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MCASEY v. U.S. DEPARTMENT OF NAVY
April 2, 2002
SHARI MCASEY, PLAINTIFF,
U.S. DEPARTMENT OF NAVY., ET AL. DEFENDANTS.
The opinion of the court was delivered by: James Larson, United States Magistrate Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL
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.
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
The case proceeded to bench trial beginning on September 10, 2001.
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,*fn1 ("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 Tamra J.
English, COTCHETT, PITRE & SIMON, Burlingame, California. Appearing for
plaintiffs Tammy Marie McAsey Ingle and Robert William McAsey was Craig
Needham, LICCARDO, ROSSI, STURGES & McNEIL, San Jose, California.
Appearing for defendant United States Navy were Abraham Simmons and Scott
T. Nonaka, 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.
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")
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]
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 Dillingham 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.
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
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 Dillingham 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,*fn2
Pages 506:13-507:3; Trial Testimony of Sam Evans,*fn3 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 submittals 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
[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
"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 Dillingham. 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
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 ten 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 resubmittal
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
[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
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,*fn4 Pages 101:24-103:2,
108:25-109:7; Trial Testimony of Chris Coppinger, Pages 507:16-508:8;
Trial Testimony of Jack Leider,*fn5 Pages 341:16-342:23] In response to
questioning from the court, Coppinger 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
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.
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 ...