Citations
- 201 F. Supp. 2d 1081
Full opinion text
INTRODUCTION
LARSON, United States Magistrate Judge.
Bob McAsey awoke on a June morning, kissed his wife Shari goodbye, climbed into his truck and drove approximately 100 miles to a job site on a Navy base. There, he pulled on his leather gloves, picked up his chipping gun, and with his friend and co-worker Dusty O’Ferrall nearby, started breaking up a concrete pad to dig a trench around an electrical conduit. Within minutes, the metal tip of the tool struck a 4,160 volt power line that nobody knew was there. Bob turned for a second to his companion, whispered, “Dusty?” and collapsed. The foreman called the paramedics,. but they couldn’t revive him. Bob McAsey was dead.
PROCEDURAL BACKGROUND
McAsey’s widow, - Shari, and his adult children, Tammy Marie McAsey Ingle and Robert William McAsey, filed this lawsuit against the electrical subcontractors and the Navy, pursuant to the Federal Tort Claims Act, 28 U.S.C. 2674. Venue is not in dispute. The subcontractors, Tryco Electric and Del Monte Electric, were dismissed following mediation.
On August 20, 2001, Defendant’s motion for summary judgment was denied. The court found that there were material facts in dispute, including whether the parties’ contract had been modified whether orally • or by conduct. The court also ruled that the Navy had a duty to conduct an adequate utilities search, and that the term “utilities search” was not too vague to be interpreted to require an electromagnetic or sonic scan. The court also held that the Navy was not a “special employer,” and thus was not immune from certain types of liability. The court also denied the Navy’s request for an evidentiary hearing, rather than a trial. (Order Denying Summary Judgment filed August 20, 2001, at 12:21-18:5).
The case proceeded to bench trial beginning on September 10, 2001.
ISSUES AT TRIAL
The principal issues at trial were: (1) whether the contract between the parties had been modified to shift the responsibility for locating underground utilities from the general contractor, Dillingham Construction, (“Dillingham” or “DCNA”) to the Navy; (2) whether the 4,160 volt line which caused Bob McAsey’s death could have been discovered by an electromagnetic scan; and (3) whether the failure to locate the power line was the cause of Bob McAsey’s death.
The trial commenced on September 10, 2001, was recessed on September 11, 2001, due to the terrorist attacks on the World Trade Center and the Pentagon, resumed on September 12 and concluded on September 14. Appearing for plaintiff Shari McAsey were Niall P. McCarthy and Taña-ra J. English, COTCHETT, PITRE & SIMON, Burlingame, California. Appearing for plaintiffs Tammy Marie McAsey Ingle and Robert William McAsey was Craig Needham, LICCARDO, ROSSI, STURG-ES & McNEIL, San Jose, California. Appearing for defendant United States Navy were Abraham Simmons and Scott T. No-naka, Assistant United States Attorneys, San Francisco, California. The court hereby issues its judgment for plaintiffs, awards damages, and makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Background Facts
Robert McAsey, Jr. (“Bob McAsey”) was a 55-year-old construction worker employed by Dillingham as a laborer. [Stipulated Facts within Joint Pre-Trial Statement dated August 8, 2001, (herein “Stipulated Facts”) Page 3]
On June 14, 1999, McAsey was working on a major construction project at the Naval Weapons Station, Concord, California, when he suffered a fatal electrical shock after his air powered chipping gun penetrated an unidentified underground live electrical cable. At the time of the accident, Mr. McAsey was using the chipping gun to clear concrete from around an exposed conduit. [Stipulated Facts, Pages 4-5]
Dillingham had previously contracted with the Navy to improve an ammunition pier at the Station. As part of that contract, upgrades were to be performed at Substation IA-54 on the Navy premises. Dillingham agreed to: 1) demolish concrete to expose an encased conduit, 2) extend the conduit, and 3) form a new concrete slab over the conduit. [Stipulated Facts, Page 3]
THE CONTRACT
During the bidding process, potential contractors received specific guidelines to be included in the contract. The solicitation for bids included provisions requiring the contractor to agree to participate in safety meetings, prepare periodic reports on the progress of the job and submit to the Navy’s monitoring of the contractor’s safety performance. All of the key provisions of the contract were disclosed as part of the Navy’s solicitation to which Dilling-ham and others responded with bids. (See Exh. A, Jt. Pretrial Statement, Undisputed Facts (“Undisputed Facts”) at 3:19-22)
The Dillingham contract consists of a group of documents, Government’s Exhibit A, and comprises a single binder approximately two inches thick.
