Free Proposed Jury Instructions - District Court of Colorado - Colorado

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BIG-D CALIFORNIA' AFFIRMATIVE CLAIM VS. S LEPRINO - BREACH OF CONTRACT

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INSTRUCTION NO. ________ BREACH OF CONTRACT - ELEMENTS OF LIABILITY1 For Big-D California to recover from Leprino on its claims of breach of express contract, you must find that Big-D California has proven all of the following by a preponderance of the evidence: 1. Big-D California entered into a contract with Leprino to construct a cheese

manufacturing and processing facility in exchange for the payment; and 2. Leprino failed to: a) Act in good faith and to deal fairly with Big-D California; or b) Not failed to, but Leprino repudiated the Contract; or c) Make timely progress payments to Big-D California; or d) Grant reasonable requests for additional time to complete the Project; or e) Not interfere with or delay Big-D California' work on the Project; or s f) Failed to pay the unpaid contract balance; or g) Failed to pay Big-D California' increased and extended general conditions s costs; or h) Failed to pay for work performed by UMM that meets the Contractual definition of "Cost of the Work" that was to be reimbursable to Big-D California and, in turn, UMM; or i) Timely provide or release design documents to Big-D California; or j) Provide design documents without design errors or omissions for bid packages to be bid upon by subcontractors; or
1

Source and Authority: CJI-Civ. 4th 30:1 (2004). (Modified)

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k) Timely complete concepts and design documents for the process piping and process equipment that impacted the design and construction of the work performed by Big-D California and its subcontractors; or l) Timely issue AFEs and Owner Change Orders in response to subcontractor bids; or m) Timely respond to Requests For Information and/or solve design issues; or n) Refusing to allow Big-D California to accurately convey scheduling information to subcontractors; or o) Timely provide scheduling information; or p) Not failing to, but requiring excessive and untimely changes in the work to be performed by Big-D and its subcontractors; or q) Not interfere with the progress of the work performed by Big-D and its subcontractors; or r) Advise UMM of potential errors in its bid and directing Big-D to not inform UMM of the extent to which UMM' bid was below other competitive bids; or s s) Negotiate pricing and/or requested change estimates with UMM in good faith; or t) To reimburse Big-D California for lien release bond paid by Big-D California to release the lien of UMM from the Project. 3. Big-D California substantially performed its part of the Contract or was excused from performance. Big-D California is excused from performance of its part of the Contract if you find that Leprino waived certain contractual obligations, such

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as notice requirements, or obligations to have additional work performed only after a change order has been fully completed; Here, because the parties have stipulated to the existence of the Big-D California/Leprino Contract, element one (1) has been established. If you find that Big-D California has not proven one or more of these elements, then your verdict must be for Leprino. On the other hand, if you find that Big-D California has proven all of these three (3) elements, then you must consider Leprino' affirmative defenses of [Insert Leprino' affirmative s s defenses that would be a complete defense to Big-D California' claim]. s If you find that any one or more of these affirmative defenses has been proved by a preponderance of the evidence, then your verdict must be for Leprino. However, if you find that none of these affirmative defenses have been proved, then your verdict must be for Big-D California. As will be explained in connection with the affirmative defenses asserted by BOTH BigD California to Leprino' breach of Contract claim and Leprino' affirmative defenses to Big-D s s California'breach of Contract claim, each asserts that the other=s breach of the Contract excused its own non-performance of the Contract. Thus, you cannot find in favor of both Big-D

California and Leprino on their respective breach of Contract claims against the other: you can find in favor of one or the other, or you can find that neither has proven its claim.

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INSTRUCTION NO._____ SUBSTANTIAL PERFORMANCE-DEFINED2 A party has "substantially performed" or "substantially complied with" the terms of a Contract if anything that was changed or not done according to the exact terms of the Contract was minor, and the other party receives substantially what he or she contracted for.

2 Source and Authority: CJI 30:7 (2004)

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INSTRUCTION NO. ____ WAIVER-DEFINED3 Waiver is the intentional relinquishment of a known right. Waiver may be express, as when a party states an intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion.

Source and Authority: In re Marriage of Robbins, 8 P.3d 625, 630 (Colo.App. 2000); Burlington Northern R.R. Co. v. Stone Container Corp., 934 P.2d 932 (Colo.App. 1997).

