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11th District reverses federal vs. state prevailing wage case
TRACEY BLAIR
Legal News Reporter
Published: October 16, 2017
A Lake County trial court erred by entering summary judgment in favor of the county in a construction contract dispute, the 11th District Court of Appeals ruled recently.
Safeair Contractors, Inc. sued Alabasi Construction, Inc. and the Lake County Metropolitan Housing Authority in 2013.
According to case summary, Alabasi was the county’s general contractor hired to do extensive repairs to Parkview Place Apartments in Willoughby.
Alabasi hired Safeair as a subcontractor for $37,147 to do asbestos removal and mold remediation work.
Safeair paid its employees the federal prevailing wages. The wage coordinator, CT Consultants, refused to approve Safeair’s application since Safeair had not paid its workers the state prevailing wages as stated in the contract.
Safeair argued they paid its workers the federal prevailing wages because the project received federal funding, making the Davis-Bacon Act applicable.
The county’s architect then had Alabasi change the contract documents to require federal instead of state prevailing wage rates.
Safeair later filed a complaint against Alabsi and the county, seeking to be paid for the work it completed in May 2013.
The trial court’s judgment found Safeair was correct in claiming the federal prevailing wage is the proper wage rate, rather than the contracted state prevailing wage. The trial court also found the county’s architect specified the wrong rate when preparing the contract documents.
However, the lower court also found that the change order correcting the prevailing wage rate did not become effective until two months after Safeair completed its work. The county court therefore found that Safeair owed its workers an additional $7,647.30, which was the difference between the federal and Ohio wage rates.
On appeal, Safeair argued the change order should have been interpreted to apply retroactively to its work.
In a 2-1 opinion written by 11th District Judge Cynthia Westcott Rice, the appellate court agreed that the change order issue is ambiguous, requiring reversal and remand.
Appellate Judge Thomas R. Wright concurred but wrote separately to note that there is also a fact issue for trial – the interpretation of the parties’ intent regarding the contract.
“Finally, I take exception with the lead’s statement that `the only reason the Ohio rate was specified was due to the architect’s error,’ ” Judge Wright said in his concurring opinion. “As written, it is unclear whether the lead is stating this as the county’s position or alternately, as a determined fact. It is neither.”
He added that it was impossible to know “what was inside the architect’s head when he put the bid documents together.”
Eleventh District Judge Colleen Mary O’Toole dissented, calling the change order unambiguous.
“Nothing in the language used indicates this change is retroactive to the start date of the (March 28, 2013) contract,” she stated in her dissenting opinion. “The architect could have used such language, but did not. … As this only occurred Aug. 9, 2013, I must conclude, like the trial court, that the change order was effective that date.”
The case is cited Safeair Contrs., Inc. v. Alabasi Constr., Inc., 2017-Ohio-7951.