U.S. Pipeline v. Northern Natural Gas Co.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/02/2019 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
U.S. Pipeline, Inc., appellee, v. Northern
Natural Gas Company, appellant.
___ N.W.2d ___
Filed June 28, 2019. No. S-18-679.
1. Trial: Witnesses: Evidence: Appeal and Error. In a bench trial of an
action at law, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony; an appellate court
will not reevaluate the credibility of witnesses or reweigh testimony but
will review the evidence for clear error.
2. Judgments: Appeal and Error. The trial court’s factual findings in a
bench trial of an action at law have the effect of a jury verdict and will
not be set aside unless clearly erroneous.
3. ____: ____. In reviewing a judgment awarded in a bench trial of a law
action, an appellate court considers the evidence in the light most favor-
able to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference
deducible from the evidence.
4. Judgments: Directed Verdict: Appeal and Error. In reviewing rul-
ings on motions for directed verdict and judgments notwithstanding the
verdict, an appellate court gives the nonmoving party the benefit of all
evidence and reasonable inferences in his or her favor, and the question
is whether a party is entitled to judgment as a matter of law.
5. Contracts: Judgments: Appeal and Error. The meaning of a contract
is a question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations
made by the court below.
6. Damages: Appeal and Error. The amount of damages to be awarded is
a determination solely for the fact finder, and its action in this respect
will not be disturbed on appeal if it is supported by evidence and bears
a reasonable relationship to elements of damages proved.
7. Contracts: Damages: Appeal and Error. The issue of whether dam-
ages are consequential under a contract is a question of law that an
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
appellate court reviews de novo, but the factual determinations underly-
ing such a characterization are reviewed for clear error.
8. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
9. Contracts: Waiver: Damages. Generally, a contractual waiver or exclu-
sion of consequential damages will be upheld unless the provision is
unconscionable.
10. Contracts: Damages. Consequential damages, as opposed to direct
damages, do not arise directly according to the usual course of things
from a breach of contract itself.
11. ____: ____. Direct damages refer to those which the party lost from the
contract itself—in other words, the benefit of the bargain—while conse-
quential damages refer to economic harm beyond the immediate scope
of the contract.
12. Trial: Evidence: Appeal and Error. Unless an objection to offered
evidence is sufficiently specific to enlighten the trial court and enable it
to pass upon the sufficiency of such objection and to observe the alleged
harmful bearing of the evidence from the standpoint of the objector, no
question can be presented therefrom on appeal.
13. Appeal and Error. An issue not properly presented and passed upon by
the trial court may not be raised on appeal.
14. ____. In order to be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in the brief of
the party asserting the error.
15. Waiver: Appeal and Error. Errors not assigned in an appellant’s
initial brief are waived and may not be asserted for the first time in a
reply brief.
16. Trial: Directed Verdict: Appeal and Error. In an appeal of a trial
court’s refusal to enter a directed verdict, the appellate court should
consider solely those grounds urged by the appellant to the trial court in
support of its directed verdict motion.
17. ____: ____: ____. If a party fails to set forth certain arguments as
grounds in a motion and renewed motion for directed verdict, such argu-
ments will not be properly preserved for appeal.
18. Contracts: Waiver. The determination of whether a contractual provi-
sion has been waived is a factual determination.
19. Contracts: Waiver: Damages. A contractual provision for liquidated
damages for delay in performance may be waived.
20. Waiver: Estoppel. In order to establish a waiver of a legal right, there
must be clear, unequivocal, and decisive action of a party showing such
purpose, or acts amounting to estoppel on his or her part.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
21. Contracts: Waiver: Proof. A written contract may be waived in whole
or in part, either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the advan-
tage, or by so neglecting and failing to act as to induce the belief that it
was the intention to waive.
22. Contracts: Waiver. Even a provision in a written contract that specifies
that a waiver of the conditions and terms of the agreement must be in
writing may be waived by acts or conduct.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Gregory C. Scaglione, J. Daniel Weidner, Minja Herian,
Michele E. Young, and Cassandra M. Langstaff, of Koley
Jessen, P.C., L.L.O., for appellant.
Shawn D. Renner and Richard P. Jeffries, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., and Barrett H. Reasoner,
Ayesha Najam, and Ross M. MacDonald, of Gibbs & Bruns,
L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
In 2014, a natural gas company solicited bids for a pipeline
replacement and relocation project in northern Michigan. The
natural gas company accepted a bid from a pipeline company,
and the parties entered into a detailed construction contract.
The contract provided that the project would be substantially
completed by September 2014. However, because of extra
work orders by the natural gas company and for various other
reasons, the project was not substantially completed by that
date. Based on a liquidated damages provision in the contract,
the natural gas company withheld the maximum amount of
liquidated damages allowable under the contract for the delay
in the project’s completion. The natural gas company also
refused to pay certain costs requested by the pipeline company
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
related to the extra work orders. At the center of the lawsuit
is whether the natural gas company should pay for the costs
associated with the extra work and be allowed to withhold liq-
uidated damages.
II. FACTS
1. Pleadings
In January 2016, U.S. Pipeline, Inc., a corporation engaged
in the business of constructing oil and gas pipelines and related
energy infrastructure facilities, filed a complaint in the dis-
trict court for Douglas County against Northern Natural Gas
Company (Northern), a corporation headquartered in Omaha,
Nebraska, and engaged in the business of providing natural gas
transportation and storage services. U.S. Pipeline sought com-
pensation under a pipeline replacement and relocation project
contract for costs incurred to perform work that was outside of
the original contract price (Extra Work). U.S. Pipeline sought
relief under a breach of contract theory, as well as alternative
theories, including claims for misrepresentation and fraudu-
lent concealment.
In response to U.S. Pipeline’s amended complaint, Northern’s
answer and counter-complaint denied that it owed U.S.
Pipeline any compensation for the Extra Work and resources
U.S. Pipeline did not anticipate and denied any liability to
U.S. Pipeline for U.S. Pipeline’s low bid. Northern’s counter-
complaint further alleged that pursuant to the contract, U.S.
Pipeline materially missed the substantial completion date and
overbilled Northern for the work it performed. Based on this
and a liquidated damages provision within the parties’ contract,
Northern sought a declaratory judgment upholding Northern’s
decision to withhold payment of $351,000 from U.S. Pipeline
as liquidated damages. Northern also sought a declaration
from the district court upholding Northern’s withholding of
$320,000 in payment from U.S. Pipeline as a credit for U.S.
Pipeline’s change in the construction plan that resulted in a
cost savings.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
2. Summary Judgment
Prior to trial, the court granted Northern partial summary
judgment on the issue of whether U.S. Pipeline is entitled to
indirect or consequential damages. The district court found
that U.S. Pipeline admitted that it is not seeking damages for
“indirect or consequential damages.” The district court over-
ruled Northern’s motion for summary judgment on the remain-
ing issues.
