A recent case appealed from the Court of Claims of Ohio points up the importance of strictly complying with contract provisions regarding time limitations for making claims. In Ohio Farmers Ins. Co. v. Ohio School Facilities Commission (Franklin County No. 11AP-547), 2012 Ohio 951, the surety for the masonry prime contractor for a school construction project became the assignee of the construction contract after the contractor had financial difficulties. In that capacity, the surety asserted breach of contract claims against the OSFC for its alleged failure to compensate the contractor for acceleration and compression of the construction schedule and for failure to remit the contract balance and retainage.

The trial court awarded the OSFC summary judgment on the breach of contract claim because it found that the contractor failed to formally file a claim in the time limit set forth in the contract, and even if a claim was timely made, it was not appealed to the construction manager within the contractually mandated 30 days. The trial court made its findings based on deposition testimony from the contractor’s general counsel which seemed to admit that the claims deadlines were not met. To try to create an issue of material fact and preclude the award of summary judgment, the surety tried to clarify the general counsel’s deposition with an affidavit. That effort was unsuccessful, summary judgment was granted, and the surety appealed.

The Court of Appeals upheld the grant of summary judgment, holding that the general counsel’s affidavit did not clarify his deposition testimony. Instead, it contradicted his testimony. The court then invoked a rule of law that calls for affidavit testimony to be ignored when it conflicts with previous live testimony. The court was then left with general counsel’s admission that the contractor failed to submit a formal claim and the grant of summary judgment was upheld.