Full opinion text
MEMORANDUM AND ORDER ROSENTHAL, District Judge. Monsanto Company (“Monsanto”) and the Mercantile Bank of St. Louis, N.A., Trustee of the Moteo Site Trust Fund (“Trustee”) (collectively “defendants”), have filed a Rule 50(b) Motion for Judgment as to 1990 Release, (Docket Entry No. 395), and a Motion for Judgment Non Obstante Veredicto or, Alternatively, for New Trial, (Docket Entry No. 396). Plaintiff IT Corporation (“ITC”) has filed a Motion for Entry of Judgment, (Docket Entry No. 404). For the reasons stated below, defendants’ Rule 50(b) motion is GRANTED and the motion for judgment non obstante veredicto or for new trial is DENIED in part and GRANTED in part. The motion for entry of judgment is GRANTED in part and DENIED in part. I. Factual Background On October 20, 1987, the United States District Court, Galveston Division, entered a Partial Consent Decree settling claims filed by the United States Environmental Protection Agency (“EPA”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. The Consent Decree was executed by parties potentially responsible for the presence of hazardous wastes at a former chemical waste disposal site known as the “Moteo Site.” The Consent Decree required the settling defendants, including Monsanto, to finance and perform certain remedial action at the Moteo Site. The Mot-eo Site Trust Fund was created for the remediation work. The Trustee of the Fund was to hold and manage the money contributed by the settling defendants and to hire the contractor to clean up the Moteo Site. During the four years before the Consent Decree, both Monsanto and the EPA had investigated the wastes at the Moteo Site and analyzed remediation alternatives. The EPA had hired two independent consulting firms, CH2M Hill and Black & Veatch; Monsanto had hired Woodward Clyde Consultants. These firms studied the Moteo Site and provided reports. Based on these studies, Monsanto recommended, and the EPA ordered, on-site incineration of the contaminated materials at the Moteo Site. In October 1986, Monsanto prepared a Request for Proposal (“RFP”) for the Moteo Site remediation work and sent it to contractors for comments. In the RFP, Monsanto provided a written “Scope of Work” that described the Moteo Site and the waste materials in the eight pits to be remediated. The Scope of Work included technical data about the volume and properties of the waste materials in the pits. The data included the amounts of waste water, “high BTU liquid organics,” “low BTU liquid organics,” and “sludges/tars/solids” present at the Site. These waste profiles were based upon Monsanto’s analysis of the data provided by the consultants. Monsanto summarized the waste characteristics and volumes in the RFP, and disclosed the underlying studies. The RFP specified on-site incineration as the primary remediation method and required a lump sum bid for the remediation work. ITC reviewed the RFP and submitted comments. In response to those comments, Monsanto revised the RFP and sent it back to ITC. In September 1987, ITC submitted its bid for a lump sum of $28,330,854, plus unit price extensions of $4,553,146, for a total bid of $32,884,000. Before submitting its bid, ITC had visited the Moteo Site, obtained some waste samples, and performed tests on certain oils from two of the pits. ITC submitted the bid with a signed statement that it had visited the Site and was familiar with current Site conditions. On January 4, 1988, ITC and defendants signed the Remediation Contract, and ITC began work. ITC encountered delays during the early phases of its work. In May 1990, the parties began negotiating ITC’s claims to that point. On September 26, 1990, the parties executed a Release and Settlement Agreement providing that ITC would receive additional payment for the project delays and changes to the Scope of Work, in exchange for a release of certain claims. Under the 1990 Settlement Agreement, defendants paid, and ITC accepted, $3.1 million to settle $8.9 million in claims for additional work that ITC had asserted at that time. On December 4,1990, ITC informed defendants in writing that the information Monsanto had provided in the 1987 RFP and related bid documents about the waste characteristics and amounts “may be” wrong. ITC stated that while incinerating liquids in one of the pits at the Site, ITC had discovered that the actual quantity of oil in the pit was one-third of the amount specified in the RFP. (P.Ex. 36). ITC continued to work under the contract while providing defendants with progressively more detailed information as to the amounts, classifications, and BTU content of the different types of contaminants that were in fact in the Moteo Site pits. ITC’s bid and work were based on the use of incinerators using Hybrid Thermal Treatment Systems, known as “HTTS” units. These incinerators depended on the use of liquid injection incineration, which in turn depended on the amount of liquid wastes as opposed to sludges/tars/solids, and the BTU values of those wastes. (TR. 156:20— 160:24). ITC asserted that the amount of liquids actually present at the Site was much lower than the RFP had described; that the amount of solids was much higher; and that the BTU values of the sludges/tars were much greater. ITC alleged that it could not reasonably have discovered the errors until it had done extensive work at the Site. ITC asserted that these differences had a “drastic” impact on the efficiency of ITC’s intended method of incineration and the price. If it had known the true amounts, mix, and characteristics of the waste at the Moteo Site, ITC claimed that it would have designed, sized, and configured its equipment differently, and would have provided a different contract price. ITC claimed that because the waste was not as represented, ITC could not do the work with the equipment provided and for the price set. Because the mix of wastes at the site was substantially different from the mix of wastes upon which it had bid, ITC claimed additional compensation for remedi-ating the “new” wastes. ITC also contended that during the contract period, defendants had interfered with ITC’s performance by dumping over one million gallons of contaminated water into pit 7. ITC sought an “equitable adjustment” to the contract price. Defendants refused to accept ITC’s findings or consider an adjustment until ITC had completed the “trial burn” using the HTTS incineration units. ITC continued to work under the contract while the parties negotiated the request for equitable adjustment. The parties were not able to reach agreement. In late November 1991, ITC notified Monsanto that it intended to suspend performance under the contract, which it did on December 1,1991. This lawsuit and counterclaim resulted. In its pleadings, ITC alleged that it was forced to discontinue operations at the Moteo Site because defendants had misrepresented the Site conditions and had interfered with ITC’s remediation work. ITC asserted causes of action based on breach of contract, breach of implied warranty, negligent and fraudulent misrepresentation, and gross negligence. ITC sought $55.8 million in actual damages, punitive damages, and attorneys’ fees. Defendants responded that ITC was required by the terms of the contract to remed-iate the Site, regardless of the amount or type of waste encountered. Defendants argued that ITC had inspected the Site