3. Motions for Directed Verdict
A bench trial was held pursuant to a jury waiver contained
in the parties’ contract. At the close of U.S. Pipeline’s case,
Northern moved for a directed verdict, asserting that (1) U.S.
Pipeline’s damages were barred by the consequential damages
waiver and (2) there was no genuine issue of fact on U.S.
Pipeline’s misrepresentation/fraudulent concealment claims
regarding “geotechnical information.” The court denied the
motion. Northern later renewed the motion at the close of all
the evidence, adding no further new grounds, and the court
again denied the motion.
4. Bench Trial
The following evidence was adduced during the parties’
2-week bench trial.
(a) Bidding and Northern’s
Original Project Plans
In 2013, Northern decided to replace or relocate approxi-
mately 29,450 feet, or 5.58 miles, of its Marquette main line
(Marquette Replacement) and approximately 8,000 feet, or 1.52
miles, of its Ishpeming branch line (Ishpeming Relocation)
(collectively the Project), both located in the Upper Peninsula
of Michigan.
Northern designers prepared drawings for the Project.
Northern’s construction drawings called for the installation
of new underground piping using open-cut installation and
horizontal directional drilling (HDD) techniques. Generally,
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
underground pipeline is installed through either an open-cut
process or HDD. For an open-cut installation, a trench is exca-
vated and the pipe is placed in the bottom of the trench and
covered. An HDD, in contrast, is a steerable, trenchless method
of installing underground pipe in an arc along a prescribed bore
path by using a surface-launched drilling rig. HDD drilling is
more complicated and expensive to install.
Specifically, Northern’s construction drawings called for
six HDD’s—four locations along the Marquette Replacement
(including the “Highway 476/Ely Creek” crossing) and two
HDD’s on the Ishpeming Relocation (including the “Cliffs
Road” crossing). In addition, each set of Northern’s drawings
specified an arc radius of 525 feet on the 12-inch-diameter
pipeline and 600 feet on the 6-inch-diameter pipeline. A gov-
ernmental permit was granted for these specifications. The
design arc radius or design radius of curvature is the radius
of directional changes along the drill path. The arc radius is
determined by several factors, including the desired distance
between entry and exit points, the desired drill depth, direction
changes for the drill path, and how much the drill stem and
installed pipe can bend without being damaged.
In March 2014, Northern opened the bid process for the
Marquette Replacement and Ishpeming Relocation. Northern
issued notice of a mandatory onsite, pre-bid meeting and route
inspection to be held on May 13 and 14, 2014. One of the pur-
poses for the route inspection was to walk the pipeline route to
provide bidders a better understanding of the site conditions,
project layout, and access issues. Three prospective bidders
and their subcontractors, along with Northern representatives,
attended the pre-bid meeting and route inspection.
U.S. Pipeline sent Kris Osborn to represent U.S. Pipeline at
the meeting and route inspection. Osborn drove to the pipeline
on May 13, 2014, but he did not walk the route like other bid-
ders. The meeting and route inspection continued on May 14,
but Osborn did not attend. U.S. Pipeline’s representative who
created its bid for the Project confirmed that he was informed
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
that Osborn did not walk the pipeline route with the other bid-
ders and Northern’s representatives.
Northern used an online bid communication portal called
Ariba to receive and transmit bid information to the interested
bidders. Northern posted a summary of the meeting and route
inspection on Ariba. Northern also posted the bid drawings, a
form contract, the scope of work, questions and answers from
bidders, meeting and route inspection notices, and summaries
of meetings and inspections. U.S. Pipeline accessed the infor-
mation posted on Ariba.
Among the questions and answers posted on Ariba during
the pre-bid phase included a bidder’s request that Northern
“provide geotechnical information associated with the original
12″ MIM10101 installation.” Northern responded by stating,
“No geotechnical information associated with the original 12
inch MIM10101 is available.” Broadly, geotechnical informa-
tion is information about the geology and the estimated amount
of rock in an area. This type of information provides insight
as to the type of blasting that may be required for a drill-
ing project.
Another question posted on Ariba inquired:
Without any geotechnical information, it is difficult at
best to determine how much blasting, rock shield, or
import padding to include in the bid.
a. How many CY of ROW blasting does [Northern]
want the Contractor to include in the bid?
b. How many LF of ditch blasting does [Northern]
want the Contractor to include in the bid?
Northern replied, “[Northern] cannot speculate on the quantity
and amount of blasting required for the [P]roject. The onsite
visit was designed to familiarize bidders with the site condi-
tions and bid accordingly.”
In connection with its proposed work on the Project, Northern
submitted “Resource Report No. 6” with the Federal Energy
Regulatory Commission (FERC), the commission in charge
of interstate pipeline construction and installation projects.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
Compiled by an environmental consultant, Resource Report
No. 6 estimated that excavators would encounter “approxi-
mately 3.77 miles” of “shallow bedrock that may require blast-
ing” along the portion to be replaced on the Marquette main
line. Although Resource Report No. 6 was publicly available as
part of Northern’s FERC filings, Northern did not post a copy
of Resource Report No. 6 to Ariba. The contract eventually
entered into with U.S. Pipeline, however, expressly advises that
“[e]xtensive rock structures occur throughout the area.”
In order for geotechnical information to be obtained, a
“geotechnical survey” or investigation must be done. A “geo-
technical survey” consists of taking exploratory borings to col-
lect soil samples for classification and laboratory analysis. In
creating Resource Report No. 6, Northern did not take or ana-
lyze bore samples from the Project site. Rather, the report dis-
cussed “geological data,” which is information that is publicly
available from various sources, including a national resource
bank of soil and rock information in the area.
U.S. Pipeline and two other companies placed bids on the
Project. Northern ultimately awarded the bid for both the
Marquette Replacement and Ishpeming Relocation to U.S.
Pipeline. U.S. Pipeline and Northern signed the contract at
issue on July 24 and August 1, 2014, respectively.
(b) Contract
Under the contract, U.S. Pipeline agreed to fabricate, test,
dewater, dry, and install approximately 29,450 feet (5.58 miles)
of 12-inch-diameter pipeline for the Marquette Replacement
and 8,000 feet (1.52 miles) of 6-inch-diameter pipeline for
the Ishpeming Relocation. U.S. Pipeline and Northern agreed
on a lump-sum price of $15,312,050 for the completion of
the Project. Pursuant to the contract, the substantial comple-
tion date for the Project was September 24, 2014. The parties
expressly agreed that time was of the essence.
The contract for the Project also provided that liqui-
dated damages due to delayed completion of the Marquette
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
Replacement were to be set at $11,700 per day beyond the
substantial completion date, with a cap of $351,000. The
Ishpeming Relocation had a similar liquidated damages provi-
sion, but it did not become applicable.
