The Register-Herald, Beckley, West Virginia

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February 9, 2013

Greenbrier BOE files suit over school construction

— The Greenbrier County Board of Education has filed a lawsuit against four companies involved in the construction of Lewisburg Elementary School, leaving at least one firm’s president puzzled over being named as a respondent.

The allegations of wrongdoing in the suit center on the work performed by Carpenter Reclamation Inc., a Charleston-based contractor responsible for site excavation and preparation.

Working under a contract worth just below $1.2 million, Carpenter excavated the site where the 71,000-square-foot school was later built. The suit claims that Carpenter blasted to a “deeper depth” than the contract called for and installed “a liner which was found by those inspecting its work to be defective.”

The cost to replace the liner was $14,100, according to the suit.

The excessively deep site excavation caused the other companies named in the lawsuit alongside Carpenter to incur extra expense beyond the original contract amounts. Those contractors — Dougherty Company Inc., and Swope Construction Co. — then billed the Board of Education for the additional amount needed to complete the project.

Dougherty served as the project’s plumbing contractor, while Swope was the lead contractor constructing the school building, with a contract exceeding $8.3 million.

Dougherty’s extra expense came to $10,587, according to the lawsuit, while Swope incurred an additional $212,645.42 in expenses due to Carpenter’s alleged error.

Both Dougherty and Swope are still awaiting payment from the board and will now also presumably incur legal fees to answer the lawsuit.

“It’s kind of a surprise to us to be named in this lawsuit,” Swope Construction President Ron Mallory said in a telephone interview with The Register-Herald.

“They (the Board of Education) have a dispute with the site contractor, not with us,” Mallory said. “We did corrective work, and we haven’t been paid for that work. We have a change order and everything.”

He added, “It was a very good project for us and for the Board of Education. I hate that they felt they had to do this (file a lawsuit) to resolve the problem.”

In addition to the three contractor companies, the suit names Western Surety Co. as a respondent. Western Surety provided Carpenter’s performance bond.

The lawsuit claims that a notice of nonconforming work was issued to Carpenter, but Carpenter did not remediate the problem, leading the board to spend an extra $5,800 on evaluations, reviews and testing of the company’s work sites.

The board’s legal counsel formally notified both Carpenter and Western Surety on July 25, 2012, according to the suit, but “Carpenter and Western Surety have failed and refused to respond to the notification.”

The lawsuit was filed Jan. 25, with all four companies listed as respondents given 30 days to answer the complaint.

Telephone messages left with the offices of Dougherty and Carpenter seeking comment for this story were not immediately returned. Attempts to reach Western Surety were also unsuccessful.

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