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Asphalt Paving Systems, Inc. v. Southern States Pavement Markings, Inc.

United States District Court, M.D. Florida, Jacksonville Division

August 13, 2019




         THIS CAUSE is before the Court on Defendants' Southern States Pavement Markings, Inc. (Southern States) and Merchants Bonding Company (Mutual) (Merchants) (Defendants) Dispositive Motion for Summary Judgment (Doc. 24; Motion) filed on February 11, 2019. On February 21, 2018, Plaintiff Asphalt Paving Systems (Asphalt Paving), filed an Amended Complaint against Defendants alleging claims of breach of contract, unjust enrichment, and breach of bond. See Doc. 4 (Amended Complaint). The Defendants subsequently filed the instant Motion.[1] In response to the Motion, Asphalt Paving filed its Memorandum in Opposition to Defendants' Motion for Summary Judgment on March 8, 2019. See Doc. 29 (Response).[2] With leave of the Court, Southern States filed a Reply to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment on March 21, 2019. See Doc. 32 (Reply).

         Accordingly, the matter is ripe for review.

         I. Standard of Review

         Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).[3] An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         II. Background and Arguments of the Parties[4]

         This case arises out of a contract dispute between Asphalt Paving and Southern States for remedial work Asphalt Paving completed in repairing a nearly six mile length of roadway rumble stripes.[5] Rumble stripes are “essentially divots carved into a roadway that cause a vehicle to bump and vibrate to alert a driver if he/she is drifting off the road.” Carter Affidavit at ¶ 5.

         Southern States initially entered into a contract with the Florida Department of Transportation (FDOT) to install rumble stripes on a portion of Florida roadway. Id. at ¶ 9; Supplemental Agreement at 1. Pursuant to the contract between Southern States and FDOT, identified as E3P89, Southern States was to install the rumble stripes in a skip array pattern, rather than in a continuous array pattern. Carter Affidavit at ¶¶ 8-10; Donald Affidavit at ¶ 4; Supplemental Agreement at 1, 2; Subcontract at 1. A skip array pattern “consists of cutting divots continuously in a roadway for a specific length, then skipping a specific length of roadway, and then cutting divots again for a specific length of roadway; thereby creating a ‘gap' between the rumble stripes . . . .” Carter Affidavit at ¶ 8. Conversely, a continuous array pattern “consists of cutting divots in a roadway continuously for a specific length of road . . . .” Id. at ¶ 7. Here, FDOT contracted with Southern States to install a skip array pattern of seven feet of divots followed by five feet of paved roadway, repeating that pattern for approximately six gross miles. Carter Affidavit at ¶ 11; Donald Affidavit at ¶ 4. As a condition of the FDOT contract, Southern States obtained a bond from Merchants. See Bond Contract. The bond was to cover “payment to all persons furnishing labor, material, equipment, and supplies” which derived “directly or indirectly from the prosecution of the work provided for in the Contract.” Bond Contract at 1.

         In performing its work, Southern States cut the divots too deeply and therefore entered into a Supplemental Agreement with FDOT to repair its faulty work. Carter Affidavit at ¶¶ 12, 14; Donald Affidavit at ¶¶ 5-6; Supplemental Agreement at 1-2. The Supplemental Agreement between Southern States and the FDOT was identified as Financial Project #40716695225, and also referred to the original E3P89 contract between the two. Supplemental Agreement at 1. The Supplemental Agreement stated that Southern States “shall, at [its] sole expense, repair existing rumble striping initially installed by [Southern States, and] . . . shall perform the Repair Work in accordance with the [contract specification] ‘Micro Surfacing for Rumble Striping', attached hereto as Attachment ‘A.'” Id. at 2. That specification, titled “Description, ” required Southern States to

[c]onstruct a micro surfacing mixture for placement into [the] rumble striping depressions with the type of mixture specified in the Contract Documents. Micro surfacing is a mixture of polymer-modified emulsified asphalt, mineral aggregate, mineral filler, water, and other additives, properly proportioned, mixed and spread on a paved surface.

Id. at 4. The Supplemental Agreement further stated that Southern States was to “[f]ill in the rumble stripe depressions completely in one pass so that when the micro surfacing material is cured, the material will be flush with the surface of the surrounding pavement but no more than 1/8” higher than the surface of the pavement surrounding the rumble stripe.” Id. at 9. With regard to the type of equipment Southern States could use to complete the work, the Supplemental Agreement specifically stated that it was acceptable for Southern States to use a “self-loading continuous machine[]” for the micro surfacing process. Id. at 8. It also set forth requirements for acceptable “self-loading continuous machines.” Id. More particularly, any type of self-loading continuous machine had to be a

continuous-flow mixing unit able to accurately deliver and proportion the mix components through a revolving multi-blade, double-shafted mixer and to discharge the mixed product on a continuous-flow basis. . . . Self-loading continuous machines shall be capable of loading materials while continuing to lay micro surfacing, thereby minimizing construction joints. Self-loading continuous machines shall be equipped to allow the operator to have full control of the forward and reverse speeds during applications of the micro surfacing material and shall be equipped with opposite-side driver stations to assist in alignment.


