Contractor says it overpaid, wants money back

HUNTINGTON - A contractor claims it overpaid a subcontractor for work done at a Wal-Mart Supercenter in Barboursville and wants its money back.

Hensel Phelps Construction Co. of Colorado filed the lawsuit July 19 in Cabell Circuit Court against Davis and Burton Contractors, Inc.

"Article 5(d) of the subcontract agreement between Hensel Phelps and Davis and Burton provides that the latter shall reimburse the former in the event of any overpayment, together with costs and expenses, including attorneys' fees, that Hensel Phelps incurs in securing the recovery of the overpayment," the complaint says.

That agreement was signed Sept. 19, 2003. Over the net two years, Hensel Phelps says it mistakenly overpaid $73,160.41.

Total, Hensel Phelps says it paid Davis and Burton $3,146,121.41 and asked for its refund Aug. 5, 2005. The refund was not granted.

Hensel Phelps charges the defendant with a breach of contract, conversion and unjust enrichment. It is seeking court costs and the amount of the overpayment.

Ronda Harvey of Charleston law firm Bowles, Rice, McDavid, Graff and Love is representing Hensel Phelps.

Judge John Cummings has been assigned the case.

Cabell Circuit Court case number 06-C-515