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Aggregate Constr., Inc. v. Aaron Swan & Assocs., Inc.

Supreme Court of South Dakota

October 28, 2015

AGGREGATE CONSTRUCTION, INC., Plaintiff and Appellant,
v.
AARON SWAN & ASSOCIATES, INC., Defendant and Appellee

Considered on Briefs August 31, 2015

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE KATHLEEN F. TRANDAHL, Judge.

Affirmed.

RONALD G. SCHMIDT, JASON M. SMILEY of Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

MICHAEL F. TOBIN, MEGHANN M. JOYCE of Boyce Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.

OPINION

SEVERSON, Justice

Page 509

[¶1] Aggregate Construction, Inc. (Aggregate) brought a breach of contract and negligence action against Aaron Swan & Associates, Inc. (Swan) based on Swan's alleged failure to adequately test the sodium-sulfate soundness of material to be used in a construction project for the South Dakota Department of Transportation (SDDOT). The circuit court dismissed the action on summary judgment, finding that a release executed between Aggregate and SDDOT barred the actions against Swan. Aggregate appeals. We affirm.

Background

[¶2] On December 31, 2007, Aggregate delivered samples of Type 2A aggregate to Swan for sodium-sulfate soundness testing.[1] Aggregate planned to quote prices for the material to prime contractors that intended to bid on a SDDOT project requiring the material. Before quoting prices, Aggregate engaged Swan to test material from the Ophiem pit in Perkins County, South Dakota, to determine whether it met SDDOT specifications, which required a maximum soundness loss of 15. In January 2008, Swan informed Aggregate that preliminary testing indicated that the material from the Ophiem pit met SDDOT specifications and that the soundness result would be further lowered after the unprocessed pit-run material was processed. Aggregate subsequently quoted a price for the material to prime contractors, one of which, Bituminous Paving, Inc., was awarded the contract for the project. Thereafter Bituminous and Aggregate entered into a subcontract for the supply of the material.

[¶3] In August 2008, SDDOT sampled and tested the material from the Ophiem Pit. SDDOT advised Aggregate that the sample failed sodium-sulfate soundness testing with a score of 19. Aggregate contacted Swan to inform it that the material had failed SDDOT testing. Swan informed Aggregate that there had been an error in Swan's calculation and that the correct result should have been 21.3.

[¶4] SDDOT determined that the Ophiem Pit aggregate would need to be blended with other material to ensure compliance with specifications. In September 2008, Aggregate started blending " Fisher Chips" with the Ophiem Pit aggregate and stockpiled the blend at three locations: Ophiem, Shade Hill, and Bison. SDDOT took samples from the three stockpiles, consolidating the samples for purposes of sodium-sulfate soundness ...


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