283 F.3d 110
Kathleen DENSBERGER, Individually and as Executrix of the Estate of Colonel William Densberger, Mary Ann Kelly, Individually and as Executrix of the Estate of Colonel Robert Kelly, Lisa Rhodes Truluck, Individually and as Executrix of the Estate of Specialist Gary Rhodes, Jr., Deborah L. Robertson, Individually and as Executrix of the Estate of Major General Jarrett Robertson, Christopher Mancini, CW2, Wendy Mancini and Eric Johnson, Major, Plaintiffs-Appellees,v.UNITED TECHNOLOGIES CORPORATION, Defendant-Appellant,Aeroquip Corporation, Alcoa Composites Inc. and Brunswick Corp., Defendants.
Docket No. 00-9512.
United States Court of Appeals, Second Circuit.
Argued December 21, 2001.
Decided March 12, 2002.

COPYRIGHT MATERIAL OMITTED Andrew L. Frey, Mayer, Brown & Platt, N.Y., NY, (Catherine M. Sharkey, Mayer, Brown & Platt, and Mark A. Dombroff, Raymond L. Mariani, Dombroff & Gilmore, N.Y., NY, on the brief), for Defendant-Appellant.
Steven R. Pounian (Francis G. Fleming, Brian J. Alexander, Jacqueline M. James, Raafat S. Toss, on the brief), Kreindler & Kreindler, N.Y., NY, for Plaintiffs-Appellees.
William F. Sheehan, Frederick C. Schafrick, Ross E. Davies, Shea & Gardner, Washington, DC, for Amicus Curiae, The Aerospace Industries Association of America, Inc.
Before MESKILL, KEARSE, and CALABRESI, Circuit Judges.
CALABRESI, Circuit Judge:

1
Following a $22.9 million jury verdict, the district court entered judgment for the plaintiffs, and denied the defendant's post-trial motions for judgment as a matter of law and for a new trial. Defendant United Technology Corporation ("UTC") appeals. The principal questions presented on appeal are whether the Connecticut Products Liability Act ("CPLA") preempts plaintiffs' common law negligence theory of recovery, whether the Army's alleged knowledge of the relevant dangers defeats plaintiffs' allegations of failure to warn, and whether the government contractor defense applies to situations in which the contractor owes no duty to the ultimate end-users of the product. We affirm the district court.

BACKGROUND

2
On February 23, 1993, a United States Army UH 60A Blackhawk helicopter returned to the Wiesbaden, Germany airfield following a flight. The helicopter was equipped with the External Stores Support System ("ESSS") kit, a removable system of horizontal supports affixed to the side of the helicopter from which two 230 gallon auxiliary external fuel tanks were suspended.1

3
As the helicopter approached the airfield's helipad, it began a shallow right turn to line up with the pad on the parking ramp. When the pilot attempted to level the helicopter out of the turn there was "no response" from the flight controls. The aircraft continued to turn steeply to the right. It completed an approximate 360 degree turn and crashed on its right side causing the right external tank to explode. Four Army officers died and two others — the pilot and an enlisted Army member — were severely injured.

4
The Blackhawk helicopter and the ESSS kit involved in this accident were manufactured for the U.S. Army by UTC. The Army was heavily involved in the development and testing of the Blackhawk, including testing of the ESSS-equipped version of the aircraft.

5
Post-accident investigation indicated that the helicopter involved in the crash may have had an unacceptable "asymmetric right lateral Center of Gravity (CG)"2 at the time of the crash. This suspected lateral CG imbalance is thought to have resulted at least in part from the presence of unequal fuel loads in the right and left ESSS tanks. At the time of the crash, one auxiliary tank was nearly empty and the other was almost full. After the crash, additional flight tests were conducted. As a result of these tests, UTC developed a new "lateral center of gravity [flight] envelope," and recommended some special piloting procedures that were to be used when a helicopter operated outside of this "envelope." UTC also added a number of specific warnings to the operator's manual in relation to this new CG envelope.

6
The plaintiffs in this action — the pilot and passenger who survived the crash and the widows of the four deceased Army officers — sued UTC under the Connecticut Products Liability Act, CONN. GEN.STAT. §§ 52-572m-q, and asserted three distinct theories of liability: strict liability, negligence, and breach of implied warranty of merchantability. At the conclusion of an eleven day trial, the jury, answering interrogatories on a special verdict form, found UTC liable in negligence for failing to warn the Army that the helicopter could become uncontrollable during foreseeable flight conditions. The jury rejected all other grounds of liability, including those based on failure to warn under the strict liability and implied warranty theories. The jury also found that UTC had not made out the elements of its various affirmative defenses, one of which was the government contractor defense. The jury awarded plaintiffs $22.9 million in compensatory damages and no punitive damages.

7
After the district court entered judgment for the plaintiffs, UTC moved for judgment as a matter of law and, alternately, for a new trial. The district court denied UTC's motions on October 25, 2000. Densberger v. United Technologies Corp., 125 F.Supp.2d 585 (D.Conn.2000). On appeal, UTC argues, primarily, (1) that the jury found liability under a negligence-based post-sale duty to warn that is barred by the CPLA and, in any event, does not exist in Connecticut common law; (2) that, as a matter of law, UTC cannot be liable for failure to warn, as the Army knew of the relevant dangers; (3) that UTC is entitled to a new trial because plaintiffs' engineering expert testified as to the legal scope of UTC's duty to warn; and (4) that the government contractor defense protects UTC from liability.

DISCUSSION

8
* UTC contends that the jury, by rejecting the plaintiffs' failure to warn claims under the strict liability and implied warranty theories, necessarily found that the warnings provided to the Army at the time of sale were adequate. In finding UTC liable for failure to warn under the negligence theory, therefore, the jury must have based its verdict solely on a violation of a duty to warn post-sale. This is so, because, according to the jury instructions, such a duty exists only in negligence and cannot be the basis for recovery either in strict liability or for breach of an implied warranty.3

9
UTC further asserts that — contrary to the jury instructions — there is, in fact, no negligence-based post-sale duty to warn in Connecticut common law. And, if there ever had been such a duty, it is now barred by the CPLA, which according to UTC includes no post-sale obligation and is the exclusive source of a manufacturer's duty to warn in Connecticut. On this basis, UTC requests judgment as a matter of law.

10
We reject UTC's argument, and in so doing affirm the district court's elegant analysis of the Connecticut common law and its relationship to the CPLA. First, it is clear, as the district court held, that the CPLA does not preempt all common law theories of product liability. Rather, as the exclusive basis for product liability claims under Connecticut law, the CPLA bars separate common law causes of action in product liability cases. See, e.g., Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 562 A.2d 517, 521 (1989) (holding that the CPLA bars a separate negligence-based cause of action). Common law theories, however, rather than being preempted by the CPLA, are incorporated into the statute unless they are expressly inconsistent with it. See, e.g., LaMontagne v. E.I. Du Pont de Nemours & Co., Inc., 41 F.3d 846, 855-56 (2d Cir.1994) (LaMontagne II) (holding that because the CPLA does not delineate the specific elements of the claims that it consolidates, the common law continues to provide the bases for, and theories of, recovery under the act, and that "the CPLA ... apparently was not meant to alter the substance of a plaintiff's rights or the facts that a plaintiff must prove in order to prevail"); Lamontagne v. E.I. Du Pont de Nemours and Co., Inc., 834 F.Supp. 576, 587-89 (D.Conn.1993) (Lamontagne I) (holding that the CPLA "certainly retains the plaintiff's right to allege the traditional theories of recovery along with the statutory basis for recovery under one unified count denominated as a `product liability claim'" (internal quotation marks omitted)), aff'd, 41 F.3d 846 (2d Cir.1994); Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829, 839-41 (2001) (holding that the common law "learned intermediary" defense remains available under the CPLA); Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319, 1345 n. 34 (1997) (holding that the admissibility of state-of-the-art evidence in design defect claims remains available under the CPLA); Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288, 1293 (1993) (holding that a common-law claim for loss of consortium can be brought as part of a CPLA action).

11
UTC's more plausible argument is that even if some common law theories remain available under the CPLA, those that expressly conflict with the statute do not. The language of the CPLA, UTC contends, explicitly rules out any post-sale duty to warn. It is true that the text of the CPLA contains a discussion of duty to warn, which talks about that duty only at the time of manufacture. See § 52-572q(b) ("In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider ... the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk...."). UTC argues that this express discussion necessarily precludes liability based on the absence of post-sale warnings, regardless of the theory of liability.4

12
Again, we disagree. As the Connecticut Supreme Court has recently held in relation to CPLA preemption of the common law, "`[i]nterpreting a statute to impair an existing interest ... is appropriate only if the language of the legislature plainly and unambiguously reflects such an intent.'" Vitanza, 778 A.2d at 840 (quoting Ahern v. New Haven, 190 Conn. 77, 459 A.2d 118, 121 (1983)) (emphasis added) (holding that because the learned intermediary defense is not explicitly abrogated by the CPLA, it remains available under the statute). Because the CPLA does not expressly prohibit post-sale liability for negligent failure to warn, the negligence-based common law duty survives and is cognizable under the statute.

13
Significantly, the CPLA discusses the duty to warn in terms of product defect, that is, in terms of strict liability and liability for violation of implied warranties. See § 52-572q(a) ("A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided." (emphasis added)). The statute may therefore perhaps be read to establish standards for determining whether a product is defective due to a defendant's failure to warn; it does not, however, establish any standards for determining when and whether a defendant may be negligent in failing to warn. For these standards, we must look to the common law. "[A]lthough the [CPLA] addresses some substantive aspects of a product seller's duty to warn, it does not address all of the applicable elements necessary for recovery under that theory. Those elements must be derived from Connecticut common law." Lamontagne I, 834 F.Supp. at 588 (footnote omitted) (looking to Connecticut common law to determine whether there is a duty to warn in situations where the defendant neither knows, nor has reason to know, that the product is dangerous).

14
Also, notably, very shortly before the CPLA was passed in 1979, the Connecticut Supreme Court restated the Connecticut rule that while duty to warn for strict product liability is attributed only at the time of sale, duty to avoid negligence in failure to warn persists in post-sale situations. See Prokolkin v. Gen'l Motors Corp., 170 Conn. 289, 365 A.2d 1180, 1185-1186 (1976); see also Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793, 795 (1957) (finding post-sale duty to warn in negligence). Under the circumstances, we certainly cannot say that the CPLA's discussion of failure to warn "plainly and unambiguously" overturns what the Connecticut court had so recently reaffirmed to be Connecticut law on this issue.

