Appeals court ruling on Highway 99 tunnel liability

Last week a state appeals court handed down a ruling in its review of a jury verdict that sided with the Washington State Department of Transportation in a dispute related to the breakdown of the tunnel boring machine that was digging the Highway 99 tunnel under Seattle.

WSDOT had claimed that Seattle Tunnel Partners (STP), the contractor for the tunnel dig and construction, had violated its contract by not completing it within the time constraints specified in the contract. STP counter-claimed that the steel soil-test pole that broke the tunnel boring machine had not been disclosed by WSDOT in the pre-contract documents, and thus constituted a “Differing Site Condition” (DSC) that under the terms of the contract should haven granted STP more time and compensation to complete the project.

The situation was further muddied because STP lost most of the segments of the steel pole that it recovered post-breakdown and before they could be examined as evidence. Worse, the work journal of STP’s Deputy Project Manager, covering the period of time where the breakdown occurred, also mysteriously went missing before it could be produced and examined as evidence.

The jury determined that the presence of the steel pipe did not constitute a DFC, thus STP’s defense and counterclaims failed. STP appealed the verdict, taking issue with several of the judge’s rulings related to evidence and to jury instructions. In particular, the judge instructed the jury that they may infer that the pipe segments and work journal in STP’s possession that were lost would have been evidence that reflected negatively on STP’s case.

The appeals court affirmed the trial court outcome, finding in almost all circumstances that the judge had acted appropriately and/or within their discretion, or or there was error then it was harmless.

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