Contractor can pursue claim against Raleigh school board

CHARLESTON – Building contractor Multiplex Inc. can pursue a $424,398.46 claim against the Raleigh County Board of Education, according to the Supreme Court of Appeals.

The Justices decided on April 28 that Kanawha Circuit Judge Paul Zakaib committed an error when he ruled that Multiplex previously settled a similar claim over project delays.

"The events in the 2009 complaint are new delays constituting separate causes of action that had not even occurred at the time of the 2006 complaint," they wrote in an unsigned opinion.

Multiplex and the board of education entered into a contract in 2005, to build an extension to Independence High School.

Before work started, the board instructed Multiplex to wait for relocation of utilities.

More than six months later, the board instructed Multiplex to proceed.

Multiplex proceeded but sued the board in 2006, seeking to terminate the contract and collect damages caused by the delay.

The board paid $183,143 to settle the suit in 2007, and Multiplex released all claims arising out of acts it alleged in the complaint.

Multiplex continued building but sued again, seeking about $250,000 in damage from delays, about $140,000 in office overhead, about $19,000 in lost profit, and about $11,000 for a change order.

The board moved to dismiss, arguing Multiplex released the claim.

Multiplex answered that it released only claims over relocation of utilities.

Zakaib agreed with the board, but the Supreme Court agreed with Multiplex.

"While the cause of action in Multiplex's 2009 complaint was also based on a delay in the construction project, the factual circumstances giving rise to that cause of action are completely different," the Justices wrote.

"It is obvious to this court that the parties contemplated that the release extended only to delays caused by the board of education's relocation of the utility lines as set forth in the 2006 complaint."

Gregory Hewitt, of Hewitt and Salvatore in Fayetteville, represented Multiplex.

Kenneth Webb and Michael Schessler, of Bowles, Rice, McDavid, Graff and Love in Charleston, represented the board.