UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLOVER CONSTRUCTION COMPANY,

INCORPORATED,

Plaintiff-Appellee,

v. No. 98-1194

HAMPTON ROADS SANITATION

DISTRICT,

Defendant-Appellant.

GLOVER CONSTRUCTION COMPANY,

INCORPORATED,

Plaintiff-Appellant,

v. No. 98-1266

HAMPTON ROADS SANITATION

DISTRICT,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CA-97-528-2)

Argued: October 26, 1998

Decided: December 18, 1998

Before ERVIN and HAMILTON, Circuit Judges, and

G. ROSS ANDERSON, JR., United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Gordon Bennett Tayloe, Jr., KELLAM, PICKRELL,

COX & TAYLOE, P.C., Norfolk, Virginia, for Appellant. Neil Samuel Lowenstein, VANDEVENTER BLACK, L.L.P., Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is a cross-appeal arising from a dispute over the construction

of a sewer line in the City of Chesapeake. For the reasons stated

below, we affirm.

I.

Glover Construction Company ("Glover") and Hampton Roads

Sanitation District ("HRSD") entered into a contract to construct

approximately 10,000 feet of twenty-four (24) inch sewer line. The

contract required construction in the right of way of Cedar Road, a

major east-west connector in the City of Chesapeake ("City"). A

detour rerouted west-bound Cedar Road traffic to Dominion Boulevard. Under the terms of the contract, the City was to control the flow

of traffic via a land disturbance permit, with which Glover was

responsible for complying.

As a part of the contract, a blueprint drawing stated in large capital

letters: "NOTE: THIS PLAN SHOWN ON THIS SHEET IS A GEN-

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ERAL CONCEPTUAL TRAFFIC CONTROL PLAN AND A

DETAILED TRAFFIC CONTROL PLAN, PREPARED BY THE

CONTRACTOR, WILL BE REQUIRED TO BE SUBMITTED TO

AND APPROVED BY THE CITY OF CHESAPEAKE PRIOR TO

BEGINNING CONSTRUCTION" (emphasis added). Relying upon

this provision, the district court ruled Glover assumed the risk that the

City would impose unanticipated traffic control requirements, and

denied Glover's claim for reimbursement for the cost of flagmen,

signs, and other traffic control related costs.

The contract clearly required a uniformed police officer at the

intersection of Cedar and Grassfield Roads while the detour was in

place. Additionally, HRSD required the police officer to be in a police

cruiser. This uniformed police officer, while technically off-duty, still

responded to calls from the City dispatcher.

Glover argued that providing the police officer was a coordination

requirement of the contract, and that the contract was ambiguous as

to which party must pay for the police officer.

HRSD argued that because the contract was not ambiguous, it was

error for the district court to accept parol evidence. HRSD argued that

three provisions of the contract clearly required Glover to bear all

costs. Section 2(a) of the General Conditions of the Contract summarizes those provisions. Section 2(a) stated, "contractor shall provide

and pay for all . . . labor, . . . and other services and facilities of every

nature whatsoever . . . ."

The district judge found the contract was ambiguous as to which

party had to pay for the officer and allowed parol evidence to resolve

the ambiguity. Relying on the testimony of Matt Glover, the district

court ruled HRSD must pay for the uniformed police officer. Glover

testified that contractors do not pay for police officers unless the contract specifically requires it.

The district court denied Glover's request for costs, fees, and prejudgment interest. The district court noted that the contract disputes

were legitimate and in its discretion decided not to grant costs, fees,

or prejudgment interest.

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II.

This Court reviews the district court's evidentiary rulings for abuse

of discretion. See United States v. Russell, 971 F.2d 1098, 1104 (4th

Cir. 1992), cert. denied, 506 U.S. 1066 (1993); Lilly v. Commonwealth of Virginia, 499 S.E.2d 522, 532 (Va. 1998). However,

whether or not a contract is ambiguous under Virginia law is a question of law and must be reviewed de novo. Doswell v. VEPCO, 468

S.E.2d 84, 88 (Va. 1996).

"The district court's factual findings are reviewed for clear error."

DesRoches v. Caprio, 156 F.3d 571, 576 (4th Cir. 1998) (citing

United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992)).

III.

