A federal court has upheld a jury verdict against Jacobs Engineering Co. that found the company guilty of “negligent misrepresentation” for its design of a roadway at Fort Benning in Georgia whose surface lacked the needed depth to support a steady stream of tanks and other heavy equipment.
At about 80 tons, some of the newest U.S. army ground combat vehicles may be at least 10 tons heavier than some of their predecessor tanks and ground combat vehicles.
A federal appeals court last month rejected Jacobs challenge of the 2015 verdict. Attorneys for the engineering giant argued the jury had erred in its finding and that Jacobs should have been held to the traditional – and harder to prove standard – of “professional negligence.”
The project involved construction and adjacent utility work for a new road and the widening of an existing road—together about 4.5 miles of road.
The Army Corps of Engineers put the contract out for bid and awarded it to Jacksonville, Fla.-based Sauer Inc. in July, 2010. Two subcontractors, Alexander Contracting Co. and Hydro-Green LLC, began work in late July 2010, but signed subcontracts in January 2011 and October 2010, respectively. The paving was complete by the end of 2011.
Alexander Contracting and Hydro-Green filed a lawsuit in 2013 against Sauer, Inc., which had employed a unit of Jacobs Engineering Group to perform design work for the road construction work at the base.
In order to prove professional negligence, attorneys for Alexander and subcontractor Hydro-Green would have had to hire industry experts to build a case that the engineering firm had erred in its professional duties.
But attorneys for the plaintiffs – who contend they were forced to eat hundreds of thousands of dollars in costs after being given the incorrect instructions by Jacobs on the roadway project – argued the case was so cut-and-dried and easily understood by laymen that it amounted to a case of simple negligence as opposed to professional misjudgement.
The U.S. District Court of Appeals for the Eleventh Circuit concurred in its Dec. 5 decision to uphold the verdict and reject Jacobs’ appeal.
It followed an earlier reaffirmation of the jury’s verdict more than a year ago by Clay Land, chief U.S. District Court judge for the Middle District of Georgia.
Judge Land noted Georgia state law does not automatically require a finding of professional negligence just because the case involves the actions of a professional.
“In sum, the issue before the jury was not whether Jacobs accurately performed its engineering calculations or designs,” Land writes. “Instead, the jury had to decide whether Jacobs followed the Corps’ instructions. Jacobs’s engineer clearly testified that he did not follow the Corps of Engineers’ instructions.”
The appeals court decision was praised by attorney Gina Vitiello, a shareholder at Chamberlain Hrdlicka, which represented Alexander and Hydro-Green in their lawsuit against Jacobs, first filed nearly four years ago.
“You don’t need an engineer to stand up and tell you that you should have followed the government’s instructions,” Vitiello said. “We thought that was very clear and the judge agreed with us.”
But attorneys for Jacobs argued that the case did indeed involve professional judgement and should have been decided based on that higher bar, not as a case of general negligence.
“Regardless of the label given to the claim, where the allegations of negligence against a professional involve the exercise of professional skill and judgement within the professional’s area of expertise, the action states professional negligence,” wrote E. Tyron Brown of Hawkins, Parnell, Thackston & Young, LLP, which represented Jacobs.
In his decision, Judge Land cited the testimony of the Jacobs engineer in charge of designing the road project.
The engineer testified he knew that the Army Corps of Engineers had laid out requirements calling for the road surface to be deep enough to handle “ten heavy equipment transports” a day of tanks and other military hardware.
That would have required 6 inches of pavement.
Requirement Called ‘Odd’
However, the engineer, who had worked on an earlier repaving project, called the requirement “odd,” telling Alexander to base its bid for the repaving job on a thickness of 4.5 inches. That number was based on a previous road project the engineer had worked on at Benning and not on any engineering calculations, Land noted in his opinion.
During the jury trial, Jacobs countered that before Alexander had signed a contract for the repaving project, it had copied the company on an email from the Corps of Engineers complaining the road design, based on 4.5 inches of pavement, was not thick enough.
Attorneys for Jacobs faulted Alexander for failing to follow up on this information, arguing the company failed to exercise “due diligence,” Land noted in his opinion.
But other testimony backed up Alexander’s argument that it had no idea how much thicker the roadway would have to be in order to accommodate ten heavy equipment trips, or HETs, a day as opposed to two.
William Holle, Alexander’s project manager, told the court he had no idea that six inches of pavement would now be needed until after the contract for the repaving was inked.
The difference amounted to half a million dollar in additional costs.
Alexander and Hydro-Green were able to recoup those expenses when a federal court jury in Georgia ruled in their favor in April of 2015.
In addition to ruling that Jacobs' actions on the project amounted to negligent representation, the jury awarded Alexander $356,664 and Hydro-Green $114,311.
The case offers a warning to professionals in the construction, design and engineering sector, noted Vitiello.
“Engineers and architects and designers need to be careful,” Vitiello said. “It can be simple every day negligence that they can be held liable for.”