Judge Announces Skanska Barge Ruling
Recently, U.S. District Court Judge Lacey Collier ruled that contractor and design-build team Skanska USA was operating under maritime law when its construction barges broke lose from its Pensacola Bay Bridge project during Hurricane Sally in August of last year.
According to reports, the ruling could significantly limit Skanska’s liability regarding the close to 1,000 businesses and commuters seeking damages.
Bridge vs. Barge
In anticipation that Hurricane Sally would make landfall some 200 miles west of Pensacola, Skanska hadn’t planned to move its construction equipment but told Engineering News-Record that it had made all appropriate pre-storm preparations. However, when Hurricane Sally unexpectedly changed her course in the final hours of approaching land, it was too late to take additional action.
As a result, the Category 2 hurricane landed just 30 miles west of the Pensacola Bay Bridge (also known as the Three Mile Bridge) replacement project site, causing the dislodge of 27 barges, among other construction equipment.
One of the worst impacts, Pensacola News Journal wrote at the time, was a crane that passed under the Three Mile Bridge, smashing through the surface of the road from beneath, destroying the span. While the structure was closed immediately following the barge impact, it was reported that the bridge suffered a second impact the following day. Upon preliminary damage assessments, FDOT determined that at least five of the 105 spans were irreparable and would have to be reconstructed.
The Garcon Point Bridge was also affected by a dislodged barge and was also closed. While the Pensacola Bay bridge remained closed for repairs, Gov. Ron DeSantis ordered the suspension of tolls on Garcon Point until traffic was fully open on Pensacola.
A few days after an initial overview of the losses, inspectors discovered that damages to the Pensacola Bay Bridge were worse than previously expected. During a preliminary inspection, crews reported that:
At the beginning of October, FDOT announced that demolition efforts on the damaged areas of the Pensacola Bay Bridge had begun, with focus on areas that need cleared for dive access to examine the final 22 footings below the waterline.
At the time, three of Skanska’s barges remained on or under the structure and would have to be removed with great caution. In wake of the efforts taken to repair the structure, Skanska fabricated 25 beams, various piers and other replacement beams and piers at its offsite yard needed to begin repair efforts. The contractor also reached out to other facilities to assist in production.
Judge: Skanska was operating under maritime law during Sally, commuter case going to trial – Pensacola News Journal— ChronLAW | News for Legal Professionals (@ChronLaw) July 30, 2021
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Providing a repair update at the beginning of December, Florida Rep. Alex Andrade (R-Pensacola) told the Pensacola News Journal that Skanska still had barges littered around the area, alongside crews accounting for safety, equipment, and fuel, which in turn is driving up enormous daily costs.
While Skanska did not attend the town hall, the company was since reported to have hired two subcontractors to initiate repairs on the bridge. In their efforts, the teams were sending divers to evaluate pilings and repair concrete, in addition to replacing entire spans of the bridge.
Regarding the cost of the additional repairs, Skanska or its insurance companies are slated to pay for the repairs directly. Although many sections of the structure are being repaired ahead of schedule, the company is motivated to complete the project as soon as possible as its reported to be “building at a loss.”
The following month, numbers on the demolition and repair activities were updated to include:
Over the course of the work, FDOT continued to monitor Skanska’s investigation with state and local authorities to determine if the line connecting the barge to the sea floor was severed, as another barge was also reported to break loose at the end of December.
In February, FDOT officials reported that the Pensacola Bay Bridge was scheduled to reopen in March, however the transportation structure would still have lane restrictions. Although temporary, the bridge plans to open one lane in each direction will be open for roughly the first mile and two lanes in each direction for the remining two miles.
Due to the impact on local businesses and tourism, it was decided that reconnecting the communities sooner than later would be the best option. However, Skanska has recently been delayed in its repair work due to inclement weather preventing the contractor from utilizing cranes, in addition to other obstacles.
Regardless, FDOT says it will continue to withhold $35,000 per day on the project until the full lanes are opened.
“We believe they are not providing what they're supposed to provide,” said FDOT Secretary Kevin J. Thibault at the time. “The contract requires us to get a four-lane bridge and we don’t have a four-lane bridge. Until we get that open and it’s accepted by us, we withhold $35,000 a day, so that’s the message we’ve given them.”
Once a connection is restored between Pensacola and Gulf Breeze, Skanska is slated to remain working onsite through until January of 2022 to complete all improvements to the new bridge.
Building Cases and Liability Requests
Back in October, FDOT issued a letter of intent to Skanska USA seeking damages and lost toll-related revenue because of the toll suspension on the Garcon Point Bridge. However, according to Sen. Doug Broxson, lost toll revenue caused by emergency closures are usually paid out by the Florida Legislature. In terms of tolls revenue, Broxson added that the loss was a monthly difference of between $700,000 and $4 million.
Additionally, lawsuits regarding the construction company and affected local businesses were ongoing within the court system as well.
In five separate filings—each representing a different barge—Skanska requested in January that the U.S. District Court in Pensacola, Florida declare the company not liable “for any loss, injuries or damages" related to barge damage, including economic losses suffered by businesses from the closure of the new span of the bridge in an attempt to significantly reduce or eliminate its liability for damages experienced at the Pensacola Bay Bridge construction project, caused by its own barges during Hurricane Sally.
The separate filings sought to have the barges recognized as vessels protected under maritime law.
While a Skanska spokesperson told reporters at the time that the company doesn’t comment on active or pending litigation, should the courts refuse the company’s request, they’ve also submitted an alternate request, asking that the liability be limited to the dollar amount of its ownership in each vessel.
Skanska valued its barges to each cost between $125,000 and $550,000, totaling $1.43 million, and requested that they be divided pro rata between all those submitting valid claims within a certain time period to be determined by the court. A copy of a security bond equal to the value of each barge was included with each filing.
Maritime Jurisdiction, Next Steps
In a late July ruling, federal judge Collier ruled that Skanska was operating under maritime law when its barges broke loose from its Pensacola Bay Bridge project site during Hurricane Sally last summer. The decision reportedly keeps the case in federal court—a win for Skanska.
However, the judge deferred to rule if litigation for the nearly 1,000 claimants who suffered property damages from the barrages, as well as those who took on economic damages due to the bridge’s closure for nine months.
The deferred ruling reportedly regarded the relevance of the Robins Dry Dock case, which is a precedent case that, if it applied, would limit the pool of potential plaintiffs to only those who suffered physical damage, such as those who had Skanska barges wash up on their property.
Because of this, the question if claimants can sue for physical and economic damages will remain until the outcome of the next trail, which slated to take place in September.
“That’s really important because if we win that trial, we get out of federal court and can proceed in state court where a lot of those cases are pending,” Sam Geisler, an attorney with Aylstock, Witkin, Kreis & Overholtz, who is representing the claimants, told reporters.