PRESENT: All the Justices 

PALMER & PALMER COMPANY, LLC, 

T/A PALMER & COMPANY 

v. Record No. 071373 OPINION BY 

 JUSTICE S. BERNARD GOODWYN 

WATERFRONT MARINE CONSTRUCTION, June 6, 2008 

INC. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 In this appeal, we consider whether the trial court erred 

in its interpretation of a contract between Palmer & Palmer 

Company, LLC (“Palmer”) and Waterfront Marine Construction, 

Inc. (“Waterfront”) and in its imposition of liability on 

Palmer for damage resulting from Waterfront’s crane falling 

into an abandoned, disconnected septic tank on Palmer’s 

property. 

 Waterfront filed a complaint alleging breach of contract 

against Palmer and seeking damages primarily related to repair 

of its crane. Palmer and Waterfront filed joint stipulations 

as to the facts of the case, agreed that no material issues of 

fact remained in dispute, and submitted the matter for the 

trial court’s consideration on competing motions for summary 

judgment. The trial court denied Palmer’s motion for summary 

judgment and, holding that Palmer breached the contract, 

granted Waterfront’s motion for summary judgment. The trial 
court awarded Waterfront damages plus attorneys’ fees. Palmer 

appeals to this Court. 

 The facts are undisputed. Waterfront, a marine 

construction and pile driving company, and Palmer, the owner 

of the property and the general contractor for construction of 

a house on 856 South Atlantic Avenue, Virginia Beach (“Lot 

2”), entered into a contract. The contract specified that 

Waterfront would drive foundation piles into the ground on 

Lot 2. 

 On August 5, 2004, an employee of Waterfront was 

operating a crane owned by Waterfront on Lot 2 when the crane 

fell into a buried septic tank and was damaged. The septic 

tank was empty and covered with approximately four to ten 

inches of sand. Prior to the accident, neither Waterfront nor 

Palmer was aware of the existence of the septic tank. The 

house previously located on Lot 2 had been demolished before 

Palmer bought the property; however, the house utilized the 

City of Virginia Beach public sewage system from at least 

1990. No recorded plat, survey, or drawing disclosed a septic 

tank on the property. Also, the Department of Public Health 

for the City of Virginia Beach, which is the agency that keeps 

records of private septic systems in the City of Virginia 

Beach, had no record of any septic system or tank as having 

been located on the subject property. 

2
 Waterfront sought damages from Palmer on a purely 

contractual basis because of the damage to Waterfront’s crane 

and other expenses related thereto. The relevant provisions 

of the contract are as follows: 

 2.1 EXCLUSIONS: . . . Waterfront . . . 

assumes no responsibility for the following: 

. . . . 

 2. Removal of underground or overhead 

obstructions. 

. . . . 

 2.2 WORK AND/OR SERVICES TO BE PERFORMED BY 

OWNER PRIOR TO PILE DRIVING: 

. . . . 

 6. Location, protection, and removal of all 

utilities in area. 

 7. Protection of existing structures. 

. . . . 

 4.1 ADDITIONAL WORK: Should additional work 

such as, but not limited to, underground 

obstructions such as trees, stumps, rocks, debris, 

etc. be encountered, an extra charge for equipment, 

labor, overhead and profit will be charge [sic] at 

$250.00/hour for removal or augering. 

 The trial court concluded that Palmer was liable based on 

the court’s combined reading of sections 2.1(2) and 4.1, 

reasoning that reading those provisions together indicates 

that Palmer was responsible for removal of underground 

obstructions. Additionally, the trial court found that the 

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septic tank was either a utility or an existing structure that 

Palmer was responsible for under sections 2.2(6) or 2.2(7) of 

the contract. On March 30, 2007, the trial court awarded 

Waterfront damages in the amount of $22,696.05 plus attorneys’ 

fees in the amount of $11,006.55. 

 Palmer argues that the trial court erred in interpreting 

the contract and imposing liability and damages. Focusing on 

the language of the contract, Palmer contends that the 

contract does not reflect an agreement that Palmer would 

remove or locate an abandoned septic tank. According to 

Palmer, the trial court created a duty that was not 

memorialized in the contract. 

 Waterfront argues that the trial court correctly 

interpreted the contract. Waterfront states that Palmer is 

liable under the contract for primarily three reasons. First, 

Waterfront asserts that sections 2.1(2) and 4.1 demonstrate it 

was Palmer’s responsibility to prepare the work site, which 

included removing underground obstructions. Second, Palmer 

failed to “locate and protect existing structures, 

specifically the septic tank, as required by Paragraph 

2.2(7).” Third, section 2.2(6) provides that Palmer was 

responsible for the location and removal of “all utilities.” 

Arguing that the septic tank is a utility, Waterfront contends 

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that Palmer breached the contract by failing to comply with 

section 2.2(6). 

 Interpretation of a contract is a question of law that is 

reviewed de novo. PMA Capital Ins. Co. v. US Airways, Inc., 

271 Va. 352, 357-58, 626 S.E.2d 369, 372 (2006). When a 

contract is clear and unambiguous, it is the court’s duty to 

interpret the contract, as written. Winn v. Aleda Constr. 

