned until
September 24, 1979. The 36-inch sewer line was not relocated until
October of 1979. The
12-inch sewer line, running the length of the project along Virginia
Avenue, was not relocated
until July 20, 1979. The electric lines running the entire length of the
project were not relocated
until August of 1979. The telephone line running the entire length of
the project was not
relocated until August of 1979. Utility poles found along the entire
length of Virginia Avenue and
the project were not removed until about August of 1979. The water line,
running the length of
the project along Virginia Avenue, was not relocated until August of
1979. The Columbia Gas
line running the length of the project was not relocated until September
of 1979. The Devon Gas
Line was not relocated until August of 1979. The Gullickson Hall gas
line was not relocated until
September of 1979. The undisclosed water line south of Gullickson Hall
was not relocated until
September of 1979.

Mellon-Stuart contends there was improper sub-grade design as there was
not an accurate
specification given on the soil conditions. The specifications called
for excavation to grade and
pouring of a concrete slab on grade. This was not possible as the
subsoil was very wet and
jellylike. Mellon-Stuart contends that an engineered sub-grade should
have been specified;, that
prolonged maintenance of the excavation was required by the delays in
relocation and removal
of the site utilities; that the entire project was thus delayed; that
the plans and specifications
contained numerous errors and omissions in addition to those directly
affecting site access and
that change orders were delayed and had a direct impact on the project

Errors and modifications affecting the schedule included the Kalwall
installation, doors and
windows, concession areas, ceilings and pool area. All of these, the
claimant contends, had an
appreciable time impact. Mellon-Stuart contends that the respondent
failed to manage the
project by its failure to maintain on-site personnel authorized to act
for the respondent; by its
failure to adopt and adhere to or require adherence by other contractors
of any project
schedule; by its failure to issue change orders extending the project
time as required by contract;
by its failure to issue change orders in a timely manner, extending the
project time as to some,
but not all, prime contractors; by its failure to manage the contract of
Hughes-Bechtol; that
Hughes-Bechtol quit the project for a month and refused to follow any
reasonable project
schedules or directives.
The Court is of opinion that Mellon-Stuart and Kirby fulfilled their
obligations with respect to
delays; that the respondent failed to fulfill its obligation to
coordinate the work of the multiple
prime contractors and to provide timely and reasonable site access to
the claimants; that the
respondent breached its obligation to fully and properly disclose site
drainage conditions; that the
contractor, Mellon-Stuart and Kirby, owed a duty to mitigate their
damages. When
Mellon-Stuart was given notice to proceed and went upon the site, it was
evident that the utility
lines had not been removed and should have revised its schedule to take
into consideration
delays to result from winter working conditions.

The Court is of the opinion that the respondent is responsible for any
negligent acts and
omissions of its architect, agents and representatives in connection
with this project.

The Court is further of the opinion that the claimants are entitled to
recover costs attributable
to extra work caused by concealed conditions and design defects but not
for the total amounts

Mellon-Stuart, in its presentation of its claim, seeks a recovery of
$1,928,099.85 including a
retention of $37,500.00 by the respondent. Kirby, in its presentation,
seeks to recover

On January 25, 1984, Mellon-Stuart filed with the Court a Pre-Hearing
Statement which
included an explanation of damages being claimed, including damages for
each of several of its
subcontractors. Damages claimed for subcontractors had not been
mentioned, as such, in its
Notice of Claim. On March 26, 1984, the opening day of hearing, the
respondent filed a written
Motion for Partial Summary Judgement with reference to the
subcontractors' claims, and a written
memorandum in support of same. The Court deferred ruling on the motion
at that time.
Subsequently, the construction contracts between Mellon-Stuart and
certain subcontractors
were admitted into evidence, as were post-construction agreements
between them with
reference to damage claims. Evidence was received on additional costs
the subcontractors
incurred and the reasons therefore. On October 23, 1984, claimant filed
its brief in opposition to
the motion. The Court now overrules the said motion. However, this Court
has no obligation or
authority to determine the rights and obligations as between
Mellon-Stuart and its subcontractors.

After consideration of the record, the Court finds that Mellon-Stuart
is entitled to an equitable
award of $660,434.33 and the restoration of the retention held by the
respondent in the amount
of $37,500.00 for a total award of $697,934.33. The Court further finds
that Kirby is entitled
to an award of $107,835.04.

Award of $697,934.33 to Mellon-Stuart Company.
Award of $107,835.04 to Kirby Electric Company.