Source: http://www.nola.com, December 28, 2016
By: Wilborn P. Nobles III
A federal judge last week dismissed a lawsuit against contractors involved in a major drainage project that allegedly damaged property in Uptown New Orleans.
U.S. District Judge Kurt Engelhardt threw out a complaint Dec. 20 that was filed by the Sewerage and Water Board against Cajun Constructors Inc., B&K Construction and Boh Bros. Construction. The contractors were involved in the multimillion dollar Southeast Louisiana Urban Flood Control Project, an effort by the Army Corps of Engineers and S&WB to reduce flooding by improving drainage.
About 215 plaintiffs alleged that construction under the Southeast Louisiana Urban Flood Control Project significantly damaged their homes and businesses. S&WB, in turn, blamed the contractors for damage to houses and businesses in the Uptown area bounded by Jefferson, Louisiana and Napoleon avenues and Prytania Street.
“Plaintiffs’ homes have broken foundations, sinking floors, cracked interior and exterior walls, broken sewer mains and doors and windows that no longer operate due to building movement,” property owners claimed in their lawsuit. “Second-story floors shudder and buckle in response to relentless pounding of pile drivers. Three-story-tall cement silos are placed directly in front of homes bellowing unknown chemicals.”
The agency said the Corps never cleared the contractors from blame for the damage, according to court documents. Engelhardt, whom President George W. Bush appointed to the Eastern District court, however wrote the contractors have federal contractor immunity. He stressed the Corps maintained “extensive and steady” oversight of the work contractors performed.
Engelhardt added that S&WB was unable to prove the damage to property was caused by negligence from contractors. He said “the government knew of the risks associated with vibration-causing construction activities and water table manipulation, such as cracking in nearby structures and subsidence of the surface.”
Corps engineer John Fogarty demonstrated to Engelhardt the alleged damage was a risk “inherent to the installation of underground box culverts in an urban area,” documents said. Fogarty also showed the judge how the Corps expected “inconveniences stemming from dust, noise, restricted access, and traffic.”
Corps scrutiny helped to “assuage concern that the contractors may have substituted their discretion in place of the reasonably precise” project details, documents said. Engelhardt’s ruling does not address the remaining suits against the S&WB.
S&WB faces an estimated $86 million lawsuit from property owners concerning the ground-shaking roadwork on the four Uptown thoroughfares. Attorney Michael Whitaker, who represents the plaintiffs with the Bruno & Bruno law firm, said Thursday (Dec. 29) they “are confident” S&WB “will be held responsible for the significant damages inflicted by the construction project.”
“Suing the Contractors was an attempt by the S&WB to evade its written agreement to pay for these damages, and the Court appropriately denied this effort,” Whitaker said.
Englehardt in June ordered to split the suit comprised of 215 plaintiffs into groups of 20. The first group was expected to go to mediation, instead of proceeding to trial, by year’s end before retired U.S. Magistrate Judge Michael Hill. The last group is expected to enter mediation by the end of 2017. Whitaker said the trial is set for the Spring and Summer of 2017.