before submitting the bid and represented itself as capable of performing the remediation work. Defendants claimed that no information was included in the RFP that was known to be inaccurate and that no material information was withheld. Defendants also challenged ITC’s claims that the RFP waste inventory description was inaccurate. Defendants claimed that ITC’s waste inventory data was wrong and that ITC’s work at the Site from 1987-1990 had drastically changed the Site from the way it had been at the time the RFP was prepared. Defendants asserted that the problems ITC had experienced were the result of poor management and/or equipment. Defendants denied that they had pumped contaminated water into pit 7 so as to interfere with ITC’s work. Defendants also contended that the 1990 Settlement Agreement between ITC and the Moteo Trust released $8.1 million for ITC’s claims asserted as of September 1990. Defendants filed counterclaims based on fraud and breach of contract, and sought $20.9 million in damages for completing the project, as well as attorneys’ fees. This case was tried before a jury from March 18, 1994 until April 20, 1994. On April 20, 1994, the jury returned a verdict in favor of ITC. The jury’s responses to the questions relevant to the pending motions are set forth below. Question 1 Did Moteo Trust or Monsanto make a positive assertion of BTUs, viscosities or quantities of waste in the RFP that was materially false, upon which ITC justifiably relied in connection with its 1988 contract with Moteo Trust? Answer: Yes Question 2 Before the execution of the 1988 contract, did IT Corporation make an investigation of the accuracy of the BTUs, viscosities or quantities of waste described in the RFP? Answer: No Question 3 Did Monsanto or Moteo Trust commit fraud? Answer: Yes Question 4 Did Monsanto or Moteo Trust commit negligent misrepresentation? Answer: Yes These questions were limited by the jury instructions to the period before the 1988 Remediation Contract was signed. Question 7 Did Monsanto or Moteo Trust breach its contract with IT Corporation? Answer: Yes The instructions accompanying this question limited it to the allegation that defendants had interfered with ITC’s performance by pumping contaminated water into pit 7. Question 11 Is IT Corporation “estopped” to complain of any of the following: a. Monsanto or Moteo Trust’s breaches of the contract. Answer: No b. Monsanto or Moteo Trust’s fraud Answer: No c. Monsanto or Moteo Trust’s negligent misrepresentation Answer: No Question 12 When IT Corporation executed the August 7, 1990 Supplemental Agreement and Settlement and Release Agreement was it aware of the material misrepresentations as to the BTUs, viscosities or quantities of waste in the RFP? Answer: No Question 13 What sum of money, if any, if paid now in cash, would fairly and reasonably compensate IT Corporation for its damages, if any, that resulted from Monsanto or Moteo Trust’s breach of contract? Consider the following elements of damages, if any, and none other: The reasonable value of the labor and materials IT Corporation put into the project in accordance with the contract, whether the result has any value to Monsanto or Moteo Trust or not, less amounts paid to IT Corporation under the contract. Answer $ 52,823,356.53 Question 14 What sum of money, if any, if paid now in cash, would fairly and reasonably compensate IT Corporation for its damages, if any, that were proximately caused by Monsanto or Moteo Trust’s fraud? Consider the following elements of damages, if any, and none other. a. The difference between the value of what IT Corporation parted with and what it received. b. Other damages that were a natural, probable and foreseeable consequence of Monsanto’s and Moteo Trust’s fraud. Answer $ 52,823,356.53 Question 15 What sum of money, if any, if paid now in cash, should be assessed against Monsanto and awarded to IT Corporation as punitive damages, if any, for the conduct found in response to Question 3? Answer $ 28,550,000.00 Question 16 What sum of money, if any, if paid now in cash, would fairly and reasonably compensate IT Corporation for its damages, if any, that were proximately caused by Monsanto’s negligent misrepresentation? Consider the following elements of damages, if any, and none other. a. The difference, if any, between the value of what IT Corporation parted with and what it received. b. The pecuniary loss, if any, otherwise suffered as a consequence of IT Corporation’s rebanee on the misrepresentation. The damages recoverable for a negbgent misrepresentation do not include the benefit of IT Corporation’s contract with Moteo Trust. Answer: $ 52.823,356.53 Question 17 What is a reasonable fee for the necessary services of IT Corporation’s attorneys in this case, stated in dollars and cents? a. For preparation and trial. Answer $ 2.302.748.41 b. For an appeal to the Court of Appeals. Answer $ 250,000,00 II. The Pending Motions A. The Parties’ Positions ITC asks this court to enter judgment in its favor for the full actual and punitive damages awarded. Defendants ask this court to find the following: (1) Any misrepresentation as to Site conditions in the RFP was not a breach of the 1988 Remediation Contract, so that the jury’s answers to Questions 1 and 2 were immaterial. (2) There was insufficient evidence to support the jury’s findings of misrepresentation, fraud, or negbgent misrepresentation, so that the jury’s answers to Questions 1, 2, S, and 4 were not supported by sufficient evidence. (3) The jury’s answer to Question 4 was immaterial as a matter of law because the statute of bmitations barred a negbgent misrepresentation claim. (4) The 1990 Settlement Agreement is enforceable as a matter of law, making the jury’s response to Question 12 immaterial, and there was insufficient evidence to support the jury’s response to Question 12. (5) The imposition of punitive damages was unwarranted by Texas law and by the evidence, so that the jury’s answer to Question 15 should be set aside. (6) The damages submission in Questions 13 and 14 was improper under Texas law. B. Summary of the Court’s Rulings This court finds that there was sufficient evidence to support ITC’s claims that the information on the RFP waste amounts and characteristics was wrong and that this had a material impact on ITC’s abibty to do the contract work. There was sufficient evidence for the jury’s answer to Question 1 that defendants had made a “positive assertion of BTUs, viscosities or quantities of waste in the RFP that was materially false, upon which ITC justifiably rebed in connection with its 1988 contract with Moteo Trust.” The court also finds that there was sufficient evidence to support the jury’s answer to Questions 2 and 3, that, before the execution of the 1988 Remediation Contract, ITC did not investigate the accuracy of the BTU values, viscosities, or quantities of waste described in the RFP, and was not estopped from asserting breach of contract. The court does determine that, under Texas contract law, the answers to these questions were material. This court does not find sufficient evidence or legal basis to support the jury’s finding of fraud (Question 3) or the imposition of punitive damages (Question 15). The court also finds that the statute of limitations precludes ITC’s cause of action for negligent misrepresentation (Question 4). This court finds that there is sufficient evidence to support the jury’s response to Question 12, that when ITC executed the Settlement and Release Agreement, it was unaware of the misrepresentations contained in the RFP. However, the court finds that as a matter of law, the 1990 Settlement Agreement is enforceable, and that the jury’s response is therefore immaterial. The court finds that the actual damages finding was supported by sufficient evidence and by the applicable law, except as noted below. III.Standard of Review This court reviews a motion for judgment NOV under the standard set out in Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). See also Roberts v. United New Mexico Bank at Roswell, 14 F.3d 1076, 1078 (5th Cir.1994); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 266 (5th Cir.1994). This court must review all of the evidence “in the light and with all reasonable inferences most favorable to the party opposing the directed verdict or judgment notwithstanding the verdict.” Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1165 (5th Cir.1990) (quoting Boeing, 411 F.2d at 374). This standard of review is exacting. As the Fifth Circuit has recently affirmed: The verdict must be upheld unless the facts and inferences point so strongly and so overwhelmingly in favor of one party that reasonable [persons] could not arrive at any verdict to the contrary. If there is evidence of such quality and weight that reasonable and fair minded [persons] in the exercise of impartial judgment might reach different conclusions, the jury function must not be invaded. Roberts, 14 F.3d at 1078 (quoting Western Co. of North Am. v. United States, 699 F.2d 264, 276 (5th Cir.), cert. den’d, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983)). IV. Waiver of Objections to the Jury Verdict ITC first claims that defendants have waived objections to the sufficiency of the evidence supporting the jury’s verdict. This court finds that defendants have preserved their right to object to the sufficiency of the evidence. On April 7,1994, defendants filed a Motion for Partial Summary Judgment with this court that asserted grounds for relief as a matter of law. That motion raised the same arguments defendants now assert to challenge the verdict. (Docket Entry No. 352). Defendants filed this motion at the conclusion of ITC’s ease-in-chief, (TR. 2550-66); reurged the motion at the end of defendants’ case-in-chief; and urged the motion again following the close of all the evidence. (TR. 3972-73, 4225, 4227-28). Defendants have not waived their right to object to sufficiency of the evidence or to seek a JNOV. V. Breach of Contract: Assumption of Risk As to the Site Conditions Defendants argue that as a matter of law: (1) the Remediation Contract placed the risk of the Site conditions on ITC; (2) ITC assumed the risk by verifying in the contract that ITC had visited the Moteo Site and was familiar with the Site conditions; and (3) ITC is estopped by its investigation from complaining about any misrepresentations in the RFP. Defendants claim that the jury’s answers to Questions 1, 2, and 11 are immaterial and should be disregarded. Defendants’ primary argument is that, as a matter of Texas law, the Remediation Contract placed the risk of differing or unexpected Site conditions on the contractor. Defendants emphasize that the contract was for a lump sum, did not require the contractor to perform according to specifications set by the owner, and required the contractor to inspect the Site before bid. Even if the RFP did contain incorrect Site information, defendants assert, ITC bore that risk as a matter of Texas law. ITC does not dispute that it was to formulate the plan to remediate the Moteo Site for a lump sum. However, ITC asserts that the contract did not require ITC to bear the risk that the RFP misrepresented the nature and amounts of the wastes to be incinerated. Neither party contends that the contract is ambiguous. This court must interpret the contract in accordance with Texas law. In construing a contract, a court must determine the objective intent of the parties as expressed in the contract language. U.S. For Use of Straus Sys. v. Associated Indem., 969 F.2d 83, 85 (5th Cir.1992); Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731 (Tex.1981). The meaning of an unambiguous contract is a question of law for the court. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). If plans, specifications, or technical data are by express terms made a part of the contract, they are to be construed as part of the entire agreement. See Guerini Stone Co. v. P.J. Carlin Const. Co., 240 U.S. 264, 276, 36 S.Ct. 300, 306, 60 L.Ed. 636 (1916); Hill & Combs v. First Nat. Bank of San Angelo, 139 F.2d 740, 742 (5th Cir.1944). The Remediation Contract expressly provided that it included the Scope of Work. (Defendants’ Ex. 162). A. The RFP, the Bid Process, and the Remediation Contract On October 1, 1986, Monsanto forwarded the RFP to ITC. (ITC Exhibit No. 4). The transmittal letter stated that the waste characteristics data was included in the RFP “for information only and will not establish the basis for qualifying bids, quantities, methods, compositions, etc. We feel that sufficient information is available to allow a responsible, experienced contractor to provide a.lump sum bid for the service required. If your company has a problem with the approach, please reply with your specific concerns and proposed remedies.” (Id.) The proposed bid format included the following language: 3. Organic Wastes and Soils Removal The information as shown in Section IV of this bid package shall be used in determination of the lump sum price. This data is based upon test results by an independent consultant and is considered reliable. Contractor shall base his price on this information with a suitable contingency based upon contractor’s experience. No future cost claims or adjustments will be allowed for waste quantities different from the quantities shown in this bid package except those resulting from a change in depth of soil removal below the pit bot-tom_ If additional soil removal is required, the difference in soil volume will be paid on the basis of an independent survey of the final pit elevations and the calculated quantity based on additional in-situ yards of soil removed. 