Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

Document 331-13

Filed 03/31/2006

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INSTRUCTION NO. ___ BIG-D DEFENSES TO UMM GENERALLY1 ________________________________________________________________________ If you find that UMM has proved the elements of any of its claims by a preponderance of the evidence, you must then determine whether Big-D has proved, by a preponderance of the evidence, any defense to liability.

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Authority:

Model Jury Instructions Construction Litigation, No. 9.02.

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INSTRUCTION NO. ___ MODIFICATION2 ________________________________________________________________________ UMM claims that the original subcontract with Big-D was modified, or changed. UMM must prove that the parties agreed to the modification. Big-D denies that the subcontract was modified.

The parties to a contract may agree to modify its terms. You must decide whether a reasonable person would conclude from the words and conduct of Big-D and UMM that they agreed to modify the subcontract. You cannot consider the parties' hidden intentions.

A subcontract in writing may be modified by a subcontract in writing.

A subcontract in writing may be modified by an oral agreement to the extent the oral agreement is carried out by the parties.

A subcontract in writing may be modified by an oral agreement if the parties agree to give each other something of value.

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Authority:

Judicial Council of California Civil Jury Instructions, No. 313.

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INSTRUCTION NO. ___ AFFIRMATIVE DEFENSE-- FRAUD OR MISREPRESENTATION3 ________________________________________________________________________ UMM claims that no subcontract was created because its consent was obtained by fraud or misrepresentation about the status of the Project. To succeed, UMM must prove all of the following:

1.

That Big-D misrepresented the status of the Project and/or the achievability of the project schedule at the time UMM entered into the subcontract;

2.

That Big-D knew that the representations were not true;

3.

That Big-D made the representation to persuade UMM to agree to the subcontract;

4.

That UMM reasonably relied on these representations; and

5.

That UMM would not have entered into the subcontract if it had known that the representations were not true.

If you decide that UMM has proved all of the above, then no subcontract between Big-D and UMM was actually created.

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Authority:

Judicial Council of California Civil Jury Instructions, No. 335.

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INSTRUCTION NO. ___ AFFIRMATIVE DEFENSE-- WAIVER4 ________________________________________________________________________ UMM claims that it did not have to comply with various provisions in the parties'written subcontract because Big-D gave up its right to have UMM perform these obligations. This is called a "waiver."

To succeed, UMM must prove both of the following, by clear and convincing evidence:

1.

That Big-D knew UMM was required to perform its obligations under the subcontract; and

2.

That Big-D freely and knowingly gave up its right to have UMM perform these obligations.

A waiver may be oral or written or may arise from conduct that shows that Big-D gave up that right.

If UMM proves that Big-D gave up its right to UMM' performance of its obligations s under the subcontract, then UMM was not required to perform these obligations.

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Authority:

Judicial Council of California Civil Jury Instructions, No. 336.

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INSTRUCTION NO. ___ INDUSTRY STANDARDS-- CUSTOM & USAGE5 ________________________________________________________________________ In this case, UMM seeks additional compensation from Big-D for change order work. Big-D maintains that UMM was required to perform this work under the existing subcontract as part of what would normally be required according to industry customs, standards or practices.

Evidence has been produced in this case regarding the commonly understood standards in the industry. You may consider such evidence in deciding which interpretation of the contract is reasonable. However, general customs or standards in the industry, although relevant to the proper interpretation of the subcontract, do not conclusively establish whether the additional work was required by the contract. The parties must still act under a reasonable interpretation of the subcontract, and if you find that the prevailing customs, standards or practices in the industry do not comply with a reasonable interpretation of the subcontract, you may find that one party breached the subcontract notwithstanding compliance with the customs, standards or practices of the industry.

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Authority:

Model Jury Instructions Construction Litigation, No. 4.03.

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INSTRUCTION NO. ___ DISPUTED EXTRA WORK6 ________________________________________________________________________ In this case UMM seeks compensation for certain extra work it claims to have performed. In the construction industry, "extra work," also called "change order work," is work that falls outside the scope of work in the original subcontract between the parties.

The subcontract in this case, like virtually all construction contracts, contains a provision allowing the owner and the general contractor to issue written change orders during the subcontract performance without being in breach of the contract. In general, the subcontractor' right to compensation for extra work is determined by basic principles of s whether a contract for the extra work was formed. If UMM is seeking compensation for what it claims to be additional work, but you find that the existing subcontract between the parties already compels UMM to perform that work, then UMM is not entitled to additional compensation. Moreover, if you find that the work performed by UMM was performed without Big-D' request or authorization and that the owner has not agreed to s pay for that work, then UMM is not entitled to additional compensation for that work. If, however, you find that Leprino or Big-D had requested or authorized the extra work, then that request or authorization constitutes an enforceable contract in and of itself, which entitles UMM to additional compensation.

