Defense Verdict Secured for Stantec in NY Arbitration

Weinberg Wheeler Hudgins Gunn & Dial is pleased to announce that its construction litigation team recently secured a defense verdict for its client, Stantec Consulting Services, Inc., an international professional services company in the design and consulting industry. The case arose out of a dispute involving the redecking of the Tappan Zee Bridge and was arbitrated in New York under the authority of the American Arbitration Association.

Stantec performed a unique survey in support of the deck replacement project, with Tutor Perini Corporation (TPC) serving as contractor. In addition to establishing project control through conventional techniques, the contract with TPC called for Stantec’s use of a 3D laser scan to define the dimensions and elevations necessary to fabricate the precast replacement panels. It is believed that this is the first such project employing 3D laser scanning in support of fabricating replacement decking for a bridge of this length (over three miles long).

TPC alleged in its claim that it encountered difficulties in installing the precast deck panels because of faulty survey data provided by Stantec. TPC raised four discrete claims of surveying negligence together with a significant delay claim. TPC’s direct claims, pass-through indemnity claims, and interest totaled in excess of $20 million.

The WWHGD team consisting of Atlanta-based partners Ross Ginsberg, Michael Paupeck and Scott Witzigreuter, assisted by paralegal Audra Bonney, was retained by Stantec one week before the close of discovery.

In its successful defense of Stantec, the WWHGD team was able to convince the panel that the survey data it provided was within the standard of care required. The team also proved that the data that caused issues with manufacturing or installation of the panels was provided by TPC or other subcontractors it hired. To negate the delay claim, the WWHGD team showed that TPC’s claim that it could have completed the project early failed to account for its own delays and those of other subcontractors. In addition, owner changes were the cause of any delays to an on-time completion.

The case was arbitrated before a panel of three arbitrators. Evidentiary hearings were held on 47 non-consecutive days over a nine-month period. Following the hearings, the parties engaged in extensive briefing totaling more than 400 pages and thousands of pages of exhibits.

On April 26, 2018, the panel issued its unanimous reasoned opinion, concluding that TPC was not entitled to recover any amounts on any of its claims against Stantec – absolving Stantec from any fault in the project.

According to WWHGD team member Ginsberg, a novel and creative defense using detailed mathematic analysis of the survey data in combination with the physical evidence and its application in fabricating the replacement decking was required.

“Through cross examination of TPC’s expert witnesses,” Ginsberg said, “most notably that of TPC’s expert in surveying and geometry control, the WWHGD team was able convince the panel that the testimony did not show that Stantec breached the standard of care in alleged panel fit-up issues occurring throughout the length of the bridge.” Ginsberg added, “TPC’s expert conceded that the alleged panel fit-up problems could not be reliably attributed to Stantec.”

Firm managing partner David A. Dial states, "WWHGD is pleased that Stantec was able to obtain such a favorable outcome in this complicated case. Our firm prides itself on its ability to take on cases that present less-than-desirable facts and, despite those facts, achieve great results for our clients. In this case, taking over from prior counsel at such a late stage in discovery proved a challenge. Ross, Michael, Scott and Audra rose to that challenge and used their deep understanding of the construction processes involved as well as great skill in alternative dispute resolution. This case underscores our commitment to being counsel of choice for our litigation clients when their business interests need protection.”

The case is In the Matter of the Arbitration between High Concrete Group, L.L.C., and Tutor Perini Corporation, and Stantec Consulting Services, Inc.