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NO. COA11-381 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 SOUTHERN SEEDING SERVICE, INC., Plaintiff, v. W.C. ENGLISH, INC.; LIBERTY MUTUAL INSURANCE COMPANY; and TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, Defendants. Guilford County No. 09 CVS 012411

1.

Contracts -- construction -- equitable adjustment and delay damages clauses -- distinct The trial court erred in a non-jury trial in a contract action arising from a road construction project by determining that one clause of the contract foreclosed relief under a different clause and that plaintiff was not entitled to an equitable adjustment. Equitable adjustment and delay damages clauses are often found in construction contracts and allocate distinct risks. The trial court's blending of the separate provisions fails to give effect to the contract as a whole and frustrates the intentions of the parties.

2.

Construction Claims -- road construction contract -- payment bond -- seeding subcontract Breach of a seeding subcontract was within the terms of a payment bond on a road construction contract where the bond stated that it applied to "all persons supplying labor and materials in the prosecution of the project."

NO. COA11-381 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 SOUTHERN SEEDING SERVICE, INC., Plaintiff, v. W.C. ENGLISH, INC.; LIBERTY MUTUAL INSURANCE COMPANY; and TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, Defendants. Guilford County No. 09 CVS 012411

Appeal by Plaintiff from orders entered 13 July 2010 and 11 October 2010 and from judgment entered 8 September 2010 by Judge Shannon R. Joseph in Guilford County Superior Court. the Court of Appeals 27 September 2011. Conner Gwyn Schenck, PLLC, by Timothy R. Wyatt and A. Holt Gwyn, for Plaintiff-appellant. Ragsdale Liggett, PLLC, by William W. Pollock and Carrie Barbee, for Defendant-appellees. HUNTER, JR., Robert N., Judge. Southern Seeding Service, Inc. ("Plaintiff") appeals the trial court's dismissal of its breach of contract claim against W.C. English, Inc. ("English") and its claim for damages against Liberty Travelers Mutual Insurance & Surety Company Company ("Liberty of Mutual") and Heard in

Casualty

America

("Travelers

-2Casualty") (collectively, "the Sureties"). its Plaintiff also

appeals the trial court's order denying judgment and motion for a new trial.

motion to amend

Plaintiff contends the

trial court erred by (1) misconstruing "no damages for delay" and "equitable adjustment" clauses in the subcontract entered into between Plaintiff and and English; and (2) were concluding not liable that to

Liberty

Mutual

Travelers

Casualty

Plaintiff as sureties on a statutorily required payment bond. After careful review, we reverse and remand. I. Factual & Procedural Background Plaintiff is a North Carolina corporation in the business of performing seeding, fertilizing, and mulching services.

Plaintiff has conducted grassing work for various North Carolina Department of Transportation ("NCDOT") projects since 1958. On

15 July 2003, NCDOT opened bidding for a project located in Greensboro ("the Project"). the Project as involving NCDOT's project proposal described "widening, drainage, paving, [and]

lighting" work in the Greensboro "Western Loop" area extending "from I-40 to North of Bryan Boulevard." NCDOT's proposal

specified 1 July 2007 as the completion date for the Project. NCDOT awarded the principal contract on the Project to As

APAC-Atlantic,

Inc.,

Thompson--Arthur

Division

("APAC").

-3required by N.C. Gen. Stat.

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North Carolina Law