Both parties agreed to a mutual waiver of indirect or con-
sequential damages under the contract. The waiver’s language
defines consequential damages as
“INCLUDING BUT NOT LIMITED TO LOSS OF
PROFIT, BUSINESS INTERRUPTION, LOSS OF
REVENUE, LOSS OF USE, LOSS OF CONTRACT,
LOSS OF THROUGHPUT, LOSS OF GOODWILL,
INCREASED COST OF WORKING OR LOSS OF
BUSINESS OPPORTUNITY[.]”
The contract also contained provisions related to the omis-
sion of contractually required work or performance of addi-
tional work not specified under the contract, referred to as
“Extra Work,” under the contract:
[Northern] may omit work, or may require [U.S. Pipeline]
to perform additional work or furnish additional materi-
als or equipment, or the use thereof, in connection with
the Work, which are not included in this Agreement
(hereinafter referred to as “Extra Work”). Extra Work
may be occasioned by material changes in Plans and
Specifications or project lay out requiring additional
work or materials of a different nature, kind and cost
from that contemplated at the time of execution of this
Agreement . . . .
All requests for Extra Work must be prepared by [U.S.
Pipeline] in the form attached as Exhibit “L” and approved
in writing in advance by the [Northern] Representative or
[Northern] Vice President of Operations. Such requests
shall describe the work to be done and specify the com-
pensation requested therefor . . . .
With regard to payment for any Extra Work incurred, the
contract set forth a payment schedule referred to as the “Force
Account Work basis.” The provisions regarding payment for
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
Extra Work incurred or work reduced from the contract are
as follows:
In the event unit prices as set forth in Part IV, or other
agreed upon rates, are not applicable to any Extra Work,
such work shall be paid for on the following basis, here-
inafter referred to as the Force Account Work basis . . . .
(i) [U.S. Pipeline’s] actual field payroll plus fifteen
percent (15%) thereof for overhead and profit, plus [U.S.
Pipeline’s] actual contribution or payment for insurance
coverage, to the extent such are not subject to [Northern]
provided insurance coverage, rated on basis of payroll,
together with Social Security and unemployment tax or
other employer’s tax contribution based on payroll, plus
cost of union benefits; and
(ii) Actual material costs, as evidenced by invoices
from original suppliers or vendors showing [U.S. Pipeline]
as purchaser, plus five percent (5%) thereof for [U.S.
Pipeline’s] overhead and expenses, plus any applicable
sales or use taxes assessed and paid in conjunction with
such material purchases; and
(iii) Charges for the actual use of equipment, includ-
ing leased equipment, in accordance with the rate sched-
ule set forth in [the Contract] or other agreed to rates
included with the Contract Documents; and
(iv) Charges for third party equipment or services
as evidenced by their invoices, plus five percent (5%)
thereof.
All such billings for work on the Force Account Work
basis shall comprise the total of charges accumulated
under (i) through (iv) above and be supported by certi-
fied daily payroll records initialed by the [Northern]
Representative, a detailed list of material used, and any
third party invoices.
....
If changes in the Drawings, reports, or Plans and
Specifications cause a decrease in [U.S. Pipeline’s] cost or
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
time required for the completion of the Work, [Northern],
by written notice to [U.S. Pipeline], may make a fair and
proportionate adjustment therefor in [Northern’s] com-
pensation to [U.S. Pipeline] and time allowed to complete
the Work.
If an Extra Work Request decreases the amount of
Work to be done, such decrease shall not constitute
the basis for a claim for damages or anticipated profits
for Work affected by such decrease. [U.S. Pipeline’s]
compensation shall be reduced to reflect the reduction
in Work.
The same section of the contract also provided that U.S.
Pipeline would not be entitled to submit a claim for Extra
Work or costs, expenses, or time to complete its contrac-
tual obligations for delay or inefficiencies arising from
U.S. Pipeline’s failure to carefully examine or inspect the
sites or their conditions, the contract, and other various
documentation.
(c) Revision to Open Cut for
Ishpeming Relocation
At some point during the course of the Ishpeming
Relocation, Northern decided to cancel the HDD of the Cliffs
Road crossing and instead switch to an open cut. U.S. Pipeline
agreed to the alteration but declined Northern’s request for
a credit on the difference between the HDD and an open
cut. Nevertheless, on their final payment, Northern withheld
$320,000 from U.S. Pipeline as a credit for U.S. Pipeline’s
cost savings attributable to performing an open cut at Cliffs
Road instead of a more costly HDD bore.
(d) Revisions for Highway 476/Ely Creek
HDD Bore for Marquette Replacement
In the course of the Marquette Replacement, Northern
revised and redesigned the specifications for the Highway 476/
Ely Creek HDD bore related to the Marquette Replacement.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
(i) Redesign of Highway 476/Ely Creek HDD
Heavy rains had flooded a nearby wetland and increased
its size via natural accretion. As a result, Northern became
concerned that its original design for the Marquette main line
would place the exit and entry points of the HDD too close
to a wetland. Northern decided that it would need to revise
the design for the Highway 476/Ely Creek HDD bore of the
Marquette Replacement.
The Highway 476/Ely Creek HDD revision extended the
bore entry point beyond the swollen wetland and moved
the exit point past a steep grade. Northern received FERC
approval for the variance request regarding the Highway 476/
Ely Creek HDD.
Northern sent the revised Highway 476/Ely Creek HDD
bore specifications to U.S. Pipeline on October 1, 2014. U.S.
Pipeline began drilling the Highway 476/Ely Creek HDD in
mid-October 2014.
(ii) Revision Due to Power Lines
On October 3, 2014, during the Marquette Replacement,
Northern submitted a request to FERC to make another revi-
sion to the Highway 476/Ely Creek Crossing HDD plans.
Despite Northern’s having previously approved an open cut
beneath power lines along the Marquette Replacement, a util-
ity company objected to Northern’s original design. The utility
company required Northern to either change the route of the
open cut to be further away from power lines or use an HDD
method (Power Line HDD). To accommodate the power lines,
Northern again revised and redesigned its initial designs to
reflect using the HDD method rather than an open cut at this
location. Northern submitted these altered plans to FERC, and
FERC approved the revision.
(e) Change Orders
U.S. Pipeline submitted “Change Order 14,” regarding the
Power Line HDD, and “Change Order 15,” regarding Highway
476/Ely Creek, to Northern on October 6, 2014. Both change
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U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
orders were in the form that was referred to in the contract
as “Exhibit L.” Northern approved Change Orders 14 and 15
the following day. Change Orders 14 and 15 cite “Southeast
Directional Drilling personnel and equipment” as the rea-
son for the added cost components. Southeast Directional
Drilling was the HDD subcontractor used by U.S. Pipeline on
the Project.