Co., 227 Va. 304, 307, 315 S.E.2d 193, 194 (1984). On appeal, 

this Court is not bound by the trial court’s determinations 

regarding the interpretation of an unambiguous contract. 

Gordonsville Energy, L.P. v. Virginia Elec. & Power Co., 257 

Va. 344, 353, 512 S.E.2d 811, 816 (1999). 

 In a breach of contract claim, the parties’ contract 

becomes the law governing the case unless it is repugnant to 

some rule of law or public policy. Winn, 227 Va. at 307, 315 

S.E.2d at 194. This Court must construe the contract as it is 

written. Christopher Assocs. v. J.C. Sessoms, Jr., 245 Va. 

18, 22, 425 S.E.2d 795, 797 (1993). “The guiding light in the 

construction of a contract is the intention of the parties as 

expressed by them in the words they have used, and courts are 

bound to say that the parties intended what the written 

instrument plainly declares.” W.F. Magann Corp. v. VirginiaCarolina Elec. Works, Inc., 203 Va. 259, 264, 123 S.E.2d 377, 

381 (1962).

5
 We hold that sections 2.1(2) and 4.1 of the contract do 

not subject Palmer to liability in this case. In section 

2.1(2), the contract states that Waterfront assumed no 

responsibility for the removal of underground obstructions. 

The plain meaning of that provision is that the contract price 

did not include the removal of underground obstructions. 

Section 4.1 further confirms such an interpretation by stating 

that Waterfront would charge $250 per hour for additional work 

resulting from underground obstructions. 

 The contract indicates that the parties anticipated 

underground obstructions might be encountered during the 

project. The contract provides for payment to Waterfront for 

the removal of any such obstructions. However, the contract 

does not impose any obligation upon Palmer to remove such 

underground obstructions or to be responsible for damages 

caused thereby. Thus, contract sections 2.1(2) and 4.1, 

whether considered together or separately, do not impose 

contractual liability upon Palmer for damage to Waterfront’s 

crane caused by a previously unknown underground obstruction. 

Therefore, the trial court erred in granting Waterfront’s 

motion for summary judgment based on a reading of sections 

2.1(2) and 4.1. 

 Palmer also assigns error to the trial court’s ruling 

that Waterfront is entitled to contractual damages because the 

6
septic tank was an existing structure. Under section 2.2(7) 

of the contract, Palmer is responsible for protecting existing 

structures. Assuming the septic tank is an existing 

structure, section 2.2(7) clearly means that Palmer could not 

hold Waterfront responsible for any damage to the septic tank. 

However, section 2.2(7) does not make Palmer liable for damage 

to Waterfront’s crane caused when the crane fell into the 

septic tank. The trial court’s holding that the septic tank 

was such an existing structure therefore does not provide a 

contractual basis for imposing liability upon Palmer for 

Waterfront’s damages. 

 Palmer further assigns error to the trial court’s holding 

that the abandoned, disconnected septic tank could be the 

basis for imposing liability upon Palmer, pursuant to section 

2.2(6) of the contract. Section 2.2(6) states that Palmer was 

responsible for the location, protection, and removal of all 

utilities. This Court must therefore consider whether an 

abandoned, disconnected septic tank is a utility. We hold 

that it is not. 

 When the interpretation of a contract involves a term 

that is clear and unambiguous, the term is given its plain 

meaning. PMA Capital Ins. Co., 271 Va. at 358, 626 S.E.2d at 

372. A contractual term, absent a definition in the contract, 

is construed according to its usual, ordinary, and popular 

7
meaning. See Christopher Assocs., 245 Va. at 23, 425 S.E.2d 

at 797. The term “utility” is defined as “a service provided 

by a public utility” and as “a unit composed of one or more 

pieces of equipment usually connected to or part of a 

structure and designed to provide a service (as heat, light, 

power, water, or sewage disposal).” Webster’s Third New 

International Dictionary 2525 (1993). 

 Assuming, without deciding, that an operational septic 

system is a utility, the septic tank involved in this case is 

not a utility because there is no evidence that this septic 

tank is, or ever was, part of an operational septic system. 

The evidence is uncontroverted that the house previously on 

the property utilized the public sewer system since 1990. 

There is no evidence that this septic tank was ever connected 

to the house that was previously located on Lot 2 or that it 

was part of an operational septic system. At best, the septic 

tank is part of a disconnected septic system that had been 

abandoned for years; it is one part of a unit that, if 

operational, would be a utility. Thus, we hold that the 

empty, abandoned septic tank was not a “utility” within the 

intendment of Section 2.2(b) of the parties’ contract. 

 Under the terms of the contract, Palmer did not have a 

duty to locate or remove an abandoned, disconnected septic 

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tank. The trial court erred in holding such a duty existed 

under the contract. 

 Palmer also argues that the trial court erred in awarding 

attorneys’ fees. In view of our disposition concerning 

Palmer’s liability, we hold that Waterfront is not entitled to 

attorneys’ fees pursuant to the terms of the contract. 

 This Court concludes that the contract contains no 

provision that would make Palmer liable for Waterfront’s 

damages. We will reverse the judgment of the trial court and 

enter final judgment in favor of Palmer. 

Reversed and final judgment.