MODIFYING THE CONTRACT In the course of the project, Dillingham dealt with many Navy personnel. However, only the Office of the Resident Officer in Charge of Construction (“the ROICC”) had written authority to change the contract and bind the Navy:
Section 00720, page 1, part 1.1
FAC 5252.201-9300, Contracting Officer Authority (Jun 1994) reads as follows:
In no event shall any understanding or agreement between the contractor and any government employee other than the Contracting Officer on any contract, modification, change order, letter of verbal direction to the Contractor be effective or binding upon the Government. All such actions must be formalized by a proper contractual document executed by an appointed Contracting Officer. The Contractor is hereby put on notice that in the event a Government employee, other than the Contracting Officer, directs a change in the work to be performed, or increases the scope of the work to be performed, it is the Contractor’s responsibility to make inquiry of the Contracting Officer before making the deviation ...
UTILITIES SEARCHES: LOCATING UNDERGROUND POWER LINES
At the outset, the contract required Dill-ingham to locate underground utilities, such as water mains and power lines, using electromagnetic or sonic scans before starting construction:
Section 2302, pages 6-7, part 3.1.3
Underground Utilities
provides:
Location of existing utilities indicated is approximate. The Contractor shall physically verify the location and elevation of the existing utilities indicated prior to starting construction. The Contractor shall contact the Public Works Department at the Station for assistance in locating existing utilities. The Contractor shall scan the construction site with electromagnetic and sonic equipment and mark the surface of the ground where existing underground utilities are discovered.
[Defendant’s Trial Exhibit A, Sec. 02302, subsection 3.1.3]
A utilities search meant looking for underground electrical wires by “whatever means are appropriate.” [Trial Testimony of Chris Coppinger, Pages 506:13-507:3; Trial Testimony of Sam Evans, Page 673:3-21],
THE NAVY ASSUMES RESPONSIBILITY FOR UTILITIES SEARCHES
Dillingham was required to notify the Navy before starting work on each phase of the project and submit paperwork, which the Navy had to approve, before the first shovel of dirt was turned over.
Section 01330, subsection 1.3.5(g), of the contract provided that the contractor has the responsibility to
“ensure no work has begun until submit-tals for that work have been returned as ‘approved,’ or ‘approved as noted’, except to the extent that a portion of the work must be accomplished as a basis of the submittal.”
In addition, Section 01330, subsection 1.3.8, of the contract stated,
“Submittals marked ‘approved as noted’ authorize the Contractor to proceed with the work as noted provided the Contractor takes no exception to the notations.”
[Plaintiffs’ Trial Exhibit 83; Defendant’s Trial Exhibit A, Section 01330, subsection 1.3.5(g), Section 01330, subsection 1.3.8]
Dillingham initially proposed to the Navy that the parties engage the services of an outside contractor, Underground Service Alert (“USA”), to locate any underground utilities which the workers might encounter in the course of the project. On July 15,1997, Dillingham submitted a Health and Safety Plan that stated on page 67,
“Verify the location of underground utilities. Consult General Contractor information or call Underground Service Alert (USA) ...”