Additional time was not specifically requested in Change
Order 14 or 15, nor were additional expenses for U.S. Pipeline
specifically set forth in Change Order 14 or 15. U.S. Pipeline
merely specified that a “lump sum” method of payment would
be utilized to cover the subcontractor’s charges for the requested
Extra Work. Northern’s construction coordinator on the Project
admitted at trial that the work described in Change Orders 14
and 15 constituted Extra Work under the contract.
Following Northern’s approval of Change Orders 14 and
15, U.S. Pipeline and its subcontractor signed a subcontract
for the Extra Work, and the subcontractor mobilized to the
Project site.
The day before U.S. Pipeline began working on the Extra
Work, U.S. Pipeline submitted “Change Order 19” to Northern.
Change Order 19 pertained to the costs U.S. Pipeline antici-
pated incurring as a result of having to retain extra crews and
equipment for the Extra Work on the Highway 476/Ely Creek
and Power Line HDD bores. Using the Force Account Work
basis payment method pursuant to the contract, U.S. Pipeline
estimated the additional cost of the Extra Work but did not spe-
cifically indicate that U.S. Pipeline sought additional time for
the task schedule or the substantial completion date.
After receiving Change Order 19 from U.S. Pipeline,
Northern gave U.S. Pipeline final approval to begin the Power
Line HDD. When the Extra Work on Highway 476/Ely Creek
and the Power Line HDD bores commenced, Northern knew
U.S. Pipeline expected additional compensation for the Extra
Work. At this point, Northern also knew that the Project was
already past the substantial completion date.
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U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
After the work commenced, in an email on October 24,
2014, Northern disputed U.S. Pipeline’s numbers in Change
Order 19. Northern suggested that U.S. Pipeline “submit
a more equitable work change order that truly reflects the
additional costs.” U.S. Pipeline stated that it would resubmit
Change Order 19 once the HDD’s were completed to reflect
actual costs. Northern did not respond to U.S. Pipeline’s offer
to resubmit Change Order 19.
In December 2014, Northern and U.S. Pipeline agreed to
meet at Northern’s headquarters in Omaha to discuss several
disputed and outstanding change orders, including Change
Order 19. At the meeting, U.S. Pipeline provided documen-
tation detailing its growing additional costs that related to
the HDD Extra Work at issue in Change Order 19. Although
the parties reached agreements regarding other various dis-
puted change orders that are not the subject of this litigation,
the parties were unable to reach an agreement on Change
Order 19.
(f) Completion of Project
The last HDD was completed on December 16, 2014. U.S.
Pipeline then proceeded with the remaining “original scope of
work” included in the contract. For the Marquette Replacement,
this work included hydrotesting the final bore pipe sections,
drying the pipeline, performing the final tie-in welds on both
sides of the bore, coating the welds, and backfilling.
While U.S. Pipeline worked toward completing the Project,
Northern representatives supervised U.S. Pipeline’s progress.
It is undisputed that U.S. Pipeline did not substantially com-
plete the Marquette Replacement until February 12, 2015. U.S.
Pipeline issued its completion affidavit on August 21.
The Extra Work added nearly 1,200 feet to the Highway
476/Ely Creek crossing and a 500-foot bore for the Power
Line HDD. The Extra Work, combined with severe winter
conditions, delayed substantial completion of the Marquette
Replacement by approximately 120 calendar days.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
U.S. PIPELINE v. NORTHERN NATURAL GAS CO.
Cite as 303 Neb. 444
(g) Supplements to Change Order 19
On May 22, 2015, U.S. Pipeline submitted Change Order 19,
“Supplement 1,” to Northern as Northern had requested in its
October 24 response to U.S. Pipeline’s original Change Order
19 request. Supplement 1 cited an “increase in the cost and
time required for performance of the Work” due to the Extra
Work on Highway 476/Ely Creek and the Power Line HDD.
Supplement 1 requested delay and inefficiency damages of
$7,740,138.75. Northern reviewed and rejected U.S. Pipeline’s
Supplement 1, determining that U.S. Pipeline’s formula for
costs was inaccurate and that certain items were missing.
After Northern rejected Supplement 1, U.S. Pipeline sub-
mitted Change Order 19, “Supplement 1A,” on July 16, 2015.
Supplement 1A cited “additional compensation and time for
performance of that changed Work” and requested delay and
inefficiency damages of $6,729,980.79. After conducting an
audit of U.S. Pipeline’s records, Northern again rejected U.S.
Pipeline’s Supplement 1A.
(h) Payment
After making adjustments on other disputed change orders,
Northern paid $17.3 million dollars to U.S. Pipeline, less
$671,000 that it withheld for liquidated damages ($351,000)
and a credit for the lower costs associated with the Cliffs Road
modification ($320,000). U.S. Pipeline acknowledged that it
underbid the Project, even with factoring in the wrong esti-
mate of rock, and suffered a loss of $11.3 million.
(i) U.S. Pipeline’s Expert Testimony Regarding
Delay Attributions and Damages
In addition to the evidence presented to establish the facts
set forth above, U.S. Pipeline offered expert forensic testimony
for the computation of damages under its breach of contract
claim. U.S. Pipeline’s expert was William Berkowitz, a senior
managing director in the construction solutions practice of
a consulting firm, with an extensive background in forensic
schedule and productivity analysis.
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The general subject of Berkowitz’ testimony related to U.S.
Pipeline’s breach of contract claim for Northern’s failure to
pay for the Extra Work associated with Northern’s requested
HDD redesigns. At the beginning of this testimony, Northern
objected to U.S. Pipeline’s expert testimony on the basis
of relevance under Neb. Evid. R. 401 and 403. Northern
also objected on parol evidence grounds. The court overruled
Northern’s objections. At the request of Northern, the trial
court granted Northern a standing objection on these grounds
as to the entirety of Berkowitz’ testimony.
Berkowitz testified that he used the Force Account Work
basis found within the contract to calculate the costs and dam-
ages associated with the Extra Work. Berkowitz testified that
he calculated the increased costs associated with the Extra
Work to total $5,275,506.01. Berkowitz’ report notes that
this amount represents the added delays and inefficiencies
related to the addition of the Extra Work from October 2014
through February 2015. In his calculations, Berkowitz found
that there was a total delay of 141 days to the substantial
completion date. Of these 141 days, he computed that 123
of these days were attributed to Northern’s HDD redesign
and therefore compensable to U.S. Pipeline. The 18 days of
delay that Berkowitz attributed to U.S. Pipeline were due
to a late start of construction and late mobilization of U.S.
Pipeline’s subcontractor.
In calculating damages, Berkowitz used a multistep process.
