THE ENGINEER'S DETERMINATION

In the recent case of Zurn Engineers v. State of California (1977) 69 Cal. App. 3d 798, an appellate court held that where the parties have agreed to be bound by the decision of a third party, such decision cannot be supported or shown to be grossly erroneous, by evidence offered at trial which was not presented in the proceedings out of which the decision arose. Thus, the trial court committed error when it tried the matter de novo and allowed the introduction of evidence beyond the record before the Chief Engineer. In reviewing the evidence which was before the Chief Engineer, the appellate court found there was substantial support for his determination. The court found, however, that the contractor's due process rights were violated under the claims settlement procedure of the contract, in that defendant failed to advise the contractor in advance of the factual material upon which the Engineer intended to rely, and also failed to give the contractor a reasonable opportunity to refute or supplement such material. A significant aspect of the case is that the appellate court, upon the finding of a due process violation, held that the matter should be remanded, not to the trial court but rather to the Engineer for further proceedings in which the contractor would be afforded his due process rights. Prior to this decision, it had been assumed that a trial court's proper remedy for a defective claim settlement procedure was to disregard the contract finality clause and hear all relevant evidence on the claim. Since the Zurn decision, the California Department of Transportation has had one contract dispute tried and one remanded by the trial court for further proceedings before the Chief Engineer. Following a general discussion of the engineer's determination and the Zurn decision, the trial procedures of these two contract disputes will be discussed. (Author)

  • Corporate Authors:

    Transportation Research Board

    A4005: Committee on Contract Law
    Washington, DC  United States  20418
  • Authors:
    • Sakai, S G
    • Tinling, N G
  • Publication Date: 1978-7

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Filing Info

  • Accession Number: 00388764
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Oct 30 1984 12:00AM