3

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INSTRUCTION NO._______ DETERMINATION OF PARTIES'INTENT4 The statements or conduct of the parties before any dispute arose between them is an indication of what the parties intended at the time that the Contract was formed. To determine what the parties intended the terms of the Contract to mean, you may also consider the language of the written agreement, the parties' negotiations of the Contract, any earlier dealings between the parties, any reasonable expectations the parties may have had because of the promises or conduct of the other party, and any other facts and circumstances that existed at the time that the Contract was formed.

4 Source and Authority: CJI 30:12(2004)

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INSTRUCTION NO.______ CONSTRUCTION AGAINST ONE WHO DRAFTED CONTRACT5 Any dispute over the meeting of any unclear terms must be decided against the party who prepared the Contract if the other party had no part in selecting the words written in the Contract.

5 Source and Authority: CJI 30:13 (2004)

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INSTRUCTION NO. ____ BREACH OF IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING6 For Big-D California to recover from Leprino on its claim for breach of contract based upon the duty of good faith and fair dealing, you must find all of the following have been proved by a preponderance of the evidence: 1. Big-D California entered into a contract with Leprino to construct a cheese

manufacturing and processing facility in exchange for payment; and 2. Leprino failed to act in good faith and deal fairly with Big-D California by

Leprino and/or its agents'conduct of: a) b) c) d) e) f) Refusing to pay for properly performed work; or Not granting reasonable requests for time extensions; or Not timely providing design documents; or Providing erroneous design documents or incomplete design documents; or Failing to make timely progress payments; or Causing delays to the performance of Big-D California' work by demanding s

inconsistent directions to re-sequence or re-prioritize certain scopes of work; or g) h) Requiring the re-pricing of bid packages; or Communicating directly with Big-D California' subcontractors to perform s

additional work without utilizing the contract change order formalities; or i) Failure to coordinate Leprino' contractors'design drawings with the design s

drawings prepared for Big-D California' scope of work. s

6

CJI 30:1A (2004); Bayou Land Company v. Talley, 924 P.2d 136 (Colo. 1996).

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Because the parties have stipulated to the existence of statement No. One (1), you must find that such a Contract exists. If you find that any one of these two statements have not been proved, then your verdict must be for Leprino. On the other hand, if you find that both of these statements have been proved, then you must consider Leprino' affirmative defenses of [Insert Leprino affirmative defenses that would s be a complete defense to Big-D California' claims]. s If you find that any one or more of these affirmative defenses has been proved by a preponderance of the evidence, then your verdict must be for Leprino. However, if you find that none of these affirmative defenses has been proved, then your verdict must be for Big-D California.

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INSTRUCTION NO. ________ MUTUAL CONTRACTUAL DUTIES7 Each party to a contract owes the following duties to one another: 1. 2. 3. A duty of good faith and fair dealing; A duty to cooperate; and A duty not to hinder, delay or interfere with the performance of the other party.

Source and authority: Occusafe, Inc. v. EG&G Rocky Flats, Inc., 54 F.3d 618, 624 (10th Cir. 1995) (Under Colorado law, all contracts contain an implicit covenant of good faith and fair dealing); Mega Constr. Co. v. U.S., 29 Fed. Cl. 396, 420 (1993)("There is an implied duty in contract law that both parties will cooperate and refrain from hindering each other' performance."); Natkin & Co. v. George A. Fuller Co., 347 F.Supp. 17 (W.D. Mo. 1972); s Norcoast Construction, Inc. v. U.S., 448 F.2d 1400 (Ct. Cl. 1971); Jacobs v. Jones, 423 P.2d 321 (Colo. 1967). Lewis-Nicholson, Inc. v. U.S., 550 F.2d 26, 32 (Ct. Cl. 1977); Restatement (Second) of Contracts, Section 205 (1981).

7

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INSTRUCTION NO._____ IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING-DEFINED8 Every contract requires the parties to act in good faith and to deal fairly with each other in performing or enforcing the express terms of the Contract. A party performs a Contract in good faith when its actions are consistent with the agreed common purpose and with the reasonable expectations of the parties. The duty of good faith and fair dealing is breached when a party acts contrary to that agreed common purpose and the parties'reasonable expectations.

8 Source and Authority: CJI 30:1B (2004)

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INSTRUCTION NO.______ ANTICIPATORY BREACH BY REPUDIATION9 A party to a Contract demonstrates a clear and definite intention not to perform the Contract before the time when its own performance is to be performed, commits a breach of Contract. The intention not to perform may be shown by words or conduct or both.

