Louisiana Record

Sunday, August 25, 2019

Judge dismisses lawsuit against contractors for Uptown property damage

By Nathan Cranford | Jan 18, 2017

NEW ORLEANS — A federal judge recently dismissed a lawsuit filed against construction contractors on a drainage project, which allegedly caused damage to homes and businesses in Uptown New Orleans.

The charge was made by Sewerage and Water Board against Cajun Constructions Inc., B&K Construction and Boh Bros. Construction. The contractors were working on the Southeast Louisiana Urban Flood Control Project in an attempt to mitigate flooding by upgrading the draining system. U.S. District Judge Kurt Engelhardt dismissed the complaint on Dec. 20.

“This dismissal is consistent with legal precedent and has no effect on the claims home and business owners are bringing against the S&WB for damage caused by the construction,” attorney Michael Whitaker told The Louisiana Record. “Suing the contractors was an attempt by the SW&B to evade its written agreement to pay for these damages, and the court appropriately denied this effort.”

Whitaker was representing the plaintiffs with the New Orleans firm Bruno and Bruno.

Approximately 215 plaintiffs claimed the construction by Southeast Louisiana Urban Flood Control Project caused damage to various homes and businesses. In response, S&WB cast blame on the contractors for a myriad of damages in the Uptown area, including broken sewer mains, damaged windows, sinking floors, and splintered interior and exterior walls.

The agency purported the Army Corps of Engineers did not relieve the contractors' responsibility for the damage, as revealed in court documents. Engelhardt noted the contractors had federal immunity and emphasized the Corps largely oversaw the work the contractors conducted.

In addition, Engelhardt stated S&WB could not definitively prove the property damage was spurred by misconduct of the contractors. He said the government was aware of the potential hazards latched to construction projects, including damage to buildings in close proximity.

Furthermore, Corps engineer John Fogarty showed Engelhardt that an underground box culvert in an urban region has the potential to trigger damage, and that the Corps anticipated the dust, sound, limited access and congestion would create difficulties.

Whitaker estimated a $400,000 price tag attached to the damages.

“There are roughly 250 plaintiff properties that we represent in the case,” he said. “The nature and extent of damages attributable to the SELA Project and cost of repair estimates are unique to each property because every home is different in terms of age, building methods and required repairs. Some damage claims are as high as $1 million; some are as low as $100,000.”

Property owners have filed a $86 million lawsuit against S&WB in regards to ground-shaking roadwork on the four Uptown thoroughfares. Whitaker said he is confident S&WB will be held accountable for the damage spawned by the construction project.

In June, Engelhardt ordered the suite consisting of 215 plaintiffs to be divided into 20 groups. The first group was anticipated to go to mediation rather than trial before retired U.S. Magistrate Judge Michael Hill by the end of the year. The final group is anticipated to go into mediation at the end of the year. The trial is expected to begin this spring and summer.

“Being back in state court (CDC) provides us with many strategic advantages,” Whitaker said. “First, unlike in federal court, we are entitled by law to trial priority for all plaintiffs who are over 70 years of age or seriously ill. This is a mandatory rule with no exceptions, and trial must be set no later than 180 days of our request. The court is required to delay any other cases that might conflict in order to allow the cases with priority to go forward. We have many plaintiffs who meet this criteria, and we plan to request priority as soon as possible.”

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Sewerage and Water Board of New Orleans