Duty owed by engineer-inspectors to negligent design-builder. W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP. United States District Court, Western District of Virginia (2018), by Hugh Anderson

Summary: W.C. English was the design-builder on a Virginia Department of Transportation highway bridge project. English’s primary design engineer, AECOM, prepared a design calling for slab runners—a form of steel reinforcement—2.5 inches in height. The height and placement of the slab runners was an important part of the design because of the thickness (depth) of the resulting concrete cover, which could be neither too thick nor too thin under VDOT requirements.

The design-build contract required English to hire inspectors to verify the compliance of the construction with the approved design and VDOT specifications. English complied with this provision by hiring two firms, one (RK&K) responsible for “quality assurance” and one (CDM Smith) responsible for “quality control.” A detailed quality plan was prepared that established a hierarchy and procedures for dealing with deviations from design. The plan was strictly internal, however—apparently it did not give the inspectors any responsibility for reporting to AECOM or VDOT.

About 40% through construction of the bridge, English recalled that on a previous bridge project there had been insufficient concrete cover over the reinforcing steel. English consulted with RK&K (which had no authority regarding design changes) and elected to switch to shorter (1.75 inch) slab runners for the remainder of the construction. Shorter slab runners achieved the goal of increasing the concrete cover.
Before the installation of shorter slab runners commenced, both RK&K and CDM Smith raised concerns about the change. English indicated that it had addressed the concerns. In fact, English was required to obtain AECOM’s approval of all design changes, but English never informed AECOM or VDOT of the slab runner change.

After the bridge was finished, a VDOT inspection revealed “excessive” concrete cover in the locations where English had installed the shorter slab runners. VDOT conducted a structural investigation and analysis to determine the impact on the bridge deck’s structural capacity. Based on this study, VDOT rejected the bridge and instructed English to tear it down and rebuild it at English’s expense. English contested that the bridge was structurally compromised, but ultimately did tear the bridge down and rebuild. English and VDOT entered into a settlement that included a compromise on the imposition of liquidated damages for late completion.

In the aftermath of the project and the rebuild English sued the two inspection firms that it had retained, for breach of contract. English’s primary contentions were that the inspectors did not bring the non-conformity to the attention of the appropriate persons at English, and did not do enough to prevent English from proceeding with its field change. The inspection firms moved for summary judgment.

Decision: The District Court granted the summary judgment motions of the two inspection firms. The court carefully reviewed the detailed inspection plan and concluded that there was no evidence that either firm had violated the plan’s requirements. More importantly, the court concluded that English’s negligence in deciding to make a design change without seeking AECOM’s approval was in effect a superseding cause that would trump any deficiencies in the inspection firms’ actions.

The court rejected the notion that the primary inspection firm, RK&K, had failed to communicate with the proper individuals at English. RK&K had communicated with the project manager, the bridge superintendent, and with foremen. These were generally the highest-ranking English employees on the job, and the inspection plan did not require any other communications. English attempted to downplay the project manager’s functions as merely “secretarial” but this was not persuasive to the court.

The court also was unimpressed with arguments that the inspection firms had not done enough to stop the non-compliant construction. They had no authority over the work or over changes, and had been informed by English that the concerns about the slab runner change had been addressed (presumably with AECOM).

Comment: During the formation of the English—RK&K inspection contract, various conflicting and confusing provisions were added to the base contract. The District Court was able to sort out the provisions, but deficiencies in the contract definitely encumbered resolution of the claims.

The fundamental problem here was the lack of truly independent inspection. If the inspection firms had been retained by VDOT, and reported to VDOT, the slab runner change could have been debated before installation and the completion of the first bridge, saving a great deal of time and money. The record indicates that the inspection firms adequately performed their obligations, but lacked the authority to fully challenge the proposed change.

Even if the design-builder had been correct in deciding to switch to the shorter slab runners, what about the first 40% of the bridge that had been built with the taller slab runners, and presumably a thinner concrete cover—was there ever an intent to bring this discrepancy to VDOT’s attention?