15
It follows that the post-sale duty to warn exists in negligence, and is cognizable under the CPLA. Therefore, to the extent the jury found UTC liable because of a breach of a post-sale duty to warn under negligence, the verdict is consistent with Connecticut law.

II.

16
UTC also contends that the Army's superior knowledge of the relevant dangers is "uncontroverted" in the record, and therefore that UTC is entitled to judgment as a matter of law because (1) there can be no breach of a duty to warn if the purchaser already knew of the dangers at issue, and (2), even if there were a breach, there can be no causation if the Army already knew of the dangers, and yet failed to warn its pilots or take other actions to avoid the danger. Alternately, UTC contends that Judge Hall erred by failing to advise the jury that UTC was not liable under the negligence theory for failing to warn the Army of dangers of which the Army was already aware.

17
We will reverse the denial of a Rule 50(b) motion "only if the evidence, drawing all inferences in favor of the non-moving party and giving deference to all credibility determinations of the jury, is insufficient to permit a reasonable juror to find in her favor." Lavin-McEleney v. Marist Coll., 239 F.3d 476, 479 (2d Cir.2001). We agree with the district court that a reasonable jury could conclude from the evidence at trial in this case (a) that UTC knew or should have known that the helicopter could become uncontrollable in an asymmetric condition when equipped with the ESSS auxiliary tanks, and (b) that the Army did not have similar knowledge. UTC is therefore not entitled to judgment as a matter of law on this ground. We further hold that the district court properly permitted the jury to decide all the other issues of causation raised by UTC.

18
The jury instruction issue is somewhat more complex. It is true that the court's charge on negligence5 did not instruct the jury that—in the absence of unusual circumstances6—a prudent person need not inform people of those dangers that are generally known.7 It is also true that the court's instruction on causation8 did not specify that where the defendant's negligence consists in a failure to warn, a jury must find no cause, and therefore no liability, if the person who should have been warned would have acted in the same way had the warning in fact been given. Such charges would, doubtless, have been useful supplements to the instructions given. But, in the circumstances of this case, their absence does not warrant a new trial.

19
First, the instructions given were not erroneous; they were at most incomplete. And we will not upset a judgment on the basis of jury instructions "if the charge actually given was correct and sufficiently covered the essential issues," as this charge did. BAII Banking Corp. v. UPG, Inc., 985 F.2d 685, 696 (2d Cir.1993) (citing Carvel Corp. v. Diversified Management Group, Inc., 930 F.2d 228, 231 (2d Cir.1991)). Second, UTC did not expressly assert below that the instructions were wrong; rather it proposed alternate charges. But in order to succeed when challenging jury instructions in this way, the appellant must show that the requested charge "accurately represented the law in every respect." United States v. Feliciano, 223 F.3d 102, 116 (2d Cir.2000) (quoting United States v. Thompson, 76 F.3d 442, 454 (2d Cir.1996)). Since UTC's proposed jury instructions on the issue of the Army's knowledge contained errors of law, the district court did not err in refusing them.9

20
Because the jury instructions on causation and negligence in this case were neither properly objected to nor plainly incorrect, no new trial is required.

III.

21
Plaintiff's expert Mel Vague, a retired helicopter engineer, offered the following testimony:

22
Q: Do you have an opinion, sir, as to whether or not, if a customer has some information about the use of its product, whether that relieves a reasonably careful manufacturer of taking steps to make sure that the aircraft is used safely?

23
....

24
A: I believe that the manufacturer has an obligation to look out for their product, no matter whether the user has information or not.

25
Between the above-stated question and answer, defense counsel objected that the question called for a legal opinion. The objection was overruled.10

26
"It is a well-established rule in this Circuit that experts are not permitted to present testimony in the form of legal conclusions." United States v. Articles of Banned Hazardous Substances Consisting of an Undetermined Number of Cans of Rainbow Foam Paint, 34 F.3d 91, 96 (2d Cir.1994). But even the wrongful admission of expert testimony containing legal opinion does not necessarily require reversal. See United States v. Bilzerian, 926 F.2d 1285, 1295 (2d Cir.1991) (no reversible error in admitting expert testimony explaining federal securities regulation and filing requirements where a limiting instruction was given to the effect that the judge alone would instruct the jury on the law). In the instant case, the trial judge properly advised the jury to follow the law, rather than the testimony of any witness: "You must take the law as 1 give it to you. If any attorney or any witness or any exhibit has stated a legal principle different from one that I state to you in these instructions, it is my instructions that you must follow." Under the circumstances, whether or not Vague's statement could be construed as presenting a legal conclusion, we find that the admission of the testimony was harmless.

27
Vague's testimony does not justify overturning the jury's conclusions.

IV.

28
Finally, UTC argues that it is entitled to judgment as a matter of law or to a new trial based on the so-called government contractor defense. UTC contends (1) that no reasonable juror could have found that UTC failed to meet its burden in proving this defense, and (2) that the district court erred in its jury charge on this issue. We do not need to reach these questions, however, because we conclude that the government contractor defense is irrelevant to this case, and, as a result, should not have been sent to the jury at all.

29
In Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), the Supreme Court extended the immunity afforded to the federal government's discretionary functions under the Federal Tort Claims Act to government contractors, by allowing those contractors an affirmative defense to state law tort actions if a "significant conflict" exists between the requirements of state law and the contractor's obligations to the federal government. 487 U.S. at 512, 108 S.Ct. 2510. The affirmative defense applies only if the government exercised significant control over the relevant contractor actions. In failure to warn cases, this means that the ultimate product users cannot sue the contractor for failure to warn if the government controlled which warnings the contractor was allowed to provide to those users, and thereby precluded the warnings at issue from being given. See In re Joint Eastern and Southern District New York Asbestos Litigation (Grispo v. Eagle-Picher Industries, Inc.), 897 F.2d 626, 630, 632 (2d Cir.1990).11

30
All parties to the present action, however, have agreed that UTC had no duty whatsoever to warn the ultimate product users, i.e., the pilots.12 The failure-to-warn claim in this case is brought strictly with respect to UTC's duty to warn the Army. But, as stated above, the government contractor defense applies only when the government, for reasons of federal interest, chooses to limit the warnings provided by the seller to end-users. It does not apply to limit the warnings that a reasonable seller would provide to the government itself. UTC's arguments regarding the government contractor defense are therefore meritless, and the defense should not have been sent to the jury in the first instance.

V.

31
Since we find that UTC's rule 50(b) motion was properly be denied, and since we find no reversible error in how the case was sent to the jury, we AFFIRM the judgment of the district court.

Notes:

1
 The ESSS-kit was originally designed to provide substantially more fuel capacity for self-deployment (i.e., allowing the carriage of sufficient fuel for the Blackhawk to fly across the Atlantic Ocean) and for launching "Hell-fire" missiles

2
 "Lateral CG" refers to the side-to-side balance of the helicopter. The "flight envelope," or safe operating boundaries, for the aircraft is depicted in a "lateral CG chart," which consists of a curve plotted along two axes — the gross weight of the aircraft in pounds (vertical) and the lateral CG in inches (horizontal)

3
 The strict liability and breach of implied warranty jury charges both referred explicitly to the product at "the time of sale." The negligence jury charge, in contrast, stated that "[a] manufacturer has a duty to exercise reasonable care in the design, manufacture and sale of its products. Reasonable care is that degree of care which a reasonably prudent manufacturer would use under like circumstances. Further,a manufacturer has a continuing duty to warn of all known or knowable dangers associated with using its product." (emphasis added)

4
 In support, UTC citesSharp v. Wyatt Inc., 31 Conn.App. 824, 627 A.2d 1347, 1355 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994), a failure to warn case holding that the negligence theory of foreseeability cannot be imported into the CPLA, because it is inconsistent with the definition of causation as stated in § 52-572q(c). UTC also cites Gajewski v. Pavelo, 36 Conn.App. 106, 652 A.2d 509, 514 (1994), aff'd 236 Conn. 27, 670 A.2d 318 (1996), in which the Connecticut intermediate appellate court stated, in dicta, that if the jury had been instructed to use a common law negligence standard to determine whether the duty to warn had been violated, "there would be a reversible error."

5
 The negligence charge stated in relevant part:
Negligence is the failure to use reasonable care. A manufacturer has a duty to exercise reasonable care in the design, manufacture and sale of its products. Reasonable care is that degree of care which a reasonably prudent manufacturer would use under like circumstances.... Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a reasonably careful person would do under like circumstances.
You must determine the question by placing an ordinarily prudent person in the situation of UTC and then ask yourselves, what would such a person have done? ... "Reasonable care" is the care which such a person would have used under the surrounding circumstances, in view of the facts he or it knew or, as such a person should have perceived and known.
The standard of care required, that of an ordinarily prudent person under the circumstances, never varies; but the degree of care may vary with the circumstances. All of the surrounding circumstances must be considered. In circumstances of slight danger a slight amount of care might be sufficient to constitute reasonable care, while in circumstances of great danger a correspondingly great amount of care would be required to constitute reasonable care.

6
 These might, for example, include extraordinarily great danger, knowledge of a proximate category of users who are ignorant, continuing duty because of special relationship, etc

7
 But cf. Liriano v. Hobart Corp., 170 F.3d 264, 270 (2d Cir.1999) (holding that, even if a danger is obvious, there may still be a duty to warn of the existence of a safer alternative that is not generally known).

8
 The charge on causation was as follows:
In each of their three theories asserted under the Connecticut Products Liability Act, the plaintiffs must prove that UTC's action or inaction was the proximate cause of the injuries they suffered. "Proximate cause" simply means substantial factor. Product defect or negligence or breach of the implied warranty of merchantability is a proximate cause of any injury when it is a substantial factor in producing that injury. To be a substantial factor in producing the injury, product defect, negligence or breach of the implied warranty of merchantability must have entered into the production of the injury, as a cause of it. That is, in order to find the defendant liable, you must find that UTC's act or omission must either have caused the injury itself, alone, or it must have materially contributed to it in conjunction with other factors. This does not mean that the law recognizes only one proximate cause of an injury or damage, consisting of only one factor. On the contrary, many factors may operate at the same time, either independently or together, to cause injury or damage and, in such a case, each may be a proximate cause.

