The biggest construction project in Seattle in recent years has been the replacement of a seismically compromised waterfront viaduct with a tunnel carrying State Route 99 under downtown. The project was delayed for about two years while the contractor repaired damage to its tunnel boring machine. The contractor claimed that the damage was caused by a steel well casing that the project owner, the Washington State Department of Transportation (“WSDOT”) had failed to disclose. The machine was found to be damaged in early 2014 and WSDOT retained Stoel Rives shortly thereafter.

 

Working with WSDOT staff and experts, Stoel Rives developed the defenses that WSDOT had disclosed the well casing, that the contractor did know about it (it used the well twice), and that in any case the small casing did not damage the giant tunnel boring machine. Litigation began in 2015. The contractor initially estimated its claim at $125 million, but the number grew to over $640 million. Stoel Rives succeeded in limiting the contractor’s claim through motions for partial summary judgment. Trial began in Thurston County in October 2019. The contractor asked the jury to award $330 million. WSDOT asserted a counterclaim of $57.2 million in liquidated damages for the contractor’s late completion of the project. After a nine week trial, the jury found in WSDOT’s favor, awarding $57.2 million to WSDOT and nothing to the contractor. The matter is on appeal. Meanwhile the tunnel is in service and the old viaduct has been removed.