UMM has the burden to prove that the extra work was outside the scope of the original subcontract, was ordered at the direction of either Leprino or Big-D, was agreed to be paid for either by words or by conduct, was not voluntarily furnished by UMM, and was not rendered necessary by any fault of the UMM.

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Authority:

Model Jury Instructions Construction Litigation, No. 5.04.

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INSTRUCTION NO. ___ MITIGATION OF DAMAGES7 ________________________________________________________________________ A person who claims damages as a result of an alleged breach of contract by another has a duty under the law to mitigate those damages-- that is, to take advantage of any reasonable opportunity under the circumstances to reduce or minimize the loss or damage.

If you find that one party is liable and that the claimant has suffered damages, the claimant may not recover for any item of damages that it could have mitigated through reasonable effort. If the claimant unreasonably failed to take advantage of an opportunity to lessen its damages, you should deny recovery for those damages that it could have avoided had it taken advantage of the opportunity.

You must keep in mind that the question whether the claimant acted reasonably with respect to the mitigation of damages is a question for you to decide, as sole judge of the facts Although the law will not allow an injured claimant to site idly by when presented with an opportunity to mitigate its damages, neither does the law require an injured claimant to overly exert itself in an effort to mitigate. It is the defendant' burden of s proving by a preponderance of the evidence that the damages reasonably could have been avoided.

Your determination of whether the claimant acted reasonably to avoid or minimize loss or harm must be based on claimant' situation at the time it became aware of a breach of s contract and on the knowledge, capabilities, and resources that claimant had at that time. It cannot be based on later events or on knowledge, capabilities, or resources that claimant did not have when it became aware of the breach.

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Authority:

Model Jury Instructions Construction Litigation, No. 9.08.

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In determining whether the claimant acted reasonably to avoid or minimize loss or harm once it became aware of a beach of contract, you should consider the following:

(1)

The claimant is required to act with reasonable promptness and in good faith and to do all that was reasonable under the circumstances to try to avoid or minimize the resulting loss or harm. If the claimant fulfilled this requirement, it cannot be denied that right to recover damages because its efforts were unsuccessful or because it now appears that some or all of the loss or harm it suffered could have been avoided by steps it did not take.

(2)

The claimant is not required to do things that were impractical or to take risks or make efforts or expenditures that were unreasonable or large in view of the loss or harm to be avoided. The claimant is also not required to go to unusual or extraordinary lengths to avoid or minimize damages or to do things it was unable to do.

(3)

The claimant is not required to assume the burden of doing the things that the defendant agreed to do under the contract.

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INSTRUCTION NO. ___ REASONABLE CERTAINTY OF DAMAGES8 ________________________________________________________________________ In awarding compensatory damages, if you so decide to award them, you must be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, none of the parties is required to prove their damages with mathematical certainty; rather, they need only prove a sufficient basis for estimating the damages with reasonable certainty. The measurement of damages cannot be based on speculation because only actual, or compensatory, damages are recoverable. You must not guess or speculate about the proper amount of the award of damages. You may not award damages unless the evidence is capable of establishing those damages with a reasonable certainty. You must be able, in view of the evidence offered, to arrive with a reasonable degree of certainty at some conclusion about what the claimant lost as a result of the breach.

Difficulty in ascertaining the amount of damages is not to be confused with the right of recovery. If the claimant has produced the best evidence available and if it is sufficient to support a reasonable basis for estimating its loss, the claimant is not to be denied recovery because the amount of the damages is incapable of exact ascertainment. In all instances, you are to use sound discretion in fixing an award of damages, if any, drawing reasonable inferences where you deem appropriate from the facts and circumstances in evidence.

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Authority:

Model Jury Instructions Construction Litigation, No. 10.03.

