Free Proposed Jury Instructions - District Court of Colorado - Colorado

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

Document 331-12

Filed 03/31/2006

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- ESSENTIAL FACTUAL ELEMENTS1 ________________________________________________________________________ Big-D claims that it entered into a written subcontract with Third-Party Defendant UMM for UMM to provide all the necessary labor and materials to install the various mechanical systems (including the plumbing, piping, and HVAC systems) that were included in Bid Package #4 for the Project.

Big-D claims that UMM breached this written subcontract in various ways, including: ? ? Failing to perform the scope of work required in the subcontract; Failing to perform its work according to the schedule included with Bid Package #4; ? Failing to follow the instructions that were included as part of Bid Package #4; ? Failing to reasonably cooperate in preparing mutually agreeable schedules during the Project; ? ? Refusing to meet the schedules Big-D provided during the Project; Failing to perform its work, including providing submittals, procuring materials and equipment, and installing the mechanical systems, in a timely and efficient manner; ? ? ? ? Interfering with the work of other contractors; Failing to work overtime as required; Failing to adequately staff the Project; Failing to prepare and submit change estimates (CE' for potential change s) order work in a timely, reasonable, and good-faith manner; ? Failing to timely and properly submit claims for additional time and/or compensation;
1

Authority:

Judicial Council of California Civil Jury Instructions, No. 300.

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? ?

Failing to keep accurate records of its actual costs; and Failing to indemnify Big-D for the claims made against Big-D by Leprino.

Big-D claims that UMM' breach of the written subcontract caused harm to Big-D, for s which UMM should pay.

UMM denies that it breached the written subcontract, and also asserts a number of affirmative defenses that you will hear about shortly.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- SCOPE OF WORK ________________________________________________________________________ The written subcontract between Big-D and UMM contains the following clause:

"1.2 Scope of Work. The work to be performed by you (meaning UMM) includes that work specifically set forth in this Subcontract, as well as all other related work, including all work necessary for a complete Project, and normally performed by your trade. You will provide, at your own expense, all tools, scaffolding, hoisting, facilities, elevator service, implements, storage space, shop and working drawings, tests, samples, models, guarantees, permits, licenses, unloading facilities and services, etc., and all other items necessary for the proper performance of your work. You will pay for all inspection fees, royalties, and license fees related to your work. This is one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- TIMELY PERFORMANCE ________________________________________________________________________ The written subcontract between Big-D and UMM also contains the following clause:

"1.4 Timely Performance. Time is of the essence of the Subcontract. You agree: (1) to obtain and prepare your materials so as to be ready to begin work when we agree upon a mutually agreed schedule; (2) to plan, perform, and complete your work in a prompt and diligent manner so as not to delay or interfere with our work or the work of other subcontractors, (3) to proceed in a skillful and productive manner, with sufficient labor, tools and materials, (4) to provide, at your own expense, additional workers and/or to work on an overtime or shift basis should this be required to maintain the project schedule, and (5) to complete your work in conjunction with other subcontractors on the hob to ensure the uninterrupted progress of the project and enable us to complete the project as scheduled." This is another one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- SCHEDULES ________________________________________________________________________ The written subcontract between Big-D and UMM also contains the following clause:

"1.5 Schedules. With your input, we will schedule the project. You agree to furnish us any information necessary to prepare the schedule(s), and any float on the project schedule(s) belongs to us for use in coordinating the work. We retain the right to modify, suspend, delay or accelerate the schedule(s), change work sequences and priorities, and to otherwise schedule the work so as to achieve timely project completion. So long as such modifications, changes in sequence, etc., are not arbitrary, you agree to adapt your efforts and to meet the schedule(s) as modified without additional cost." This is another one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- SHOP DRAWINGS AND SUBMITTALS ________________________________________________________________________ The written subcontract between Big-D and UMM also contains the following clause:

"1.7 Shop Drawings and Submittals. You must promptly provide us all shop drawings, samples, product data, manufacturers' literature and other submittals required by the Subcontract Documents. You are responsible for the accuracy and conformity of your submittals to the Subcontract Documents. You must prepare and deliver your submittals to us in a manner consistent with the Schedule of Work and in such time and sequence so as not to delay us or others in the performance of the work. The review of any submittal shall not be deemed to authorize deviations, substitutions or changes in the requirements of the Subcontract Documents unless express written consent is obtained from us. In the event the Subcontract Documents do not contain submittal requirements, you agree upon request to submit in a timely fashion for review any shop drawings, samples, product data, manufacturers'literature or similar submittals as may reasonably be required by us, the Owner or Architect." This is another one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- SUPERVISION ________________________________________________________________________ The written subcontract between Big-D and UMM also contains the following clause:

