Supreme Court of Wisconsin Holds That Private Subcontractor Is Immune to Property Damage Claims by Adjoining Landowners Because it Followed Specifications Provided by the Wisconsin Department of Transportation

Melchert v. Pro Elec. Contrs., 2017 Wis. Lexis 169 (April 7, 2017)

The Wisconsin Department of Transportation (“DOT”) contracted with Payne & Dolan (“P&D”) as General Contractor on a road improvement project. P&D in turn contracted with Pro Electric Contractors (“Pro Electric”) to install concrete bases for new traffic signal poles.  DOT provided Pro Electric with detailed plans and specifications for the project (“Project Plan”) that specified the location of the concrete bases and the excavation equipment to be used.  Pro Electric was required to comply with the Project Plan and could only make deviations if approved by DOT’s engineer.

While excavating one of the specified locations, Pro Electric unknowingly severed a sewer line, causing sewage backup and flooding on adjoining private property. Pro Electric then backfilled the excavation site without inspecting the sewer line for damage.  The private property owners (“Owners”) brought a negligence action against Pro Electric.  The trial court granted summary judgment in favor of Pro Electric, ruling that it was immune from liability because it was merely implementing DOT’s design decisions.  The court of appeals affirmed, and Owners appealed to the Supreme Court of Wisconsin. Continue reading “Supreme Court of Wisconsin Holds That Private Subcontractor Is Immune to Property Damage Claims by Adjoining Landowners Because it Followed Specifications Provided by the Wisconsin Department of Transportation”

Federal Circuit Court of Appeals Holds Contractor Was Entitled To Rely On Soil Boring Logs and Design Features in Contract Documents, Even Though General Description of Site Stated that Boulders Were Present

Kit-San-Azusa v. United States,
1996 U.S. App. LEXIS 10370 (Fed. Cir. Ct. App., May 7, 1996).

Government contractor’s differing site conditions claim based on the discovery of unanticipated boulders during excavation was upheld even though the Government’s general description of the site stated that cobbles and boulders were present at site; the contractor properly considered the Government-provided soil borings, which did not indicate the presence of boulders, to be more probative than the Government’s general description.

Kit-San-Azusa (“Contractor”) was awarded a $15 million contract for the construction of an irrigation system. As part of the system, the Contractor was required to construct a pumping plant. The excavation for the pumping plant was to be performed by installing a cofferdam around the plant perimeter. When the Contractor began driving the required sheet piling for the cofferdam, it encountered boulders so large as to destroy the driving ends of the sheet piles. The Contractor even hit a boulder the size and shape of a Volkswagen.

The Government provided the Contractor with extensive data obtained by testing the geological nature of the pumping plant site. The geological survey performed by the Government included soil boring or drill logs which indicated the presence of cobbles (rocks 3 to 12 inches in diameter), but not boulders (rocks 12 inches or more in diameter). The Government also provided a general description of the pumping plant which stated that cobbles and boulders were present throughout the site.

The Court noted that to succeed on its differing site conditions claim, the Contractor had to establish that the conditions indicated in the contract differed materially from those encountered during contract performance. The Government argued that the Contractor failed to carry its burden because the Contractor was on notice of the presence of boulders as a result of the Government’s express statements about boulders in the general description of the site.

The Court, however, rejected this argument and noted that although the Contractor had some notice of the presence of boulders based on the generalized description of the site, the Contractor was entitled to rely on the more specific soil borings or drill logs which showed no boulders. The Court also held, “We take [the Government’s] insistence that sheet pile be used to construct the cofferdam as a reinforcement of the drill logs’ conclusions that boulders and large amounts of cobbles would not be present in the soil to hinder the pile driving.”