4. Incineration The information as shown in Section IV of this bid package shall be used in determination of the lump sum price. This data is based upon test results by an independent consultant and is considered reliable. Contractor shall base his price on this information with a suitable contingency based upon contractor’s experience. No future cost claims or adjustment will be allowed for BTU content of the wastes or waste quantities different from the quantities shown in this bid package except for those resulting from a change in depth of soil removal below the pit bottom sludge/ soil interface or in the tank farm and perimeter areas. (Id.) On October 9, 1986, ITC responded to the bid format required by the RFP. In the response, ITC objected to bearing the risk of variances in the waste characteristics. (ITC Exhibit 5). ITC’s response stated as follows: Items E 1 a) Monsanto states that no price E 3 adjustment will be made for quantities E 4 different than those noted in the bid package and requests the bidder to malee allowances for variances. Comment We recommend that the bid format contain “Fixed Unit Rates” for differences in quantities (plus or minus). The variances should be measured by weight of material which is to be remediated. A calibrated scale with automatic recording can be used to measure solids. Tank displacements or flow meters and analytical data can be used to measure liquids and sludges. A structure that will fairly allocate contract risks (the Site condition risks to Monsanto and the Site remediation risks to the contractor) will minimize contractual conflicts, create an environment of construcive [sic] cooperation and in our judgment provide the conditions for the lowest “contract close out cost” to Monsanto. The lowest “contract close out cost” can, in our opinion, be achieved by avoiding having contractors make unnecessary allocations within their bid for inquantifiable variances in site conditions, and by formulating a contract structure that will not encourage the contractor to “seek” change orders and claims or reduce his standard of performance should his daily costs be negatively impacted by unpredicted site conditions. In response to ITC’s objections, and following a meeting held in January 1987, defendants sent ITC a revised RFP. The revised RFP, and executed contract, deleted the language stating that no future cost claims would be allowed for waste quantities or BTU contents that were different from the quantities shown in the bid package. (ITC Exhibit 2). The revised bid format, and executed contract, provided for “unit prices” for actual amounts of additional materials excavated or incinerated beyond a specified elevation on the drawings provided. Id. However, ITC’s proposal that the entire bid format be revised from a lump sum to a fixed unit price format was rejected by defendants. Defendants’ letter transmitting the 1987 RFP stated that the Scope of Work in the RFP included sufficient information for a bid proposal. (Docket Entry No. 407, Ex. 11; TR. 151; ITC Exhibit 1). There was no statement in the letter telling ITC that the data provided was for a limited purpose and could not be used as a basis for preparing a bid. The Scope of Work in the revised RFP included the tables prepared by Monsanto providing data as to the wastes at the Moteo Site. These tables contained waste profile data that broke the pit wastes down into specified numbers of gallons of High BTU Liquid Organics, Low BTU Liquid Organics, Pit Waste Water, and Sludges/Tars/Solids. (ITC Exhibit 2). Defendants also made the underlying studies available to ITC. The revised RFP bid format also contained the following language relating to the conditions at the Moteo Site: All bidders must verify that they have accepted the terms and conditions of the contract, requirements, schedules, and penalties of the attached Consent Decree, including attachments, as part of their responsibilities and costs, and as an integral part of this bid request. All bidders must verify they have visited the Site and are familiar with current site conditions. All bidders must verify that they were given the opportunity to examine samples of MOTCO waste materials available at the Monsanto Research Center in St. Louis, Missouri. The revised RFP also stated as follows: D. Operations 1. Surface Debris Note: No cost adjustments will be allowed for surface debris quantities different from those noted in Section V of this bid package. Contractor to investigate site prior to bid submittal and include in his bid a contingency allowance based upon visual observation. (ITC Exhibit 2) (emphasis in original). There was no language in the revised RFP precluding future cost adjustments for subsurface conditions or quantities. The revised RFP was part of ITC’s bid package, submitted to defendants on September 28, 1987. On November 10, 1987, defendants held a public meeting at which all the bids were opened. Defendants accepted ITC’s bid by signing the Remediation Contract on January 4, 1988. The bid and RFP, including the Site data, were part of the Remediation Contract. (Defendants’ Ex. 162). The Remediation Contract stated that the “[t]rustee has made or will make available to contractor information concerning the existing Jobsite which it has available and is pertinent to the Remedial Action.” (Defendants’ Ex. No. 162, Art. 2.4). The information included the reports prepared by Black & Veatch Consulting Engineers in 1981 and 1982 and by CH2M Hill in 1984; remedial investigations performed for Monsanto by Woodward Clyde Consultants in 1984 and 1986; and the EPA Record of Decision. The Remediation Contract defined the “Scope of Work” as follows: 2.1 The ‘Work” to be performed by Contractor under this Agreement shall consist of furnishing all personnel, supervision, services, field labor, materials, tools, equipment, supplies and all things required for the necessary design, engineering, construction of facilities and all associated services to properly complete the Remedial Action in strict accordance with the Project Scope of Work set forth and defined in Exhibit “A” hereto and in a manner such that the Remedial Action will be given final approval and acceptance by the EPA. Exhibit A of the Remediation Contract, entitled “Scope of Work,” stated: Contractor shall provide all labor, material, equipment and supervision required to complete the remediation of the Moteo Site from award of contract through design, construction, operations, closure and final approval of completed closure of the United States Environmental Protection Agency. The Scope of Work includes only the area within the fenced boundaries of the Moteo Site.... Scope of Work also does not include treatment or recovery of groundwater, except that which backflows into the pits, and contaminated rain water. Information on groundwater and offsite contamination noted in the bid package is for reference only. The Scope of Work section in the RFP and Remediation Contract included extensive tables and maps describing the geologic and hydrologic characteristics of the site. It also included tables listing quantities of organic pit wastes, waste water, and estimated amounts of ash that could be returned to the Site. The tables describing the waste segregated the pit quantities by BTU content and by whether the wastes could be pumped or not. (Defendants’ Ex. 162, Attachment B). The contract defined the “Remedial Action” in Exhibit B, as follows: General The remedial action agreed to with the EPA, consists of: • On site incineration of all combustible oils, tars, sludges, emulsions and crusts as well as incineration of designated quantities of contaminate soil. • Disposal of contaminated pit and rain waters, construction dewatering, and any seepage waters by on-site pre-treatment followed by pumping to Gulf Coast Waste Disposal Authority or by on-site incineration. • Disposal of scrubber water and equipment decontamination water by on-site pre-treatment followed by pumping to Gulf Coast Waste Disposal Authority or by on-site incineration. • Backfill of pits with clay and delisted incinerator ash. • Disposal of surface debris and buried metals by incineration, off-site disposal in secure landfill or decontamination followed by on-site pit disposal or off-site sanitary landfill disposal. • Final grading, capping, placing of top soil, seeding and fencing of the area. • The remedial actions for this project exclude any treatment of groundwater within, or wastes or soils in areas outside of the existing fence line of the MOTCO property. The contract included a “Changes Clause,” Article 6.0, which provided that if the Trustee ordered changes to the work, and the changes affected the capability of the Jobsite disposal facilities to meet the contractor’s performance guarantees, the contractor would not be required to perform the work unless the guarantees were modified. The Changes Clause also provided for adjustments to the lump sum amount for any changes to the work, either by agreed lump sum, by contractually specified unit prices, or by a formula for determining costs incurred in performing the changes. B. Where the Contract Placed the Risk Defendants cite Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061 (Tex.1907), and Emerald Forest Utility Dist. v. Simonsen Construction Co., 679 S.W.2d 51 (Tex.App.