9 Source and Authority: CJI 30:8 (2004)

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INSTRUCTION NO. ___ FAILURE TO MAKE TIMELY PROGRESS PAYMENTS10 Big-D California claims that Leprino breached the Contract by failing to make progress payments to Big-D in a timely manner after the progress payments became due under the terms of the Contract. The Contract provides as follows: 13.1 No later than the fifth day of each month following the period for which the Application applies, the Contractor [Big-D California] shall submit to the Owner [Leprino] an Application for Payment and all supporting documentation required by the General Conditions and Attachment B to this Agreement, and the Owner [Leprino] shall review, process, and make such payment as appropriate, all in accordance with the provisions of this Article 13, Attachment B, and Article 10 of the General Conditions. For you to find that Leprino breached the Contract by failing to make progress payments, Big-D California must prove both of the following: 1. Big-D California substantially completed the work required under the Contract for

the progress payments to become due; and 2. Leprino failed to make the progress payments within a reasonable time after: a. b. The payments became due under the Contract' terms; and s Big-D California made demand for the progress payments.

Source and Authorities: Newkirk Construction Corp. v. Gulf County, 366 So.2d 813 (Fla. 1st DCA 1979); Silliman Co. v. S. Ippolito & Sons, Inc., 467 A.2d 1249 (Conn.App. 1983), cert. denied, 470 A.2d 1218; F.E. Holmes & Son const. Co., Inc v. Gualdoni Elec. Service, Inc., 435 N.E. 2d 724 (5th Dist. 1982); Integrated, Inc. v. Alec Ferguson Electrical Contractor (1967) 250 Cal.App.2d 287, 295-298, 58 Cal.Rptr. 503; Kenworthy v. State of California (1965) 236 Cal.App.2d 378, 383, 46 Cal.Rptr. 396; Asso. Lathing etc. Co. v. Louis C. Dunn, Inc. (1955) 135 Cal.Ap.2d 40, 49, 286 P.2d 825; Smith v. Empire Sanitary Dist. (1954) 127 Cal.App.2d 63, 73, 273 P.2d 37; Karz v. Dept. of Professional & Vocational Standards (1936) 11 Cal.App.2d 554, 557, 54 P.2d 35.

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INSTRUCTION NO. ___ WRITTEN NOTICE OBLIGATIONS UNDER CONTRACT - WAIVER11 The Contract provides: 7.2 The Contractor [Big-D California] shall not make any alterations or additions to or deletions from the Work except by a written Change Order signed by the Owner [Leprino] and otherwise in accordance with the provisions of the Contract Documents. Additional work or deviation form the Drawings and Specifications performed without written authorization will not be subject to reimbursement However, if Leprino waived compliance with written notice obligations by Big-D California, then the written notice obligations are not a bar to Big-D California' claim for s breach of Contract.

11 Source and Authorities: Houy v. Davis Oil Co., 175 Colo. 180, 186, 486 P.2d 18, 21 (1971); DeVito v. U.S., 188 Ct.Cl. 979, 413 F.2d 1147 (1969); Miller Elevator Co., Inc. v. U.S., 30 Fed.Cl. 662, 39 Cont. Cas. Fed.(CCH) ¶ 76635 (1994), dismissed, 36 F.3d 111 (Fed.Cir. 1994)( holding that the government waived the right to insist that all extra elevator service work be authorized in writing when the contracting officer' on-site s representative made repeated oral requests for additional work that were reasonably complied with by the contractor); The courts will usually try to avoid construing these requirements as a condition precedent when to do so would cause a forfeiture [see Ballard v. MacCallum (1940) 15 Cal.2d 439, 444, 101 P.2d 692; Hawley v. Orange County Flood etc. Dist. (1963) 211 Cal.App.2d 708, 713, 27 Cal.Rptr. 478; Restatement (Second) of Contracts §227 (1981)]; Service Technicians, Inc. v. U.S., 37 Fed.Cl. 383, 386, 41 Cont.Cas.Fed. (CCH) ¶ 77,072 (1997); An oral change order can be enforced to the extent plaintiff actually did the extra work called for by that order [Sanders Construction Co. v. San Joaquin First Fed. Sav. & Loan Assn. (1982) 136 Cal.App.3d 387, 397 n.2, 186 Cal.Rptr. 218; Healy v. Brewster (1967) 251 Cal.App.2d 541, 551-552, 59 Cal.Rptr 752; MacIsaac & Menke Co. v. Cardox Corp. (1961) 193 Cal.App.2d 661, 670].

