The long and sorry saga of litigation between
Tampa Bay Water and HDR Engineering over needed repairs to the six year old C.
W. Bill Young Regional Reservoir has taken yet another turn for the worse as
TBW’s board apparently will insist on pursuing an appeal from the federal court
jury trial it lost earlier this month. The estimated cost of such an appeal is
up to $400,000.00, and TBW General Manager Gerald Seeber announced April 16
that the utility will be filing a motion for a new trial in the case.
A federal judge granting a new trial after a jury
verdict is a thing as rare as a flawless yellow diamond, but the motion is
required if TBW intends to appeal from the adverse verdict. No one at TBW has
said what the grounds for the new trial motion might include. Federal Rules prohibit
TBW from raising anything on appeal that is not included in the new trial
motion.
A brief review of the history of this case reveals
that reversal of the jury’s verdict on appeal is about as likely as a man
flying to the moon by flapping his arms. TBW initially brought the lawsuit
against not only HDR, but also against TBW’s general contractor and
construction manager. HDR was blamed for claimed design defects in the
reservoir plans, and the construction manager and contractor were blamed for
improper soil placement during construction. In the lawsuit, TBW claimed
damages of as much as $140 million, including prejudgment interest. After
mediation efforts, TBW accepted settlements from the construction manager for $6
million, and from the general contractor for $750,000.00. Apparently everybody
thought there was some merit to the improper soil placement issue. HDR offered
a $30 million settlement in the mediation, and the TBW board initially voted to
accept that sum and put an end to the case, but a month later, reversed itself
and directed its lawyers to take the case to trial against HDR.
While TBW and its trial lawyers could have blamed
HDR for failing to discover the improper soil placement under HDR’s contractual
responsibility for “quality control” during construction, TBW’s trial lawyers
conceded in their closing arguments to the jury that they were making no
quality control claims against HDR, probably because if a verdict against HDR
was based in part on lack of quality control, TBW’s settlements of $6.75
million from the other parties would be deducted by the judge from any verdict
against HRD. Judge James A. Whittemore instructed the jury accordingly.
After four hours of deliberations at the end of the
case, the jury sent out a question to Judge Whittemore, asking whether or not “quality
control” included “execution of design” – an obvious reference to the improper
soil placement issue. Upon the conclusion of discussions with all the
attorneys, Judge Whittemore answered the jury’s question, stating that
overseeing construction to ensure it met design specifications fell under the
definition of “quality control.” Within minutes afterward, the jury returned
its verdict exonerating HDR.
If there were mistakes in these legal proceedings,
they occurred first when TBW rejected HDR’s $30 million offer, and second when
TBW’s trial lawyers conceded it was making no quality control claims against
HDR, in an effort to avoid an offset of the earlier settlements against any
verdict in TBW’s favor. For TBW to spend another quarter million or more in
pursuing an appeal from this jury verdict is clearly throwing good money after
bad.
