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Brockwell & Carrington v. Four Strong Builders

July 10, 2012

BROCKWELL & CARRINGTON CONTRACTORS, INC., PLAINTIFF-RESPONDENT,
v.
FOUR STRONG BUILDERS, INC. DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-12393-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012 -

Before Judges Yannotti and Kennedy.

Defendant appeals from judgment entered on May 6, 2011, confirming an arbitration award in favor of plaintiff and entering judgment against defendant for $22,123.70 plus interest running from the date of the arbitration award. For reasons set forth hereinafter, we affirm.

I.

Plaintiff is a general contractor and defendant is an asbestos removal subcontractor. They entered into three contracts in 2005 and 2006 whereby defendant agreed to provide "asbestos abatement" and related work at several public project sites for which plaintiff was the general contractor. The 2005 contract concerned the Monmouth County library and the 2006 contracts concerned a public school in Maywood and two public schools in Montvale. Each contract provided that all claims and disputes relating to the contract or any breach thereof, at the option of plaintiff, "shall be decided by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association." Additionally, the 2006 contracts gave plaintiff the right to withhold payments due to defendant if defendant's work were defective or incomplete, among other things, "on any other contract" between the parties.

Defendant claimed it completed its services at the Monmouth County library in March 2007 and received payment in full from plaintiff on their contract. Defendant claimed it completed its services at the Montvale schools and applied for payment in October 2006. The contract for the Maywood school called for defendant to perform work in phases and defendant applied for payment for its work on some of the phases in May 2007.

Plaintiff, however, refused to pay defendant on the Montvale and Maywood contracts, claiming that it received notice from Monmouth County that an area in the library had not been demolished and the asbestos there had not been abated as required by the prime contract. Defendant claimed it had performed all required services at the library and refused to undertake any further work there unless it was paid separately.

Plaintiff and defendant thereafter filed claims against each other with the American Arbitration Association (AAA). An arbitrator was appointed and hearings were conducted over the course of several months, during which numerous witnesses testified and many documents were submitted by the parties. None of the hearings were recorded, however.

The arbitrator requested counsel for the parties to submit closing briefs and asked them to address credits claimed by plaintiff with respect to the Monmouth County library project. Plaintiff submitted its brief and a supplemental report from its expert on August 31, 2010. In its brief, plaintiff addressed defendant's failure to demolish the wall and abate asbestos required by the prime contract. Also, plaintiff addressed at length a claim that defendant had only abated asbestos in two areas of the library, allegedly at the request of Monmouth County's representative, yet had received full payment from plaintiff on the contract which called for abatement services in five areas of the library. Defendant responded with a brief and exhibits on September 8, 2010, and explicitly addressed all the issues raised by plaintiff in its submission.

On November 30, 2010, the arbitrator issued his award which stated, in pertinent part:

1. Claimant is a General Contractor who had contracts to perform work at 4 public projects.

2. Respondent is a specialty contractor hired by Claimant to remove asbestos from all 4 projects.

3. Respondent's contract at the Monmouth County Library was $120,000.00 and required Respondent to remove asbestos from 5 chases.

4. PMK Group, Inc., hired by the County to monitor the asbestos removal, verbally directed Respondent to only abate 2 of the 5 chases.

5. Respondent never notified Claimant that it only would abate 2 of the 5 chases.

6. Respondent is only entitled to be paid for abating 2 of the 5 chases[;] however[,] Respondent received full payment of the contract price therefore Respondent owes $31,699.23 for work it never performed on the 3 chases.

7. Respondent completed its work at the Library and on March 12, 2007, PMK Group certified the work was complete.

8. The Certificate of Completion and the Notification of Asbestos Abatement was never delivered to or shown to Claimant by Respondent.

9. Approximately 2 months later the County issued Directive 48 requiring Claimant to demolish a concrete wall surrounding the chase at Meeting Room #118 and Storage #119 stating that this [was] part of the original scope of the prime contract requiring the asbestos removal.

10. Claimant demanded Respondent return to the job to perform this work but Respondent refused stating this was now an extra and should be paid for it separately which Claimant rejected.

11. Respondent has no right to accept a modification of the contract issued by PKM Group and not agreed to by Claimant, the ...


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