Concrete Sub gets a trial

for non-payment

for winter protection


Even though work excluded

in contract, trial court should not have

entered summary judgment


            Stark Excavating sued Carter Construction Services over money Stark claimed it had coming for work done on a Menard’s store warehouse expansion.  Stark had submitted a bid for excavation, concrete, backfill, and site utility work for $1,113,590 and specifically excluded “winter protection of concrete or subgrade” and “winter heat” (referring to chemicals added to the concrete mixture).  

             Menard’s put the expansion on hold and Carter directed Stark to review the bid to account for the delay, and later Menard’s contacted Carter about undertaking the project during the winter months.  Carter held a meeting with low bidders to discuss the new start date.  In October 2005 Stark submitted a revised bid, that included an up-charge for winter heat (“the up-charge associated with this change will be $12,100”), but did not address the cost of winter protection work.  Stark and Carter then contracted for earthwork, excavation, backfill, concrete, and site utility.  The contract provided that no changes or extra work would be made without Carter’s written authorization of an order specifying the amount of additional compensation.

             But in December 2005 Stark wrote Carter expressed concerns about the necessity of performing winter protection work, and stated that additional costs would be documented and submitted.  Carter wrote back: we will not sign any work orders without Menard’s preapproval.  Stark responded that it did not expect Carter to sign work orders for winter protection but “upon completion of the disputed work we intend to resolve our claim as provided by the terms of our subcontract…”

             By January 2006 Stark had poured the concrete slab, and when it was not compensated by Carter, sued for nonpayment for winter protection work in the amount of $171,262.49.

             The appeals court reversed a summary judgment entered in favor of Carter. It was recognized all along that winter protection might be necessary, the court found. While $12,100 was added to the contract for winter heat, protection was not. “That issue was left to open,” the court wrote. A jury could find that Carter “implicitly” ordered Stark to perform winter protection if it found the work was necessary to do the job in a workmanlike manner. The court noted that Carter’s CEO testified that he believed winter protection was included in Carter’s contract with Stark. A trier of fact could find that Stark did not provide the winter protection as a voluntary act. Carter knew Stark was going to perform the winter protection work, but dud not tell him to stop, the court noted.

             The appeals court also found that Stark was entitled to pursue a claim of quantum meruit.

             Stark Excavating, Inc. v. Carter Construction Services, 2012 Ill App (4th) 110357.