—Houston [14th Dist.] 1984, writ refd n.r.e), for the proposition that a fixed price contract, in which the contractor is afforded an opportunity to inspect the site before bidding, as a matter of law places on the contractor the risk that the owner’s plans or specifications are inaccurate or inadequate to perform the work. Defendants also rely on Lonergan and City of Dallas v. Shortall, 131 Tex. 368, 114 S.W.2d 536 (Tex.Comm.App.1938), for the proposition that Texas law rejects an implied warranty that pre-bid specifications provided by an owner are accurate. In Lonergan, a contractor had agreed to construct a building according to plans and specifications prepared by the owner’s architect. The owner was a trust company. The contractor abandoned the job after the nearly completed structure collapsed due to problems with the plans. The court held that under the facts before it, the owner’s act of passing on specifications for the project did not in itself guarantee that the specifications were suitable for the proposed construction. The court stated as follows: If there be any obligation resting upon the [owner] as guarantor of the sufficiency of the specifications, it must be found expressed in the language of the contract, or there must be found in that contract such language as will justify the court in concluding that the parties intended that the owner should guarantee the sufficiency of the specifications to [the contractor]. Id., 104 S.W. at 1066. In Lonergan, the court found no express contractual warranty that the plans were sufficient for the construction, and no other language in the contract to indicate that the parties intended such a result. Similarly, in Emerald Forest, the contractor had agreed to construct an underground sewer system according to plans furnished by the owner. The sewer line failed soon after completion. The court examined the contract language and held that the owner had not promised, expressly or by implication, that the plans provided were sufficient for the work. 679 S.W.2d at 53. The court therefore held that the contractor was liable for breach of its promise to deliver a working sewer system. In Emerald Forest, the court recognized that Lonergan and Emerald Forest were distinguishable from cases in which the contract placed the responsibility on the owner to provide sufficient or accurate specifications for the work. 679 S.W.2d at 53. In later cases, courts have noted that the Lonergan holding, followed in Emerald Forest, is based on the premise that if the contractor is in as good a position as the owner to know whether the plans or specifications are sufficient for the intended purpose, the contractor should bear the risk that the lump sum contract will not cover unexpected or extra costs. City of Houston v. L.J. Fuller, Inc., 311 S.W.2d 285 (Tex.App.—Houston [1st Dist.] 1988, no writ); Turner, Collie & Braden v. Brookhollow, Inc., 624 S.W.2d 203, 207-208 (Tex.App.—Houston [1st Dist.] 1981), aff'd in part and rev’d in part on other grounds, 642 S.W.2d 160 (Tex.1982). In cases in which the contractor is not in as good a position as the owner to evaluate the information provided, and the contract language provides a basis for concluding that the parties objectively intended the owner to bear the risk that the information provided is inadequate or inaccurate, Texas courts have not followed Lonergan and Emerald Forest. See, e.g., Newell v. Mosley, 469 S.W.2d 481 (Tex.App.—Tyler 1971, writ ref'd n.r.e.); Bd. of Regents v. S & G Construction Co., 529 S.W.2d 90 (Tex.App.—Austin 1975, writ ref'd n.r.e.); Turner Collie v. Brookhollow, 624 S.W.2d 203 (Tex.1982). Unlike the owners in Lonergan and Emerald Forest, the defendants in this case provided the contractor with pre-bid data as to the waste quantities and qualities, which became part of the Remediation Contract. Unlike the language in the Lonergan and Emerald Forest contracts, the terms of the bid package and Remediation Contract in this case did not tell the contractor that the Site data provided was merely an “estimate” to be used only for information, that the contractor could not use to determine whether it was sufficient to prepare a bid. Defendants forwarded the final RFP to ITC with the express representation that “[s]ufficient information for the proposal is included in the attached SCOPE OF WORK.” (TR. 151; Docket Entry No. 407, Attachment 11; Exhibit 86). Unlike the owners in Lonergan and Emerald Forest, Monsanto told ITC that the Site data was sufficient for a bid, and did not limit ITC’s reliance on the data. The executed Remediation Contract precluded cost adjustments for Site conditions different from those described in the RFP only as to surface debris removed in the “Operations” phase. There is no language in the executed Remediation Contract precluding cost adjustments for different subsurface conditions or quantities encountered in the “Wastes and Soil Removal” and “Incineration” phases of the Remediation Contract. ITC’s complaints relate to waste characteristics and amounts that were not readily apparent surface debris, but rather subsurface conditions and quantities encountered in the Waste and Soil Removal and Incineration work. The Remediation Contract language is different in critical respects from language found in cases holding that the parties’ contract evidenced an intent to place the risks of variance on the contractor. See, e.g., Green Const. Co. v. Kansas Power & Light Co., 717 F.Supp. 738, 743 (D.Kan.1989), reconsideration granted on other grounds, 732 F.Supp. 1550 (1990) (the contract stated that “the determination of character of subsurface materials which will be encountered shall be each bidder’s responsibility,” and that the test boring provided by the owner “may not be indicative of all subsurface conditions that may be encountered”); Anderson v. Golden, 569 F.Supp. 122, 142-43 (S.D.Ga.1982) (the contract specifically provided that the contractor was responsible for determining subsurface conditions and that the owner did not guarantee the accuracy of the soil conditions data provided); McDevitt & Street Co. v. Marriott Corp., 713 F.Supp. 906, 914 (E.D.Va.1989), rev’d and remanded on other grounds, 911 F.2d 723 (4th Cir.1989) (the contract explicitly placed the risk of unanticipated soil conditions on the contractor by the owner’s disclaimer that the soils report provided was solely for “convenience” and was not an assumption of “any responsibility for the data as being representative of the conditions and materials