A jury has awarded the Washington State Department of Transportation $57.2 million in damages, after a two-month trial over delays in the downtown Seattle Highway 99 tunnel project.
The verdict, reached Friday against the tunnel contractors in Thurston County Superior Court in Olympia, represents the entire amount the state requested at trial.
The Dec. 6, 2013, stall of tunnel-boring machine Bertha — then the world’s largest drill at 57 1/3 feet diameter — delayed the project more than two years. The breakdown triggered a massive rescue operation to build a deep access vault, lift the 4 million-pound front end to the surface, and replace damaged parts such as a cracked main gear and broken bearing seals.
“We never wavered from our position that it was always the contractor’s responsibility to fix the tunneling machine and that taxpayers should not pay the repair bill,” said a statement by Gov. Jay Inslee.
However, state transportation Secretary Roger Millar said in a statement that “an appeal is possible,” so the state hasn’t decided yet how it might use the $57.2 million award, calculated as contract penalties for 867 days’ delay.
By coincidence, the state has spent a similar amount to manage the project longer. Lawmakers approved a budget increase of $60 million.
The state sued contractor Seattle Tunnel Partners (STP), alleging breach of contract and claiming mistakes by STP stalled the machine. STP blamed the stall on a steel pipe struck by Bertha that was left over by the state from a groundwater test well sunk in 2002.
The jury found that WSDOT is not liable for STP’s costs from the stall. The contractor claimed $150 million in costs shortly after the stall, and eventually sought $642 million in preliminary court filings. When the trial started Oct. 10, the partnership asked for about $300 million.
Contractors argued the state gave inadequate notice of the steel pipe’s location. The top of the pipe was examined and noted at least twice by STP’s own staff before Bertha began, according to records uncovered in the case.
STP consists of tunneling specialist Dragados USA and heavy-construction firm Tutor Perini of California. Both companies feature pictures online of the Seattle tunnel during construction as an example of their prowess.
Bertha’s maker, Hitachi Zosen, reached an undisclosed settlement with STP this fall. The Japanese company supplied engineers, parts and at least some funding for the repairs, as an STP subcontractor. Hitachi Zosen publicly insisted the machine “started out perfect.”
The companies haven’t disclosed their next steps. STP project director Chris Dixon and attorney John Dingess didn’t immediately respond to calls seeking comment.
“We’re looking at all our options,” STP’s legal team told KIRO 7.
Ron Tutor, president of Tutor Perini, has often advocated an aggressive legal posture to recover cash from public agencies. However, WSDOT has ample money and has paid nearly all the $1.44 billion owed under contract in monthly progress payments during tunnel construction.
The total project, including ramps, Alaskan Way Viaduct demolition and a new waterfront street, is around $3.3 billion, with state gas taxes the largest funding source.
The four-lane tunnel opened Feb. 4, 2019, beneath downtown to replace the viaduct, which was considered vulnerable in an earthquake. The project is hailed locally and internationally as liberating the waterfront from traffic — while at the same time called a boondoggle by many environmental advocates for serving carbon-emitting vehicles.
In opening statements at the trial, state attorney David Goodnight called the pipe “nothing more than a toothpick” to Bertha. The impact occurred along the central waterfront near Pioneer Square, in sloppy soil where groundwater created forces of four times atmospheric pressure.
Among legal setbacks for STP, Judge Carol Murphy ruled the companies committed spoliation of evidence, and issued “adverse instructions” limiting how evidence from the steel pipe could be portrayed to the jury. Workers lost or destroyed pipe fragments during the 2013-14 winter, that had been left on a pallet in the job site. A deputy director’s journal for that period also went missing.
Tunnel contractors emphasized Bertha made progress before hitting the pipe, and once repaired, the machine bored smoothly the rest of the way to South Lake Union. At no time did STP or Hitachi Zosen threaten or hint at quitting.
Tutor Perini has frequently told investors future profits are likely, as the company wins new contracts in California and New York. Only a handful of North American companies can build massive infrastructure like the Highway 99 tunnel.