First, he determined the actual schedule impact of the Extra
Work, comparing the parties’ original schedule to the schedule
that actually occurred. Berkowitz then quantified which costs
were attributable to the addition of the Extra Work, as opposed
to costs that would have otherwise occurred. Again, in doing
so, he testified that he utilized the Force Account Work basis
from the parties’ contract. Lastly, Berkowitz testified that he
deducted payments that were actually made by Northern dur-
ing the Project. Berkowitz did not include any costs associated
with U.S. Pipeline’s claims for negligent misrepresentation or
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fraudulent concealment regarding geotechnical information in
his damages analysis.
Berkowitz testified that in his analysis quantifying which
costs were attributable to each party, he separated U.S.
Pipeline’s costs into two categories: “delay costs” and “inef-
ficiency” costs, or “unproductive work”/“downtime” costs. In
his testimony, Berkowitz specifically defined “delay costs” as
time-related costs for activities and materials that must con-
tinue for the entire duration of a project and are not necessarily
task specific, such as supervision, temporary heating, and fuel
costs. Berkowitz defined “inefficiency costs” or “unproductive
work/downtime” as costs stemming from tasks that took longer
or were more expensive because of Northern’s design changes
and U.S. Pipeline’s having to continue its labors on the Project
amidst the intemperate Michigan winter. These additional
costs, Berkowitz asserted, were largely a result of the Extra
Work. His testimony and report supported this conclusion,
finding in his analysis that most construction was completed by
the time Northern finally told U.S. Pipeline to move forward
with the redesigned projects. While Northern cross-examined
Berkowitz concerning his calculations under the Force Account
Work basis, Northern did not object to Berkowitz’ testimony on
foundation grounds.
Berkowitz’ final opinion was that, applying the Force
Account Work basis as set forth in the contract, U.S. Pipeline
incurred a total of $5,275,506.01 in costs related to performing
the HDD Extra Work.
(ii) Northern’s Expert Testimony Regarding
Delay Attributions and Damages
Northern offered contrary expert testimony from a con-
sultant for construction disputes, Anthony Gonzales. Like
Berkowitz, Gonzales testified that the delays for the Project
totaled 141 days. However, Gonzales opined that these delays
were entirely attributable to U.S. Pipeline. Gonzales did not
address the accuracy of Berkowitz’ calculations for the 123
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days Berkowitz testified were attributable to Northern’s HDD
redesign on the contract’s Force Account Work basis.
Gonzales testified that solely U.S. Pipeline’s own actions
or inactions prevented it from maintaining its productivity
throughout the Marquette Replacement portion of the Project.
Gonzales concluded that as a result, U.S. Pipeline is respon-
sible for at least $351,000 in liquidated damages per the liq-
uidated damage provision in the contract and U.S. Pipeline
was not entitled, under the terms of the contract, to any
damages for the Extra Work. However, Gonzales noted that
if the contract were not followed, Northern might be respon-
sible for $345,700 in damages to U.S. Pipeline for 20 days of
delay attributable to Northern’s HDD redesign and subsequent
Extra Work.
5. District Court Order
Following the conclusion of the bench trial, the district court
awarded judgment in favor of U.S. Pipeline on its claim for
breach of contract against Northern. Noting that Berkowitz’
methodology and calculations were credible and reliable, the
court adopted Berkowitz’ calculation of costs associated with
the Extra Work based on the Force Account Work basis. The
district court summarized Berkowitz’ testimony as follows:
Berkowitz calculated the increased costs associated with
the Extra Work to total $5,275,506.01. . . . This amount
represents the added delays and inefficiencies which
attended the Extra Work from October 2014 through
February 2015. The delay costs stem from the fact that
by the time [Northern] authorized the Extra Work, [U.S.
Pipeline] had largely completed its work on the Project.
But for the Extra Work, [U.S. Pipeline] could have sig-
nificantly reduced its workforce on site and completed
the Project by the end of October. The inefficiency costs
stem from [U.S. Pipeline] having to continue its labors
on the Project amidst the intemperate Michigan win-
ter which slowed its progress. But for the Extra Work,
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[U.S. Pipeline] would not have had to contend with win-
ter conditions.
The court also partially granted Northern’s request for a
declaratory judgment, stating that Northern was justified under
the contract to withhold payment from U.S. Pipeline as a credit
for U.S. Pipeline’s cost savings attributable to performing an
open cut at the Cliffs Road crossing instead of a more costly
HDD. However, the court awarded U.S. Pipeline $23,729.06
after it found that the proper amount attributable to such cost
savings was $296,270.94 and not $320,000.
Regarding liquidated damages, the district court found that
Northern improperly withheld $351,000 in liquidated dam-
ages per the contract cap due to delays beyond the substantial
completion date. The court concluded that Northern waived its
rights to these liquidated damages under the contract, because
Northern failed (1) to indicate that the liquidated damages
clause would still be enforced even after requesting Extra
Work and (2) to send the revised plans for the Extra Work until
October 1, 2014, after the substantial completion date. As a
result, Northern’s request for a declaratory judgment declaring
that it had a right under the contract to withhold $351,000 from
U.S. Pipeline as liquidated damages was denied.
U.S. Pipeline was awarded damages in the amount of
$5,275,506.01 for the Extra Work it performed, and an addi-
tional $374,729.06 ($351,000 + $23,729.06) for the amount
Northern wrongly withheld, for a total damage award of
$5,650.235.07. The court dismissed the remainder of both par-
ties’ claims with prejudice.
III. ASSIGNMENTS OF ERROR
Northern assigns that the district court erred in (1) awarding
U.S. Pipeline consequential damages on its breach of contract
claim, because the contract prohibits such recovery; (2) deny-
ing Northern’s motion for directed verdict; (3) admitting and
failing to strike the testimony of U.S. Pipeline’s expert wit-
ness that included damages for certain work and conditions
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that were expressly assumed by U.S. Pipeline or barred under
the contract; and (4) dismissing Northern’s claim for liqui-
dated damages.
IV. STANDARD OF REVIEW
[1] In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to
be given their testimony;1 an appellate court will not reevalu-
ate the credibility of witnesses or reweigh testimony but will
review the evidence for clear error.2
[2] Similarly, the trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and
will not be set aside unless clearly erroneous.3
[3] In reviewing a judgment awarded in a bench trial of a law
action, an appellate court considers the evidence in the light
most favorable to the successful party and resolves evidentiary
conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.4
[4] In reviewing rulings on motions for directed verdict and
judgments notwithstanding the verdict, we give the nonmoving
party the benefit of all evidence and reasonable inferences in
his or her favor, and the question is whether a party is entitled
to judgment as a matter of law.5
[5] The meaning of a contract is a question of law, in
connection with which an appellate court has an obligation
to reach its conclusions independently of the determinations
made by the court below.6
1
Hooper v. Freedom Fin. Group, 280 Neb. 111, 784 N.W.2d 437 (2010).
