Victor Virgin Constr. Corp. v. N.H. Dep't of Transp.

165 N.H. 242

75 A.3d 1136

VICTOR VIRGIN CONSTRUCTION CORP.

v.NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION

No. 2012-162

Supreme Court of New Hampshire.

Argued: June 4, 2013

Opinion Issued: August 21, 2013

D'Amante, Couser, Pellerin, & Associates, P.A., of Concord (Bruce J. Marshall on the brief and orally), for the plaintiff.

Michael A. Delaney, attorney general (Kevin H. O'Neill, assistant attorney general, on the brief and orally), for the New Hampshire Department of Transportation.

HICKS, J.

The plaintiff, Victor Virgin Construction Corporation (Virgin), appeals an order of the Superior Court (Smukler, J.) remitting a jury award of $1,520,635 to $779,078.80 following an advisory jury finding of liability for breach of contract and a jury finding of negligent misrepresentation by defendant New Hampshire Department of Transportation (DOT). DOT cross-appeals, asking that the award be further reduced. We vacate and remand.

The record supports the following facts. In 2008, Virgin bid on a DOT project to replace a stone box culvert located underneath Depot Road in Hollis. Virgin submitted the lowest bid and was awarded the contract on June 4, 2008.

The construction process was to begin as soon as possible and was scheduled to conclude on August 28, 2008. The initial exchange of plans did not satisfy DOT, which requested several changes from Virgin's subcontractors. Apparently, Virgin was not involved in this exchange and had little or no input into the plans that were submitted to or approved by DOT. These changes resulted in an increase in the scale and scope of the work and caused a significant construction delay, adding almost a year to the project. As a result, the original August date for completion was not met. The project was substantially completed on December 3, 2008, and not completely finished until August 6, 2009.

After completion of the project, DOT paid Virgin the sum agreed to in the contract with only a minor upward adjustment. Virgin sued DOT for both breach of contract and negligent misrepresentation.

DOT moved to bifurcate the trial on the grounds that the breach of contract claim had to be tried without a jury pursuant to RSA 491:8 (2010). The trial court denied the motion, ruling that the jury would decide the negligent misrepresentation claim but would serve only an advisory role as to the breach of contract claim. The jury found, inter alia , in favor of Virgin on both of its claims against DOT, awarding over $1.5 million in damages. The award against DOT was based on evidence concerning the expenses incurred completing the project and the subsequent insolvency of Virgin, including the auction sale of its construction equipment.

DOT then moved for a new trial, or, in the alternative, either to set aside the jury award and grant a new trial on damages or to grant remittitur. The trial court granted remittitur, citing the paucity of evidence on the record regarding the value of the items auctioned off because of the insolvency and the losses incurred as a result. The trial court ruled that no reasonable jury could have awarded more than $779,078.80, as any greater amount would have been speculative. However, the trial court specifically did not enter a finding of liability on the breach of contract claim, ruling that the award could be sustained solely on the negligent misrepresentation claim and denying DOT's motion for a new trial on that basis. Virgin appealed, seeking the jury's full award of $1,520,635 in damages, and DOT cross-appealed seeking a further remittitur.

I

On appeal, DOT argues for a reduced award of $475,000. It argues that in tort actions, including actions for negligent misrepresentation, "[w]here [the award] exceeds the statutory cap set forth in RSA 541–B, the DOT's liability is limited to the statutory cap." DOT contends that the award was based only upon a claim of negligent misrepresentation and, therefore, the trial court was only allowed to award $475,000 by statute. Virgin argues that its negligent misrepresentation claim is not covered by RSA chapter 541–B (2007 & Supp.2012) because it does not fall within the categories listed in the statute.

The interpretation of RSA chapter 541–B is a question of law, which we review de novo . Kenison v. Dubois, 152 N.H. 448, 451, 879 A.2d 1161 (2005). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is clear on its face, its meaning is not subject to modification. See Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78, 889 A.2d 24 (2005).

RSA 541–B:14, I (Supp.2012) provides, in relevant part:

All claims arising out of any single incident against any agency for damages in tort actions shall be limited to an award not to exceed $475,000 per claimant and $3,750,000 per any single incident....

Under RSA 541–B:1, II-a (2007):

"Claim" means any request for monetary relief for ...:

(a) Bodily injury, personal injury, death or property damages caused by the failure of the state or state officers, trustees, officials, employees, or members of the general court to follow the appropriate standard of care when that duty was owed to the person making the claim, including any right of action for money damages which either expressly or by implication arises from any law, unless another remedy for such claim is expressly provided by law....

(Emphasis added.)

We agree with DOT that Virgin's claim for negligent misrepresentation is governed by RSA 541–B:14, I, as a tort "claim," which limits the possible recovery against the State to $475,000. As we explained in Laramie v. Stone, 160N.H. 419, 999 A.2d 262 (2010), "the legislature intended this chapter to govern all claims against the State and/or its employees...