Denver D. Darling, Inc. v. Controlled Environments Construction, Inc.

Introduction

Plaintiff Denver D. Darling, Inc., doing business as Darco Construction (Darco), a subcontractor, sued the general contractor, defendant Controlled Environments Construction, Inc. (Controlled) to recover the retention proceeds being withheld by Controlled. Darco also filed suit against Aetna Casualty & Surety Company of America (formerly Travelers’ Insurance, referred to hereafter as Travelers), the surety on the statutory contractor’s bond held by Controlled. Controlled counterclaimed, arguing that Darco failed to comply with contractual specifications regarding the flatness required for a concrete floor.

At trial, the court ruled that an ambiguity existed in the contract with regard to the flatness requirement. It awarded Darco its retention, but denied its request for statutory penalties and attorney fees. The trial court also refused to award to Controlled its expenses based on alleged abuse of the discovery process by Darco.

Controlled appeals from the judgment, including the denial of its request for expenses. In addition, Travelers appeals, contending the judgment in its favor should be modified to reflect that judgment in its favor not be…