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INSTRUCTION NO. ___ NO DAMAGE FOR DELAY CLAUSE12 The Contract provides that the only available remedy available to Big-D California for a claimed delay shall be an extension of time. The Contract provides that, for delays, Big-D shall have no claim against Leprino for: General Conditions 45.5 a. b. c. An increase in the Contract Sum. A payment or allowance of any kind for damage, loss or expense resulting form delays. Any damage, loss, or expense resulting from interruptions to, or suspensions of, its Work to enable other Contractors to perform their work.

However, these provisions may not be enforced against Big-D California if Big-D California proves the following by a preponderance of the evidence: 1. 2. 3. The delay was the result of a breach of the Contract by Leprino; or Leprino, by its conduct, gave up its right to enforce that provision; or Leprino represented to Big-D California that it would compensate Big-D

California for the delay to induce Big-D California to proceed with the work and Big-D California relied on that representation.

Source and Authority: Medema Homes, Inc. v. Lynn, 647 P.2d 664, 667 (Colo. 1982); City of Westminister v. Centric-Jones Constructors, 100 P.3d 472, 481 (Colo.App. 2003); W.C. James, Inc. v. Phillips Petroleum Co., 485 F.2d 22, 25 (10th Cir. 1973); Pyca Industries, Inc. v. Harrison County Waste Water Mgmt. Dist., 177 F.3d 351, 362 (5th Cir. 1999); Hawley v. Orange County Flood etc. Dist. (1963) 211 Cal.App.2d 708, 714-717, 27 Cal.Rptr 478; Maurice L. Bein, Inc. v. Housing Authority (1958) 157 Cal.App.2d 670, 681-682, 321 P.2d 753; McGutre & Hester v. City etc. of S.F. (1952) 113 Cal.App.2d 186, 188-192, 247 P.2d 934; Milovich v. City of Los Angeles (1941) 42 Cal.App.2d 364, 377-378, 108 P.2d 960; See Weeshoff Constr. Co. v. Los Angeles County Flood Control Dist. (1979) 88 Cal.App.3d 579, 590 (As with any other condition, the no-damage-for-delay clause can be waived by the owner); 74 A.L.R.3d 187, §2[a]

12

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INSTRUCTION NO. ___ FORFEITURES ­ UNENFORCEABILITY OF NOTICE PROVISIONS13

The Contract provides the following: General Conditions Art. 43.1 Should the Contractor [Big-D California] perform any work or should it proceed in any manner which it may subsequently allege has caused it increased cost, damage, or loss, purporting in each case to have acted upon verbal instruction or with tacit consent or acceptance or approval other than written form the Owner [Leprino], the Contractor [Big-D California] shall be held to have done so at its own peril and the Contractor [Big-D California] shall have no claim against the Owner [Leprino] on account of the alleged increased cost, damage or loss.

However, this contractual provision must be strictly interpreted to avoid making the contract unusual, harsh, or unjust, to avoid causing a forfeiture, and to avoid putting one party at the mercy of the other: 1. Unless it was the unmistakable intention of the parties to cause the result that Big-

D California would not be compensated for extra work requested of it by Leprino, if not approved in writing from Leprino; or 2. Unless no other interpretation of this provision is reasonably possible.

13 Source and Authority: Haan v. Traylor, 79 P.3d 114, 116 (Colo.App. 2003); Walker v. City of Denver, 720 P.2d 619 (Colo.App. 1986); James H. Moore & Assoc. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo.App. 1994); Richmond v. Grabowski, 781 P.2d 192, 194 (Colo.App. 1989); Magliocco v. Olson, 762 P.2d 681, 685 (Colo.App. 1988); Service Technicians, Inc. v. U.S., 37 Fed.Cl. 383, 386, 41 Cont.Cas.Fed. (CCH) ¶ 77,072 (1997); Miller Elevator Co., Inc. v. U.S., 30 Fed.Cl. 662, 39 Cont. Cas. Fed.(CCH) ¶ 76635 (1994), dismissed, 36 F.3d 111 (Fed.Cir. 1994)( holding that the government waived the right to insist that all extra elevator service work be authorized in writing when the contracting officer' on-site representative made repeated oral s requests for additional work that were reasonably complied with by the contractor); Sanders Construction Co. v. San Joaquin First Fed. Sav. & Loan Assn. (1982) 136 Cal.App.3d 387, 397 n.2, 186 Cal.Rptr. 218; Yamanishi v. Bleily & Collishaw, Inc. (1972) 29 Cal.App.3d 457, 462-463; Calif. Civ. Code §§3520, 3542; Hertzka & Knowles v. Salter (1970) 6 Cal.App.3d 325, 335, 86 Cal.Rptr. 23; Hawley v. Orange County Flood etc. Dist. (1963) 211 Cal.App.2d 708, 713-717, 27 Cal.Rptr. 478.

