Troubled Bridge Over Water

By Alan Cooper
Published: September 15, 2008

The company that built a series of bridges and constructed the Clarksville bypass segment to widen U.S. 58 wanted to be paid $24 million for a cost overrun.

The Virginia Department of Transportation offered about $27 thousand.

The dispute was so complex it would have clogged the docket in Mecklenburg County. After a two-week trial in Norfolk, the judge gave the company $21.2 million.

Attorneys for AMEC Civil LLC of Lawrenceville, N.J., contended that reasons out of the company’s control caused a $24 million cost overrun on top of the $72.5 million contract price. The company said it had to spend 19 additional months on what was to have been a 41-month project.

Norfolk Circuit Judge Charles E. Poston agreed with most of those contentions after presiding over the trial in March and deciding the case in July. VDOT has filed a notice of appeal with the Virginia Court of Appeals, which will hear the case because it stems from an appeal of an administrative claim by the company against VDOT.

Spokesmen for VDOT and the attorney general’s office said they would have no comment on the case because it is still pending.
The parent of AMEC, which is based in the United Kingdom, bought Morse Diesel Civil LLC after Morse Diesel won the contract for the project in May 2000. The contract called for the project to be completed by November 2003, but it was not finished until June 2005.

By far the largest component of the 5.3-mile, 11-bridge project was the 4,800-foot John W. Tisdale Memorial Bridge over the John H. Kerr Reservoir. Gregory Martin and Brian P. Heald, the Maitland, Fla., attorneys who represented AMEC with assistance from J. William Watson Jr. of Halifax and Daniel D. Dickenson III of Norfolk, alleged that most of the delay was based on difficulty with installing the shafts for the 81 piers that support the bridge and on unusually high water levels during much of the construction.

Delays from those and other less substantial problems extended the project over two more winters than had been contemplated, which contributed to the cost overrun, Martin and Heald alleged in their complaint filed in Mecklenburg County in October 2006.

Poston was assigned to the case because its scope overwhelmed circuit judges in the 10th Judicial Circuit. Although the case continued to be designated as a Mecklenburg case, the trial and much of the related litigation occurred in Norfolk.

The first major issue to be decided was whether AMEC had complied with the requirements of the contract and Virginia Code § 105.16 for written notification of its claims during construction. Poston ruled in February in Amec Civil v. Commonwealth (VLW 008-8-142) that “AMEC substantially complied with the contractual and notice provisions at issue. Moreover, VDOT did not suffer any prejudice from AMEC’s failure to strictly comply with the written notice provisions.

“Importantly, VDOT has affirmatively acted on AMEC’s actual notice,” Poston continued. “Specifically, it has communicated with AMEC extensively regarding disputed issues before litigation arose, actively engaged in settlement negotiations and other preliminary proceedings, and has aggressively prepared for trial. VDOT’s assertion that AMEC’s claim fails for want of proper notice is a highly technical argument that undermines the clear and unambiguous purpose of the written notice requirements.”

At trial, Martin and Heald contended that the contract was based on the assumption that shafts for the piers could be installed in cookie-cutter fashion with little variation in the soil and rock on which they were to be built. In fact, substantial variations existed, the attorneys argued.

Moreover, they said, while the company was on notice that the levels of the reservoir varied, they could not have reasonably anticipated that the high levels, caused in part by Hurricane Isabel, would occur over so much of the contract period.

VDOT’s attorneys countered that AMEC had ample opportunity to investigate the risks associated with the pier foundations and to consider the levels of the reservoir before it submitted its bid. The contract placed the risks of adverse consequences from those two issues on the company, VDOT’s attorneys contended.

In siding with AMEC, Poston expanded his February opinion on notice to find that minutes of meetings between the parties and memoranda addressing issues amounted to written notice. “Indeed,” he added, “the defendants never asserted that they had no knowledge of the plaintiff’s claim.”

A comment from Poston during closing arguments suggested that the trial provided a thorough education in bridge construction. Testimony established that construction of the project eventually was determined to be sound, but Poston noted, “I don’t think I’ll ever cross a bridge again without worrying whether the shafts are in right.”