"1.10 Supervision. You must provide competent and continuous supervision of your work. Instructions given by us to your superintendent or foreman and documents executed by your superintendent or foreman shall be binding upon you. We shall designate one or more persons who shall be our authorized representative(s) on-site and off-site. Such authorized representative(s) shall be the only person(s) you shall look to for instructions, orders and/or directions, except in an emergency." This is another one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- WORKMANSHIP ________________________________________________________________________ The written subcontract between Big-D and UMM also contains the following clause:

"1.15 Workmanship. Every part of your work shall be executed in accordance with the Subcontract Documents in a workmanlike and skillful manner. All materials used in your work shall be furnished in sufficient quantities to facilitate the proper and expeditious execution of the work, and shall be new except such materials as may be expressly provided in the Subcontract Documents to be otherwise. All work shall be done in strict accordance with the Subcontract Documents, subject to the final approval of us, the Owner, and Architect. The Architect's decision in matters relating to artistic effect shall be final." This is another one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF SUBCONTRACT-- CHANGE ORDERS/FIELD ORDERS ________________________________________________________________________ The written subcontract between Big-D and UMM also contains the following clause:

"2.1 Change Orders/Field Orders. We may add to or deduct from the work required by this Subcontract and these changes shall be defined only by our written Change Order or by our written Field Order. A Field Order is used in the absence of total agreement on the terms of a Change Order. A Field Order will be replaced by a Change Order after the price and time impacts have been agreed to. If mutual agreement is not possible, then the price and time impact shall be determined as provided in Section 7. In either event, you agree to proceed with the work as changed when we so order in writing so as not to delay the progress of the work. No claim for additional compensation shall be paid unless the same is furnished pursuant to a written Change Order or Field Order signed by us. You shall provide us with detailed pricing and time extension information for a proposed change in the work within seven (7) days of receipt of information regarding this proposed change. You must also provide us with detailed pricing and time extension information for these conditions within seven (7) days of encountering alleged changed conditions. You are not entitled to compensation or time extension for claimed changed conditions unless we receive a written claim within seven (7) days of encountering a changed condition. Note, the written notice must be received in 7 days, the above 7 day requirement for pricing is amended to say 10 days." This is another one of the Subcontract provisions that Big-D claims UMM breached.

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INSTRUCTION NO. ___ BREACH OF WRITTEN SUBCONTRACT-- ESSENTIAL FACTUAL ELEMENTS2 ________________________________________________________________________ To recover damages from UMM for breach of subcontract, Big-D must prove all of the following:

1. 2.

That Big-D and UMM entered into a subcontract; That Big-D did all, or substantially all, of the significant things that the contract required it to do or that it was excused from having to do those things;

3. 4.

That all conditions required for UMM' performance had occurred; s That UMM failed to do something that the subcontract required it to do; and

5.

That Big-D was harmed by that failure.

Big-D and UMM both admit that they entered into a written subcontract, so the first element has been established.

2

Authority:

Judicial Council of California Civil Jury Instructions, No. 303.

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INSTRUCTION NO. ___ SUBSTANTIAL PERFORMANCE3 ________________________________________________________________________ UMM contends that Big-D did not perform all of the things that it was required to do under the written subcontract, and therefore UMM did not have to perform its obligations under the subcontract. To overcome this contention, Big-D must prove both of the following:

1.

That Big-D made a good faith effort to comply with the subcontract; and

2.

That UMM received essentially what the subcontract called for because Big-D' failures, if any, were so trivial or unimportant that they could s have been easily fixed or paid for.

3

Authority:

Judicial Council of California Civil Jury Instructions, No. 312.

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INSTRUCTION NO. ___ MODIFICATION4 ________________________________________________________________________ Big-D claims that the original written subcontract with UMM was modified, or changed by various change orders, some of which were written and some of which were not. BigD must prove that the parties agreed to the modifications.

The parties to the subcontract 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 written subcontract may be modified by another writing.

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

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

4

Authority:

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

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INSTRUCTION NO. ___ EXISTENCE OF CONDITION PRECEDENT DISPUTED-- MUTUALLY AGREED UPON SCHEDULE5 ________________________________________________________________________ UMM claims that the subcontract with Big-D provides that it was not required to follow Big-D' scheduling requirements for when UMM would perform and complete its work s unless the parties agreed to a mutually agreed upon schedule.

UMM must prove that the parties agreed to this condition. If UMM proves this, then BigD must prove that during the project the parties did agree to one or more mutually agreed upon schedules for UMM' work. s

5

Authority:

Judicial Council of California Civil Jury Instructions, No. 321.

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INSTRUCTION NO. ___ INTERPRETATION-- DISPUTED TERM6 ________________________________________________________________________ Big-D and UMM dispute the meaning of the following term contained in Article 1.4 of their written subcontract: "You (meaning UMM) agree: (1) to obtain and prepare your materials so as to be ready to begin work when we (meaning UMM and Big-D) agree upon a mutually agreed schedule. . ."