2
Id.
3
Id.
4
Id.
5
First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465
(2013).
6
Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780
N.W.2d 416 (2010).
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[6] The amount of damages to be awarded is a determination
solely for the fact finder, and its action in this respect will not
be disturbed on appeal if it is supported by evidence and bears
a reasonable relationship to elements of damages proved.7
[7] The issue of whether damages are consequential under a
contract is a question of law that we review de novo,8 but the
factual determinations underlying such a characterization are
reviewed for clear error.9
[8] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.10
V. ANALYSIS
1. Consequential Damages
Northern contends that the district court erred in deny-
ing Northern’s motion for directed verdict and by entering
judgment in favor of U.S. Pipeline for $5,275,506.01, which
it describes as being an award of consequential damages.
Northern argues that the court erred in denying its original
and renewed motions for directed verdict and in awarding
“consequential” damages to U.S. Pipeline, because the parties
agreed to a mutual waiver of consequential damages within
their contract.
The underlying issue of Northern’s first two assignments
of error relates to the proper characterization of the damages
awarded. Stated differently, the central question is whether
any portion of the damages awarded by the district court was
consequential damages. The issue of whether damages are
7
McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (1994).
8
SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827 (10th Cir.
2016); Carnell Const. Corp. v. Danville Redevelopment, 745 F.3d 703 (4th
Cir. 2014); Chestnut Hill Dev. Corp. v. Otis Elevator Co., 739 F. Supp. 692
(D. Mass. 1990); Richmond Medical Supply v. Clifton, 235 Va. 584, 369
S.E.2d 407 (1988). Cf. Adams v. American Cyanamid Co., 1 Neb. Ct. App.
337, 498 N.W.2d 577 (1992).
9
See, generally, Hooper v. Freedom Fin. Group, supra note 1.
10
State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).
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consequential under a contract is a question of law that we
review de novo,11 but the factual determinations underlying
such a characterization are reviewed for clear error.12 In a
bench trial of an action at law, the trial court is the sole judge
of the credibility of the witnesses and the weight to be given
their testimony.13 Similarly, the trial court’s factual findings
in a bench trial of an action at law have the effect of a jury
verdict and will not be set aside unless clearly erroneous.14 We
find that the damages alleged by U.S. Pipeline and awarded by
the district court were properly characterized as direct damages
and were not consequential damages.
[9] Nebraska courts have consistently upheld the right of
contracting parties to privately bargain for the amount of dam-
ages to be paid in the event of a breach of contract.15 This
court has explained that “‘parties to a contract may override
the application of the judicial remedy for breach of a con-
tract’” by bargaining in advance over the amount or type of
damages to be paid in the event of breach.16 Many jurisdictions
apply this principle to waivers of consequential damages, as
these contractual provisions that purport to waive consequen-
tial damages seek to carve out a specific category of damages
for which recovery is denied.17 Generally, a contractual waiver
11
SOLIDFX, LLC v. Jeppesen Sanderson, Inc., supra note 8; Carnell Const.
Corp. v. Danville Redevelopment, supra note 8; Chestnut Hill Dev. Corp.
v. Otis Elevator Co., supra note 8; Richmond Medical Supply v. Clifton,
supra note 8. Cf. Adams v. American Cyanamid Co., supra note 8.
12
See, generally, Hooper v. Freedom Fin. Group, supra note 1.
13
Id.
14
Id.
15
See, Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519
(2002); Crowley v. McCoy, 234 Neb. 88, 449 N.W.2d 221 (1989).
16
See Reichert v. Rubloff Hammond, L.L.C., supra note 15, 264 Neb. at 24,
645 N.W.2d at 527.
17
See 6 Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner and O’Connor
on Construction Law § 19:55 (2012). See, also, Adams v. American
Cyanamid Co., supra note 8.
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or exclusion of consequential damages will be upheld unless
the provision is unconscionable.18
The parties do not dispute the existence of the waiver of
consequential damages in the contract. Nor does U.S. Pipeline
argue that the waiver is unconscionable. Rather, the dispute
lies with the provision’s relevance. Northern asserts that the
contract’s waiver of consequential damages is controlling and
dispositive because the damages alleged and awarded were
consequential, whereas U.S. Pipeline argues that the provi-
sion is irrelevant because the damages alleged and awarded
were direct results of the Extra Work Northern requested U.S.
Pipeline to complete under the contract.
The waiver at issue in this case stated that consequential
damages were
“INCLUDING BUT NOT LIMITED TO LOSS OF
PROFIT, BUSINESS INTERRUPTION, LOSS OF
REVENUE, LOSS OF USE, LOSS OF CONTRACT,
LOSS OF THROUGHPUT, LOSS OF GOODWILL,
INCREASED COST OF WORKING OR LOSS OF
BUSINESS OPPORTUNITY[.]”
Thus, the provision states what kinds of damages would be
included under the umbrella of consequential damages rather
than addressing the cause of those damages and when they
might be deemed consequential rather than direct. The con-
tract does not define direct damages. Further, the terms of
this “definition” do not purport to change the common-law
definition of “consequential damages.” Based on this, we, like
the parties, rely on the common law to clarify the meaning of
the term.
[10,11] Consequential damages, as opposed to direct dam-
ages, do not arise directly according to the usual course of
things from a breach of contract itself.19 Rather, they occur
18
See, Adams v. American Cyanamid Co., supra note 8; 6 Bruner &
O’Connor, Jr., supra note 17.
19
Creighton University v. General Elec. Co., 636 F. Supp. 2d 940 (D. Neb.
2009) (citing Adams v. American Cyanamid Co., supra note 8).
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as a consequence of special extracontractual circumstances
known or reasonably supposed to have been contemplated
by the parties when the contract was made.20 Direct damages
refer to those which the party lost from the contract itself—in
other words, the benefit of the bargain—while consequential
damages refer to economic harm beyond the immediate scope
of the contract.21 One common example of consequential dam-
ages is the lost profits or revenues from outside parties, lost
business opportunities, or other sums forgone as a result of a
breach of contract.22
The parties do not disagree as to the definition of con-
sequential damages, but, rather, as to its application to the
facts of this case. Northern relies on Creighton University
v. General Elec. Co.23 in support of its argument that the
damages at issue in this case are consequential as opposed
to direct damages. In Creighton University, the plaintiff was
damaged when it was unable to collect $2.4 million in bill-
ings because of “delayed implementation” of a healthcare
technology system by the defendant.24 The plaintiff argued
that these losses were direct damages because they “‘were
naturally expected to follow from breach of the [parties’ con-
tract] because the net billings would have been collected had
the System been able to process claims in a timely manner
20
Id.
21
Penncro Associates, Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151 (10th Cir.
