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MCASEY v. U.S. DEPARTMENT OF NAVY

April 2, 2002

SHARI MCASEY, PLAINTIFF,
V.
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

INTRODUCTION

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 12:21-13:5).

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,*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.

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 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.

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 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 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 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 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 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 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,*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

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 ...


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