
    
      Opinion issued February 25, 1981
    
    JOHNSON CONTROLS, INC. vs. DEPARTMENT OF PUBLIC SAFETY
    (CC-80-274)
    
      Don R. Sensabaugh, Jr. and Stephen A. Weber, Attorneys at Law, for claimant.
    
      Henry C. Bias, Jr., Deputy Attorney General, for respondent.
   WALLACE, JUDGE:

The claimant filed this claim to recover $4,323.67, representing the cost for the replacement of two air conditioning compressors and the Trane unit at the State Police Headquarters in South Charleston, West Virginia. Representatives of the claimant testified that their company was called to the Department of Public Safety building in South Charleston to service the air conditioning by Ronald Milam, the maintenance supervisor. Claimant had been called on previous occasions by Milam, who signed the service orders which were paid after being submitted for payment. Claimant replaced four compressors in six months’ time. The cost of the installation of the last two installed March 9,1979, and April 18, 1979, is the subject of this claim.

The respondent claims that its maintenance contract with the claimant, for which it paid claimant semiannual installments of $1,041.50, should cover the work in question. Claimant contends that this work was not covered under the maintenance contract with the respondent, and that the contract was for the temperature control system in the headquarters, involving the fire alarm system and the pneumatic temperature control system.

The claimant advised Mr. Milam and others that the compressors would continue to burn out unless the respondent installed low ambient control devices. Mr. Milam testified that he reported this fact to his superiors, but nothing was done because respondent had not experienced any problems for eight years.

Larry Allen Ranson, testifying for the claimant, testified that the air conditioning system was not defective, but that it was not installed to operate 24 hours a day, each day of the year, nor was it installed as a wintertime operation. He further testified that

. .without any low ambient control we get the problem of a refrigerant floodback when the ambient temperature outside is lower than the temperature inside where the evaporator is. The liquid refrigerant tends to migrate as a liquid back to the compressor where it mixes with the oil and then the oil becomes nonlubricant and it foams, and when the compressor starts up, the foam mixed with the refrigerant is pumped through the system, therefore, leaving the system, the compressor, dry of oil and the compressor operates with bearings, and bearings, when they get hot with no lubrication, tend to expand and they lock up. When they do, that causes an overload on the motor. When this happens two or three times, what happens next is the motor winding starts to break down and this causes a burnout.”

He stated that this can happen at any temperature below 33°, depending on how many times the system is shut on and off on its own controls.

Master Sergeant Robert Sturms, director of supply for the Department of Public Safety, testified that after the difficulty experienced with the burnt out compressors, a new system was installed by Gulf Distributing Company to handle the air conditioning and heating, which, according to a purchase order, included the installation of low ambient control.

Mr. Milam, when questioned pertaining to his calls to the claimant to repair or replace the compressors, answered that he called them to do the work, that the work was listed as an emergency purchase order, and that there was no signed agreement, just verbal. In his testimony he stated:

“Q. Okay, you told them to go to work?
A. Right.
Q. All right, now, when you authorized them to go to work, did it concern you whether it was under a contract of any kind or did you just tell them to go to work?
A. Well, I didn’t think, well, in fact that I knew that air conditioner work didn’t come under the service contract.
Q. You knew that it didn’t?
A. Yes.”

The record establishes that the maintenance contract covered the temperature control system, and not the cost of the replacement of the compressors in the air conditioning system, as contended by the respondent. Further, the maintenance contract states that it is a “temperature control maintenance contract related to heating and cooling equipment and fire alarm system... and electrical service connected with the above-mentioned system.” The work performed was on the air conditioning system and was separate and distinct from the temperature control unit. The claimant warned that the compressors were being used beyond their intended use, and that without ambient controls they would continue to burn out. The unit has worked satisfactorily since it was upgraded with ambient controls as recommended by claimant.

Accordingly, the Court makes an award to the claimant in the amount of $4,323.67.

Award of $4,323.67.  