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INSTRUCTION NO. ___ DUE DILIGENCE IN SEEKING TO CAUSE CONDITION PRECEDENT TO OCCUR ­ ISSUANCE OF CHANGE ORDERS14 Under the terms of the Contract, Leprino was obligated to pay for changes in the work only if Leprino first approved and issued written, signed change orders to Big D California. However, the law also requires Leprino to act reasonably so as not to delay the approval and issuance of change orders for work it requested. If you find that Leprino failed to make reasonable efforts to timely approve and issue change orders for work it requested, you must find that Leprino is obligated to Big D California in the same manner as if Leprino had approved and issued written, signed changed orders for Big-D California' work. s

14

Source and Authorities: Campbell v. Kennedy (1918) 177 Cal. 430, 432, 170 P.2d 1108; Lynch v. Keystone Con. Min. Co. (1912) 163 Cal. 690, 699, 126 P. 968; Jacobs v. Tenneco West, Inc. (1986) 186 Cal. App. 3d 1413, 1417, 231 Cal. Rptr. 451.

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INSTRUCTION NO. ___ IMPLIED WARRANTY OF ACCURACY OF PLANS AND SPECIFICATIONS15 Big-D California has the burden of proving by a preponderance of the evidence all the facts necessary to establish all of the following: 1. Project; 2. 3. 4. That the plans and specifications were not full, complete, and/or accurate; That Big-D California relied on the plans and specifications; That the lack of full, complete, and/or accurate plans and specifications was the That Leprino provided Big-D California with plans and specifications for the

legal cause of damages to Big-D California; and 5. The nature and extent of those damages.

15

Source and Authority: B.R.W., Inc. v. Dufficy, 99 P.3d 66, (Colo. 2004) ("the owner, not the contractor is responsible for the ` consequences of defects in the plans and specifications' City of Westminister v. Centric-Jones "); Constructors, 100P.3d 472, 481 (Colo.App. 2003); United States v. Spearin, 248 U.S. 132 (1918)

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INSTRUCTION NO.____ INSTRUCTION FOR DECLARATORY RELIEF16 [MAY BE SUBMITTED AS SEPARATE INSTRUCTION APART FROM BIG-D CALIFORNIA' BREACH OF CONTRACT CLAIM AGAINST LEPRINO] S Big-D California asserts, if in the event UMM proves by a preponderance of the evidence that it is entitled to recover $16,159,760.00 (or some lesser amount) from Big-D California under its breach of Subcontract claim against Big-D California for various actions taken by Big-D California and Leprino that caused UMM to suffer cost overruns and extended overhead costs for the Project, that Big-D California is entitled to recover such sum from Leprino as a "Cost of the Work". In making your evaluation, you must consider the following contractual terms contained in the Contract between Big-D California and Leprino: COST OF THE WORK 5.1 This Agreement and the other Contract Documents embody a construction contract of the kind commonly known and referred to as a "cost plus a contractor' fees", in which the Owner [Leprino] is obligated s to reimburse the contractor for the actual and direct costs of the Work, and to pay the Contractor [Big-D California], in addition, the Contractor' Fee. s Accordingly, the Owner [Leprino] agrees to reimburse the Contractor [Big-D California] for the Cost of the Work as defined in Article 8 (which Cost of the Work includes any actual and direct costs of the kinds described therein incurred by Contractor [Big-D California]). COSTS TO BE REIMBURSED 8.1 The term "Cost of the Work" shall mean the direct and actual costs incurred in the performance of the Work and actually paid by the Contractor [Big-D California] and shall include only the costs specified below in this Article 8, unless otherwise approved in writing by the Owner [Leprino]. ... 8.1.6 Payments made by the Contractor [Big-D California] to Subcontractors [UMM] for Work performed pursuant to Subcontracts executed by Contractor [Big-D California] in accordance with this Agreement. If you find that the damages, if any, recovered by UMM from Big-D California pursuant
16