9
 UTC proposed the following jury instructions, the first before the court charged the jury, the second in answer to the court's charge. Each contained incorrect statements of law:
1) Remember, for plaintiffs to prove their claims, they must establish by a preponderance of the evidence that if adequate warnings or instructions had been provided, the plaintiffs would not have suffered the harm. In other words, if you find, for example, that even if UTC provided the Army with adequate warnings, the Army would not have provided those warnings to the pilots of this helicopter, then you must find for the defendant UTC on the failure to warn claim.
"Defendant UTC's First Amended Proposed Jury Instructions," dated January 20, 2000.
2) A defendant cannot be held liable for a failure to warn about information already known to the product purchaser. If the Army knew information that plaintiffs allege should have been provided as a warning by UTC, even if UTC had a duty to warn the Army, it cannot be held liable for failing to warn of facts already known to the Army. UTC asserts that it had no duty to warn the Army about the hazards or dangers associated with use of the ESSS kit for purposes other than self-deployment and Hellfire missile demonstration because the Army and the United States Congress were well aware of those hazards and dangers, as exemplified by the Congressional report, Tailby memorandum and other documents and testimony.
"Additional Objections to Jury Instructions by Defendant UTC," dated June 8, 2000.
UTC's first proposed charge is incorrect because, after stating what might well be a correct instruction, it goes on to say that UTC would only be liable if, had it warned the Army, the Army would have warned the pilots. But in fact UTC would also be liable if, had UTC warned the Army, the Army would have taken any number of other available measures to avoid the accident, e.g., prevented the helicopters from being used in the manner that the warning revealed to be dangerous, or, without warning the pilots of certain dangers linked to the helicopter, instructed them on how to deal with certain eventualities were they to occur.
The second proposed instruction is no less flawed. It is wrong if one reads it as seeking to object to the charge with respect to the question of whether the defendant acted unreasonably in not warning. A defendant, for example, might well be unreasonable in failing to warn about information already known to the purchaser if the defendant was unaware that the purchaser had the information. The instruction is also wrong with respect to the causation issue, because it is possible that if the Army had been warned of the danger of which it already knew, it might have warned the pilots, and would have done so even if, absent a warning, it had failed to caution them. Thus, UTC's warning might have led the army to say, "Gee, if this danger (of which we're already aware) is important enough so that UTC decided to warn us of it, we'd better let the pilots know about it too." UTC's proposed charge ignores this, as well as other, similar, possibilities.

10
 UTC also cites Vague's statement that a customer should not have to tell the manufacturer what type of testing would be prudent, because "[i]f the manufacturer is prudent, he would suggest that those tests be run, but, you know, in a forceful manner." This statement was not objected to, however, and any objections to it were therefore forfeitedSee In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804, 827 (2d Cir.1994); Fed.R.Evid. 103(a)(1).

11
 The three requirements of theBoyle test for failure-to-warn cases are: (1) "government control over the nature of product warnings"; (2) "compliance with the Government's directions"; and (3) "communication to the Government of all product dangers known to it but not to the Government." Grispo, 897 F.2d at 630 n. 4.

12
 This is because all parties agreed that, under the Connecticut learned intermediary doctrine, no such duty exists. Since the parties agree on this point, we need not consider whether they correctly interpret this Connecticut rule


731 So.2d 798 (1999)
WORLD CLASS YACHTS, INC., Appellant,
v.
Wendell H. MURPHY, Jr., Merle Wood and Associates, Inc., a Florida corporation, Merle Wood, Steve Kidd, and Patrick J. Aurit, Appellees.
No. 98-0273.
District Court of Appeal of Florida, Fourth District.
April 21, 1999.
Robert P. Bissonnette of Law Offices of Anthony M. Livoti, Jr., P.A., Fort Lauderdale, for Appellant.
Beth Tyler Vogelsang of A.J. Barranco & Associates, P.A., Miami, for Appellee Wendell H. Murphy, Jr.
BROWN, LUCY CHERNOW, Associate Judge.
Appellant, World Class Yachts, Inc., appeals the dismissal with prejudice of its *799 complaint against a North Carolina resident for lack of personal jurisdiction. We reverse and remand for the trial court to enter a dismissal without prejudice.
World Class filed a complaint in the circuit court of Broward County, Florida, to recover a commission it claimed was due based on the sale of a yacht. The complaint alleged that Appellee, Murphy, traveled from his home in North Carolina to Florida on numerous occasions for the purpose of locating and inspecting yachts for sale. World Class showed Murphy the "7th Heaven," informing the seller's broker that Murphy was interested in the yacht and that Murphy was World Class' client.
Murphy later purchased the "7th Heaven" and the entire 10% commission was paid to the seller's broker. World Class claimed it was owed 1% of the commission and filed its complaint, which was amended once, solely to include the proper parties. The only count of the complaint that named Murphy was a count for civil conspiracy.
World Class served process on Murphy at his home in North Carolina. Murphy filed a motion to dismiss the amended complaint based on lack of personal jurisdiction and failure to state a cause of action. World Class responded by filing an affidavit in support of jurisdiction detailing the numerous trips Murphy made to inspect yachts for the purpose of purchasing a yacht in Florida.
Murphy also filed an affidavit which asserted he was a resident of North Carolina who at all times relevant did not live, work, or conduct business in Florida. He affirmatively stated, "My only contact with the State of Florida has been for vacation and recreational purposes."
Without holding an evidentiary hearing, the trial court entered a dismissal with prejudice based on lack of personal jurisdiction.
World Class argues that personal jurisdiction was based on sufficient minimum contacts with Florida because Murphy traveled to Florida on at least three separate occasions over a nine month period and met with World Class for the purpose of purchasing a yacht. Murphy asserts that the issue is not whether minimum contacts were established, but whether World Class failed to plead a cause of action. It contends the trial court properly dismissed the complaint due to World Class' failure to allege sufficient jurisdictional facts.
It is well-settled that in order to determine whether long-arm jurisdiction is appropriate, the trial court must first decide whether the complaint alleges sufficient jurisdictional facts to bring the action within section 48.193, Florida Statutes. (1997). Second, the court must determine whether the non-resident has sufficient minimum contacts with Florida such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice so that the defendant should reasonably anticipate being haled into court in Florida. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).
In this case, the threshold of personal jurisdiction turns on whether Murphy committed an intentional tort in Florida. Therefore, the trial court was required to review the complaint to determine whether a cause of action was stated. If the complaint did not set forth a cause of action for civil conspiracy, then assertion of jurisdiction predicated on Murphy's commission of such would be improper. See Silver v. Levinson, 648 So.2d 240, 241 (Fla. 4th DCA 1994).
Murphy argues that the trial court correctly dismissed World Class' complaint because World Class did not set forth clear, positive, and specific allegations of civil conspiracy. General allegations of conspiracy are inadequate. See Bond v. Koscot Interplanetary, Inc., 246 So.2d 631, 635 (Fla. 4th DCA 1971). Assuming that the trial judge found the jurisdictional facts deficient in this regard, it was not error to dismiss the complaint. If the dismissal was based on the first prong of *800 the Venetian Salami test, the trial court was not required to analyze the second prong.
Nevertheless, we find it was error for the trial court to dismiss with prejudice. See Smith v. St. Vil, 714 So.2d 603, 605 (Fla. 4th DCA 1998). A trial court should not deny a party leave to amend a complaint unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile. See Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996). Accordingly, we reverse and remand with directions to the trial court to enter a dismissal without prejudice to allow World Class to amend its complaint.
If World Class ultimately succeeds in alleging sufficient jurisdictional facts to satisfy the first prong of the Venetian Salami test, the court should then reach the second prong and determine whether Murphy had sufficient minimum contacts with Florida. Where a defendant raises a lack of minimum contacts, supported by affidavit, the burden shifts to the plaintiff to prove, by affidavit, the basis on which jurisdiction may be obtained. If the essential facts stated in the parties' affidavits are not conflicting, the trial court can resolve the legal issue on the basis of the affidavits. If, however, the essential facts are shown to be in direct conflict, the trial court must conduct a limited evidentiary hearing to resolve all disputed facts essential to a determination of the jurisdictional issue. See Venetian Salami, 554 So.2d at 502. Should the trial court face this issue, we recommend it consider the factually similar cases of Offer v. Arison, 671 So.2d 193 (Fla. 4th DCA 1996), and Offer v. Lady Alice Corp., 671 So.2d 191 (Fla. 4th DCA 1996).
REVERSED AND REMANDED.
STEVENSON and TAYLOR, JJ., concur.


328 F.2d 353
GENERAL CASUALTY COMPANY OF WISCONSIN, a corporation,Plaintiff and Counter-Defendant-Appellee,v.Walter WHIPPLE, d/b/a Whipple Sales and Service, and ThomasBickett, Defendants and Counter-Claimants-Appellants.
No. 14327.
United States Court of Appeals Seventh Circuit.
Feb. 24, 1964.

Glen L. Borden, Peoria, Ill., Brian & Wilson, Toulon, Ill., Harry C. Heyl, Black, Black & Borden, Peoria, Ill., for appellants.
Donald G. Beste, Eugene R. Johnson, Robert D. Jackson, Miller, Westervelt & Johnson, Peoria, Ill., for appellee.
Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.
HASTINGS, Chief Judge.

1
On or about January 21, 1955, a motor truck owned by Walter Whipple, d/b/a Whipple Sales and Service, and operated by Thomas Bickett was involved in a collision with an automobile driven by one Robert Boley.  Riding with Boley in his car were eight other occupants.  As a result of the collision, one of such occupants was killed and the others were seriously injured.

2
General Casualty Company of Wisconsin was the liability insurer for Whipple.  Its insurance policy limited its liability to $50,000 for any one occurrence.  The policy contained the usual provisions requiring the company to defend the insured and reserving to itself the right to make such investigation, negotiation and settlement as it deemed expedient.

3
John Boley and three other occupants of the Robert Boley automobile filed a diversity action in the district court against Whipple and Bickett.1  The aggregate recovery sought was far in excess of General Casualty's policy limits.

