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Trier of fact must resolve ambiguity

Virginia Lawyers Weekly//April 25, 2019

Trier of fact must resolve ambiguity

Virginia Lawyers Weekly//April 25, 2019

Where the parties are reading the same documents that form their contract but understanding the same writings in different but not unreasonable ways, the contracts are ambiguous and the trier of fact must resolve the ambiguity.

The parties’ competing motions for summary judgment are denied.


The plaintiffs are 21 former employees of defendant Serco, which hired plaintiffs to work as government contractors in Afghanistan. Plaintiffs allege that under the terms of the parties’ contract, formed by “Offer Letters” and “Letters of Assignment,” they are owed certain hardship and danger pay “uplifts” for their work.

Defendant’s Offer Letters specified base and overtime pay and promised hardship and danger uplifts. The Letters of Assignment provided a 15 percent hardship uplift and a 35 percent danger uplift.

In their consolidated suits, plaintiffs argue they were entitled to a 35 percent hardship uplift. They also allege that defendant artificially capped the hardship and danger uplifts at 40 hours per week.

Before the court are competing motions for summary judgment.


The parties have stipulated to many facts and rely on those stipulations to argue there are no material facts in dispute. But the employment agreements present material disputes as to how they should be interpreted. Those disputes are for the trier of fact to decide.

The Offer Letters and the Letters of Assignment both refer to the hardship uplift but define it in conflicting ways. “The Offer Letters describe the rate at which plaintiffs are to be paid, and then state that this will be paid ‘along with the uplifts for Danger and Hardship on your base pay as designated by the Department of State.’… However, the Letters of Assignment state that Plaintiffs ‘will receive a hardship allowance provided as a 15% differential.’

“While at first glance there two provisions might not appear to be at odds with one another, the pleadings filed in this case indicate otherwise. Plaintiffs argue that the Department of State Standardized Regulations (DSSR) have been incorporated into the contract through use of the phrase ‘as designated by the Department of State’ in the Offer Letters, and that the DSSR lists the ‘hardship’ differential for placement in Afghanistan as 35%. … Defendant argues that the DSSR were not incorporated, but even if the DSSR were incorporated, the 35% uplift is a discretionary amount, not a mandatory one.

“A reading of both Defendant’s and Plaintiffs’ briefs make one point abundantly clear; both parties are reading the same documents and are understanding the same writing in different yet not unreasonable ways. This certainly makes the contract ambiguous, and therefore the answers to these questions are more appropriately determined by the trier of fact.”

The motions for summary judgment are denied.

Acres, et al. v. Serco, Inc. Case No. CL 2018-7300, April 11, 2019; Fairfax Cir. Ct. (Mann). Philip B. Leiser, John D. Wilburn, Amy Miller for the parties. VLW 019-8-035, 5 pp.

VLW 019-8-035

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