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INSTRUCTION NO. ___ TOTAL-COST THEORY OF RECOVERY9 ________________________________________________________________________ In a construction case such as the one before you, a claimant who seeks recovery from a defendant must link, or tie, its damages to specific breaches of contract and it must prove its damages with a reasonable degree of certainty. Here, UMM admits that it cannot link specific damages to specific breaches of contract and that it cannot prove its damages with a reasonable degree of certainty. UMM may still be permitted to calculate its damages, however, under what is known as a modified total-cost theory. To recover any sums under the total-cost theory of damages, the UMM must prove by a preponderance of the evidence each of the following: (1) that the nature of the particular losses it suffered makes it impossible to attach a dollar figure to determine them with a reasonable degree of certainty; (2) that UMM' bid for the subcontract was both a realistic and s accurate bid when made; (3) that UMM' actual costs spent on the project were s reasonable under the circumstances; and (4) that UMM was not responsible for its additional costs to complete the job because of its own delays and mismanagement. If UMM fails to prove any one of these elements by a preponderance of the evidence, then you may not award it damages under the modified total-cost theory. If UMM has proved these elements, then you may award damages calculated by the difference between UMM' actual costs on the project, plus a reasonable amount for overhead and profit, less s what it has been paid so far on the subcontract by Big-D.

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Authority:

Model Jury Instructions Construction Litigation, No. 10.07.

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INSTRUCTION NO. ___ Causes of Construction Delays 10 ________________________________________________________________________ UMM contends that the completion of the construction project was delayed. UMM has the burden of proof on this issue. If you find that the project was delayed, you must then decide what caused each delay. Big-D is only liable for the delays which are otherwise not excusable and are caused solely by its fault. If the delay is not caused by any parties' fault, then the delay is excusable, and you may not find Big-D liable for UMM' claim S for delay damages.

If the delay was caused by UMM, then you may not find Big-D liable. If you find that the delay was caused both by Big-D and UMM, then the delay is concurrent, and you may not find Big-D liable.

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Authority: General Insurance Co. of America v. Commerce Hyatt House (1970) 5 Cal.App.3d 460, 472.

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INSTRUCTION NO. ___ Concurrent Delay1 ________________________________________________________________________ A concurrent delay is when two or more factors that delay the completion of a construction project occur simultaneously or overlap one another such that no one factor is solely responsible for the delay. If a delay is occasioned by the mutual fault of the parties, the delay is concurrent.

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Authority: General Insurance Co. of America v. Commerce Hyatt House (1970) 5 Cal.App.3d 460, 472.

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INSTRUCTION NO. ___ No Recovery of Damages for Concurrent Delay1 _______________________________________________________________________ A party whose acts substantially contribute to a concurrent delay may not recover damages, either liquidated or otherwise, from any other party for that delay. In this case, UMM contends that Big-D delayed the completion of the construction project. If you find, however, that UMM was partially responsible for the delays allegedly caused by Big-D, you may not award UMM any damages for those delays, even if Big-D was also partially responsible.

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Authority: General Insurance Co. of America v. Commerce Hyatt House (1970) 5 Cal.App.3d 460, 472.

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INSTRUCTION NO. ___ Recovery On Mechanics'Lien1 _______________________________________________________________________ UMM has the burden of proving all of the following: 1 That UMM provided labor, services, equipment, or materials for the project that

were bestowed on, used in, or consumed in the project; 2. 3. That these materials were requested by Big-D or Leprino; That UMM caused a preliminary 20-day private work notice to be given to the

appropriate persons. I will instruct you on the service, sufficiency, and timeliness of this notice; 4. That after UMM completed its work, UMM timely recorded a valid mechanic' s

lien against the project; 5. That UMM has not been paid for all the labor, services, equipment, or materials it

provided; 6. That UMM commenced an action to foreclose on its mechanic' lien within 90 s

days after the recording of the mechanic' lien; s 7. The nature and extent of UMM's damages.

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Authorities: California Civil Code §§3097, 3110, 3116, 3123, 3144.

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INSTRUCTION NO. ___ Timing on Recording a Claim of Mechanic' Lien 1 s _______________________________________________________________________ In order for a subcontractor to have a valid claim of mechanic' lien, the subcontractor s must record his claim of lien after he has ceased furnishing labor, services, equipment, or materials, and before the expiration of (a) 90 days after completion of the work of improvement if no notice of completion or cessation has been recorded, or (b) 30 days after recordation of a notice of completion or notice of cessation.

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Authorities: California Civil Code §3116.

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INSTRUCTION NO. ___ Recovery on Mechanics'Lien-- Completion of Work11

UMM' mechanics' lien is premature, and thus invalid, if you find that it was recorded s before UMM ceased furnishing labor, services, equipment, or materials to the Project.