UMM claims that the term means that they only had to comply with project schedules that both they and Big-D expressly agreed to.

Big-D claims that the term means that UMM was expected to comply with the schedule that UMM received and bid as part of Bid Package #4. As the project progressed, Big-D would allow UMM to participate in the development of updated project schedules as contemplated in Article 1.5 of the Subcontract. But these updated project schedules would have to be within the overall timeframe and constraints of the project and would have to allow all of Big-D' subcontractors to complete their work in a reasonable time s frame.

In deciding what the terms of a contract mean, you must decide what the parties intended at the time the contract was created. You may consider the usual and ordinary meaning of the language used in the contract as well as the circumstances surrounding the making of the contract.

The following instructions may also help you interpret the terms of the subcontract:

6

Authority:

Judicial Council of California Civil Jury Instructions, No. 314.

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INSTRUCTION NO. ___ INTERPRETATION-- MEANING OF ORDINARY WORDS7 ________________________________________________________________________ You should assume that Big-D and UMM intended the words in their subcontract to have their usual and ordinary meaning unless you decide that the parties intended the words to have a special meaning.

7

Authority:

Judicial Council of California Civil Jury Instructions, No. 315.

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INSTRUCTION NO. ___ INTERPRETATION-- MEANING OF TECHNICAL WORDS8 ________________________________________________________________________ You should assume that Big-D and UMM intended technical words used in their subcontract to have the meaning that is usually given to them by people who work in that technical field, unless you decide that the parties clearly used the words in a different sense.

8

Authority:

Judicial Council of California Civil Jury Instructions, No. 316.

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INSTRUCTION NO. ___ INTERPRETATION-- CONSTRUCTION OF SUBCONTRACT AS A WHOLE9 ________________________________________________________________________ In deciding what the words of the subcontract meant to Big-D and UMM, you should consider the whole subcontract, not just isolated parts. You should use each part to help you interpret the others, so that all the parts make sense when taken together.

9

Authority:

Judicial Council of California Civil Jury Instructions, No. 317.

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INSTRUCTION NO. ___ INTERPRETATION-- CONSTRUCTION BY CONDUCT10 ________________________________________________________________________ In deciding what the words of the subcontract meant to Big-D and UMM, you may consider how the parties acted after the subcontract was created but before any disagreement between the parties arose.

10

Authority:

Judicial Council of California Civil Jury Instructions, No. 318.

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INSTRUCTION NO. ___ ANTICIPATORY BREACH11 ________________________________________________________________________ A party can breach, or break, a subcontract before performance is required by clearly and positively indicating, by words or conduct, that it will not or cannot meet the requirements of the subcontract.

If Big-D proves that it would have been able to fulfill the terms of the subcontract and that UMM clearly and positively indicated, by words or conduct, that it would not or could not meet the subcontract requirements, then UMM breached the subcontract.

11

Authority:

Judicial Council of California Civil Jury Instructions, No. 324.

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INSTRUCTION NO. ___ BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING-- ESSENTIAL FACTUAL ELEMENTS12 _____________________________________________________________________ In every subcontract or agreement there is an implied promise of good faith and fair dealing. This means that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the subcontract; however, the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the terms the subcontract. Big-D claims that UMM violated the duty to act fairly and in good faith. To establish this claim, Big-D must prove all of the following:

1.

That Big-D Corp. and UMM entered into a subcontract;

2.

That Big-D did all, or substantially all of the significant things that the contract required it to do or that it was excused from having to do those things;

3.

That all conditions required for UMM' performance had occurred; s

4.

That UMM unfairly interfered with Big-D right to receive the benefits of the subcontract; and

5.

That Big-D was harmed by UMM' conduct. s

Both Big-D and UMM agree that they entered into a written subcontract, so the first element has already been established.

12

Authority:

Judicial Council of California Civil Jury Instructions, No. 325.

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INSTRUCTION NO. ___ INTRODUCTION TO SUBCONTRACT DAMAGES13 ________________________________________________________________________ If you decide that Big-D has proved its claim against UMM for breach of subcontract, you also must decide how much money will reasonably compensate Big-D for the harm. This compensation is called "damages." The purpose of such damages is to put Big-D in as good a position as it would have been if UMM had performed as promised.

To recover damages for any harm, Big-D Corp. must prove:

1. That the harm was likely to arise in the ordinary course of events from the breach of the subcontract; or 2. That when the subcontract was made, both parties could have reasonably foreseen the harm as the probable result of the breach.

Big-D also must prove the amount of its damages according to the following instructions. It does not have to prove the exact amount of damages. But you must not speculate or guess in awarding damages. Big-D claims that the damages caused by UMM include: ? Big-D' inability to recover its additional and extended general conditions s from Leprino because of UMM' untimely performance; s ? Any damages that Big-D might owe to Leprino because of UMM' work; s and ? Additional attorneys' fees and defense costs that Big-D has incurred to defend against Leprino' claims regarding UMM' work. s s

13

Authority:

Judicial Council of California Civil Jury Instructions, No. 350.