Source and Authority: Contract ¶¶ 5.1, 8.1, 8.1.6; 28 U.S.C. 2201(a) et. seq. ; Manning v. U.S.., 146 F.3d 808, 811-12 (10th Cir. 1998)

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to UMM' breach of Subcontract claim against Big-D California, you may award those damages, s if any, to Big-D California on its breach of Contract claim or claims for quantum meruit or indebitatus assumpsit, against Leprino, if you determine that the UMM damages, if any, constitute a reimbursable "Cost of the Work" to be paid to Big-D California by Leprino.

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INSTRUCTION NO. ____ DELAYS CAUSED BY LEPRINO17 Big-D California may be awarded its damages for delays caused by Leprino due to defective designs and the full amount of time needed to remedy the designs.

17 R. Nash, Government Contract Changes 406 (1975), citing Laburnum Constr. Corp. v. U.S., 163 Ct.Cl. 339, 325 F.2d 451 (1963); City of Westminister v. Centric-Jones Constructors, 100P.3d 472, 481 (Colo.App. 2003); Medema Homes, Inc. v. Lynn, 647 P.2d 664, 667 (Colo. 1982).

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INSTRUCTION NO. ____ DELAYS CAUSED BY LEPRINO18 Big-D California may be awarded its damages for delays caused by Leprino due to unreasonable delays in reviewing shop drawings and submittals, including reviews of Requests for Information.

B. Bramble, Construction Delay Claims, 3rd ed., 3-18 (2000); Medema Homes, Inc. v. Lynn, 647 P.2d 664, 667 (Colo. 1982).

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INSTRUCTION NO. ____ DELAYS CAUSED BY LEPRINO19 Big-D California may be awarded its damages for delays caused by Leprino due to delaying payments, making changes, and altering approval procedures.

19

B. Bramble, Construction Delay Claims, 3rd ed., 3-23 (2000) citing ADC Fairways Corp. v. Johnmark Construction Inc., 231 Va. 312, 343 S.E.2d 90 (1986); Medema Homes, Inc. v. Lynn, 647 P.2d 664, 667 (Colo. 1982).

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INSTRUCTION NO. ____ DELAYS CAUSED BY LEPRINO20 Big-D California may be awarded its damages for delays caused by Leprino if you find that Leprino unreasonably interfered with Big-D California' sequencing and methodology of s performing its work.

20

B. Bramble, Construction Delay Claims, 3rd ed., 3-25 (2000) citing City of Seattle v. Dyad Constrcution Co., 17 Wash. App. 501, 565 P.2d 423 (!977).

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INSTRUCTION NO. ____ FAILURE TO PAY FOR BOND PREMIUM21 The Contract provides the following: COSTS TO BE REIMBURSED 8.1.9 Reasonable costs of premiums for all bonds and insurance which the Contractor [Big-D California] is required by the Contract Documents to purchase and maintain.

If you find that Big-D incurred costs to bond around the mechanics' lien recorded by UMM, you need to determine if the cost of the bond is recoverable by Big-D from Leprino under Article 8.1.9.

21

Contract, Art. 8.1.9.

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INSTRUCTION NO._____ ORAL OR WRITTEN AMENDMENT OF CONTRACT22 A Contract may be amended by oral or written agreement with the consent of all parties to the Contract.

22 Source and Authority: CJI 30:6(Colo. 2004)

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INSTRUCTION NO. _______ DAMAGES ­ BIG-D=S BREACH OF CONTRACT CLAIM-AGAINST LEPRINO23 If you find that Big-D California has proven its claim for breach of Contract against Leprino, then you must award it actual or nominal damages. To award actual damages, you must find by a preponderance of the evidence that Big-D California incurred actual damages as a result of the breach, and you must determine the amount of Big-D California=s actual damages. If you find in favor of Big-D California, but you do not find that Big-D California has incurred actual damages, you shall nonetheless award nominal damages of $1.00. If actual damages are proved, you shall award: 1. The Contract price agreed upon by the parties: a. b. minus any payments made by Leprino on the Contract; and minus what it would have cost Big-D California if it had completed the Project according to the Contract; 2. 3. 4. 5. Unfunded Change Orders; Increased and Extended General Conditions of Big-D California; Unfunded Cost of Work performed by Big-D California and UMM; Uncompensated additional work not included in fully executed change orders; 6. Big-D California' costs to procure a lien release bond for the UMM lien s on the Project; A successful party on this breach of Contract claim is only entitled to recover those actual
Source and authority: CJI-Civ. 4th 30:33 (2004); CJI ­ Civ. 4th 30:34 (2004); CJI-Civ. 4th 30:39 (2004); Gundersons Inc. v. Tull, 678 P. 2d 1061 (Colo. App. 1983) rev' on other grounds, 709 P.2d 940 (Colo. App. 1985). d
23

