Civil engineering firm responsible for $2 million bridge repair bill

Where a civil engineering company challenged a jury verdict holding it liable for the costs incurred in tearing down and rebuilding an improperly constructed bridge, the company failed to show the verdict was against the weight of the evidence, the damages were unsupported, the jury instructions were improper or interest was improperly calculated.

Background

On June 10, 2021, a jury awarded nearly $2 million to W.C. English, Inc. in its contract dispute with Rummel, Klepper & Kahl LLP, or RK&K. It found that the quality assurance subcontract between the parties entitled English to damages or indemnification for costs incurred by English when it was forced to tear down and rebuild an improperly constructed bridge over Interstate 81. RK&K now seeks a directed verdict or, in the alternative, a new trial.

Sufficiency of evidence

It is undisputed that English bears some of the blame for failing to correctly build the I-81 bridge. Neither does RK&K dispute that a rational finder of fact could find that RK&K’s failure to meet its contractual obligations was partially to blame. Instead, RK&K insists that a reasonable jury, based on the evidence presented at trial, could not find that it was 70% responsible.

The court cannot say as a matter of law that the evidence was insufficient to enable the jury to rationally allocate 70% of fault to RK&K. A rational finder of fact could credit the testimony of English’s expert, Charles Gee, who expressed his opinion that while “all parties are responsible” for the nonconformities in the original bridge, RK&K was “primarily responsible.” Putting Gee’s testimony together with that of the fact witnesses, the jury could rationally determine that RK&K was contractually responsible for 70% of English’s damages.

Damages

RK&K raises various objections to the calculation of English’s extended home office overhead. RK&K asserts that English’s calculation was flawed for three reasons. First, English failed to offer evidence that it could not have recouped its lost overhead with other revenue-producing work. Second, English failed to establish that its overhead expenses were attributable to the I-81 bridge rebuild. And third, English’s calculations failed to account for the fact that English itself was partially responsible for the delays. The court rejects each argument.

RK&K also asserts that it is entitled to a reduction in its damages award based on English’s settlement with CDM Smith, another subcontractor involved in the original bridge construction. RK&K cites Va. Code § 8.01-35.1(A)(1), which provides that “[w]hen a release … is given in good faith to one of two or more persons liable for the same injury to a person or property . . . any amount recovered against the other person . . . shall be reduced by any amount stipulated by the covenant or release, or in the amount of the consideration paid for it.” However, RK&K and English are not both liable for 70% of English’s overall damages. The jury award reflects the jury’s determination of RK&K’s share of responsibility alone. Va. Code § 8.01-35.1(A)(1) is inapplicable.

Jury instructions

RK&K contends that the court improperly denied two of its proposed instructions. One would have reiterated that RK&K is not responsible for the negligence of another subcontractor. The other would have told the jury that, under Virginia law, the party who commits the first material breach of a contract is not entitled to sue to enforce its terms.

An instruction clarifying that RK&K should not be held liable for the acts of others was unnecessary because the jury instructions that were given left no confusion that it was RK&K’s contractual breach, and no one else’s, that was at issue. The first material breach instruction was denied because no evidence was offered at trial that English violated a contractual obligation to RK&K.

Interest

The jury awarded English $839,000 in prejudgment interest, with accruement beginning on the date of the bridge’s final completion, June 24, 2014. RK&K argues that awarding seven years of interest is inappropriate because the pandemic, a Fourth Circuit appeal and three years’ delay in commencement of the action were all factors outside of RK&K’s control.

But it is not for this court to decide the legal consequence of these circumstances.

Motion for judgment as a matter of law or, in the alternative, new trial, denied.

WC English Inc. v. Rummel, Klepper & Kahl LLP, Case No. 6:17-cv-00018, Oct. 13, 2021. WDVA at Lynchburg (Moon). VLW 021-3-489. 14 pp.