Department of Transportation v. Arapaho Construction, Inc.

Weltner, Justice,

dissenting.

1. The plain terms of the contract suggest a result opposite from that reached by the majority. The applicable provision is as follows: “The Department may, by written notice, terminate the contract or a portion thereof when the Contractor is prevented from proceeding with the Contract as direct result of one of the following conditions ... 3. An injunction is imposed by a court of competent jurisdiction which stops the Contractor from proceeding with The Work and causes a delay of such duration that it is in the Public Interest to terminate the Contract and the Contractor was not at fault in creating the condition which led to the court’s injunction.”

That contingency, plainly and unequivocally stated in the contract, is exactly what transpired in this case. Dept. of Transp. v. Brooks, 254 Ga. 303 (328 SE2d 705) (1985); Dept. of Transp. v. City of Atlanta, 255 Ga. 124 (337 SE2d 327) (1985).

2. The majority suggests that this provision is inapplicable in that the Department failed to provide the necessary rights-of-way for the construction. The history of the case is contrariwise, as is apparent from our cited opinions. The Department acquired the rights-of-way — on two occasions. It was prohibited by injunction from utilizing them for the completion of the project.

I am authorized to state that Chief Justice Marshall joins in this dissent.