Shapiro, Lifschitz & Schram

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Evans Barba – President and CEO, Barba Consulting

FIU Bridge Collapse Offers Lessons in Litigation Over Complex Defective Work

After a bridge collapse in Miami shook the Florida International University campus on March 15, 2018, the reverberations in the community began immediately. Governmental investigations have commenced, multiple parties are preparing for and filing lawsuits and hard questions are being asked about whether the structural failure was caused by design flaws, construction flaws or both.

The investigation into what caused the FIU pedestrian bridge to collapse across six lanes of traffic and who was responsible has put the spotlight on contractors, subcontractors, inspectors, engineering and design firms and their insurers. Based on our experience as counsel in similar matters with complex defective construction and design issues, long and challenging legal disputes lie ahead.

Scheduled to open in 2019, the FIU bridge collapsed during construction. Precast post-tensioned concrete sections had been transported to the site and were fit together utilizing a process known as the Accelerated Construction Method. News reports suggest that either a load test or post-tensioning cables were being tightened immediately before the collapse.

Post-tensioning involves the installation of metal cables draped in various locations throughout the structure that serve to hold the concrete together. After the concrete is poured and set, a rig is put on one end of each cable and tightened to secure and strengthen the structure. It's a common, but delicate process critical to the bridge’s structural integrity. Think of a rubber band being stretched – held too loose, it offers no support; pulled too tight, it fails. 

Experience as Counsel in Construction Matters

At Shapiro, Lifschitz & Schram, we have handled two recent significant cases involving complex defective work, multiple parties and complex insurance coverage issues that can offer lessons to firms involved in matters such as the FIU bridge collapse.

Our case involving the Montgomery County, Md., Silver Spring Transit Center included multiple parties – the government sued the contractor, the designer and engineering firm and the inspection company, claiming that a massive concrete post-tensioned, multilevel structure had numerous construction and design flaws, including cracking concrete slabs that had to be repaired before the station opened. Our firm achieved a successful resolution four weeks into a jury trial in a $75 million “bet-the-company” lawsuit against our client, the general contractor who built the project. All claims were dismissed, and our client received $3 million on its counter-claim.

Another matter we handled involving significant defective work and multiple parties involved a 19-story masonry apartment building. In this case, we represented the owner of the building, a national public company. After the brick was installed on the building, it began to spall, which led to a significant investigation into the causes of the failure and a lawsuit involving seven parties. Close to trial, the case was settled in a two-month mediation.

While it's too early to tell where the FIU bridge collapse will lead and how far the case(s) will go, litigation will likely form a complex tapestry of commercial issues involving construction companies, design professionals, insurers, personal injury actions, government investigations and potential criminal probes. A personal injury lawsuit already has been filed, and there no doubt will be much more litigation to come.

What to Expect

The FIU bridge collapse spans long-term, complex multifaceted issues involving the contractor, subcontractors, the design engineering firm and sub-consultants who performed various aspects of the design and construction. Here are three key points for firms involved in this or similar matters:

1. Begin work immediately to scope out the potential issues.

How good was the design? What happened during construction? Understanding the facts with a comprehensive, well documented forensic investigation is the most critical aspect in determining where litigation ends up and how far it goes. Firms should create a detailed timeline of events, retain top experts who are capable and experienced in forensic analysis and expert testimony, gather as much information as possible and analyze it internally. Evidence, beginning with videos of the FIU bridge collapse, and much more will provide critical information for forensic engineers to understand where, when, how and why the failure occurred.

2. Never underestimate the importance and complexity of insurance issues.

Performing the proper analysis and getting the right advice is vital. Firms should look carefully at all insurance policies and potential coverage issues and analyze those to ensure that parties know what coverages they have. Learn whether insurance companies are going to contest coverage and develop a strategy to maximize insurance that's available.

3. Know who’s on your side.

Firms will need to identify the scope of representations that they will need and retain lawyers who have extensive experience on insurance and construction issues. Firms should seek counsel who have been through these battles before, understand what to do and when and know how to scope out all of the various issues. It's also important for counsel to be able to identify highly qualified, highly credible experts.

A warning: During the early stages of an investigation, it’s easy for companies and inexperienced lawyers to be ensnared by a common pitfall. Until you know what the facts are and what your position is, do not say things from which you may have to backtrack later. Firms should clearly understand their position and learn what needs to be learned. What sounds good today may turn out to be completely wrong and then you have to change course. 

Judah Lifschitz is principal and co-president of Shapiro, Liftschitz & Schram in Washington, D.C. He has experience in construction matters and has taken complex commercial disputes to trial and appeal across the United States. He may be reached at (202) 689-1900 or lifschitz@slslaw.com.

Did You Know . . .

Members of the SLS trial group have tried in excess of 50 jury trials and 75 bench trials?

The SLS construction group has worked on sports stadiums across the country including Orioles Park in Baltimore and Paul Brown Stadium in Cincinnati?

The SLS construction group has worked on power plant projects across the country?

In 2007 SLS was selected for an Honorable Mention as one of the Best Places To Work in Washington DC?

Ron Shapiro, Steve Schram and Judd Lifschitz have all been selected as SuperLawyers by Law and Politics?

The SLS office building is an historic townhouse constructed in the late 1800s?

SLS has been selected by Martindale-Hubbell as a Preeminent Law Firm?

SLS trial lawyers have argued appeals in the U.S. Circuit Courts of Appeal for the 4th, 5th, 9th, D.C. and Federal Circuit?

SLS trial lawyers have been lead trial counsel in cases in Arizona, California, District of Columbia, Florida, Louisiana, Maryland, New Jersey, New York, North Carolina, Oregon, Texas, and Virginia, - to name just a few?

Virtually all the cases that SLS trial lawyers mediated have been favorably settled at mediation?

The transactional group at SLS was lead counsel on one of the largest, most complex mixed-use projects in downtown Washington, DC involving 4 lenders and 6 property owners?

In appreciation for the outstanding efforts of each of its employees during 2007, SLS gave everyone (attorneys, paralegals, and staff) a 4 day/3 night expense paid trip to Key West, Florida?

The transactional group at SLS has represented tenants in more than 200 retail leases in the Mid-Atlantic region?

Every attorney in the transactional group at SLS has at least 15 years experience?

The transactional group at SLS has represented developers in the purchase, construction, financing and/or sale of more than 75 multi-family apartment projects?

The transactional group at SLS has represented real estate investors and developers with respect to property in Pennsylvania, West Virginia, Delaware, Maryland, the District of Columbia, Virginia, North Carolina, South Carolina, Georgia, Florida, Texas, Tennessee, Michigan and the U.S. Virginia Islands?

Attorneys in the transactional group at SLS have represented eight national banks in commercial real estate loans?

Attorneys in the transactional group at SLS have represented the FDIC, the Resolution Trust Corporation and several banking institutions in loan workout transactions throughout the Mid-Atlantic region?

The transactional group at SLS has represented homebuilders and commercial real estate developers in work-outs of individual loans and also for work-outs of large portfolios involving dozens of properties in several states?

The trial lawyers of SLS have numerous reported decisions to their credit?