The Health and Safety Plan was submitted pursuant to Section 01570, subsection 1.6.5, of the contract. The submittal form, attached to the Health and Safety Plan, specifically referenced this contract section. The submittal also referred to section SD-08 of the contract which states in part,
“A document, required of the Contractor, ... the purpose of which is to further the quality of orderly progression of a portion of the work by documenting procedures, acceptability of methods
[Plaintiffs’ Trial Exhibit 81; Defendant’s Trial Exhibit A, Section 01330, subsection 1.6, Section 01570, subsection 1.6.5]
On August 8, 1997, the Navy notified Dillingham that it did not use USA, and that the base personnel would locate underground utilities. The response specifically referenced page 67 of the Health and Safety Plan, and revised Dillingham’s proposal to state,
“Base does not have U.S.A. service for utilities location. Contractor must have base locate utilities and/or use detectors.”
This response was issued by the office of the Resident Officer in Charge of Construction (“ROICC”), and was signed by Naval Officer Lt'. Bernadette Usison. [Plaintiffs’ Trial Exhibit 82]
The court finds that the Health and Safety Plan was an integral part of the contract between the Navy and Dilling-ham. The Navy required Dillingham to notify it before starting work on each phase of the project. Dillingham could not start work until its submittals, including its Health and Safety Plan, had been approved by the Navy. Dillingham submitted a Health and Safety Plan prior to starting work on the pier improvement project where Bob McAsey was killed. In the Plan, Dillingham itself proposed to verify the location of underground utilities, as provided in the written contract with the Navy.
This submittal was rejected by the Navy, through the office of the Resident Officer in Charge of Construction (the “ROICC” Office). The ROICC revised the Dillingham proposal to state “must have base locate utilities and/or use detectors.” This response was issued by the ROICC Office and signed by Lieutenant Bernadette Usison. During the course of the trial, the Navy presented no evidence to contradict that Lt. Usison, as a member of the ROICC Office, had full authority to commit the Navy.
The court therefore finds that the Navy modified its contract with Dillingham, in writing, to assume responsibility for locating underground utilities.
On August 12, 1997, Dillingham sent a request for a utilities search to the Navy which stated,
“We are preparing to drive our first test pile for the project in the next tén days. We understand that the base does not have Underground Utility Service (USA). Please notify your Public Works Division to conduct a utility search around Pier 3 and alert us to any subsurface utilities within this area.”
[Plaintiffs’ Trial Exhibit 17]
On August 14, 1997, Dillingham resubmitted the Health and Safety Plan incorporating the changes made by the Navy, and the Navy responded that Dillingham should contact the Public Works Division on the base (headed by Chris Coppinger) to locate underground utilities. The re-submittal again referenced contract sections 01570, subsection 1.6.5 and SD-08. The Navy’s revision to page 67, which Dillingham agreed to, stated the following,
“Verify the location of underground utilities. Consult the Public Works Division on base to verify location of subsurface utilities.”
[Plaintiffs’ Trial Exhibit 83; Defendant’s Trial Exhibit A, Section 01330, subsection 1.6, Section 01570, subsection 1.6.5]
On September 3, 1997, the Navy sent a written response to Dillingham’s August 14, 1997 resubmittal stating, “Approved as noted. See Comments Inside.” The comments did not include any reference to page 67. Again the response was signed by Naval Officer Lt. Bernadette Usison of the ROICC office.
THE NAVY CONDUCTED ALL UTILITIES SEARCHES
Between August of 1997 and June 14, 1999, the Navy performed three or four utilities searches for Dillingham on this project. The areas in which the searches were performed were the Wetlands, the Pier parking lot, and the Wharf. In at least one of these searches Coppinger, the Navy Public Works Staff Engineer, used scanning equipment. Before the June 14, 1999 accident, Coppinger believed it was his responsibility to perform utilities searches on the subject project. [Trial testimony of Chris Coppinger Tr. 569:22-570:5].
Dillingham at no time performed, nor were they ever requested to perform any utilities searches on this ’ project prior to June 14, 1999. [Trial Testimony of Dale Swedberg, Pages 101:24-103:2, 108:25-109:7; Trial Testimony of Chris Copping-er, Pages 507:16-508:8; Trial Testimony of Jack Leider, Pages, 341:16-342:23] In response to questioning from the court, Cop-pinger stated that he used his discretion to decide when to use or avoid using electromagnetic equipment in utilities searches. (Tr. 510:23-512:17) (emphasis added.)
