Facts
- New England Tank Industries of New Hampshire, Inc. (Tank) contracted with J.F. White Contracting Co. (White) to construct dock facilities.
- The dock design called for four cylindrical metal cells set largely below the waterline, filled with sand and gravel, and connected by catwalks to each other and to shore.
- During construction/installation, a ship struck one cell, leaving a dent that was visible above the water from the shore.
- Tank also complained of additional defective workmanship, including ruptures or other damage located below the waterline.
- Tank sued White in federal district court for breach of contract based on defective construction of the dock.
- The trial court submitted the dented-cell issue, along with other alleged defects, to the jury.
- The jury returned a verdict for Tank, and White appealed.
Issues
- Whether White could rely on a contractual provision allegedly barring Tank’s recovery when White had not raised that contractual defense in the trial court.
- Whether the trial court erred by submitting to the jury Tank’s claim that the above-water dented cell constituted defective workmanship under the contract.
Decision
- The First Circuit affirmed the judgment for Tank.
- The court declined to consider White’s argument that a contract provision barred Tank’s recovery because White did not properly raise that defense in the district court.
- The court held that the dented-cell claim was properly submitted to the jury where the evidence allowed a finding that the cell, even after any repair efforts, did not meet the contract requirements.
Legal Principles
- An appellate court generally will not consider a contractual defense (or other theory) raised for the first time on appeal when it was not presented to the trial court for decision.
- Where there is evidence supporting competing views of whether construction work conforms to contract requirements, the question of breach is ordinarily for the jury.
- Visible damage to a component of a construction project, and whether it was adequately corrected to satisfy the contract, may present a fact question for the jury rather than a matter resolved as law.
Conclusion
The First Circuit affirmed a jury verdict for Tank arising from alleged defects in a dock built by White, holding that White could not invoke a contract-based bar to recovery for the first time on appeal and that the trial court properly allowed the jury to decide whether the ship-dented cell (and other claimed defects) amounted to defective workmanship under the contract.