THORNE, Judge:
¶ 1 Plaintiff Kilgore Pavement Maintenance, LLC (Kilgore) appeals from the district court's ruling granting West Jordan City's (the City) motion to first dismiss the majority of Kilgore's claims and thereafter granting a motion for reconsideration dismissing the sole remaining claim. We affirm.
¶ 2 In the spring of 2008, the City solicited bids for a road reconstruction project. On July 1, Kilgore submitted a bid to the City with a total proposed price of $697,901 for its asphalt services, which included labor and materials for the project. The bid was calculated using, among a number of factors, the
¶ 3 A short time later, the cost of liquid asphalt oil increased to $1005 per ton. On August 22, Kilgore submitted a request to the City's engineering department for a price increase of $91,000. The work was completed in August and the City paid the contract price for the project.
¶ 4 On January 30, 2009, Kilgore filed a complaint alleging commercial impracticability/practical impossibility, unjust enrichment, breach of contract, and breach of implied covenant of good faith and fair dealing. The City filed a motion to dismiss the complaint under rule 12(b)(6) of the Utah Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The district court heard oral arguments on the City's motion and subsequently granted the motion and dismissed all of Kilgore's actions except its commercial impracticability/practical impossibility claim. Thereafter, the City filed a motion for reconsideration. The district court heard oral arguments on the motion for reconsideration, granted the motion, and dismissed Kilgore's commercial impracticability/practical impossibility claim. Kilgore now appeals.
¶ 5 Kilgore argues that the district court erred when it dismissed with prejudice Kilgore's commercial impracticability/practical impossibility claim based on the court's determination that Kilgore, pursuant to the contract terms, assumed the risk of cost increases and cannot therefore rely on a claim of commercial impracticability/practical impossibility.
¶ 6 Kilgore argues that the district court erred in finding that Kilgore had assumed the risk of impracticality because no terms of the contract expressly allocate this risk.
The district court is correct that a finding of impossibility or impracticality excuses a party from performing unless the party has assumed the risk of the event. See Western Props. v. Southern Utah Aviation, Inc., 776 P.2d 656, 658-59 (Utah Ct.App.1989); 14 James P. Nehf, Corbin on Contracts, § 74.15, at 90 (2001). Thus, we consider whether the court correctly interpreted the contract to include an assumption of risk. "In interpreting a contract, we first look to the language of the document to determine its meaning and the intent of the contracting parties. We also consider each contract provision . . . in relation to all of the others, with a view toward giving effect to all and ignoring none." Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 15, 210 P.3d 263 (omission in original) (internal quotation marks omitted).
¶ 7 The City argues that the district court did not err in its risk allocation determination because Kilgore expressly assumed the risk of supply cost increases by entering into a fixed price contract with the City.
(Emphases added.) Kilgore argues that the language in article sections 11.1(b) and 11.1(c), pertaining to change of the contract price, demonstrates that Kilgore did not contract for the risk of an impracticable increase in material supplies. These provisions read as follows:
¶ 8 After reviewing the pertinent articles, outlined above, we determine that the district court correctly interpreted the contract to include an assumption of risk. Articles 6.2 and 11.1(a) expressly delegate the responsibility to Kilgore to furnish materials at its own expense without any automatically resulting change in the contract price. And article 14.4, purports to disclaim the City's responsibility for any failure by Kilgore to perform or furnish the work in accordance with the contract documents, which documents specifically allocate to Kilgore the responsibility to furnish materials at the contract price. While article sections 11.1(b) and 11.1(c) provide the parties with the ability to seek an increase or decrease in the contract price, these sections are not inconsistent with articles 6.2 and 11.1, and do not in themselves eliminate or alter Kilgore's responsibility to furnish materials as per the contract price. Based on the foregoing review of the pertinent contract provisions and the fixed price nature of the contract, we conclude that the district court did not err in finding that "pursuant to the contract, [Kilgore] assumed responsibility for supplying all materials necessary for [its] performance, and therefore, assumed the risk of supply cost increases."