4
General Casualty wrote to Whipple and Bickett, after receipt of the summons served on them, advising that it had engaged a law firm to defend them at the company's expense.  In this letter, the company further advised them that the amount of recovery sought exceeded the policy limits and that they could engage other counsel at their own expense, if they so desired.  Whipple and Bickett expressed written satisfaction with the company's choice of defense counsel.

5
General Casualty investigated the accident and defended the Boley suit.  The facts relating to the collision in question show that Bickett, while driving the truck, had slowed the truck to a speed of ten to fifteen miles per hour and signaled by hand for a left turn, when the rear of the truck was struck squarely by the Boley automobile in which nine persons were riding.

6
A jury returned a verdict for the four plaintiffs aggregating $76,500 and judgment for that amount was entered against Whipple and Bickett.  No appeal was taken from this judgment.

7
After first advising Whipple and Bickett that it had elected not to appeal the judgment, General Casualty paid to the clerk of the district court, in partial satisfaction of the judgment, the sum of $51,203.41.  This payment covered $50,000 on principal of the judgment (the amount of its policy limit), interest on the judgment to date of payment and court costs.

8
Thereafter, General Casualty (hereinafter called plaintiff) filed the instant suit in the district court against Whipple and Bickett (hereinafter called defendants).  It sought a declaratory judgment that it had fully discharged its contractual duties to defendants under its insurance policy and that it would not be obligated to defend pending or future suits or pay future expenses resulting from the collision on January 21, 1955.

9
Defendants filed a counterclaim in this action alleging that plaintiff was negligent and guilty of bad faith in its defense of the personal injury suit against them and in failing to appeal the judgment against them.  They demanded judgment against plaintiff for the amount of the excess of the verdict over the policy limits, with interest and costs.

10
The case was submitted to a trial by jury on the issues joined on the complaint and counterclaim.  At the close of plaintiff's case and again at the end of all the evidence, plaintiff moved for a directed verdict.  The trial court reserved its ruling on both motions.

11
The jury returned a verdict finding the issues for defendants and awarding them damages in the sum of $35,048.64.  Judgment was rendered on the verdict.

12
Plaintiff then moved to set aside the verdict and judgment against it and for judgment in its favor on its pending motions for a directed verdict, or in the alternative for a new trial.  The trial court granted plaintiff's motion, vacated and set aside the verdict and judgment for defendants on their counterclaim and entered judgment for plaintiff on its motions for directed verdict.  Defendants now appeal from such judgment.

13
On appeal, defendants contend that, viewing the evidence in the light most favorable to them (as we must do), plaintiff was negligent and acted in bad faith in failing to attempt to settle the case before conclusion of the trial and in not appealing the judgment against them.  As a consequence, they urge that the district court erred in setting aside the jury verdict and judgment for them and in granting judgment for plaintiff.

14
Defendants do not contend there was negligence in the accident investigation, choice of defense counsel or the manner in which the defense was conducted.

15
It is well settled that an insurance company, which has issued a policy containing limits on its liability, may so conduct itself as to be liable for the entire judgment recovered against the insured, regardless of the policy limits.  Ballard v. Citizens Cas. Co. of New York, 7 Cir., 196 F.2d 96, 99 (1952).  While it is conceded that Illinois law governs here, the parties disagree as to the standard of conduct which plaintiff must engage in to be liable beyond the policy limits.

16
Plaintiff contends defendants must prove conduct with intent to deceive, in the nature of fraud, and cites, inter alia, Bentley v. Farmers' Insurance Exchange, 6 Cir., 289 F.2d 59, 60-61 (1961) (applying Michigan law); Slater v. Motorists Mutual Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45, 48 (1962) (applying Ohio law).  No cases applying Illinois law are cited in support of this contention.

17
Defendants state that 'the law in Illinois * * * is that the insurer must exercise good faith in all respects to the insured, and if in any respect it is negligent, then it has not acted in good faith toward its insured.'

18
Our court had this issue before it in Ballard v. Citizens Cas. Co. of New York, supra.  In an opinion by Judge Duffy, we said that 'the only applicable decision of an Illinois court that has been cited to us or that we have been able to find is Olympia Fields Country Club v. Bankers Indemnity Insurance Co., 1945, 325 Ill.App. 649, 60 N.E.2d 896.'  Id. 196 F.2d at 100.  The same is true in the instant case.

19
The Olympia Fields case was carefully analyzed in Ballard, in which it appears that Olympia Fields expressly rejected cases applying the fraud standard.  Id., 196 F.2d at 100.  It quoted with apparent approval from cases applying the negligence or bad faith standard of conduct.  Id., 196 F.2d at 100-102.  At page 102 of 196 F.2d of the opinion, we stated:

20
'In the Olympia Fields opinion the court said, 60 N.E.2d at page 906: 'In our judgment, the weight of authority supports the rule that the insurer cannot be held liable for refusing to settle a case before or during trial for an amount within the limits of its liability under the policy although such refusal may result in a judgment against the assured for an amount in excess of the liability of the insurer, in the absence of fraud, negligence or bad faith."

21
Thus, we conclude that negligence or bad faith is the Illinois standard of conduct to be applied to the facts in determining whether plaintiff is liable beyond the policy limits for failing to settle the case.  The district court so instructed the jury.

22
The test for negligence in this case is that conduct which an ordinary reasonable man would engage in, not when solely considering the interests of the insurer, but upon giving equal consideration to the interests of the insurer and the insured.  Fidelity and Casualty Company of New York v. Robb, 5 Cir., 267 F.2d 473 (1959); Ballard v. Citizens Cas. Co. of New York, supra, 196 F.2d at 102.  The burden of proving negligence or bad faith as alleged in their counterclaim is on defendants.  Frank B. Connet Lumber Co. v. New Amsterdam Cas. Co., 8 Cir., 236 F.2d 117, 127 (1956); Maryland Casualty Co. v. Cook-O'Brien Const.  Co., 8 Cir., 69 F.2d 462, 466 (1934), cert. denied, 293 U.S. 569, 55 S.Ct. 81, 79 L.Ed. 668.

23
The attorneys engaged by plaintiff and approved by defendants were cognizant of the seriousness of the injuries to the occupants of the automobile and the likelihood that a verdict in favor of the occupants would exceed the policy limit of $50,000.  However, they had obtained eye witnesses who estimated the speed of the Boley automobile at between seventy and ninety miles per hour and who had seen Bickett signal by hand for a left turn.  After the accident, the automobile was in the right hand lane of the highway.  These and other facts disclosed by investigation led plaintiff's attorneys to believe they had a strong defense.

24
The evidence relating to settlement shows that attorneys who represented the injured occupants offered to settle the case for approximately $190,000.2  Plaintiff's attorneys never offered to settle for the maximum limits of the policy.  Just prior to trial, they were informed by attorneys for one of the occupants that the occupants would not settle for the policy limits.

25
During the trial, an attorney for the occupants informed plaintiff's attorney that no settlement was possible unless there was an offer from Montavon's3 insurance carrier in addition to the limits of plaintiff's policy.

26
Thus, it is undisputed that plaintiff never received or made an offer to settle within the policy limits.  Defendants contend that plaintiff had a duty to make such an offer and its failure to do so constituted negligence.  Cases cited by defendants in support of this contention are distinguishable from the present case.

27
In Ballard v. Citizens Cas. Co. of New York, supra, the insured was sued for $50,000 by Farwell for the death of her husband, under the Illinois Dram Shop Act, Ill.Rev.Stat.1951, c. 43, 94 et seq.  The insurance company employed attorneys to defend the suit and the insured engaged a personal attorney.  Prior to trial, the company attorney refused an offer to settle the case for the policy limit of $2,500, stating that they could probably settle for less at the trial.  At the trial, Farwell's attorney offered to settle for $2,000.  The company attorney refused this offer, despite insistence by the insured's attorney that the offer be accepted and that successful defense of the suit appeared difficult.  No attempt was made to communicate the offer to the company.  A judgment for $6,500 was entered in favor of Farwell.  The insured brought suit against the company and the court held, on appeal, that substantial evidence supported the jury verdict and judgment finding lack of good faith by the company and its attorneys in refusing to settle within the policy limits.

28
In Fidelity and Casualty Company of New York v. Robb, supra, the insurer rejected an offer of settlement for less than the policy limits.  The court reversed a jury verdict for the insured due to failure of the trial court to instruct the jury that the insurer could consider its own interests as well as the interests of the insured.

29
Bell v. Commercial Insurance Co. of Newark, N.J., 3 Cir., 280 F.2d 514 (1960), held that a jury question existed as to whether the insurer acted in bad faith in failing to attempt to settle the case after conceding liability at pre-trial.

30
The determination in this class of cases is one of fact and the result in each case depends upon its own peculiar facts.  Unlike the above cases, in the instant case the occupants' attorneys made no offer to settle within the policy limits or for any amount reasonably close thereto.  Plaintiff's attorneys reasonably believed there was no probability of affecting such a settlement and that they had a strong defense.  The matter was further influenced by other pending suits arising out of the same collision.

31
We hold that under the facts of this case, no reasonable person, after equal consideration of the interests of the insurer and the insured, would decide that the insurer had an affirmative duty to attempt to settle the case within the policy limits.

32
Defendants' second contention is that plaintiff was negligent in failing to appeal the jury verdict and judgment in the personal injury suit.

33
Plaintiff's duty to defend the suit in the trial court existed by reason of the insurance contract, and if it had a duty to appeal, this duty flowed from the contract.

34
The applicable provisions of the insurance contract provide:

35
'II Defense, Settlement, Supplementary Payments

36
'As respects the insurance afforded by the other terms of this policy the company shall: '(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof of * * *.'

37
In Denham v. La Salle-Madison Hotel Co., 7 Cir., 168 F.2d 576 (1948), cert. denied, 335 U.S. 871, 69 S.Ct. 167, 93 L.Ed. 415, we considered the following similar insurance contract provision:

38
'It is further agreed that as respects insurance afforded by this policy, Underwriters shall-- '(1) Defend the Assured in his name and behalf (in) any suit against the Assured alleging such loss and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * *.'  Id., 168 F.2d at 584.