This court finds that the Navy’s conduct supports the conclusion that it had modified its contract with Dillingham to assume the responsibility for locating underground utilities. The Navy did not deny that it conducted every single utilities search on this project. Nor did the Navy deny that, prior to the accident, Dillingham not only never performed any searches, it was never asked to perform any searches. When and how to locate underground utilities was at the sole discretion of the Navy.
DILLINGHAM ASKED THE NAVY TO SEARCH SUBSTATION 1A-54
In early May 1999, a month before the accident, Dale Swedberg, the Dillingham Project Engineer, obtained “as-built” drawings from Sam Evans’ office. The drawings were dated 1987. They purported to depict the location of underground electrical lines within Substation IA-54, including the area where Bob McAsey was working when he was killed. [Plaintiffs’ Trial Exhibit 13; Trial Testimony of Dale Swedberg, Pages 95:22-96:10; Trial Testimony of Sam Evans, Page 665:6-22]
Swedberg testified that in late May he gave a “heads up” to Coppinger that he would be making a request for a utilities search. Coppinger acknowledges that he probably was warned that a request was coming. (Tr. 120:2-3)
On May 11,1999, Swedberg wrote to the subcontractors that the “Navy would provide marking for the underground utilities.”
MEETINGS
The contractor and the Navy held a series of meetings prior to the start of work on the project. Only two of these will be discussed here, the pre-construction meeting on June 27, 1997, before any work started, and the preparatory phase meeting, the last meeting before the accident, on June 8, 1999, to be discussed further on in these Findings.
The pre-construction meeting was held June 27, 1997. The topics discussed were memorialized in a letter sent from the Navy’s contracting officer to Dillingham. (Exh. L, Tr. 172:1-18) Included were the prerequisites for contract modification and the Navy’s requirement that it receive notice 15 days in advance of a planned utility outage. (Exh. L, Tr. 172:1-18) The letter states, in relevant part:
3. Matters Concerning Job Site Conditions:
(d) Outages: You must obtain Outage Permits prior to performing any work which will interrupt roads, railroads or station utilities. Your outage requests must be made in writing a minimum of 15 calendar days prior to the date of the desired outage. You cannot schedule or perform any outage-dependent work until you have an APPROVED permit in hand. This will be strictly enforced. 12. Other items discussed:
(c) Any change of any size from the original contract must be in writing and signed by a contracting officer, (emphasis in original) (Exh. L)
ELECTRICAL OUTAGES
Dale Swedberg, the project engineer for Dillingham, asked the ROICC office for a one-week outage at the substation area. Sam Evans, supervisory general engineer for the Navy, explained that a one-week outage wasn’t possible, because it would require activating a backup generator. The emergency generator did not have enough capacity to meet the electrical demands of the base on a normal workday. It was also expensive, because the Navy had to have a machinist and an electrician on duty. The Navy agreed only to schedule an outage on a Friday, due to lower demand for power on Fridays.
Most personnel were on a work schedule of four ten-hour days so on Fridays most of the office buildings were virtually empty, with no need for air conditioning or for office machinery to be running. Demand on the generator would be half as much on a Friday as on another weekday.