2007) (citing Restatement (Second) of Contracts § 347(a) and comments
a. and c. (1981); Black’s Law Dictionary 416-17 (8th ed. 2004); 24
Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts
§ 64:12 (4th ed. 1993)).
22
See, e.g., Penncro Associates, Inc. v. Sprint Spectrum, L.P., supra note 21;
McCoolidge v. Oyvetsky, 292 Neb. 955, 874 N.W.2d 892 (2016); El Fredo
Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261 N.W.2d 358 (1978);
Adams v. American Cyanamid Co., supra note 8. See, also, Restatement,
supra note 21, § 351, comments a. and b.
23
Creighton University v. General Elec. Co., supra note 19.
24
Id. at 942.
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. . . .’”25 The U.S. District Court for Nebraska rejected
this argument. Applying Nebraska law, the court repeated
the proposition that consequential damages do not arise
directly according to the usual course of things from the
breach itself; rather, they occur as a consequence of special
circumstances known or reasonably supposed to have been
contemplated by the parties when the contract was made.26
The court then concluded that “[l]abeling the $2.4 million
in uncollected claims ‘direct damages’ does not make them
so. In fact, the allegation that the claims were uncollectible
because they were not submitted within deadlines established
by payors shows that the loss of income was attributable to
special circumstances.”27
Northern attempts to argue that Creighton University is
similar to this case, because U.S. Pipeline is seeking to improp-
erly “label” the damages it seeks as “direct” damages. Thus,
Northern asserts that U.S. Pipeline seeks to ignore the mutual
waiver of consequential damages in the contract and recover
damages for the indirect consequences of the alleged delay or
inefficiencies incurred on the Marquette Replacement.
We find no merit in Northern’s argument. Creighton
University is notably distinguishable from the case at bar. In
Creighton University, the “consequential” damages that the
plaintiff was barred from seeking were collections from third
parties, which plaintiff was unable to collect because of those
deficiencies (“lost income” based on “projected cashflow”)—
not payments due to the plaintiff under the contract for services
rendered. The damages incurred in Creighton University were
the result of lost income or lost business opportunities, which
are clearly consequential damages.
In contrast, the damages incurred by U.S. Pipeline and
awarded by the district court were simply the revenue due to
25
Id. at 943.
26
Creighton University v. General Elec. Co., supra note 19.
27
Id. at 943.
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U.S. Pipeline under the contract for the work performed. At
the time Northern authorized the Extra Work to go forward,
it agreed to compensate U.S. Pipeline to perform that Extra
Work on a modified time-and-materials basis, called the Force
Account Work basis under the contract. This was the basis
that the district court determined was utilized by Berkowitz in
his calculations. The damages were composed of a subset of
the actual, out-of-pocket costs it incurred as a direct result of
Northern’s HDD-related changes and contractual markups from
the Force Account Work basis calculations when applicable.
U.S. Pipeline did not seek profits or revenues it lost from third
parties or lost business opportunities, or any other sums it had
to forgo as the result of the Extra Work. Rather, the district
court properly awarded U.S. Pipeline only the benefit of its
bargain: the recovery of payments owed to it for fulfilling its
obligations under the contract, including completing the HDD
Extra Work ordered by Northern. These damages flow directly
from the contract.
The value of the bargain to U.S. Pipeline was exactly what
it sought in damages in the trial court: the time and materials it
expended to complete the Extra Work, however long that took,
calculated with the small markups allowed under the contract.
Direct damages reflect a failure on the part of the defendant
to live up to the bargain it made, or a failure of the promised
performance itself.28 Here, Northern failed to remit payment
to U.S. Pipeline pursuant to Extra Work completed directly
pursuant to the contract. The damages sought by U.S. Pipeline
are precisely what direct damages are defined to be, and
the parties’ contractual provision does not purport to change
this definition.
Accordingly, we find that the damages sought by, and sub-
sequently awarded to, U.S. Pipeline were a direct result of the
parties’ contractual agreement. We find no merit to Northern’s
28
24 Samuel Williston & Richard A. Lord, A Treatise on the Law of
Contracts § 64:16 (4th ed. 2018).
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argument that the district court erred by awarding consequen-
tial damages.
2. A dmissibility of Berkowitz Testimony and
Northern’s Motions on Directed Verdict
We also find no merit to Northern’s arguments that the
district court abused its discretion by admitting and failing to
strike Berkowitz’ testimony which allegedly included in his
damages calculations certain work and conditions expressly
assumed by U.S. Pipeline or barred under the contract and
that the court erred in denying Northern’s motion for directed
verdict based on these same alleged deficiencies in Berkowitz’
testimony.
Northern’s first argument in this regard is little more than
a restatement of its assertion that Berkowitz failed to separate
any direct damages from consequential damages. As noted
above, the damages requested by U.S. Pipeline and subse-
quently awarded by the district court were direct damages
and not consequential damages. Based on this conclusion, we
must also conclude that the district court properly admitted
and considered Berkowitz’ testimony as relevant regarding the
calculation of damages.
Northern’s second argument is that the court should have sus-
tained Northern’s objections to Berkowitz’ testimony, because
Berkowitz’ calculation contained “other damages” that U.S.
Pipeline could not recover under the contract.29 These “other
damages” that Northern argues are not contractually compen-
sable include compensation for (1) an 18-day holiday break
that U.S. Pipeline took during December 2014 and January
2015; (2) days in which U.S. Pipeline was performing “correc-
tive” work30; (3) costs and delays associated with subsurface
conditions, which were risks assumed by U.S. Pipeline under
the contract; and (4) costs and delays associated with work
29
Brief for appellant at 36.
30
Id. at 30.
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previously compensated for under Change Orders 14 and 15.
Northern asserted in its reply brief and at oral argument that
Berkowitz did not utilize the Force Account Work basis as per
the contract’s requirements when he calculated U.S. Pipeline’s
damages, but Northern did not specifically assign and specifi-
cally argue this in its initial brief.
Northern makes a similar argument in support of its assign-
ment that the court erred in failing to grant its motions for
directed verdict. Northern argues that Berkowitz’ calculations,
the only evidence supporting U.S. Pipeline’s damages calcula-
tion, were incorrect because Berkowitz included delay dam-
ages that were not attributable to Northern in his calculation.
Based on this, Northern asserts that U.S. Pipeline failed to
prove damages.