39
Speaking for the court, Judge Major stated:

40
'Paragraph (1) gives some color to the defendant's argument, (that plaintiff, insurer, had an obligation to defend the insured even though insurer had tendered the policy limit of $10,000) but that paragraph is limited to the phrase which proceeds it, 'as respects insurance afforded by this policy.'  Upon plaintiff's tender of $10,000, its liability for the payment of losses was extinguished.  It was only obligated to defendant 'as respects insurance afforded by this policy,' and there being no further insurance afforded, we are of the view that its obligation to defend was likewise terminated.  Defendant's theory would produce the incongruous situation that plaintiff would have a continuing obligation to defend, notwithstanding its obligation to pay has been exhausted.  We are of the view that no such liability was intended by the provision in question and that it cannot reasonably be so construed.'  Id., 168 F.2d at 584.  Accord, Moore v. Columbia Casualty Company, S.D.Ill., 174 F.Supp. 566, 573 (1959).

41
We hold, in accord with Denham, that since the plaintiff paid into court the full policy limits, plus all costs and interest, its duty to further defend defendants ceased under the terms of its contract.

42
In view of all the circumstances present in this case, it is our conclusion after considering the evidence in the light most favorable to defendants, that as a matter of law, there is no support for a finding that plaintiff failed to exercise good faith toward defendants in any respect.

43
The district court did not err in vacating the jury verdict and resulting judgment for defendants, and in entering judgment for plaintiff.

44
The judgment appealed from is affirmed.

45
Affirmed.

1
 Merle Whipple, brother of Walter Whipple, and Ralph Montavon were also named as defendants.  At the trial, Merle Whipple was dismissed on a directed verdict.  Montavon was later dismissed on his motion for judgment notwithstanding the verdict against him

2
 The attorney representing Montavon, one of the original four defendants, testified that the only offer to settle by the occupants' attorneys was for $192,500.  One attorney for the occupants stated, by deposition, that he made an offer to settle for $180,000 to $190,000.  The other attorney for the occupants testified that the offer to settle was approximately $192,000

3
 Montavon was one of four original defendants.  See n. 1 supra


854 F.Supp. 430 (1994)
UNITED STATES of America, Plaintiff,
v.
ALLEGHENY BOTTLING COMPANY, James J. Harford, MORTON M. Lapides, and Odis R. Allen, Defendants.
ALLECO, INC., Plaintiff,
v.
UNITED STATES of America, Defendant.
Cr. No. 87-123-N, Civ. A. No. 92-1274-N.
United States District Court, E.D. Virginia, Norfolk Division.
May 31, 1994.
*431 Dale A. Cooter, Kenneth M. Robinson and Donna S. Mangold, Washington, DC, for Allegheny Bottling and Alleco.
David A. Blotner, Dorothy E. Hansberry and Joelle Anne Moreno, U.S. Dept. of Justice, Antitrust Div., Washington, DC, for the government.

ORDER
DOUMAR, District Judge.
This matter is before the Court on motion of Alleco, Inc.,[1] on behalf of Allegheny Bottling Company, formerly Allegheny Pepsi-Cola Bottling Company ("Allegheny Pepsi"), for a writ of coram nobis pursuant to 28 U.S.C. § 1651. For the reasons discussed below, the Court DENIES this motion.

I. Procedural and Factual History

A. Procedural History
In May 1988, after a seven week jury trial, Allegheny Bottling Company and its Chairman, Morton Lapides, as well as James J. Harford, President of Mid Atlantic Coca-Cola, were all found guilty of conspiring to fix prices in violation of the Sherman Antitrust Act. 15 U.S.C. § 1.[2] Allegheny Bottling Company was sentenced to pay a fine of $1,000,000. The defendants appealed their convictions to the Fourth Circuit. On January 11, 1989, the Fourth Circuit affirmed the convictions by unpublished opinion. The Supreme Court denied certiorari on October 2, 1989.
On August 29, 1988, this Court sentenced the defendants. A $1,000,000 criminal fine was imposed on Allegheny Beverage Company. This fine was paid. Apparently, all of Allegheny Bottling Company's attorneys fees as well as the fine were either reimbursed by or paid directly by Alleco, the former parent company of Allegheny Bottling Company, pursuant to an indemnity agreement between Alleco and Pepsico. This agreement is described more fully below. Alleco now brings this action for a writ of coram nobis under the All Writs Act. 28 U.S.C. § 1651.
On January 15, 1992, at the same time as this motion was filed, both Alleco and Lapides also filed a motion for the undersigned district judge to recuse himself. On January 25, 1992, defendants filed a motion for leave to take limited discovery.
The Court arranged to hear and resolve the motion for recusal first and then to proceed to the motions for additional discovery and the underlying substantive motion. The Court first received briefs and heard oral argument on the motion to recuse. By order of May 22, 1992, the motion for recusal was denied.
The Court then received briefs and heard oral argument on the motion for additional discovery. During oral argument on this motion, in December 1992, this Court requested a classified report from the Department of Justice Office of Professional Responsibility regarding the actions of government attorneys involved with this case.[3] After reviewing this report and the other materials submitted, this Court denied defendants' motion for additional discovery by order *432 dated July 20, 1993. Also on December 16, 1992 this Court ordered that the cases of the corporate defendant and the individual defendant be severed. With these preliminary matters resolved, the substantive motion for a writ of coram nobis by the corporation is now before the Court. This order is solely concerned with the corporate defendant's motion. Lapides' motion will be considered in his action which is separate from this action.

B. Factual History

1. The Corporate Entities
Allegheny Bottling Company, which had previously conducted business under the name Allegheny Pepsi-Cola Bottling Co.,[4] was the exclusive distributor of Pepsi-Cola products in the Baltimore, Richmond, and Norfolk marketing areas. At the time of this criminal conspiracy, that is, from 1982 until the beginning of 1985, Allegheny Bottling Company was a subsidiary of the Allegheny Beverage Corporation (now called "Alleco").
At that time, the parent corporation, Allegheny Beverage Corporation, was owned mostly by Morton Lapides. Lapides owned all of the "Series A" stock, allowing him to select four of the nine board members. He also owned the greatest portion of the common stock, allowing him considerable influence in the selection of the remaining five board members.
In May of 1985, Allegheny Beverage Corporation sold all of the capital stock of Allegheny Bottling Company, which had the exclusive distributorship in the above-mentioned areas, to Pepsico, Inc. for approximately $160 million. As part of this sale, Allegheny Beverage Corporation agreed to indemnify Pepsico against losses, including criminal fines resulting from the then-impending grand jury investigation which eventually led to this case. This indemnification agreement also provided that the Allegheny Beverage Corporation, and not Pepsico, would control the defense of the criminal case. At trial, it did appear to the Court that Alleco, and more specifically, Morton Lapides, controlled the defense of its former subsidiary, Allegheny Pepsi.
The Court is not aware of any significant change in the ownership of the stock of Allegheny Beverage Corporation since the time of this trial. However, as of 1988 all of Allegheny Beverage Corporation's operating subsidiaries had been sold off. Also, at some point during this period, Allegheny Beverage Corporation changed its corporate name to Alleco, Inc.
Throughout the rest of this order, the various corporate parties will be referred to as follows: The defendant, Allegheny Bottling Company (formerly the Allegheny Pepsi-Cola Bottling Company), will be referred to as Allegheny Pepsi. The original parent company, Allegheny Beverage Corporation, will be referred to by its new name, Alleco. The national corporation, which manufactures Pepsi and now owns Allegheny Pepsi, will be referred to by its corporate name, Pepsico.

2. The Prosecutions Resulting from the Price-Fixing Investigation
In the course of the prosecution of this price-fixing conspiracy, almost all of the officers of Allegheny Pepsi were either found guilty of price-fixing by a jury, pled guilty to the charges of price-fixing, or testified under grants of immunity to their knowledge of the price-fixing practices. Armand Gravely, vice president of Allegheny Pepsi and manager of the Richmond, Virginia area was found guilty by a jury on February 12, 1987.[5] Under grants of use immunity, Stanley Fabian and Jerry Pollino testified that both Allegheny Pepsi and Mid-Atlantic Coca-Cola were involved in price-fixing. At the time of the violations, Fabian was Norfolk area manager and vice president of Allegheny Pepsi; Pollino *433 was executive vice president as well as the manager of the Baltimore division of Allegheny Pepsi. James Sheridan, the president of Allegheny Pepsi, pled guilty to the price fixing on June 19, 1987. He admitted his own, as well as the corporation's involvement in the price-fixing scheme.
Several officers of Mid-Atlantic Coca-Cola also were implicated. On August 10, 1987, Edward Wynns pled guilty to making false statements to the grand jury in connection with this price-fixing investigation. Under a grant of use immunity, Bud Coe, a vice president of Mid-Atlantic Coca-Cola in the Baltimore office, gave testimony detailing the company's involvement in the scheme. On October 14, 1987, Mid-Atlantic Coca-Cola pled guilty to price fixing with Allegheny Pepsi and paid a $1,000,000 fine. The investigation into this matter also led to several guilty pleas on related matters by Mid-Atlantic Coca-Cola and its officers. Ultimately, Mid-Atlantic Coca-Cola paid nearly $3,000,000 in fines in this and other jurisdictions by virtue of criminal actions flowing out of this and related cases.
On October 14, 1987, the grand jury handed down an indictment against James J. Harford and Odis Allen, president and vice president of Mid-Atlantic Coca-Cola, against Morton Lapides, Chairman of the Board of Allegheny Pepsi, and against Allegheny Pepsi. Odis Allen pled guilty on March 22, 1988. After a seven-week trial, on May 19, 1988, the jury found Harford, Lapides, and Allegheny Pepsi guilty.
The underlying facts of this case as they relate to the form and nature of the price-fixing conspiracy are discussed more fully in previous opinions issued by this Court. United States v. Allegheny Bottling Co., 695 F.Supp. 856 (E.D.Va.1988)[6]; United States v. Allegheny Bottling Co., Criminal No. 87-123-N (E.D.Va. filed Sept. 19, 1988). In addition to the above-mentioned officers, the Court noted that "Allegheny Pepsi was so permeated with the conspiracy that the lower ranking employees of the company were completely aware of the well known fact that there was a price-fixing agreement between the Pepsi and Coke distributors." 695 F.Supp. at 857. In summary, the evidence against Allegheny Pepsi and its officers was overwhelming.