Consequently, although Dillingham requested an outage for one week, the Navy only approved it for one day, due to the lack of generator capacity and the need to provide additional staffing. [Trial testimony of Evans, Tr. 634:17-636:2]
In fact, the Navy only shifted the Inland area of the base to the backup generator. (The base was divided into Inland and Tidal areas for purposes of electrical coverage. Tidal provided power to the piers and related structures.) In addition to its backup generator, the Navy also had a back-up feeder from PG & E, so it only needed to shut down half the base to accommodate the construction. [Trial Testimony of Chris Coppinger, Tr. 545:3-12]
Eventually, the Navy granted a one-day outage on two separate dates, June 11 and 26, 1999. The first was for the electrical subcontractors to disconnect and remove the old transformer, and the second was to install and connect the new transformer. [Plaintiffs’ Trial Exhibit 2; Defendant’s Trial Exhibit S; Trial Testimony of Dale Swedberg, Pages 121:12-122:4; Trial Testimony of Sam Evans Tr. 652:23-653:2] The plan was that after the subcontractor removed the transformer, Dillingham would dig up the concrete pad under the area where the transformer had been located, to extend both the conduit and the concrete pad. [Trial testimony of O’Fer-rall, Tr. 616:3-9]
THE PREPARATORY PHASE MEETING
Prior to the June 8, 1999 preparatory phase meeting, Dale Swedberg went to the work site and painted with white paint around the work area including the concrete pad. The Navy’s Public Works Division was to perform the requested utilities search and identify and mark any underground utilities, including electrical wires. [Plaintiffs’ Trial Exhibits 1 and 16; Trial Testimony of Dale Swedberg, Pages 118:18-119:6, 146:8-21; Trial Testimony of Chris Coppinger, Pages 665:11-566:9; Trial Testimony of Thomas O’Ferrall, Pages 624:15-625:5] The area outlined by the white paint was where Bob McAsey would be working, as verified by his co-worker, Dusty O’Ferrall:
Q: On Friday, when you started to do the work, did you notice some white paint in your area?
A: Yes.
Q: Did you notice any red markings of paint in your area where you were working or was it just the white paint that you saw?
A: I recall white paint.
Q: Do you recall Dale telling you that that’s the white paint that he put down in advance of the utility search he wanted from the Navy?
A: Yes.
Q: And the area that you were working in was within that white paint?
A: Yes.
Q: And within the white paint, was that also part of the excavation work you were doing on the trench as well?
A: Yes.
[Tr. 624:15-625:5]
The Navy attempts to distinguish between the demolition area — the concrete pad where the workers were breaking up the concrete around the conduit, and the excavation area — the area next to the concrete pad where a shallow bed would be dug and new concrete would be poured to extend the pad. In fact, the work area encompassed both the demolition area and the excavation area, and the evidence tends to show that both areas and the combined work of demolition and excavation were considered together and the work expected to coincide. [Trial Testimony of Chris Coppinger, Tr. 533:18-25, 541:6-8, 23, 550:8-14], The court finds that the Navy’s asserted distinction is essentially meaningless, because Chris Cop-pinger understood that the area to be searched for utilities was where Dilling-ham employees would be working and that included both the demolition and excavation areas. [Trial Testimony of Chris Cop-pinger, Tr. 567:4-6].
Q: And so, when Dale Swedberg asked you to do a search, you understood, did you not, that he wanted you to search the area where his workmen were going to be?
A: I knew that he wanted me to search the area where he was going to be excavating and doing demo work, yes. So I guess by implication that would be where his workers were.
Id.
STATUS OF POWER SUPPLY TO 1A-54: UTILITIES SEARCH
On June 8, 1999, the contractors and certain subcontractors met with representatives of the Navy. The work schedule including the power outage and when the power would be restored also were finalized on June 8, 1999, and decisions were made about the scope of the work to be done while the power was off. Dillingham agreed to notify the Navy if they finished early, so the power could be turned back on.