         Under a heading titled “Method of Measurement, ” the Supplemental Agreement provided that “the quantity to be paid for micro surfacing filling edgeline rumble stripe will be the length, in miles, completed and accepted. . . . The quantity to be paid for micro surfacing filling of centerline rumble striping will be the length, in miles, completed and accepted.” Id. at 10. Finally, under the heading “Basis of Payment, ” the Supplemental Agreement indicated that payment for the “[m]icro surfacing filling of edgeline rumble striping” and “[m]icro surfacing filling of centerline rumble striping” would be “per mile.” Id. at 11.

         In order to fulfill the terms of its Supplemental Agreement with FDOT, Southern States entered into a subcontract with Asphalt Paving. See generally Subcontract; Carter Affidavit at ¶ 17; Donald Affidavit at ¶ 7. The Subcontract specifically referenced the original E3P89 agreement between FDOT and Southern States, as well as the Supplemental Agreement numbered 40716695225. Subcontract at 1. The Subcontract identified FDOT as the Prime Contractor and Principal, Southern States as the Contractor, and Asphalt Paving as the Subcontractor. Id. The Subcontract incorporated the terms of the previous agreements between FDOT and Southern States and directed that Asphalt Paving was to

perform all labor required for the completion of the said work in accordance with all provisions of the original contract and of the specifications and plans referred to therein . . . and under the direction and to the satisfaction of the Principal's engineer or other authorized representative in charge of said work.

Id Under a heading titled “Basis and scope of payment, ” the Subcontract further stated that “[p]ayment will be made to the SUBCONTRACTOR for work actually performed and completed, as measured and certified to by the PRINCIPALS Engineer, at the unit prices hereinafter specified . . . .” Id at 2. Finally, the Subcontract provided that FDOT, as the prime contractor, would determine and verify the amount of work completed by Asphalt Paving. Id at 4. In this regard, the Subcontract included a chart setting forth a description of the work to be performed by Asphalt Paving, units of measurement, estimated quantity of work, price per unit, and overall estimated cost. Id The relevant chart is reproduced below.

Item No.






Micro Surfacing for Rumble Strips


20, 000


$ 100, 000.00

Subcontract Approximate Value

$100, 000.00+

Id The chart describes Asphalt Paving's work as “Micro Surfacing for Rumble Strips” measured in linear feet, with the expectation that the work will include approximately 20, 000 feet, paid at a rate of $5 per foot. Id The chart further reflects that the parties expected that the approximate value of the Subcontract would be $100, 000. Id; see also Carter Affidavit at ¶ 18; Donald Affidavit at ¶ 8.

         Asphalt Paving performed its work, with Southern States' knowledge, using a “continuous pull.” Donald Affidavit at ¶ 11. In this regard, Asphalt Paving notes that

[a] continuous pull spreads material along the length of the road, including but not limited to, rumble stripes. The continuous pull method allows for a consistent surface, which is both safer and better aesthetically and also takes less time as there is no stopping and starting. When using the continuous pull method, the Industry Standard is that payment is made up for the entire length of road.

Id. at ¶¶ 12-14. As a matter of example, and in support of its opposition to Defendants' Motion, Asphalt Paving presented information from a contract between FDOT and a separate company regarding micro surface repair work. There, the company was paid for the entire length of road, rather than for the sum of the distance for “each individual rumble stripe.” Id. at ¶ 15-19. Moreover, Asphalt Paving asserts that it “has done dozens of rumble stripe repairs in varying states over four decades and has always been paid by the length of road.” Id. at ¶ 20.

         When Asphalt Paving completed its work, it sought payment in the amount of $150, 215 from Southern States. Donald Affidavit at ¶ 28. This amount represented micro surfacing of 30, 043 linear feet, and included the “total linear feet of the roadway . . . .” Carter Affidavit at ¶ 19.[6] However, Southern States has only paid Asphalt Paving $87, 000 for its work having calculated the length of road work as 17, 400 linear feet because it included the length of the seven foot divot areas, but excluded the five foot portions of paved roadway between the seven foot divot sections. Carter Affidavit at ¶¶ 20-22; Donald Affidavit at ¶ 29. Because Asphalt Paving micro surfaced the total length of road, it asserts that Southern States' payment of $87, 000 leaves a “remaining balance of $63, 215” owed to Asphalt Paving for its work on the project. Donald Affidavit at ...

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