On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5049-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
This case involves a malpractice claim against an architectural and engineering firm, defendant Concord Engineering Group, Inc., that prepared the bid specifications and oversaw a public works project undertaken by the Jackson Township Board of Education (Board). The successful bidder, King Mechanical, Inc., paid the workers the prevailing wage for the wrong trade, and plaintiffs - Armm Associates, Inc., Armm Roof Design, Inc., Armm Ramm, Inc. and Frank and Holly Moore - are guarantors on the construction bond. Plaintiffs settled a separate lawsuit filed on behalf of the workers by agreeing to pay a total of $213,000.
Alleging that Concord's negligence in the preparation of the bid specifications and administration of the project caused King to underpay the workers, plaintiffs sought to recover the amount due from Concord. Following a bench trial, the judge determined that plaintiffs failed to prove their cause of action and entered judgment in favor of Concord.
Plaintiffs appeal and contend that the trial judge erred in two respects: 1) by holding that Concord did not have a duty to provide information about local rules governing the trade of the workers needed for the project; and 2) by holding that Concord did not have a duty to monitor King's compliance with local rules affecting prevailing wages. We reject these claims and affirm substantially for the reasons stated by Judge Millenky in his letter opinion of April 24, 2009 as supplemented to explain our reasons for accepting his determinations.*fn1
The evidence presented at trial is set forth at length in Judge Millenky's opinion. Accordingly, we recite only the facts that are essential to our opinion.
Concord was retained by the Board to prepare the bid specifications and oversee a project that involved the removal and replacement of heating and air-conditioning units on the roof of a school in Jackson. King, not Concord, was the general contractor on the project, and pursuant to the "General Conditions of the Contract for Construction," which were incorporated by reference in the contract between King and the Board, King was obligated to "classify and allocate the furnishing of materials and the performance of work to the various trades in accordance with local customs, jurisdictional awards, regulations and decisions insofar as they are applicable."
Pursuant to N.J.S.A. 34:11-56.28, "[t]he public body . . . [must] ascertain . . . the prevailing wage rate in the locality in which the public work is to be performed for each craft or trade needed to perform the contract . . . ." The prevailing wage data is prepared by the Commissioner of the Department of Labor, who must "establish the prevailing wage in the locality in which the public work is to be performed for each craft or trade or classification of all workmen needed to perform public work contracts." N.J.S.A. 34:11-56.30.
The bid specifications prepared by Concord did not include that prevailing wage data, but the judge concluded that the omission was not the proximate cause of their damage. The record supports that determination, and plaintiffs do not challenge it on appeal.
King's underpayment of wages was not attributable to a lack of information about prevailing wages. The payments were deficient because King did not comply with the terms of agreements between local unions, under which the aggregate weight of the heating and cooling units involved brought some of the work within the prevailing wage rate applicable to plumbing and pipefitting.*fn2 Based upon those undisputed facts, the trial judge found that Concord's failure to provide the prevailing wages was not the proximate cause of King's violation. Proximate cause is a question for the finder-of-fact, J.S. v. R.T.H., 155 N.J. 330, 351 (1998), and the judge's determination, which is based upon his assessment of the testimonial and documentary evidence and supported by the record, may not be disturbed on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
The judge also determined that Concord, in its capacity as the professional who assumed responsibility to prepare the bid specifications for the Board, had no duty to provide information about the local agreements. The question whether a duty is owed and the scope of that duty are questions of law. Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 240 (2001).
There is no question that the law imposes a duty when an individual has "undertake[n] 'gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things.'" Id. at 241 (quoting Restatement (Second) of Torts § 323 (1965)). In this case, plaintiffs presented testimony to establish a duty based on such conduct by Concord - testimony that a representative of Concord advised King that all of the workers could be paid at "HVAC rate." Concord's representatives denied making any such representations. Plaintiffs, however, cannot rely on the testimony they offered to establish error. For reasons set forth with careful reference to adequate supporting evidence, Judge Millenky rejected plaintiffs' version of the facts. ...