which may be encountered”; the contract did not include the soil report; and the contract expressly barred claims based on soil conditions different from those described in the report). By contrast, Monsanto expressly assured ITC that “[sjufficient information for the proposal is included in the attached SCOPE OF WORK,” and did not qualify ITC’s use of the data (Docket Entry No. 407, Exhibit 11, p. 2). Defendants expressly barred claims based on different conditions only for readily apparent surface debris in the “Operations” phase, not for subsurface conditions and quantities encountered in the “Wastes and Soil Removal” and “Incineration” phases. There is no language precluding claims for such subsurface variances. The Remediation Contract language evidences no intent to make ITC responsible for the risks of subsurface variances. Courts that have refused to hold an owner liable for inaccurate pre-bid information also rely on specific “no changes” clauses. See, e.g., I.O.I. Systems, Inc. v. City of Cleveland, 615 S.W.2d 786 (Tex.App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.). In I.O.I. Systems, the Notice to Bidders stated: The Submission of a bid by a bidder shall be conclusive evidence the bidder is fully acquainted and satisfied as to the character, quality and quantity of work to be performed and materials to be furnished. The Special Conditions of the contract stated: the degree of accuracy of this [topographical] information shall in no way relieve the CONTRACTOR or others of any responsibility for the proper performance of the work, or obligations of the Contract Documents. The contract also stated that soil boring data was available from the engineer, but that the “report was obtained by and for the engineer only and is not intended to be anything other than a guide.” Finally, the contract stated: unless otherwise specified, all loss or damage to the CONTRACTOR arising out of the nature of the work to be done, or from the action of the elements, or from any unforeseen circumstances in the prosecution of the same or difficulties which may be encountered in the prosecution of the work, shall be sustained and borne by the CONTRACTOR at his own cost and expense. I.O.I., 615 S.W.2d at 789. See also, Shortall, 114 S.W.2d at 538 (the contract contained a clause admonishing contractors to familiarize themselves with the site conditions and inquire about discrepancies because “no claims on any such grounds will be entertained, or changes allowed in the specifications or plans after contract is awarded except under conditions named in the contract as ‘Extra,’ ‘Omitted,’ or ‘Changed Work’”). The Remediation Contract between ITC and Moteo contained no such “no changes” clause. Compare Shintech Inc. v. Group Constructors, Inc., 688 S.W.2d 144, 151 (Tex.App.—Houston [14th Dist.] 1985, no writ) (“Where the contract is silent on the subject, there is an implied warranty that the plans and specifications for a construction job are accurate and sufficient for the purpose in view” (emphasis added)). This court finds that the parties’ objective intent, as expressed in the Remediation Contract, was that defendants would assume the risk that the quantities and characteristics of the subsurface waste in the Moteo Site pits differed from the data set out in the RFP. C. ITC Was Not in as Good a Position as Defendants to Assess the Sufficiency of the Bid Information ITC presented evidence that it was not in as good a position as the defendants to evaluate the waste quantities and characteristics at the Moteo Site. Murray Hutchinson, ITC’s executive officer, testified as follows: Q: What I’d like you to do for a moment is to describe to the jury all of the reasons, based upon standard commercial practices, that IT did not set forth to spend the money, the resources, the time required, to do a full and complete site investigation and feasibility study for the purpose — for the purpose of determining whether what Monsanto told them was true. Can you do that? A: Over a period of probably five years, there had been three contractors that — on working for Monsanto and one working for the EPA — and two working for the EPA who had done a site investigation and indicated what was there. Then, as represented in the proposal, Monsanto had brought all of that information together in their scope of work. We were familiar with that process and we do a lot of those investigations ourselves for the EPA and for the private sector. Contractors rely on that information to prepare their bids. It’s— Normally, if you design a house and you give the contractor a set of specifications and he build it to your specifications, you can’t say, “Well, that was just a picture. We really wanted it bigger.” Q: I guess what I want to ask you is whether, based on your 20 or so years of experience in the service business and, in particular, in the environmental services business, is it customary and standard practice to rely upon a scope of work provided by a client for doing lump-sum best-price proposal? A: Absolutely. Q: Is there any other way to do it? A: There is none. (TR. 2328-29). William Rickman, an independent incineration consultant, testified as follows: Q: Have you ever prepared a lump-sum proposal for an incineration project? A: Yes, I have. Q: Have you ever prepared one where you weren’t given the specifications as to the type and the amount of materials? A: No, I don’t know how you could really do it otherwise. Q: Do you know of anyone in your industry that’s ever done that? A: No. (TR. 824). Rudy Novak also testified that ITC could not, and did not, perform a full and complete investigation to verify the accuracy of the RFP waste characteristics data. (TR. 165-167). The facts in this ease do not present a situation similar to those involved in Emerald Forest or Lonergan. The contractor here did not have the same opportunity or ability as the owner to gather information about the Moteo Site and to judge the sufficiency of that information before submitting its bid. D. ITC’s Obligation to Visit the Site Did Not Require it to Assume the Risk of Subsurface Variances Defendants argue that the following provision in the RFP placed the risk of inaccurate information in the RFP on ITC: All bidders must verify that they have visited the Site and are familiar with current site conditions. All bidders must verify that they were given the opportunity to examine samples of Moteo waste materials available at the Monsanto Research Center in St. Louis, Missouri (Defendant’s Ex. No. 85, If I) However, this provision must be read in context with the following provision, which was also a required part of the bid format: No Cost Adjustments will be allowed for surface debris quantities different from those noted in Section V of this bid package. Contractor to investigate site prior to bid submittal and include in his bid a contingency allowance based upon visual observation. (Defendant’s Ex. No. 85, UI.D.l) The Remediation Contract required ITC to visit the Site and to make a visual observation of the Site conditions. There is no indication that ITC was required as a result of these observations to undertake a full sampling and analytical program to determine whether the contents of the pits shown in the Scope of Work of the Contract and RFP was accurate. The specific data provided in the Scope of Work included the quantities of liquids, sludges, and solids to be found in the eight pits. This data could not be derived from a Site investigation and visual observation. The contract language in this case is clearly distinguishable from that in Emerald Forest, in which the “Instructions to Bidders” required that the bidders “visit the Site of the work, and fully inform themselves as to all conditions and the matter which can in any affect the work or cost thereof.” 