In the recent case of Ogden City Redevelopment Agency v. Ontario Specialty Contracting, Inc., et al., a federal district court provided a helpful summary of the common "ambiguous terms" argument in construction cases. 2008 U.S. Dist. LEXIS 24732 (Dist. of Utah 2008). The court also discussed the inclusion of an underground storage tank ("UST") within the definition of "structure," focusing on the regulatory definition of UST.

Ogden City Redevelopment Agency ("City") and Ontario Specialty Contracting, Inc. ("Contractor") (collectively, the "Parties") entered into a contract (the "Contract") whereby Contractor agreed to demolish the existing Ogden City Mall. The Contract noted the existence of a UST under the building that would be "removed and properly disposed of prior to building demolition ...."

During performance, Contractor unexpectedly encountered large blocks of unreinforced slurry concrete flowable fill underneath the mall foundations. The dispute related to this unforeseen condition (unreinforced concrete fill) extended beyond completion of the work. Ultimately, the Parties executed a change order ("C.O. #4") increasing the Contract price by $90,000.00 for removing an agreed-upon portion of the concrete fill. C.O. #4 also included the following language: "[I]t is the Parties' intention that all past actions and disagreements and disputes regarding this Contract are settled and resolved." (Emphasis added.) As it turned out, Contractor's work did not extend to depths which would disturb the UST, and, therefore, it was left intact.

Nearly two years after completion of the job and payment in full, City asserted a claim against Contractor for failing to remove additional concrete fill not contemplated in C.O. #4 and for failing to remove the UST. City argued that the language of C.O. #4 did not release Contractor from claims for failure to remove the additional concrete because its terms were ambiguous and, further, because removal of the UST was included in Contractor's scope of work.

The court rejected this argument, holding that the express language of C.O. #4 completely released Contractor, as it is "basic contract law that a court may not read ambiguity into an agreement where none exists." The court went on to say, "[a]n ambiguity in a contract cannot be created by the mere assertions of a party to it, and a contract is not rendered ambiguous by the mere fact that the parties may not agree on the proper construction of it."

With respect to removal of the UST, the court found that this work was not within the scope of the Contract, which provided for removal of