Judge Rules Skanska Negligent in Pensacola Case
A federal judge found contractor and design-build team Skanska USA negligent last month in the case of when its construction barges broke lose from its Pensacola Bay Bridge project during Hurricane Sally in August of last year.
According to the Pensacola News Journal, the decision by Judge Lacey A. Collier rules in favor of the nearly 1,000 homeowners, commuters, businesses and government entities who were impacted by the nine-month outage of the bridge. As a result, Skanska will not be able to limit its financial liability to the $1.2 million value of the barges.
A new lawsuit was also filed the same day the ruling was announced, seeking to recover increased costs on behalf of Northwest Florida commuters.
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.
The lawsuit is the latest in the ongoing legal battle against Skanska over its construction barges knocking out the Pensacola Bay Bridge when they broke free of the moorings during the hurricane.— PNJ (@pnj) January 4, 2022
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 2020, 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.
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
In October 2020, 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.
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.
In October, prior to the trial, federal judge Hope T. Cannon required Skanska pay $92,409.96 to the claimants in the case after it was found that the company had reportedly destroyed evidence in the case.
Allegedly, Skanksa deliberately destroyed evidence for five of the 13 key staff members involved in the Hurricane Sally preparations and recovery. The judge would then consider whatever evidence is missing unfavorable to the company during the trial.
At the time, Skanska was expected to seek full exoneration, or to seek a cap on the amount it would need to pay to the value of its barges at $1.2 million.
Ruling Decision, New Lawsuit
Skanska claimed at an October trial that the hurricane forecasts did not require preparation and removal of the 55 barges at the bridge construction site, but by the time the weather forecast changed, it was too dangerous to move them. The company also stated that there still would have been significant impact if preparations had been made, due to the force of the storm.
“While Pensacola may not have been the most likely recipient of a direct strike during the time Skanska made its decision, the threat of tropical force winds remained a distinct possibility,” Collier wrote. “It is difficult to accept Skanska’s expression of surprise over the turn of events when at the time the Pensacola Bay area was under a tropical storm warning and a hurricane watch.”
The judge also noted that the hurricane plan submitted to Skanska to FDOT based on its contract required them to move the barges to one of two “safe harbors,” including Butcherpen Cover or Bayou Chico.
“Skanska was indeed found negligent, and that negligence sprung wholly from executive decision-making that resulted in the failure to take reasonable measures to protect its barges from the impending storm,” Collier wrote.
"We are extremely disappointed by the district court ruling, as we believe it is not supported by the evidence or testimony presented at trial," Skanska representative said in a statement, adding they intend to pursue all legal options possible.
"Skanska remains adamant that it took all appropriate measures with the information available at the time to prepare for the storm. Immediately following the storm, Skanska put forth its full resources to address the damage as quickly and as safely as possible and reconnect the communities impacted."
While there is no direct financial consequence to the company based on the rule, it now allow for hundreds of state court cases to continue that were halted when Skanska claimed it was protected by maritime law.
One of those lawsuits was filed the same day, seeking compensation for commuters impacted by the loss of the bridge in Escambia, Santa Rosa or Okaloosa counties, reported the Pensacola News Journal.
"This class action is really a way to make sure that people who were having to deal with this commute every single day — sometimes two or three hours, one direction going to and from work — that they're represented, that their interests are represented, and that hopefully, they will be able to be compensated for those losses," said Attorney Nikki Guntner with the Aylstock, Witkin, Kreis and Overholtz law firm.
Skanska declined to comment to the News Journal on the lawsuit.