E.W. BURMAN, INC.
BRADFORD DYEING ASSOCIATION, INC.
Washington County Superior Court
Plaintiff: Christopher C. Whitney, Esq. R. Thomas Dunn, Esq.
Defendant: Marc DeSisto, Esq.
dispute between Plaintiff E.W. Burman, Inc. (Plaintiff or
E.W. Burman) and Defendant Bradford Dyeing Association, Inc.
(Defendant or Bradford) arises out of plans for Plaintiff to
rebuild portions of Defendant's Westerly, Rhode Island
facility following a fire in 2007. Plaintiff alleges that the
parties had an oral contract for Plaintiff to construct the
permanent replacement roof on the facility, that Defendant
breached that oral contract, and that Plaintiff is entitled
to damages for its out-of-pocket expenses as well as its lost
a non-jury trial, this Court requested the parties to submit
post trial briefs. Having reviewed said briefs, this Court
now will render a Decision.
is pursuant to G.L. 1956 §§ 8-2-13 and 8-2-14(a).
For the reasons set forth herein, judgment shall enter for
Findings of Fact
assessing the credibility of the witnesses, weighing all the
evidence presented, and considering the undisputed facts as
submitted by the parties, the Court makes the following
findings of fact.
2007, a fire ravaged Defendant's factory in Westerly,
causing significant damage to its equipment and roof. The
reconstruction of the facility was slated to proceed in two
phases: Phase I involved fashioning a temporary roof in order
to allow Defendant to resume operations; Phase II involved
the construction of a permanent replacement roof. Liberty
Mutual Insurance Company (Liberty Mutual) insured Defendant
for its business interruption and contributed to Phase I
expenses as a result of the fire. Defendant also expected
that Liberty Mutual would contribute to Phase II repairs.
engaged Commonwealth Engineers & Consultants, Inc.
(Commonwealth) to design the new roof. In July 2007,
Commonwealth sent a request for proposals to several general
contractors, which included plans for the new roof it had
designed for Defendant's facility, and indicated that
Defendant planned to award a contract by approximately August
8, 2007. The plans called for construction of a
sawtooth-style roof, which matched the original roof prior to
early August 2007, Plaintiff submitted a bid to complete the
Phase II reconstruction. Defendant accepted Plaintiff's
bid, which came in approximately $400, 000 lower than the
next lowest bid. Plaintiff and Defendant had never worked
with each other previously.
August 27, 2007, Plaintiff's president, Edward Burman
(Burman), met with engineers Steven Clarke (Clarke) and Bruce
Bartel (Bartel) from Commonwealth, as well as Charles Doherty
(Doherty) from Liberty Mutual to discuss the scope of the
roof repair project (the Project). Liberty Mutual had engaged
an independent engineering firm, Simpson, Gumpertz &
Heger, to verify the Phase II plans, and to ensure Plaintiff
fully understood the scope of the work on which it had bid-a
particularly important consideration, given that
Plaintiff's bid was significantly lower than any other
scope of work meeting, Liberty Mutual's engineer, along
with Clarke and Bartel, asked Burman specific questions about
the structure of the facility and the Project to ensure
Plaintiff understood the size of the materials being used and
the processes necessary to rehabilitate the facility. Burman
inquired what form of contract would be used and offered to
start with an American Institute of Architects (AIA) form
contract. Before the meeting concluded, Burman shared
Plaintiff's contractor license number with Commonwealth,
which was necessary to obtain building permits, as well as
its insurance certificate and payment and performance bonds.
None of Defendant's employees or officers was present at
a few hours of the conclusion of the scope of work meeting,
Burman sent Clarke a particular AIA form contract (the AIA
contract) with the proposed terms for Plaintiff's
relationship with Defendant. Burman created a schedule and
forwarded the same to Clarke on August 30, 2007. That
schedule called for submittals and reviews to begin on
September 3, 2007 and be completed by September 21, 2007,
materials procurement to begin on September 17, 2007, and the
Project to be complete on December 31, 2007. Joint Ex. 18.
Plaintiff made some adjustments to the schedule at
Commonwealth's request to address inclement weather
issues as the Project would not be completed until the
winter. The revised schedule again called for the same
submittal and review timeline, the same materials procurement
start date, and the same completion date. Joint Ex. 20.
September 6, 2007, Plaintiff authorized Reliable Truss and
Components, Inc. (Reliable Truss) to begin preparing shop
drawings for the roof trusses. Joint Ex. 28. Several days
later, on September 11, 2007, Plaintiff ordered $63, 000
worth of stainless steel angles and flat bars from Shawmut
Metal. Joint Ex. 108. On September 13, 2007, Burman forwarded
Reliable Truss' completed shop drawings to Bartel for his
review and comment. The transmittal from Burman to Bartel
noted that "[Plaintiff] will verify count [and]
dimensions once we're able to access [the]
facility." Joint Ex. 38.
over six weeks between September 10 and October 23, 2007, the
parties did not progress in their negotiations over the terms
of their proposed written agreement. On September 13, 2007,
Burman contacted Bartel seeking access to the site so that
he, his project manager, and the demolition contractor could
familiarize themselves with the building and surrounding
area. Bartel replied approximately two hours later and
"We have been directed by Bradford's attorney to
wait on any [site] visits or other work activities until
contract issues are worked out with the insurance company.
"So, wait on any site visits until there is a
contractual relationship between [E.W.] Burman and Bradford
Dye." Joint Ex. 41.
followed up with Bartel several days later, on September 17,
2007, via email: "Any movement on the legal end? We need
to get on site ASAP to verify dimensions." Joint Ex. 48.
Bartel replied several hours later: "As there is no
signed contract, all work done to date and until a
contract is signed, is at your own risk."
Id. (emphasis added).
same day, Clarke informed Burman that there was an issue
between Defendant and Liberty Mutual which prevented the
Project from progressing at that time and prevented
Plaintiff's employees from accessing the site. Thus,
Plaintiff's involvement with the Project was on hold
during this time as it remained unable to verify the truss
dimensions, which Commonwealth had required prior to
October 23, 2007, Burman emailed Bartel indicating that
Clarke had called to inform him that the project was ready to
move forward. Contract negotiations thereafter resumed, and
Burman and Clarke exchanged revised versions of the AIA
October 25, 2007, Plaintiff's employees gained access to
the facility and confirmed the various measurements which
Commonwealth required be verified before proceeding with the
truss work. However, the terms of Plaintiff's
relationship with Defendant were still the subject of
negotiation. Defendant sought a substantial price adjustment
because its own employees performed a significant amount of
demolition work during the six-week unexpected downtime.
Notwithstanding these continued negotiations, and
Bartel's September 17, 2007 email directing Plaintiff
that all work was at its own risk until there was a
contractual relationship between the parties, Plaintiff began
ordering fasteners on ...