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damages that were a natural and probable consequence of the claimed breach of Contract, and provided that at the time the parties entered into the Contract, the parties reasonably could have anticipated from the facts or circumstances which they knew or should have known that these damages would probably be incurred by the claimant party if the other party breached the Contract.

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INSTRUCTION NO. ___ MEASURE OF DAMAGES FOR EXTRA WORK24 If, under the court' instruction, you find that Big D California is entitled to a verdict s against Leprino because Leprino breached the Contract, then you must determine those damages that are legally caused by the breach of Contract if: 1. 2. The breach was a substantial factor in bringing about the damages; and Either: a. This type of damage for labor, services, equipment, or materials that Big-D California was not required to furnish under the Contract could have been reasonably contemplated or foreseen by the parties, at the time they made the Contract, as being the probably result of such a breach; or b. Leprino knew or should have known, at the time Big-D California entered into the Contract, that this type of damage for labor, services, equipment, or materials that Big-D California was not required to furnish under the Contract could probably be suffered by Big-D California if Leprino breached the Contract. Then you must award damages to Big-D California in an amount that will compensate it for all the detriment caused by the breach of Contract including the reasonable value of the labor, services, equipment, or materials not required to be furnished under the Contract.

Source and Authorities: Campbell v. Koin, 391 P.2d 365 (Colo. 1964); Reynolds v. Armstead, 443 P.2d 990 Colo. 1968); City Street Imp. Co. v. Kroh (1910) 158 Cal. 308, 323, 110 P. 933; Bolster Co. v. J.C. Boespflug etc., Co. (1959) 167 Cal. App. 2d 143, 151, 334 P.2d 247; Parkford v. Union Drilling Co. (1931) 118 Cal. App. 538, 544, 5 P.2d 440.

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INSTRUCTION NO. ___ MEASURE OF DAMAGES FOR EXPENDUTURES MADE BY CONTRACTOR DUE TO DELAYS, INEFFICIENCIES, OR ACCELERATION25 If, under the court' instruction, you find that Big D California is entitled to a s verdict against Leprino for breach of Contract, then you must determine those damages that are legally caused by the breach of Contract if: 1. 2. a. The breach was a substantial factor in bringing about the damages; and Either: This type of damage for delays in the work, inefficiencies in the work, or acceleration of the work, could have been reasonably contemplated or foreseen by the parties, at the time they made the Contract, as being the probable result of such a breach; or b. Leprino knew or should have known, at the time of entering into the contract, that this type of damage for delays in the work, inefficiencies in the work, or acceleration of the work could probably be suffered by the other party if it breached the Contract. Then you must award damages to Big D California in an amount that will compensate Big D for all the detriment legally caused by the breach of Contract including all of the following:
25

Source and Authorities: CJI 30:39 (2004); Gundersons, Inc. v. Tull, 678 P2. 1061 (Colo.App. 1983) rev' on other grounds, 709 P.2d 940 (Colo. 1985); 5 Corbin, Contracts § 1094 (1964); H.M.O. Sys., Inc. v. d ChoiceCare Health Servs. Inc., 665 P.2d 635 (Colo.App. 1983); Prutch v. Ford Motor Co., 574 P.2d 102, 104 (Colo.App. 1977) rev' on other grounds 618 P.2d 657; City of Salinas v. Souza & McCue Constr. Co. d (1967) 66 Cal. 2d 217, 225; 57 Cal. Rptr. 337, 424 P. 2d 921, overruled on other grounds; Helfend v. So. Cal. Rapid Transit Dist. (1970) 2 Cal. 3d 1, 84 Cal. Rptr. 173, 465 P. 2d 61;

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1.