3. Allegations of Prosecutorial Misconduct
Alleco, the former parent company of the defendant corporation, now contends that Allegheny Pepsi's conviction resulted from violations of the Fifth and Sixth Amendments. Alleco adopts the position of Allegheny Pepsi's co-defendant, Morton Lapides, contending that investigators and prosecuting attorneys involved in the case had improper access to information about defendants' defense strategy that would have changed the result. In particular, they contend that Lawrence I. Weisman improperly communicated with various government officials, including the prosecutors at defendants' criminal trial. They assert that during this time Weisman was one of Lapides' attorneys and that any information garnered from him was obtained in violation of the attorney-client privilege and their related Fifth and Sixth Amendment rights.
Alleco's allegations rest almost entirely on the affidavit provided by Lawrence Weisman in settlement of defendants' civil lawsuit against him. Alleco, Inc. & Lapides v. Weisman, Civ. No. S-90-3216 (D.Md.1990). In exchange for this affidavit, Lapides released all claims against Weisman; these claims included potential damage claims of several million dollars and the release of a constructive trust that had been imposed on Alleco bonds owned by Weisman. In the body of the affidavit, Weisman provides a glimpse of the circumstances in which the affidavit was provided. In the final paragraph of the affidavit, he states:
Most of the events described above occurred over 3 years ago during many serious illnesses and these are my best recollections as refreshed by recent information and documents made available and discovered by me and others.
*434 Movants' Exhibit B, ¶ 10. Furthermore, several key points in Weisman's affidavit were contradicted by his own previous deposition testimony. A few weeks after giving this affidavit, Weisman died.
The circumstances surrounding the provision of the affidavit and the affidavits from the prosecutors denying the allegations therein raise serious doubts about the credibility of the Weisman affidavit and may indeed completely discredit it. However, this Court need not review the credibility issues at this time.

II. Analysis
The writ of error coram nobis is an extraordinary remedy, used only when the errors are of the most fundamental character, such as to render the underlying criminal proceeding irregular and invalid. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The original proceeding is presumed valid and the burden is on petitioner to demonstrate an error resulting in a complete miscarriage of justice. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir.1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989); United States v. Scherer, 673 F.2d 176, 178 (7th Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982). These strict standards for the granting of the writ are intended to preserve the benefits of finality, and therefore, the writ is limited to "defects that sap the proceedings of any validity." United States v. Keane, 852 F.2d 199, 203 (7th Cir.1988), cert. denied, 490 U.S. 1084, 109 S.Ct. 2109, 104 L.Ed.2d 670 (1989).
The writ is available as an alternative to relief under 28 U.S.C. § 2255 when the defendant is no longer, or never was, "in custody" as required by that section. Morgan, 346 U.S. at 511, 74 S.Ct. at 252. The writ is also available to corporations. United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 744 (3d Cir.1979); Polizzi v. United States, 550 F.2d 1133, 1135 (9th Cir. 1976).
However, there are prudential limits on the availability of the writ. A series of cases in the Seventh Circuit demonstrates these limits. Keane, 852 F.2d 199; United States v. Bush, 888 F.2d 1145 (7th Cir.1989); United States v. Kerner, 895 F.2d 1159 (7th Cir. 1990); United States v. Craig, 907 F.2d 653, 657 (7th Cir.1990), cert. denied, Craig v. United States, 500 U.S. 917, 111 S.Ct. 2013, 114 L.Ed.2d 100 (1991). All of these cases resulted from a change in the law of mail fraud after the Supreme Court invalidated the intangible rights theory of mail fraud prosecution. See McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), superseded by statute as stated in United States v. Stoneman, 870 F.2d 102 (3d Cir.1989). McNally invalidated the indictments and jury instructions in all of these cases, yet the Seventh Circuit denied coram nobis relief because of prudential limits on the use of the writ. A district court summarized the teachings of several of these cases as follows:
based on the historical purpose of the writ, the interests in finality of judgments, and the force to be given the custody requirement of Section 2255, coram nobis relief is only available to those petitioners who "`still suffer civil disabilities unique to criminal convictions.'" Bush, 888 F.2d at 1148 (citing Keane, 852 F.2d at 203).
United States v. Gottlieb, 738 F.Supp. 1174, 1178 (N.D.Ill.1990). In this case, the Court will assume for the purposes of argument that continuing civil disability is the $1,000,000 fine.[7]
However, this line of authority also requires that the person suffering the disability must ask for the writ. Thus, in Kerner, the Seventh Circuit refused to allow the estate of *435 the convicted person continue its pursuit of his motion for a writ, even though the estate would have received back the money paid in fines by Kerner. The Kerner court stated:
the narrow `zone of interests' protected by the writ includes only the petitioner's right to be free of any lingering civil disabilities remaining from his arguably wrongful conviction. That interest is personal to Otto Kerner, Jr., and cannot survive his death. His estate is outside the `zone of interests' sought to be protected by the writ and therefore lacks standing.
895 F.2d at 1163. A similar result was reached in Craig, 907 F.2d at 657, where the challenged conviction prevented the defendant's widow from receiving his pension benefits but the Seventh Circuit would not entertain her request for a writ of coram nobis.
In this case, the defendant corporation is not even a party. Instead, pursuant to an indemnification agreement, the former parent company is trying to step into the defendant corporation's shoes. Like Craig's widow or Kerner's estate, the former parent corporation would benefit from a favorable ruling. However, also like the widow and the estate, the former parent corporation is not within the narrow zone of interests protected by the extraordinary power of a writ of coram nobis.
A stockholder, in this case Alleco, which sells all of its stock to another person or entity, in this case Pepsico, but remains in contractual relationship with the new owner, has no standing to bring an action for a writ of coram nobis on behalf of a corporation in which it admittedly no longer has an interest. To rule otherwise would make such writs available to all the stockholders of any corporation found guilty of any crimes, or to any person who felt aggrieved by the conviction of a corporation. Otherwise, any party with a financial interest in a criminal trial, a bondsman for instance, would have standing to bring such a writ. This Court follows the Seventh Circuit's reasoning in Craig and Kerner in refusing to expand the availability of the writ in this manner. Although the law does appear to be ever-expanding, the ability to conclude litigation and trust in its finality must be preserved. This Court will not engage in such expansion of the use of this extraordinary writ.
Furthermore, even if this Court were to extend the writ to the former parent company, it would not grant such an extraordinary remedy on the facts of this case. Almost all of the corporate officers and many lower echelon employees provided information in one form or another of the corporation's culpability. The president, executive vice president, and other vice presidents admitted their own and the corporation's culpability. This conspiracy permeated the entire fabric of the corporation down to the lowest employee.
Any alleged flaws in the criminal prosecution of this matter would not save the corporation from an ultimate determination of its guilt, for the evidence against it  evidence from the mouths of its officers and employees  was overwhelming. It is difficult to fashion, even in fiction, any plausible scenario where the corporation itself would not have been found guilty. The only defense offered at trial seemed to be that there was no corporate resolution authorizing the price-fixing agreement executed and voted on at a directors' or stockholders' meeting. Indeed, under the facts of this case, it is inconceivable that any lawyer would have been able to fashion a viable defense for Allegheny Pepsi. Clearly, there was no miscarriage of justice in this case.

III. Conclusion
For the foregoing reasons, this Court DENIES the motion of Alleco, Inc., the former owner of a majority of stock of Allegheny Pepsi, on behalf of Allegheny Pepsi for a writ of error coram nobis.
The Clerk of the Court is DIRECTED to forward copies of this order to counsel for the parties.
IT IS SO ORDERED.
NOTES
[1]  Alleco, Inc., is the corporate successor to a former parent company of Allegheny Pepsi. For the details regarding the corporations in this transaction, please see below, Section I.B.1.
[2]  Defendant Odis Allen pleaded guilty prior to trial.
[3]  Morton Lapides' complaints were made to and investigated by the Justice Department's Office of Professional Responsibility. This Office conducted a full investigation of all the allegations.
[4]  Throughout the period of this conspiracy, the defendant corporation traded as Allegheny Pepsi-Cola Bottling Co. In July 1987, a few years after Pepsico, Inc. purchased the defendant from Lapides' Allegheny Beverage Corporation, Pepsico changed the defendant corporation's name to Allegheny Bottling Company.
[5]  His conviction was upheld by the Court of Appeals for the Fourth Circuit in United States v. Gravely, 840 F.2d 1156 (4th Cir.1988).
[6]  United States v. Allegheny Bottling Co., 695 F.Supp. 856, (E.D.Va.1988), aff'd in part without opinion and rev'd in part without opinion, 870 F.2d 655 (4th Cir.Va.1989), and cert. denied, Lapides v. United States, 493 U.S. 817, 110 S.Ct. 68, 107 L.Ed.2d 35 (1989).
[7]  The decisions are not consistent on the question of whether a fine, in and of itself, is sufficient to constitute a continuing civil liability. For instance, the Keane court found that a fine is a "sunk cost rather than a continuing disability producing additional injury." 852 F.2d at 204. However, the Seventh Circuit also stated that the Fourth and Ninth Circuits "apparently do not require any showing of a disability before a writ of error coram nobis may issue." Craig, 907 F.2d at 658. The Seventh Circuit based this on its reading of Mandel which adopted the broad view that a felony conviction imposes a disabling "status" on a person. Mandel, 862 F.2d at 1075, n. 12.


39 F.3d 412
THALLE CONSTRUCTION CO., INC.,Plaintiff-Appellant-Cross-Appellee, Counter-Defendant,v.The WHITING-TURNER CONTRACTING COMPANY, INC.,Defendant-Appellee-Cross-Appellant, Counter-Claimant.
Nos. 234, 369, Dockets 94-7108L, 94-7126XAP.
United States Court of Appeals,Second Circuit.
Argued Sept. 7, 1994.Decided Nov. 10, 1994.