HRSD appeals the district court's ruling requiring HRSD to bear

the costs of the uniformed police officer while the detour was in

place. HRSD argues that the Virginia Supreme Court's decision in

Doswell supports their position on the use of parol evidence in this

case. Doswell v. VEPCO, 468 S.E.2d 84, 89 (Va. 1996). In Doswell,

the court stated that "parol evidence may not be used to first create

an ambiguity and then to remove it." Id.

Glover argues that the contract is ambiguous under Virginia law,

including the Doswell decision relied upon by HRSD. In Doswell, the

court stated that "[a]n ambiguity exists when language admits of

being understood in more than one way or refers to two or more

things at the same time." Id. at 88; see also Aetna Casualty and Surety

Co. v. Fireguard Corp., 455 S.E.2d 229, 232 (Va. 1995).

The district court found that the contract required a uniformed

police officer to direct traffic, but that the contract was "silent as to

who [was] to pay for that police officer." The district court found as

a matter of fact and law that the three contract provisions relied upon

by HRSD did not apply to the police officer issue. The district court

stated, "The police officer is a specific separate designation on the

contract documents [and that the contract] is silent as to who should

pay [for the police officer]."

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The district court found the testimony of Glover's expert, Matt

Glover, credible. Matt Glover testified that absent a specific contractual provision to the contrary, the contractor would not pay for the

costs of a uniformed police officer. The district court found that the

testimony of HRSD's witnesses, A. G. Pinkston and Ed Martin, also

supported its resolution of the ambiguity.

We find the district court's legal conclusion that the contract was

ambiguous proper. The fact that the police officer requirement was

set-off from the rest of the contract, as noted by the district court,

made the contract capable of being understood in more than one way.

See Doswell, 468 S.E.2d at 88; Aetna, 455 S.E.2d at 232. We find no

abuse of discretion by the district court in resolving the ambiguity

with parol evidence.

Therefore, we affirm the district court's ruling that HRSD must pay

for the uniformed police officer.

IV.

Glover cross-appeals the district court's ruling denying Glover's

request for reimbursement for the cost of flagmen, signs, and other

traffic control related costs. Glover argues that the requirements

imposed upon them by the City were unreasonable. Glover argues

that, under Vandergrift v. United States, 500 F. Supp. 229, 233 (E.D.

Va. 1978), a party has the right to assume that other parties will do

their duty and act reasonably in doing so. Vandergrift is a negligence

case. Id. The City is not a party in this lawsuit, nor were they a party

to the contract between Glover and HRSD. In its brief, Glover cites

a string of cases without further explanation for the proposition that

approving officials must conform their approvals to industry standards. We find nothing in these cases requiring HRSD to compensate

Glover for costs associated with a permit issued by the City, particularly since HRSD specifically noted in the contract that Glover was

responsible for obtaining the permit.

The district court found the flagmen issue was separate and distinct

from the uniformed police officer issue. The district court noted the

requirement to provide a uniformed police officer did not require further approval from the City, whereas the number of flagmen and other

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traffic control devices were specifically set out in the contract as

items for which the contractor would have to obtain approval. The

district court agreed that the traffic control requirements placed upon

Glover by the City were in many respects unreasonable; however, it

found that Glover assumed this risk when it bid the contract.

We find the district court's ruling on this issue proper as a matter

of law. The contract clearly required Glover to obtain and comply

with the City's permit. HRSD made no representations as to the manner in which the City might act. Therefore, we affirm the district

court's ruling that Glover assumed the risk that the City would

impose unanticipated traffic control requirements.

V.

Glover also cross-appeals the district court's ruling denying Glover

costs, fees, and pre-judgment interest. Glover argues that it was successful on its claim for reimbursement for the police officer; therefore, an award of costs, fees, and pre-judgment interest is necessary

to make them whole.

Under Virginia law, it is within the discretion of the trial court to

award prejudgment interest. See, e.g., United States v. Dollar Rent A

Car Systems, 712 F.2d 938, 940-41 (4th Cir. 1983); Continental

Insurance Co., v. City of Virginia Beach, 908 F. Supp. 341, 348 (E.D.

Va. 1995); and VA. CODE ANN. § 8.01-382 (Michie 1998);see also

Dairyland Ins. Co. v. Douthat, 449 S.E.2d 799, 801 (Va. 1994). The

district court stated that because the disputes in this case were legitimate, it would not award costs, fees, or prejudgment interest.

We find that the district court's decision not to award prejudgment

interest was not an abuse of discretion. Therefore, we affirm the district court's ruling denying Glover costs, fees, and pre-judgment interest.

VI.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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