[12,13] We find that Northern failed to preserve the errors
regarding the methodology and particulars of Berkowitz’ cal-
culations. Unless an objection to offered evidence is suf-
ficiently specific to enlighten the trial court and enable it to
pass upon the sufficiency of such objection and to observe the
alleged harmful bearing of the evidence from the standpoint
of the objector, no question can be presented therefrom on
appeal.31 At trial, Northern made only the following objection
relative to Berkowitz’ testimony: “I object on relevancy, 401,
403, as well as parole [sic] evidence. This testimony is not
consistent with the contractor — the change orders that were
signed, and so I object on that basis.” Northern’s objection was
not sufficiently specific to alert the trial court that it contested
the details or methodology of Berkowitz’ calculations, which
Northern now takes issue with on appeal. An issue not prop-
erly presented and passed upon by the trial court may not be
raised on appeal.32
[14,15] To the extent that Northern asserted in oral argu-
ment that the court erred in admitting Berkowitz’ testimony
31
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
32
State v. Boham, 233 Neb. 679, 447 N.W.2d 485 (1989).
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because his calculations did not use the Force Account Work
basis, Northern failed to preserve this argument by failing to
assign it as error and argue it in its initial brief. In order to be
considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error.33 Errors not assigned in an appellant’s
initial brief are thus waived and may not be asserted for the
first time in a reply brief.34
In any event, the district court made a factual finding that
the Force Account Work basis was properly used throughout
Berkowitz’ calculations. The court found Berkowitz’ testi-
mony credible and reliable. And the district court determined
that all costs included in Berkowitz’ calculations were com-
pensable to U.S. Pipeline as damages incurred pursuant to
Northern’s breach of contract on the Force Account Work
basis. With respect to damages, an appellate court reviews the
trial court’s factual findings under a clearly erroneous standard
of review.35 We cannot say that the district court’s finding
that Berkowitz’ calculations were proper under the contract is
clearly erroneous.
With respect to its directed verdict arguments, Northern
failed to preserve these arguments because they were not
presented below in support of the motions for directed ver-
dict. Instead, in support of its motions for directed verdict,
Northern argued that (1) U.S. Pipeline’s damages were barred
by the consequential damages waiver and (2) there was
no genuine issue of fact on U.S. Pipeline’s misrepresenta-
tion/fraudulent concealment claims regarding “geotechnical
information.”
[16,17] In an appeal of a trial court’s refusal to enter a
directed verdict, the appellate court should consider solely
those grounds urged by the appellant to the trial court in
33
Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001).
34
Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014).
35
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
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support of its directed verdict motion.36 If a party fails to set
forth certain arguments as grounds in a motion and renewed
motion for directed verdict, such arguments will not be prop-
erly preserved for appeal.37 The arguments that Northern makes
on appeal concerning the particulars of Berkowitz’ calculations
were not presented below. They were not set forth as grounds in
Northern’s motions for directed verdict.38 As such, we decline
to address Northern’s additional arguments on this point.
We note that Northern did not assign or argue that the evi-
dence was insufficient to support the district court’s judgment
and award of damages in favor of U.S. Pipeline. However,
based on the totality of our findings above, and viewing the
evidence, including Berkowitz’ testimony, in the light most
favorable to U.S. Pipeline, it is apparent that the evidence
was sufficient.
Based on the analysis above, we find that the district court
did not err in (1) admitting and relying upon the entirety of
Berkowitz’ testimony and (2) denying Northern’s motions for
directed verdict.
3. Northern’s Claim for
Liquidated Damages
Lastly, Northern assigns that the district court erred in deny-
ing Northern’s request for a declaratory judgment declaring
that it had a right under the contract to withhold $351,000 from
U.S. Pipeline as liquidated damages for U.S. Pipeline’s failure
to meet the September 24, 2014, substantial completion date.
Northern contends that because U.S. Pipeline did not request
any additional time or a modification of the substantial com-
pletion date, the target completion date remained September
24. Because the actual substantial completion date occurred
on February 12, 2015, Northern asserts that it was entitled to
36
See Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004).
37
See id.
38
See id.
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withhold the full liquidated damages cap amount as set forth
within the contract.
In its order, the district court determined that because
Northern did not send the revised plans for the Extra Work
until October 1, 2014, Northern effectively waived its right to
seek liquidated damages under the contract. Because of this
delay, Change Orders 14, 15, and 19 were also submitted after
the substantial completion date.
[18-22] The determination of whether a contractual provi-
sion has been waived is a factual determination.39 A contractual
provision for liquidated damages for delay in performance
may be waived.40 Waiver is a voluntary and intentional relin-
quishment or abandonment of a known existing legal right or
such conduct as warrants an inference of the relinquishment
of such right.41 In order to establish a waiver of a legal right,
there must be clear, unequivocal, and decisive action of a party
showing such purpose, or acts amounting to estoppel on his
or her part.42 A written contract may be waived in whole or
in part, either directly or inferentially, and the waiver may be
proved by express declarations manifesting the intent not to
claim the advantage, or by so neglecting and failing to act as
to induce the belief that it was the intention to waive.43 Even
a provision in a written contract that specifies that a waiver of
the conditions and terms of the agreement must be in writing
may be waived by acts or conduct.44
We agree with the district court’s analysis of this matter.
Northern’s argument that U.S. Pipeline cannot avoid liquidated
39
See, Pearce v. ELIC Corp., 213 Neb. 193, 329 N.W.2d 74 (1982); Wiebe
Constr. Co. v. School Dist. of Millard, 198 Neb. 730, 255 N.W.2d 413
(1977).
40
Wiebe Constr. Co. v. School Dist. of Millard, supra note 39.
41
Davenport Ltd. Partnership v. 75th & Dodge I, L.P., supra note 6.
42
Id.
43
Id.
44
Pearce v. ELIC Corp., supra note 39.
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damages because it neglected to request additional time on its
change orders is unfounded. By requesting the Extra Work,
submitting the designs after the passing of the substantial
completion date, and further failing to inform U.S. Pipeline
that it intended to enforce the liquidated damages provision in
the contract, Northern manifested a clear intent to waive the
contractual liquidated damages provision. Northern knowingly
requested Extra Work that would clearly exceed the substan-
tial completion date. The district court’s determination that
Northern’s conduct amounted to a waiver was supported by the
evidence and cannot be said to be clearly wrong.
Northern alternatively argues that the court should have
awarded liquidated damages to Northern for three delays it
alleges were attributable solely to U.S. Pipeline: (1) U.S.
Pipeline’s holiday break in December 2014 and January 2015,
(2) U.S. Pipeline’s corrective work on the pipe replacement
in January 2015, (3) and U.S. Pipeline’s execution of work
performed for Change Orders 14 and 15 from October 15 to
December 16, 2014. However, Northern fails to argue why the
waiver the district court found to have occurred as to the liqui-
dated damages provision would apply with lesser force to these
specific time periods.
The district court did not err in denying Northern’s request
for a declaratory judgment upholding its decision to withhold
$351,000 in liquidated damages.
VI. CONCLUSION
For the reasons set forth above, we affirm the decision of the
district court in this matter.
A ffirmed.
Miller-Lerman and Papik, JJ., not participating.