James S. Morris, O'Connor, Morris & Jones, Greenwich, CT (Christopher W. Caldwell, of counsel), for plaintiff-appellant-cross-appellee, counter-defendant.
Herman M. Braude, Braude & Margulies, Washington, DC, Judith F. Herman, Levy & Tolman, New York City (William M. Huddles, Braude & Margulies, Baltimore, MD, of counsel), for defendant-appellee-cross-appellant, counter-claimant.
Before:  MESKILL, MAHONEY and WALKER, Circuit Judges.
WALKER, Circuit Judge:

1
This diversity action is brought by Thalle Construction Company ("Thalle"), a citizen of New York and a subcontractor on a project to build an office complex for IBM, against the general contractor Whiting-Turner Contracting Company ("Whiting-Turner"), a citizen of Maryland, to recover damages for delays suffered by Thalle.  Plaintiff appeals from a judgment of the United States District Court for the Southern District of New York (Gerard L. Goettel, District Judge ) finding Whiting-Turner liable for three months of delay damages totaling approximately $600,000 and holding Thalle liable for $339,147 in counterclaims.  Plaintiff challenges (1) the district court's findings of fact as to the length of delay;  (2) the measure of damages for its delay;  and (3) Thalle's liability for defendant's counterclaims.  Whiting-Turner cross-appeals, contending that 1) the district court erred in holding Whiting-Turner liable for any delay;  2) the measure of damages was inaccurate;  and 3) plaintiff waived its claims.

2
For the reasons that follow, we reverse the judgment below in part and remand.

BACKGROUND

3
In March, 1986, the Whiting-Turner Contracting Company entered into a general contract with IBM to construct IBM's "Customer Executive Education Center."   The six-building, $68.9 million complex was designed to house IBM's most important customers while they received demonstrations of and training in the company's newest products.  Three months later, Thalle signed a subcontract with Whiting-Turner in which Thalle agreed to perform the site work on the project for slightly over $5 million.  The site work entailed several distinct tasks, including clearing, excavation, paving, and installation of site utilities and drainage systems.

4
When Thalle first submitted its bid, the entire project was scheduled to begin in October, 1985 and conclude by December, 1987, a total of 27 months.  If selected, Thalle would be the first subcontractor to arrive at the site.  In November, 1985, however, IBM informed Whiting-Turner, and Whiting-Turner in turn informed Thalle, that construction would not begin until at least the spring of 1986.  Thalle agreed to maintain its current bid until March 1, 1986.  Thalle's bid was eventually accepted, and Thalle arrived at the site to begin its work on April 1.

5
Thalle's work did not proceed as planned.  From nearly its first day, the project was fraught with delays.  Perhaps most seriously, Whiting-Turner experienced a number of problems with Prim-Mar, its concrete subcontractor.  After beginning work in June, 1986, Prim-Mar refused to execute its subcontract and operated with a reduced workforce, demanding that Whiting-Turner raise the subcontract price to compensate for supposed delays and increased costs.  Even though Whiting-Turner eventually paid Prim-Mar an additional $643,000 beyond its subcontract price, Prim-Mar failed to meet the deadlines listed in the concrete subcontract.  Prim-Mar was also unable to meet a second, more relaxed schedule.  Whiting-Turner eventually terminated Prim-Mar after it abandoned the project in February, 1988.  The delays caused by Prim-Mar's intransigence slowed some of Thalle's excavation and backfilling, which was dependent upon the completion of Prim-Mar's concrete work.

6
Other project participants also delayed Thalle's work.  IBM, the site owner, failed to obtain permits from the State of New York to commence work along two roads.  The electrical and waterproofing subcontractors also performed more slowly than required.  Because of these problems and Whiting-Turner's difficulties in coordinating the work of the various subcontractors, several of the project areas were not released to Thalle when needed.

7
Thalle also suffered numerous setbacks itself.  Thalle failed to perform "sheeting and shoring" in one location, prompting a design adjustment and at least a mild delay.  Thalle also experienced labor union unrest leading to a one-day strike and a "sick out" of up to one and a half days.  To add to its problems, Thalle encountered ground water near one dam and rock at various building sites, both unanticipated.  These obstructions required design changes and slowed Thalle's progress.

8
As a result of the myriad delays, Thalle's activities took substantially longer than expected.  Bulk excavation and preliminary backfill, scheduled to be essentially completed by the end of 1986, stretched through the winter months of 1987.  Additional backfill work was then pushed into the spring.  Although Thalle's major responsibilities were originally to end by May 31, 1987, Thalle worked steadily through the end of 1987.  Thalle did not leave the site until August 1988, returning in October and November to complete final tasks.  Because of these delays, Thalle refused to release Whiting-Turner from liability on the subcontract.  Whiting-Turner initially held up payment of the balance remaining on the subcontract pending that release, but finally settled its account with Thalle in July, 1989 despite Thalle's refusal.  Whiting-Turner then signed a general release in favor of IBM in October of 1990.

9
Thalle filed suit against Whiting-Turner in February, 1991.  Thalle claimed, among other allegations, that the delays it suffered resulted in over $4 million of additional costs.  It arrived at this figure using the "total cost" approach, which measures the total cost of the subcontract, including profit and office overhead, and subtracts amounts received by the subcontractor.  Whiting-Turner counterclaimed, asking for damages for delays prompted by Thalle and indemnification for damage that Thalle caused to adjacent property through its blasting and failure to control erosion, as well as for stump burial fees Whiting-Turner paid on Thalle's behalf.

10
Following a non-jury trial, the district court found that Thalle suffered three months of delay due to Whiting-Turner's poor coordination of its subcontractors.  The court rejected Thalle's "total cost" measure of damages, and instead held Whiting-Turner liable for three months worth of additional revenue, or $600,000.  The court also allowed counterclaims in the amount of $339,147.  Both parties appealed.DISCUSSION

I. The District Court's Findings of Fact

11
Both parties contest the district court's findings of fact regarding the length and cause of delays suffered by Thalle.  Thalle argues that it experienced far more than three months of delay.  It offers two prongs to this argument:  First, it challenges Judge Goettel's conclusion that Thalle either contributed to or "drifted along with" six months of delay in 1986.  Second, Thalle takes issue with the district court's finding that Thalle's duties continued through the end of the project.  Because its subcontract was to be fully completed on May 31, 1987, Thalle contends, the amount of delay should be measured from that date.  Whiting-Turner argues that Thalle itself delayed the project by six months and should thus be held liable.

12
Amid this welter of contentions, all presented to the court below, we are guided by the principle that a district court's findings of fact should not be set aside on appeal unless they are "clearly erroneous."   Fed.R.Civ.P. 52(a).  This stringent standard is only met if " 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' "  Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).  Our task is not to reweigh the evidence, but merely to determine whether there is plausible support for the district court's conclusions.  Given the evidence in support of the positions both sides advance, we decline to upset the district court's findings.

A. The Length and Source of Delays in 1986

13
Thalle points to several documents which suggest that it did indeed suffer injury from the months of delay in 1986.  Most telling are two different exchanges of correspondence between Thalle and Whiting-Turner.  On December 22, 1986, Thalle sent Whiting-Turner a letter informing the contractor that Thalle's work was being forced into the winter months.  The letter stated that "if not for the delays in starting and production of your concrete subcontractor, our work would be basically complete as of this date."   In its January 7, 1987 response, Whiting-Turner, instead of disputing this conclusion, agreed to pay a portion of Thalle's increased costs incurred from working during the winter.  This concession suggests that both parties recognized the additional burden that Prim-Mar's behavior imposed on Thalle.

14
The second exchange of letters occurred in August of 1987.  Previously, Whiting-Turner had written to Thalle complaining of "Thalle's contribution to past schedule delays and refusal to perform work as directed."   Thalle's letter of August 3 responded to these "unfounded allegations" with a detailed list of the delays it had experienced and their causes.  Whiting-Turner's reply adopted a softer tone than its last, emphasizing the tentative nature of the project schedule and assuring Thalle that the contractor "appreciate[s] your continued efforts ... and will endeavor to seek an equitable resolution of your complaints."   The conciliatory nature of this response lends credence to Thalle's position that it was not at fault for the delays.

15
On the other hand, there is ample evidence supporting the district court's findings.  Two employees of Whiting-Turner, its senior project manager and project superintendent, testified that Thalle's deficient performance delayed the schedule by several months.  Whiting-Turner also introduced minutes of its progress meetings which, although far from clear, appear to indicate that Thalle had fallen behind in its work.  More importantly, Thalle admits that it decided not to use sheeting and shoring for one building in contravention of Whiting-Turner's instructions, prompting a holdup of several weeks as the contractor verified the feasibility of this change.  Finally, Whiting-Turner did mention problems with Thalle in correspondence;  on March 3, 1987, Whiting-Turner stated that "[i]n deference to renewed cooperation and [e]ffective scheduling we will not enumerate former Thalle-related difficulties in this letter."   In light of this letter, it is possible that Whiting-Turner's conciliatory tone in other correspondence was more an effort at diplomacy than an admission of fault.

16
Given the support for both sides' assertions, we cannot conclude that the findings of the district court on this issue were clearly erroneous.  "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."  Anderson, 470 U.S. at 574, 105 S.Ct. at 1511.   Here, a rational factfinder could have credited evidence either that Thalle suffered from the delays caused by Prim-Mar in 1986 or that Thalle drifted along with them.

17
We note that the nature of this case renders it particularly unsuitable for appellate factual review.  At issue are questions of the proper order of performance in a complex construction contract.  For example, Thalle asserts that it could not begin clearing the area until Whiting-Turner surveyed.  Whiting-Turner, in contrast, contends that Thalle delayed the surveyors by failing to clear the site.  A similar dispute exists as to whether Thalle's excavation should have preceded or followed Prim-Mar's concrete work.  Unlike the district court, this court has not heard the expert testimony necessary to resolve such questions.  Accordingly, on the record before us, we find no reason to disturb the district court's finding that Thalle only suffered three months of delay.

18
We also note that this determination will be of less consequence on remand.  As explained below, Whiting-Turner is liable for the proportion of the costs sustained by Thalle attributable to the delay within Whiting-Turner's direction or control.  It is this cost measure, rather than the actual length of the delays faced by Thalle, which determines Thalle's recovery.  Thus, while the district court's finding that Thalle suffered three months of delay bears on Whiting-Turner's liability, it does not directly determine the amount of damages.