679 S.W.2d at 53. See also Merrill-Ruckgaber Co. v. U.S., 241 U.S. 387, 393, 36 S.Ct. 662, 665, 60 L.Ed. 1058 (1916) (no recovery for work where the specifications required bidders “to visit the site and fully inform themselves of the character of the same ... and failure to do so ... would not relieve the successful bidder from the necessity of furnishing material or performing any labor that might be required to complete the work in accordance with the true intent and meaning of the specifications and drawings ... ”). Defendants argue that an ITC internal memorandum dated July 22,1987 establishes that ITC knew that it had assumed the risk of inaccurate information in the RFP. This memorandum, authored by ITC employee R.E. Frulla, states in relevant part as follows: The MOTCO proposal is the most difficult proposal we have had to prepare to date. The difficulty stems from the fact that it is up to us to determine the most cost effective mode of operation and basically assume all the risks. As you know, the contract will be awarded to the lowest cost proposal which is responsive to the RFP requirements. The implications of the procurement method are that: 1. The contractor must take all the risks of performance and find a profit margin by adopting a very cost effective operation, and 2. The contractor proposal becomes the basis of potential change order negotiations when requirements are imposed onto the contractor beyond those requirements contained in the consent decree and the EPA/State regulations. (Defendants’ Ex. 117) (emphasis in original). The Frulla memorandum does not establish that ITC assumed the risk that the RFP data was false. The emphasized language in the Frulla memorandum points out that ITC’s bid must be cost-effective and responsive to the job described in the RFP. The memorandum discusses the risk presented by a lump-sum contract as opposed to a cost-plus contract. The memorandum does not support the conclusion that ITC bore the risk that the RFP information as to Site conditions, that ITC used to bid the job, was false. At trial, ITC offered testimony that it visited the Site, observed the Site conditions, and took limited samples, but that the parties intended ITC to rely upon the detailed information in the Scope of Work as to the BTUs, viscosities, and quantities of materials. This testimony included the following: (1) ITC’s verification of the Site conditions related only to those conditions which were visually observable. ITC relied upon the RFP data to the contents of the pits which could not be observed in a site visit. (TR. 2329 & 2331). (2) ITC’s observation of samples provided by Moteo and Monsanto had no bearing upon the specific data provided in the RFP regarding BTUs, viscosities, and quantities. (TR. 2332 — 2333). (3) It is industry custom to rely upon the data provided by an owner such as Moteo Trust and Monsanto. (TR. 2328:11 — 2329:24). Rudy Novak, the principal design engineer responsible for preparation of the bid design, testified as follows: (1) ITC did not undertake to perform a full and complete investigation to verify the accuracy of the RFP waste characteristics. (TR. 165:17-23). (2) No prudent contractor would have undertaken to perform a remediation investigation under the circumstances of the issuance of the RFP. (TR. 167:9— 168:8). (3) ITC relied upon the waste characteristics in the RFP based upon the language that “sufficient information for the proposal was included in the attached scope of work.” (TR. 151:15— 151:25). Novak also testified that there was insufficient time between the issuance of the RFP and the deadline to submit a proposal to carry out an investigation into the accuracy of the RFP data. (TR. 166:24 — 167:9). The uneontroverted evidence at trial was that the RFP data included sounding measurements of the waste pits and analyses of the waste samples that took place over a period of years. The RFP was issued in May 1986, and the proposal was originally due in the middle of August 1986. Monsanto did not controvert Novak’s testimony that a sampling study, analysis, and incineration proposal could not be done in the time between receiving the RFP and submitting a bid. E. Texas Law Does Not Preclude ITC’s Claim For Breach of Contract Based on Inaccurate Data in the RFP Monsanto cites City of Dallas v. Shortall, 131 Tex. 368, 114 S.W.2d 536 (Tex.Comm.App.1938), for the following proposition: It is practically a universal rule that “where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation because unforeseen difficulties are encountered.” Id. at 540 (citation omitted). In City of Dallas v. Shortall, the court held that the contractor could not recover damages from the property owner because of the owner’s pre-bid statement as to the site conditions. The court summarized the cases in which a party to a construction contract seeks to recover damages for unexpected site conditions based on the owner’s representations about the site. The court held that the plaintiff must show that the representation: was made as an affirmative statement of fact, or as a positive assertion, and made under such circumstances, or with such accompanying assurances, as justified plaintiff in relying thereon, without investigating on his part; and that he in fact made no independent investigation on his part to ascertain the truth. 114 S.W.2d at 542. In Shortall, the court examined the contract before it and found that the pre-bid documents required the contractor to examine the specifications and plans and apply to the engineer if more information was required. The contract specifically stated that “no claims” would be allowed on the ground that the specifications or plans were not sufficient. Id. at 538. As noted above, the Remediation Contract here contains no claim preclusion language for subsurface conditions. When Monsanto first sent ITC the RFP, the proposed bid format did include language that “[n]o future cost claims or adjustment will be allowed” for waste quantities or BTU content “different from the quantities shown in this bid package.” (ITC Exhibit 4, Attachment K). ITC objected to this language, recommending that the lowest price could only be achieved by avoiding placing the risk of unquantifiable variances upon the contractor. In the final RFP, Monsanto deleted the language placing the risk of variances in subsurface BTUs and waste quantities on the contractor. In Shortall, as in Emerald Forest and Lonergan, the court found that the contractor had been in as good a position to conduct an investigation of the site as the owner before submitting a bid. Id. at 543. The record before this court supports the opposite result. Finally, in Shortall, the court found that the owner had not in fact made the representation that the contractor contended was false. The jury in the present case did find misrepresentations in the RFP as to the waste amounts and characteristics, and the record is sufficient to support that conclusion. This case is more similar to the facts described in Hollerbach v. United States, 233 U.S. 165, 172, 34 S.Ct. 553, 556, 58 L.Ed. 898 (1914), in which the Supreme Court stated as follows: [T]he specifications assured [the contractor] of the character of the material, — a matter concerning which the [owner] might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the [owner] and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the [owner] as a basis of the contract left in no doubt. If the [owner] wished to leave the matter open to the independent investigation of the claimants, it might easily have omitted the specification as to the character of the [site].... In its positive assertion of the nature of this much of the work, it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity. Id. (quoted in Shortall, 114 S.W.2d at 541-42). Texas courts have held owners responsible for positive assertions of fact which are inaccurate and which cause the contractor damages, based on both breach of contract and misrepresentation. In Shintech Inc. v. Group Constructors, Inc., 688 S.W.2d 144 (Tex.App.