California Civil Code § 3116; and see, Nevada County Lumber Co. v. Janiss (1938) 25 Cal.App2d 579, 583 (holding that after an owner took possession of a finished building, necessary repairs to defective sewer system taking only eleven hours of work delayed commencement of lien period); Howard S. Wright Construction Co. v. BBIC Investors, 2006 DJDAR 1339.

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INSTRUCTION NO. ___ WILLFUL OVERSTATEMENT OF MECHANCIS' LIEN12

UMM recorded a mechanics' lien in California against the Project, and has sued Big-D and Federal insurance Company, Big-D' mechanics' lien release bond surety, to s foreclose that lien. Under California law, which is relevant to UMM' mechanics' lien s claim, the amount of the mechanics' lien is limited to the reasonable value of the labor, services, equipment, or materials furnished or for the price agreed upon by Big-D and UMM in their subcontract, whichever is less. UMM may include in its lien the value of any amount due for labor, services, equipment, or materials furnished based on a written modification to the parties'subcontract.

However, if you find that the subcontract was rescinded, abandoned, or breached, then the amount of UMM' lien may not exceed the reasonable value of the labor, services, s equipment, and materials furnished to the Project by UMM.

If you find that UMM willfully included in its mechanics' lien labor, services, equipment, or materials not furnished for the Project, then UMM forfeits its lien and you must find for Big-D and Federal Insurance Company on UMM' mechanics' lien claim. s

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California Civil Code §§ 3118, 3123, 3124.

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INSTRUCTION NO. ___ Failure to Pay Subcontractor In A Timely Manner 1 _______________________________________________________________________ UMM is alleging that Big-D did not make progress payments to it in a timely fashion. Under California Law, a general contractor, such as Big-D, is required to pay to any subcontractor, such as UMM, each progress payment not later than 10 days after Big-D received the money from Leprino, unless the parties agree to a different time-frame in their subcontract.

However, in the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the general contractor to the subcontractor, then the general contractor may withhold up to 150 percent of the disputed amount until the dispute is resolved. The phrase ` good faith'refers to the general contractor' subjective s belief in the existence of a dispute at the time the decision is made to withhold the money from the subcontractor.

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Authorities: CA Business and Professions Code §7108.5; Alpha Mechanical Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Company (2005) 133 Cal.App. 4th 1319, 1339

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INSTRUCTION NO. ___ Liability Arising from Designation of a Sole Source Subcontractor11 _______________________________________________________________________ UMM is claiming that it is not responsible for the performance of its supplier, Frick, because it was required by Leprino and/or Big-D to use Frick for the Project. Leprino and Big-D dispute this contention. When an owner or a general contractor requires a subcontractor to use a particular second-tier subcontractor or supplier, this is referred to as a sole source designation. Such sole source designation may imply a limited warranty that the designated supplier is capable of performing the work in question. However, such a limited warranty does not include a guarantee that the supplier will in fact perform properly on any given subcontract. Such sole source designation does not shift the risk of the supplier' nons performance, defective performance, or untimely performance to the owner or general contractor. The subcontractor is responsible for the work of its supplier, no matter who designates it. The designation of a sole source subcontractor carries no warranty with respect to the supplier' performance. s

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Authorities: General Ship Corporation v. United States of America (1986) 634 F. Supp. 868; Crough v. Department of General Services of the District of Columbia (1990) 572 A.2d 457.

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INSTRUCTION NO. ___ SUBCONTRACT INTERPRETATION-- DETERMINATION OF PARTIES' INTENT13

There is a dispute between Big-D and UMM as to whether the Bid Documents required UMM to assume, for purposes of its bid and the performance of its subcontract, that it could not count on being able to bring its pipe into the building via crane through openings in the building roof. In determining the parties' intent with regard to this issue, you may consider California law, which provides that:

"If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promissor believed, at the time of making it, that the promissee understood it."

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California Civil Code § 1649.

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INSTRUCTION NO. ___ SUBCONTRACT INTERPRETATION-- DETERMINATION OF PARTIES' INTENT14

With regard to the issue of whether UMM, for purposes of its bid and its subcontract, should not have assumed that it would be able to bring its pipe into the Project through openings in the building roof, you may also consider another California law, which states that: "... where the parties have attached different meanings to an agreement or term, it is interpreted in accordance with the meaning attached by one of them if, at the time the agreement was made: "(a) that party did not know of any different meanings attached by the other, and the other knew the meaning attached by the first party; or (b) that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party."

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Witkins, California Law, Contract, §684; Restatement of Contracts 2d. §201(2): and California Civil Code § 1649.