19
We also reject Whiting-Turner's factual challenge to the district court's finding that no delay damages to Whiting-Turner were attributable to Thalle.  Whiting-Turner argues that it should receive $643,000 as damages on its counterclaim for six months of delay that Thalle caused in 1986.  The district court, however, did not find that Thalle bore the responsibility for either Prim-Mar's delays or the increase in Prim-Mar's subcontract price.  Rather, it found that Prim-Mar's refusal to commit necessary manpower virtually from the beginning of the project was the source of the problem.  Whiting-Turner has not demonstrated that this conclusion was clearly erroneous, and therefore its claim for delay damages from Thalle cannot prevail.

B. The Subcontract Completion Date

20
Thalle also argues that the subcontract should have ended on May 31, 1987, and that the amount of delay should be measured from that date.  The district court concluded that this date, which appeared on Attachment D of Thalle's subcontract, did not take into account a number of minor tasks such as final grading and erosion control.  It therefore refused to fix a firm date for the completion of the subcontract, instead suggesting that it extended through the latter stages of the project.  We decline to overturn this finding.

21
Thalle's argument centers around a bar chart made by Whiting-Turner which showed the completion date for topsoiling as May 31, 1987.  Thalle then highlights deposition testimony of a Whiting-Turner project engineer in another case indicating that topsoiling was Thalle's final assignment.  Whiting-Turner, on the other hand, argues that the bar chart covered only major tasks.  The subcontract, in contrast, specified that Thalle's responsibilities included erosion and sediment control "as required until permanent seeding," minor tasks which continued through the latter stages of the project.  Whiting-Turner's correspondence with Thalle supports this position.  The district court apparently credited Whiting-Turner's version, and Thalle has not persuaded us that this finding was clearly erroneous.

22
We note that the district court opinion does present an apparent minor inconsistency.  After concluding that the subcontract extended beyond May 31, 1987, the district court then computes interest with reference to "May 31, 1987, the subcontract completion date."   On remand, the district court should feel free to clarify its use of the two terms.  Once again, however, because damages are determined by the costs attributable to delay rather than the length of delay, the inconsistency will likely be immaterial.

II. The Appropriate Measure of Damages

23
In computing damages, the district court rejected the "total cost" method urged by Thalle on the ground that Thalle was unable to produce and verify the accuracy of its bid estimates.  Instead, the court divided the original contract price by the estimated length of the project to arrive at the estimated revenue per month, which it calculated to be $200,000.  The court then multiplied that figure by the three months of delay that Whiting-Turner caused to Thalle and awarded Thalle $600,000 in delay damages.  Because New York law requires that delay damages be calculated using a cost-based method, we reverse the district court's assessment of damages and remand.

24
A subcontractor's damages for delay in construction cases are measured as a general matter by "the extent to which its costs were increased by the improper conduct, and its recovery will be limited to damages actually sustained."  Peter Scalamandre & Sons, Inc. v. Village Dock, Inc., 187 A.D.2d 496, 589 N.Y.S.2d 191, 191 (1992).  The most precise method of calculating these damages involves tracing particular cost items to the delay caused by the defendant.  A related method measures damages as the difference between total costs when delays are taken into account and total costs absent delays.

25
Often, however, these two methods prove prohibitively difficult or speculative.  In these instances, courts estimate the extra costs occasioned by the defendant's delays by using a proxy for plaintiff's costs absent delays.  See Berley Indus., Inc. v. City of New York, 45 N.Y.2d 683, 687, 412 N.Y.S.2d 589, 591, 385 N.E.2d 281, 283 (1978).  The most common method of estimation in this context is the "total cost" method.  Najjar Indus., Inc. v. City of New York, 87 A.D.2d 329, 451 N.Y.S.2d 410, 413-14 (1982);  see, e.g., Whitmyer Bros., Inc. v. State, 47 N.Y.2d 960, 962, 419 N.Y.S.2d 954, 955, 393 N.E.2d 1027, 1028 (1979);  Peter Scalamandre, 589 N.Y.S.2d at 191.

26
We described the correct application of the total cost method under New York law in Wolff & Munier, Inc. v. Whiting-Turner Contracting Company, 946 F.2d 1003 (2d Cir.1991), a case which involved the same project and defendant as this one.  The district court must first determine total delay damages, which are "the difference between the contract price ... and ... total job costs, including overhead and profits, if applicable."  Id. at 1010.   Then, the court must "apportion delay damages according to each party's responsibility for them."  Id.

27
Thalle's inability to produce its bid estimate does not preclude use of the total cost method.  Although some courts require that plaintiff provide an accurate bid estimate in order to utilize the total cost method, see John F. Harkins Co. v. School Dist., 313 Pa.Super. 425, 460 A.2d 260, 263 (1983); Boyajian v. United States, 423 F.2d 1231, 1242-43, 191 Ct.Cl. 233 (1970), New York courts have rejected bid figures in damages computation with near unanimity.  Novak & Co. v. Facilities Dev.  Corp., 116 A.D.2d 891, 498 N.Y.S.2d 492, 494 (1986).  In Fehlhaber Corp. v. State, 69 A.D.2d 362, 419 N.Y.S.2d 773 (App.Div.1979), the court specifically sanctioned a measure of damages that computed total costs "without regard to bid figures."  Id., 419 N.Y.S.2d at 775.   As long as the contract price is available, as it is in this case, the total cost approach is feasible.

28
The district court rejected this approach partly because it viewed with suspicion several cost items submitted by Thalle.  First, the court commented that Thalle included overhead and profit even though it did not prove that these items were contemplated in its original bid.  Second, the court faulted Thalle for attributing full costs to periods when employees and equipment were idle.  The court noted critically that Thalle claimed over $1.6 million in damages for a period during which it was to receive only $368,000 in revenue.

29
New York cases indicate, however, that delay damages frequently include an allowance for profit and overhead, including home office overhead.  See Whitmyer Bros., 47 N.Y.2d at 962, 419 N.Y.S.2d at 955, 393 N.E.2d at 1028.   It can be assumed that a construction subcontract includes a markup for profit;  as a result, courts typically treat foregone profit as a cost incurred as a result of delays.  See S. Leo Harmonay, Inc. v. Binks Mfg. Co., 597 F.Supp. 1014, 1031-33 (S.D.N.Y.1984) (awarding damages for "the overhead and profit margin 'lost' on the job due to defendant's delays"), aff'd, 762 F.2d 990 (2d Cir.1985).  As to overhead, courts have allowed recovery if the plaintiff can show that the delays required overhead costs above what would have been incurred otherwise.  See, e.g., id. at 1033 ("Evidence that the delay precipitated engineering or design problems that called for central staff consideration will suffice to satisfy the burden of proving an increase in overhead.");  Fehlhaber, 419 N.Y.S.2d at 776.   This test merely restates the general rule applicable to all cost items that "speculation will not be indulged and damages will be limited to damages actually proven."  Id. at 777.

30
Yet it should be emphasized that costs should not be excluded solely because they greatly exceed revenues for a particular period.  Thalle may well have incurred substantial costs if it was forced to keep its employees and equipment ready while waiting for the opportunity to complete its work, regardless of how little work remained.  As long as the included items accurately represent costs that were actually increased by the delays Thalle suffered, they are compensable.

31
The second step in the total cost method involves apportioning damages according to the relative fault of Whiting-Turner.  A general contractor (sometimes called a "prime contractor") is only responsible for delays "caused by some agency or circumstance under the prime contractor's direction or control."  Triangle Sheet Metal Works, Inc. v. James H. Merritt & Co., 79 N.Y.2d 801, 802, 580 N.Y.S.2d 171, 172, 588 N.E.2d 69, 70 (1991).  Pursuant to this principle, the court should determine the proportion of the delay attributable to Whiting-Turner's acts or omissions and assess plaintiff's damages accordingly.  See, e.g., Fehlhaber, 419 N.Y.S.2d at 778 (apportioning 75% of damages to the defendant where 25% of the fault for the delay was attributable to the plaintiff).

32
This calculus should not omit consideration of the delays principally attributable to IBM.  New York cases do not explicitly state that a general contractor is liable for delays most directly caused by the site's owner.  Yet courts have applied the "direction or control" test to delays stemming from a host of causes, including owners' actions.  In Port Chester Electrical Constr.  Corp. v. HBE Corp., 978 F.2d 820 (2d Cir.1992), for example, this court examined delays to a subcontractor which included delays caused by the owner, other subcontractors, other prime contractors, and the weather.  See id. at 822.   While cautioning that a contractor is not wholly responsible for delays caused by others, we remanded the case to the district court to determine "which, if any, of the alleged delays were attributable in whole or in part" to the defendant.  Id.;  cf. Quaker-Empire Constr.  Co. v. D.A. Collins Constr.  Co., 88 A.D.2d 1043, 452 N.Y.S.2d 692, 694 (1982) ("[W]hether the [owner] or other third parties may have contributed to some of the delay" does not relieve the contractor from liability.).

33
We see no reason why IBM's actions should be treated any differently than other sources of delay.  The district court's findings merely state that the failure of IBM to obtain permits for road construction delayed Thalle's work on these areas.  They do not explain the reasons for this delay or Whiting-Turner's role, if any, in bringing them about.  If, for example, Whiting-Turner had a duty to inform IBM about the need for the permits or the timing for their acquisition and failed to do so in an accurate or timely fashion, Whiting-Turner might bear some responsibility for the resulting delays to Thalle.

34
We recognize that the tasks of determining the amount of costs attributable to the delays and apportioning fault are not without some difficulty in the context of this project.  While Thalle has the burden to show the extent to which Whiting-Turner's wrongdoing increased its costs, see Wolff & Munier, 946 F.2d at 1010, its claim should not be defeated solely because the complexity of the project and the vast number of delays make determination of damages difficult.  " 'A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain.' "  Najjar Indus., 451 N.Y.S.2d at 414-15 (App.Div.1982) (quoting Wakeman v. The Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264, 266 (1886));  see also Wolff & Munier, 946 F.2d at 1010 ("[A] party is not to be denied damages when they are necessarily uncertain.").  The total cost approach, however onerous it may be to apply in this case, is nonetheless required under New York law.

III. Other Challenges

35
The parties raise several additional challenges.  Thalle contends that the district court erred in allowing Whiting-Turner's counterclaims.  Whiting-Turner argues that Thalle waived its claims for delay damages by failing to notify Whiting-Turner of these claims in a timely manner.  We have considered these challenges and find them to be without merit.

CONCLUSION

36
Accordingly, we reverse the decision of the district court and remand for proceedings consistent with this opinion.