—Houston [14th District] 1985, no writ), the court refused to give effect to a site inspection clause to deny the contractor recovery for delays and hindrances resulting from inaccuracies in the owner-furnished information. The court stated as follows: More specifically, we reject [the owner’s] contention that [the contractor] assumed the risk of defective specifications. We find no evidence that the [the contractor] had knowledge of defective specifications prior to beginning its work. Where the contract is silent on the subject, there is an implied warranty that the plans and specifications for a construction job are accurate and sufficient for the purpose in view. Id. at 151. See also, Board of Regents v. S and G Construction Company, 529 S.W.2d 90 (Tex.App.—Austin 1975, writ ref'd n.r.e.) (the contractor was awarded damages for the owner’s failure to provide correct site plans, which required the contractor to change its work); North Harris County Junior College District v. Fleetwood Construction Company, 604 S.W.2d 247 (Tex.App.—Houston [14th District] 1980, writ refd n.r.e.) (damages were awarded to the contractor for an incorrect soil foundation report furnished by owner); City of Baytown v. Bay shore Constructors, Inc., 615 S.W.2d 792, 793 (Tex.App.—Houston [1st District] 1980, writ ref'd n.r.e.) (“[t]he failure of an owner to provide correct or adequate plans and specifications as are necessary to carry out the work required by a contract constitutes a breach of the contract_”); Newell v. Mosley, 469 S.W.2d 481 (Tex.App.—Tyler 1971, writ refd n.r.e.) (where the owner asserted that the plans were sufficient and accurate, the contractor has a right to rely on the representation); Turner, Collie and Braden, Inc. v. Brookhollow, Inc., 624 S.W.2d 203 (Tex.App.—Houston [1st District] 1981, reversed on other grounds, 642 S.W.2d 160 (Tex.1982). In Turner, the court stated: our courts have recognized that a cause of action exists in favor of a contractor against an owner or architect who furnishes defective plans and specifications. 624 S.W.2d at 208. One court has explained the implied warranty and misrepresentation holdings in fixed-price contract cases as follows: To overcome the rule that extra compensation is not recoverable when unforeseen difficulties are encountered during the course of performing a fixed-sum contract which is capable of performance, courts have found that an implied warranty by the owner that conditions are as described in plans and specifications may be breached by defective plans.... The warranty is not vitiated by standard clauses disclaiming responsibility for the accuracy of data or requiring the contractor to verify the specifications by inspecting the site. This is so because contractors cannot be expected to perform certain investigations such as soil borings. In order to calculate a bid, bidders must be able to rely on representations by the owner as to subsoil conditions and other nonobvious conditions.... Thus, placing the risk of uncertainty on the contractor does not absolve the owner of the duty not to materially misrepresent conditions. Anderson v. Golden, 569 F.Supp. 122, 142-43 (S.D.Ga.1982) (citations omitted). Texas cases recognize the same reasons for holding an owner responsible for damages resulting from inaccurate prebid site information. See, e.g., Newell v. Mosley, 469 S.W.2d at 488 (a contractor who was not an architect or surveyor had no duty to make an independent investigation of the site to ensure that a house could be built as shown on the plans). Based on an analysis of the contract documents, this court concludes that the parties intended ITC to rely upon the Site information provided in the RFP. Defendants expressly informed ITC that the Site data was sufficient for bid preparation. Defendants expressly precluded claims for additional compensation for different conditions only as to visually observable surface conditions. Defendants defined the Scope of Work by the amounts of waste and quantities of waste described in the RFP. There is no language limiting ITC’s right to rely on the accuracy or completeness of the RFP data. Based on an analysis of the record as to the surrounding circumstances, this court concludes that ITC was not in as good a position as defendants to assess subsurface conditions or the sufficiency of the data provided. As the court held in Lonergan, if the owner is in a better position than the contractor to assess the site conditions, and if there is language in the contract that will justify the court in concluding that the parties intended it, the parties can place on the owner the risk of unexpected site conditions, even in a lump sum contract. Lonergan, 104 S.W. at 1066; see also, Chapman & Cole v. Itel Container, 865 F.2d 676 (5th Cir.1989), cert. denied, 493 U.S. 872, 110 S.Ct. 201, 107 L.Ed.2d 155 (the parties have the right to allocate the risks among themselves, even in a “turnkey” contract). F. The Jury’s Responses to the Questions Under the Texas cases, if under the contract the parties intended to place responsibility for inaccurate site information on the owner, the contractor still cannot recover unless it proves that the owner made a positive assertion; that was materially false; upon which the contractor justifiably relied, and that the contractor in fact made no independent investigation. Shortall, 114 S.W.2d at 542. The jury was asked in Questions 1 and 2 whether ITC had proven each of these elements. ITC presented evidence at trial from which a reasonable jury could conclude, and this jury did conclude, that the data in the RFP was so inaccurate as to the quantity and quality of the wastes at the Moteo Site that the project was a completely different job than the one which ITC bid. ITC presented evidence at trial that the parties intended that ITC would rely on the RFP data in bidding and performing the work. Rudy No-vak, Earl Robert White, and Murray Hutchinson all testified at trial that ITC relied on this information in preparing the bid. Rudy Novak, who prepared the bid design from which the cost estimate was derived, testified that in preparing his design, he relied upon the fact that Monsanto had removed the language precluding later cost adjustments and that the Scope of Work continued to be defin