Expenditures Big-D California made for labor, services, equipment or

materials, which Big-D California would not otherwise have made but for the delays in the work, inefficiencies in the work, or acceleration of the work caused by Leprino' s breach of the contract; 2. Overhead and profit Big D California could otherwise have earned from

its expenditures for additional labor, services, equipment, and materials; and 3. Increases in the cost of those items already required under the Contract.

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INSTRUCTION NO. ___ MEASURE ­ FAILURE TO MAKE TIMELY OR COMPLETE PROGRESS PAYMENTS ­ INTEREST26 If, under the court' instruction, you find that Big-D is entitled to a verdict against s Leprino because Leprino breached the contract by failing to make complete or timely progress payments, you must award Big-D California 8% interest compounded annually, on the unpaid portion of progress payments from the dates on which those payments should have been made to today' date. s

26

Source and Authorities: C.R.S. § 5-12-102(2)

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INSTRUCTION NO. ___ Owner' Duties to Disclose and Not to Hinder Construction27 s ________________________________________________________________________ In every building or construction contract, the owner has an implied duty not to obstruct, hinder, or delay the contractor. To the contrary, the owner must facilitate performance of the work. The owner also has an implied duty to disclose information material to the contractor' performance that is not available from other sources. Under the law, an s owner breaches a contract when it fails to do something that it has expressly or implicitly undertaken to facilitate the other party' performance. s

27 Authority:

Model Jury Instructions Construction Litigation, No. 4.04.

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INSTRUCTION NO. ___ CONSTRUCTIVE CHANGES28 ________________________________________________________________________ In this case, both Big-D and UMM seek extra compensation for work they performed under a legal theory known as a constructive change.

A constructive change occurs when the contractor' (or subcontractor' work scope, its s s) schedule for performance, or the cost of the work is affected through the fault of the owner but no change order is issued. The contractor (or subcontractor) has the burden to prove that the work at issue was performed as the result of a constructive change caused by the owner.

28

Authority:

Model Jury Instructions Construction Litigation, No. 5.08

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INSTRUCTION NO. ___ ACCELERATION AS A BREACH OF CONTRACT29 ________________________________________________________________________ Big-D and UMM contend that they are entitled to damages for extra costs incurred when Leprino increased the scope of work but did not increase the contract time. The owner contends that the contractor is not entitled to such costs because of Big-D and UMM' s poor management, and self-imposed problems caused the delays and disruptions that justified Leprino' demand that Big-D and UMM meet the project schedule. s

To recover for such acceleration costs, Big-D and UMM must prove that (1) the delays in performance are not their fault; (2) Leprino refused to grant an appropriate extension of time when an extension was due; and (3) they sustained extra costs as a result of accelerating the performance of the work.

29 Authority:

Model Jury Instructions Construction Litigation, No. 6.08

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INSTRUCTION NO. ___ LACK OF TIMELY NOTICE-- FOR EXTRA WORK30 ________________________________________________________________________ In response to Big-D' claim for damages for extra work performed, Leprino asserts that s the contract required Big-D to give timely, written notice of any such extra work that was required, and that no such notice was given.

Where parties lawfully enter into a contract and that contract is free of ambiguity, the contract' terms control the relationships. You may, however, find that Big-D has s demonstrated circumstances or conduct by Leprino that would justify allowance of deviation from the unambiguous language.

To recover for additional costs notwithstanding the requirement for written notice, Big-D has the burden to prove Leprino' knowledge of the commencement of the extra work in s combination with other circumstances such that it shows Leprino' intent to waive or s modify the requirement of written notice, or that Leprino acted in bad faith or engaged in willful misconduct, or was grossly negligent in the performance of the contract.

30 Authority:

Model Jury Instructions Construction Litigation, No. 9.03/9.04.

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INSTRUCTION NO. ___ BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING31 ________________________________________________________________________ In addition to the express terms of the contract, the obligations of good faith and fair dealing in performance and enforcement are implicit in every contract. Good faith is defined as honesty in fact in all aspects of the transaction and the observance of commercially reasonable standards of fairness. A party fulfills the obligations of good faith and fair dealing when it is faithful to the agreed-on common purpose of the contract and acts consistently with the reasonable expectations of the other party. You may find that a party breaches this duty where there is a violation of community or industry standards of decency, fairness, or reasonableness.

If it is shown that a party breached these implicit obligations, you must find that party liable for breach of the contract, just as if the party had breached one of the terms clearly spelled out on the contract' face. s

31 Authority:

Model Jury Instructions Construction Litigation, No. 4.02.