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INSTRUCTION NO. ___ MEASURE OF DAMAGES CAUSED BY SUBCONTRACTOR14 ________________________________________________________________________ If you find that Big-D is entitled to a verdict against UMM for breach of subcontract, then you must award damages to Big-D in an amount that will compensate Big-D for all the detriment legally caused by the breach of subcontract, including all of the following: 1. Expenditures that Big-D made for labor, services, equipment, or materials,

which Big-D would not otherwise have made but for the delays, inefficiencies, or acceleration of the work caused by UMM' breach of subcontract; s 2. The overhead or profit Big-D otherwise would have earned, including any

money that Big-D would have received from Leprino, except for UMM' breach of s subcontract; 3. Any money Big-D spent to defend against Leprino' claims relating to s

UMM' breach of subcontract; and s 4. Any money that you may find that Big-D owes to Leprino because of

UMM' breach of subcontract. s

14

Authorities: City of Salinas v. Souza & McCue Constr. Co. (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; B.C. Richter Contracting Co. v. Continental Casualty Co. (1964) 230 Cal. App. 2d 491, 500, 502-503, 41 Cal. Rptr. 98; Israel v. Campbell (1958) 163 Cal. App. 2d 806, 817-819, 330 P.2d 83; Maurice L. Bein, Inc. v. Housing Authority (1958) 157 Cal. App. 2d 670, 688-689, 321 P. 2d 753; Allen v. Gardner (1954) 126 Cal. App. 2d 335, 343-345, 272 P.2d 99;

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INSTRUCTION NO. ___ EXPRESS INDEMNITY15 ________________________________________________________________________ One party to a subcontract may expressly agree to be responsible for the damages or losses that befalls the other party to the subcontract. This is called indemnity.

15

Authority: Cal. Civil Code §2772; Continental Heller Corporation v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500.

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INSTRUCTION NO. ___ EXPRESS INDEMNITY-- CONSTRUCTION OF INDEMNITY OBLIGATION16 ________________________________________________________________________ The written subcontract between Big-D and UMM includes an indemnity clause that says: "3.6 Duty to Indemnify, defend and Hold Harmless. To the fullest extent permitted by law, you shall indemnify, defend and hold harmless Big-D, Owner, Architect, and others required by the Contract Documents and their agents, invitees, and other employees from any and all claims, damages, liability, expenses and attorneys fees (hereinafter "loss") incurred by us and/or Owner or Architect which are not caused by the sole negligence of Big-D, Owner, or Architect (whether or not contributed to by us) and arising out of the performance of your work of failure to perform said work. Your duty to defend obligates you to pay on behalf of Big-D, Owner, or Architect any losses at such time as Big-D, Owner, or Architect becomes legally obligated to pay such loss, on account of claims of any kind being made against them arising in any way from your performance or default under this Subcontract, including, but not limited to, damages, judgments, settlements, costs, expenses, and attorneys fees. You further have the duty to defend any suit, arbitration, mediation or proceeding against us and/or Owner or Architect (whether or not contributed to by us) arising from your performance or default under this Subcontract solely at your expense without any right or claim to reimbursement from us, the Owner or Architect."

The terms of the written indemnity agreement between Big-D and UMM determines the extent of UMM' indemnity obligations to Big-D. s

16

Authority: Cal. Civil Code §§ 2772 and 2778; Continental Heller Corporation v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500; Tulare Co. Power Co. v. Pacific S. Co. (1919) 43 Cal.App. 315, 327.

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INSTRUCTION NO. ___ EXPRESS INDEMNITY-- NEGLIGENCE OF INDEMNITEE17 ________________________________________________________________________ An express promise by UMM to indemnify Big-D from any and all claims, damages, liability, expenses and attorneys fees is enforceable, even if Big-D was negligent or partially at fault, so long as Big-D is not solely responsible for causing the loss or damage.

Authority: Cal. Civil Code § 2778; Continental Heller Corporation v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500; Goldman v. Ecco-Phoenix Elec. Corp. (1964) 62 Cal.App.2d 40.

17

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INSTRUCTION NO. ___ EXPRESS INDEMNITY-- MEASURE OF DAMAGES18 ________________________________________________________________________ If you find that any portion of the damages suffered by Big-D arose from the performance or default of UMM, you must find that Big-D is entitled to recover from UMM all of the damages which Big-D suffered.

18

Authority: Cal. Civil Code § 2778; Continental Heller Corporation v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500; Goldman v. Ecco-Phoenix Elec. Corp. (1964) 62 Cal.App.2d 40.