¶ 9 Kilgore also argues that the doctrine of commercial impracticality may apply in broader circumstances beyond excusing performance. Kilgore asserts that based on the doctrine of commercial impracticability it is entitled to an equitable adjustment in the contract price to compensate Kilgore for the sudden and dramatic increase in the price of liquid asphalt oil. The impracticability principle is generally identified in case law as the contractual defense of impossibility. See Robinson v. Robinson, 2010 UT App 96, ¶ 12, 232 P.3d 1081, cert. denied, 241 P.3d 771 (Utah 2010); Commercial Union Assocs. v. Clayton, 863 P.2d 29, 38 (Utah Ct.App.1993); Western Props., 776 P.2d at 658. "`Under the contractual defense of impossibility, an obligation is deemed discharged if an unforeseen event occurs after formation of the contract and without fault of the obligated party, which event makes performance of the obligation impossible or highly impracticable.'" Robinson, 2010 UT App 96, ¶ 12, 232 P.3d 1081 (emphases omitted) (quoting Western Props., 776 P.2d at 658); see also Restatement (Second) of Contracts § 261 (1981) ("Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.").
¶ 10 Our research reveals no Utah case law, nor does Kilgore direct us to any, that applies the defense of impossibility so as to equitably adjust a contract price due to an unforeseen event, without a modification of the contract by the parties. Nevertheless, Kilgore asserts that courts have recognized that the impossibility defense is sufficiently flexible to apply in circumstances beyond excusing performance so as to allow equitable adjustment of an unmodified contract. In support of such a liberal application of the impossibility defense, Kilgore cites, without any discussion or analysis, to Bitzes v. Sunset Oaks, Inc., 649 P.2d 66, 68 (Utah 1982), and section 74.15 of Corbin on Contracts, see 14 James P. Nehf, Corbin on Contracts, § 74.15, at 90 (2001). Neither reference is directly on point for the proposition Kilgore asserts. The more liberal application of the impossibility defense discussed in Bitzes is merely a statement by the supreme court of a more current formulation of the doctrine as opposed to the earliest expression on the availability of the doctrine found in McKay v. Barnett, 21 Utah. 239, 60 P. 1100, 1102 (1900). See Bitzes, 649 P.2d at 68. Likewise, section 74.15 of Corbin on Contracts does not necessarily support the application of the impossibility doctrine to the circumstances in this case. Section 74.15 provides that "the impossibility doctrine is sufficiently flexible and adaptive to achieve just results dependent on the factual circumstances presented to the court." 14 Corbin on Contracts, § 74.15, at 91. It appears that this statement refers in part to the flexibility provided by the risk assumption exception to the impossibility
¶ 11 Kilgore further asserts that Raytheon Co. v. White, 305 F.3d 1354 (Fed.Cir.2002), and M.J. Paquet, Inc. v. New Jersey Department of Transportation, 171 N.J. 378, 794 A.2d 141 (2002), both provide equitable adjustments in public contracts for changes imposed by unforeseen events. However, both cases involve an equitable adjustment of the contract price after an unforeseen event had prompted the parties to modify the contract requirements. As such, neither case supports the equitable adjustment of a contract price without a previously occurring modification of the contract requirements by the parties, as is the circumstance in the case at hand. See Raytheon Co., 305 F.3d at 1368 (noting that the company was compensated for the numerous changes and rejecting the argument that "whenever a contract specification requires extensive changes, performance of the contract must be impracticable"); M.J. Paquet, Inc., 794 A.2d at 149 ("[T]he purpose of an equitable adjustment is to keep a contractor whole when the Government modifies a contract." (internal quotation marks omitted)). As a result, we decline to apply the impossibility defense in the manner Kilgore requests and instead affirm the district court's decision not to discharge Kilgore's duty based on its determination that Kilgore assumed the risk of supply cost increases.
¶ 12 Articles 6.2(d) and 11.1(a) clearly provide that Kilgore had the obligation to furnish materials at its own expense without any resulting change in the contract price. In accepting the responsibility to furnish materials at the contract price, Kilgore expressly accepted the risk of supply cost increases. Kilgore's argument that the inclusion of articles 11.1(b) and 11.1(c) demonstrates that the parties did not contract for the risk of an impracticable increase in material supplies is unavailing. These articles merely outline the procedure by which the parties may seek a change in either the work to be done or the contract price. As a result, we conclude that the district court properly found that Kilgore assumed the risk of a supply cost increase and affirm the court's dismissal of Kilgore's commercial impracticability/practical impossibility claim.
¶ 13 Affirmed.
¶ 14 WE CONCUR: J. FREDERIC VOROS JR. and STEPHEN L. ROTH, Judges.