On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-1194-03.
Before Judges King, Braithwaite and S.L. Reisner.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This contract dispute involves lane closures during the construction of noise barriers along Routes 295 and 76 in Camden and Burlington Counties. Appellant Driscoll Construction Co., Inc. (Driscoll), the successful bidder on the noise barrier project, contends that the contract permitted permanent lane closures, the use of concrete barriers that remain in place throughout the project. Respondent New Jersey Department of Transportation (DOT), which contracted for the work to be performed, asserts that the contract only permitted the use of temporary lane closures, the use of signs and cones that are removed and replaced daily. Because DOT refused to permit the use of permanent lane closures, Driscoll performed the contract using temporary lane closures and then sued DOT for over $3,000,000, the extra cost of using temporary lane closures.
Before any discovery was conducted, the trial judge granted summary judgment in favor of DOT, holding that the contract unambiguously prohibited the use of permanent lane closures. On appeal, Driscoll asserts that the trial judge erred in granting summary judgment to DOT, because the contract was ambiguous. We agree and therefore reverse and remand for further proceedings.
On June 11, 1996, Driscoll entered into a $35,635,000 contract with DOT to design and build noise barriers along Route I-76, from Route 676 to Route 295, and along Route I-295, from Route 76 to Route 73, in Camden and Burlington Counties. As a"modified design-build project," portions of the project were designed by DOT before entering into the contract and other portions of the design were assigned to the winning bidder, Driscoll, including the traffic control plans. After the contract was signed, Driscoll prepared the traffic control plans, describing how the traffic and construction would"coexist" throughout the construction project.
There are two methods of separating moving traffic from construction workers and equipment, permanent lane closures and temporary lane closures. Permanent lane closures refer to the placement of concrete barriers between traffic and the construction area. The concrete barriers remain in place until the work in the specific area is completed; the barriers are not removed at the end of each day's work. The alternative is temporary lane closures, using plastic cones, barrels, and arrow boards. Temporary lane closure materials are placed on the highway at the start of each workday and are removed at the end of each workday. Temporary lane closures increase the cost of the project, since they require significant time each day placing and removing traffic control devices, and in mobilizing and demobilizing equipment and material in and out of the work area.
In this case, the pre-bid written materials furnished by DOT included several references to traffic control. Section 110 of the Supplemental Specification states:
110.01 MAINTAINING AND PROTECTING TRAFFIC.
WHEN VEHICULAR OR PEDESTRIAN TRAFFIC OR BOTH ARE TO BE MAINTAINED WITHIN THE SCOPE OF THE PROJECT, THE CONTRACTOR SHALL DESIGN AND IMPLEMENT THE TRAFFIC CONTROL PLAN AND CARRY OUT THE WORK TO PROVIDE FOR THE SAFE AND CONVENIENT PASSAGE OF SUCH TRAFFIC.
WHEN THE CONSTRUCTION INVOLVES IMPROVEMENT OF AN EXISTING ROADWAY, THE ROADWAY SHALL BE KEPT OPEN TO TRAFFIC UNLESS OTHERWISE APPROVED BY THE PROJECT ADMINISTRATOR..... THE ALLOWABLE HOURS OF WORK FOR THIS PROJECT ARE AS FOLLOWS:
SINGLE LANE OR RAMP CLOSURE
9/16 UNTIL 5/14 MONDAY THRU THURSDAY 9:00 AM - 3:30 PM
7:00 PM - 6:00 AM THE FOLLOWING DAY
5/15 UNTIL 9/15 MONDAY THRU THURSDAY 9:00 ...