Jury Must Decide Meaning of “Repeated” in a Contract

December 4, 2013

In Hope Elec. Enters., Inc. v. Schindler Elevator Corp., Ga. Ct. App. No. A13A1586 (dec’d Nov. 19, 2013), the Court of Appeals ruled that a common provision in construction contracts is ambiguous and must be decided by a jury.

The subcontract between Schindler (prime) and Hope (sub) provided that Schindler could terminate for cause if Hope “repeatedly fails or neglects to carry out the Work in accordance with the Subcontract Documents or otherwise to perform in accordance with this Subcontract and fails within a ten-day period after receipt of written notice to commence and continue correction of such default or neglect….” Schindler relied on this provision to terminate the subcontract after the owner (MARTA) issued four safety citations to Hope in a five month period. The trial court granted summary judgment to Schindler on Hope’s wrongful termination claim. The Court of Appeals reversed, however, holding that a jury would have to decide whether four citations in five months constituted a “repeated failure,” because “repeated” is “an indistinct and uncertain term” that can mean different things to different individuals.