Specifically, Exhibit 16, the minutes of the meeting, reflects the following:
Tryco [an electrical subcontractor] stated that once they had removed the transformer and wires, the power could be turned back on. DCNA [Dillingham] interjected that this was not the plan, reminding Tryco that the power would be left off while excavation was performed as requested by DCNA. Tryco agreed. Utilities asked if the power to the substation would need to stay off until 14:30. DCNA stated that they would let Utilities know if the work finished sooner. (Exh. 16)
Coppinger, Evans and Jankowski all testified that Swedberg was the Dilling-ham employee who requested that the power stay off until the work was finished, and who said he would notify the Navy if the work was completed sooner. Copping-er also testified that he believed it was clear at the meeting that the work to be completed before the power was turned back on was all the demolition and excavation work scheduled for the outage. Swedberg testified that they discussed all the activities required to build the new pad for the transformer and that no specific dates were assigned for completion of each phase [Tr. 182:18-24]. If Dillingham finished sooner, it would notify the Navy so the power could be switched back on. [Tr. 541:6-8] Coppinger also testified that there had been a non-injury electrical accident recently. This made him resolve that all work needed to be done with the power completely off to either the entire switching yard or to whatever area was being worked on. [Tr. 537:23-538:2]
Dillingham requested and received reconfirmation that once the power to Substation IA-54 was turned back on, the work area behind the switch box would remain de-energized. [Plaintiffs’ Trial Exhibit 16] Swedberg was concerned for the safety of his workers and instructed them to treat the work area as “hot” (energized) even when the power was turned off. [Trial testimony of O’Ferrall 607:9-11]
Prior to and at the June 8, 1999 preparatory phase meeting, Swedberg asked Coppinger to “do a utilities search.” Cop-pinger agreed to perform a utilities search. [Plaintiffs’ Trial Exhibit 16; Trial Testimony of Dale Swedberg, Pages 119:16-120:9; Trial Testimony of Chris Coppinger, Pages 560:4-10] In response to Swedberg’s request, Coppinger reviewed the as-built drawings and informed ‘Swedberg that there were no obstructions in the work area. [Trial Testimony of Coppinger, Pages 559:24-561:1]
Coppinger never told Swedberg (or anyone else at Dillingham) that he only reviewed the as-built drawings, nor did he conduct any other type of utilities search, such as an electromagnetic scan. [Trial Testimony of Chris Coppinger, Pages 579:25-580:7]
The court finds that reliance on as-built drawings is not an adequate utilities search under these circumstances. Indeed as observed by several witnesses, including the Navy’s, it is “unwise” and even “a mistake” to rely on -as-built drawings for a utilities search on a military base. [Trial Testimony of Anthony Jankowski, Page 730:10-25; Trial Testimony of Sam Evans, Page 673:3-10; Trial Testimony of Dale Swedberg, Pages 100:20-101:2]
There is no evidence that Dillingham made an express request for an electromagnetic scan at the preparatory phase meeting before the accident. Coppinger denies that he was ever asked to perform a scan at the substation. The minutes of the June 8, 1999 meeting (Exh 16) reflect that Dillingham requested a utilities search, but they do not reflect a specific request for a scan. Swedberg did testify, however, that he did not consider the review of drawings to constitute a utilities search. [Trial testimony of Dale Swedberg, Tr. 191:8-15]
There was no expert testimony from either party regarding the meaning of the term “utilities search” in the industry. Coppinger, for the Navy, testified that to him a utilities search, in particular as accomplished by the USA Dig subcontractor, “means to use whatever means are appropriate and applicable to assist in determining the location of underground utilities.” (Tr. 507:1-3) Conversely, Swedberg testified that to him, a utilities search is “a scanning of the underground utilities to identify and paint up or mark where those utilities are located so they could be seen above ground.” (Tr. 101:14-18)
Not all the utilities searches conducted during the first two years of this contract were the same, or even involved the same equipment. Evans testified that at least one search involved simply crawling under the pier to visually identify a cable, while another involved use of electromagnetic equipment, and yet another could not involve electromagnetic equipment because there were too many abandoned conduits which would have made a scan useless. [Tr. 507:16-508:5]
After the June 8th meeting and before construction began, Coppinger did, in fact, return to the archives and find and review the original as-built drawings. He did not, however, conduct a scan of the yard or any part of it. Coppinger testified that a scan of the area would have required shutting down the power for several hours and locating all known lines. He testified that in his opinion this would not make sense since all of the work Dillingham contracted to do was scheduled to be completed in less than a day. However, Coppinger also testified that turning off the power is the only effective means of preventing electrocution. [Tr. 553:23-554:1]
Q: Is there any way to make it safe to do excavation?
In a switch yard?, i>
In a switch yard.