Appeal logged after jury finds for SR99 client 19 Dec 2019

After losing its claim for US$330 million to recover costs associated with the TBM breakdown and two-year delay in completing the SR99 highway replacement tunnel in Seattle, and being charged to pay a counterclaim of US$57.2 million to the Washington State Department of Transportation (WSDOT) as the client, Tutor Perini as a 45% shareholder in the Seattle Tunnel Partnership (STP) JV with Dragados of Spain has filed an appeal.

Claims were to cover costs of the recovery shaft and repair of the stricken TBM

In a verdict handing down on Friday 13 December 2019, the jury of 12 citizens dismissed the claim by STP that it was encounter with an alleged inaccurately documented groundwater investigation well casing in the alignment of the tunnel that caused failure of the 57ft (17.4m) diameter EPBM, the largest ever TBM at the time, in December 2013. The two-year delay and claimed US$330 million costs were incurred to construct an emergency recovery shaft to lift the cutterhead and drive unit of the machine to the surface for extensive repairs.

STP, as the fix-price design-build contractor of the US$1.44 billion highway tunnel contract, claimed that pieces of the 160ft long, 8in diameter x 1/4in thick steel casing of pipe of the test well as the TBM cut through it, caused damage of vital mechanical components including the sealing of the machine’s main bearing. The steel casing of the test well was installed during preliminary ground investigations before award of contract and had not been removed ahead of launching the machine on its 9,000ft (2.7km) drive for the double-deck highway tunnel excavation. STP claimed that its presence had not been accurately notified in the contract documents.

Alleged culprit of the TBM damage and breakdown

During the two-year repair process, machine manufacturer Hitachi Zosen of Japan, supplied a new replacement main bearing and provided engineers to work with STP crews to repair the machine for a relaunch in January 2016. From the breakdown point and recovery shaft at about 1,000ft (300m) into the tunnel alignment, the repaired TBM and its STP operating crews and management team completed the remaining 8,000ft (2.4m) of the drive, under the operating highway viaduct and beneath the streets of central Seattle, to achieve breakthrough without further incident in April 2018. The double deck single-bore highway tunnel opened to traffic in February 2019 and today carries up to 80,000 vehicles/day, including heavy freight truck traffic.

Court documents report that STP filed a claim for US$150 million when the machine encountered the well casing in late December 2013. This increased to more than US$600 million as the scale of the TBM recovery process was defined and progress. The claim was reduced to US$330 million at the start of the court hearing in October 2019. During the trial, the jury heard testimony from members of senior management and engineers on behalf of both STP and WSDOT and from a number of expert witness called by the lawyers acting for each party. During the trial, it was discovered that pieces of the well casing pipe retained at the time as evidence, along with large boulders removed from the TBM excavation chamber had been discarded during site clearance at the end of the project. Also missing were STP engineering journals that documented the details of encountering the pipe casing and the following days before the machine was stopped and needing repair.

Repair included fitting a replacement main bearing

In a statement after the trial, the Governor of Washington State, Jay Inslee, said: “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.” In logging its appeal, Tutor Perini states that the verdict conflicts with the findings of the contract’s Dispute Review Board (DRB) finding that the steel pipe casing constituted a “differing site condition”. Under the terms of the contract, findings by the DRB were non-binding.

In a separate case, STP is pursuing claims against the contract insurers who rejected claims to cover the TBM repairs. In a counter case the insurance providers are said to be taking action against STP for logging a false claim.

Design of the new double-deck underground highway

A court case was also being prepared by Hitachi Zosen to claim final payments of about US$25 million that STP has withheld for supply of the US$80 million TBM. Reports suggest that Hitachi Zosen and STP came to an undisclosed settlement earlier this year. In an agreement with STP, to repair the machine and continue with the project, Hitachi Zosen covered the costs of the mechanical repair of the machine and STP paid to construct the recovery shaft.

With an appeal in response to this first ruling in actions taken as a result of the TBM breakdown and repair, and the resulting delays to completing the project, it is likely to take years yet to settle all disputes and claims. In the meantime, the project was completed, by the same parties involved from the beginning, and the waterfront of Seattle is transformed forever following demolition of the elevated highway viaduct and traffic now routed through the city’s new underground highway.