The Boldt v. Black & Veatch saga continues. As you may recall, the dispute involves a 60-turbine wind farm in Good Hope, Illinois. The general contractor, Black & Veatch, terminated its subcontractor Boldt for delays installing the turbines. Boldt claimed the delays were excusable and filed suit for wrongful termination. Black & Veatch counterclaimed for its excess completion costs of roughly $25 million. The trial court determined as a matter of law that Boldt was at fault, and the case proceeded to trial on the sole issue of Black & Veatch’s damages. The jury awarded Black & Veatch nominal damages of $1, and both parties appealed. The 7th Circuit U.S. Court of Appeals weighed in last week, affirming the jury’s award of nominal damages on Black & Veatch’s counterclaim but ordering a new trial on Boldt’s wrongful termination claim.
In affirming the nominal damages award, the court rejected Black & Veatch’s various objections to the trial court’s evidentiary rulings. Regarding the wrongful termination claim, the 7th Circuit ruled that the trial court erred when it rejected Boldt’s claim due to inadequate notice of owner-caused delays. The 7th Circuit found the notice provisions of the contract ambiguous and whether Boldt satisfied them a jury question. The court’s discussion of the notice issue is instructive:
On August 15, Boldt wrote that “we are experiencing soil conditions that are preventing Boldt from performing the Work.” Boldt cited the relevant notice provision in the subcontract, included photographs and a video of the site conditions and explained that Boldt was “currently incurring additional costs and experiencing schedule delays as a direct result of this Black & Veatch deficiency.” Boldt also noted that, because it was unsure how quickly Black & Veatch would solve the problem, “the full impacts of this deficiency cannot be quantified.”
On September 5, in response to Black & Veatch’s notice that Boldt was in default, Boldt wrote another letter. Boldt agreed that the project had fallen behind schedule but wrote that it was not in default because Black & Veatch and GE had caused delays. Specifically, Boldt wrote that unsuitable soil conditions and inconsistent and reduced deliveries by GE were to blame. Boldt also attached charts comparing the original GE deliveries with the actual or revised delivery schedule and showing the expected or actual impact on the project’s major milestones.
A reasonable jury could conclude that these letters satisfied the subcontract’s notice requirements…
Black & Veatch’s arguments to the contrary are unconvincing. Like the district court, Black & Veatch faults Boldt’s notices for being vague and general, yet the subcontract said only that Boldt had to describe the details of the delay and effects on the schedule, and Boldt wasn’t required to identify effects on the construction’s overall trajectory. And while the September 5 letter was a response to Black & Veatch’s notice of default (and wasn’t clearly labeled a notification of a delay), that doesn’t matter. Nothing in the agreement said Boldt had to label its notices using specific terms or that notice could not be sent in response to another letter.
On remand, the jury will be charged with evaluating Boldt’s wrongful termination claim, including responsibility for, and adequacy of notice of, delays. If Boldt wins, the jury will decide the amount of Boldt’s damages. If Black & Veatch wins, the jury will not be allowed to reconsider the amount of its damages. The first jury already decided that issue, its verdict will stand, and Black & Veatch will not get a second bite at the apple.
A full copy of the court’s opinion is located here.