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G.C.S., INC. v. FOSTER WHEELER CORP.

August 15, 1977

G.C.S., INC. and I.S.C., Inc., Plaintiffs,
v.
FOSTER WHEELER CORPORATION, Defendant. FOSTER WHEELER CORPORATION, Plaintiff, v. G.C.S., Inc. and I.S.C., Inc., Defendants



The opinion of the court was delivered by: WEBER

 These two actions are cross actions which arise out of the same contract and involve the same extensive mass of facts. Civil Action No. 4-72 Erie, Foster Wheeler Corporation vs. G.C.S. and I.S.C. was filed in New Jersey and transferred to this District under 28 U.S.C. ยง 1441 because of the location here of the essential operative facts. It was a non-jury action. Civil Action No. 94-71 Erie, was an action by G.C.S. and I.S.C. against Foster Wheeler brought in this district with a demand for jury trial. The cases were consolidated for pretrial purposes. The cases were consolidated for trial and the court submitted the entire case to the jury under special interrogatories which would provide an advisory verdict in the non-jury action at Civil Action No. 4-72 Erie.

 The cases arise out of the construction of additions to an oil refinery owned by Pennzoil United, Inc. at Rouseville, Pennsylvania. Foster Wheeler was the general contractor for the project, and G.C.S. was its subcontractor for the construction and installation of concrete foundations, paving, underground electrical installation and underground piping. G.C.S. also performed some other subcontracting work by separate contracts, such as site clearance and the construction of masonry buildings which were not subject to the provisions of the time limits which are critical here, and thus not relevant to our present consideration.

 Foster Wheeler had contracted with Pennzoil to complete the mechanical installation of the additions to the refinery by January 31, 1971. The subcontract between Foster Wheeler and G.C.S. called for G.C.S. to start its work on April 1, 1970 and substantially to complete all foundations, underground electrical and piping, backfill and paving, by June 30, 1970, or within 90 days. This work was not completed until after November 1, 1970.

 The main thrust of Foster Wheeler's claim was that the continued presence of G.C.S. on the job site after September 1, 1970, and its failure to have substantially completed its subcontract work on foundations, underground electrical and piping, backfill and paving, interfered and delayed the start of Foster Wheeler's scheduled above-ground steel erection and piping. It was contended that this delay prevented Foster Wheeler's efficient start of its above-ground steel erection and pipe installation for two months and required Foster Wheeler to perform its major construction work during the worst winter months when Foster Wheeler was unable to obtain a sufficient crew of pipefitters because their efficiency, productivity and reliability of attendance was severely hampered because of the impact of severe winter weather on the performance. Foster Wheeler argues that as a direct and proximate result, Foster Wheeler's above-ground piping operations took four months longer to complete than was originally scheduled and that as a result Foster Wheeler incurred direct additional out-of-pocket costs in the amount of $637,482.00.

 The advisory jury was given three interrogatories addressed to this issue, and answered them as follows:

 
A. THE FOSTER WHEELER CLAIMS
 
1. Was Foster Wheeler caused to incur additional costs in its above-ground piping program because of delays of GCS for which GCS may be held responsible in its performance of the contract for foundations, underground piping and electrical work backfill and paving?
 
ANSWER YES /
 
(Yes) or (No).
 
If your Answer to No. 1 is Yes, answer No. 2.
 
2. Is there a reasonable basis in the evidence for determining how much of Foster Wheeler's extra costs in its above ground piping resulted from delays caused solely by GCS exclusive of other causes?
 
Answer YES /
 
(Yes) or (No).
 
If your Answer to No. 2 is Yes, answer No. 3.

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