CITY OF NEW ORLEANS, ETC. v. Vicon, Inc., Civ. A. No. 79-4878
| Decision Date | 04 January 1982 |
| Docket Number | Civ. A. No. 79-4878,79-4987,80-281 and 80-3409. |
| Citation | 529 F. Supp. 1234 |
| Parties | CITY OF NEW ORLEANS, Through NEW ORLEANS AVIATION BOARD v. VICON, INC., et als. |
| Court | U.S. District Court — Eastern District of Louisiana |
COPYRIGHT MATERIAL OMITTED
Michael R. Fontham, New Orleans, La., for plaintiff.
Wm. H. Reinhardt, Jr., Metairie, La., Harry Pastuszek, Jos. Ward, Dale Poindexter, Harvey C. Koch, Henry L. Klein, Kurt S. Blankenship, New Orleans, La., Bernard L. Balkin, Kansas City, Mo., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
To the extent that the following findings of fact contain conclusions of law, or the conclusions of law contain findings of fact, they are so adopted.
1. These suits involve claims brought by the City of New Orleans acting through New Orleans Aviation Board ("NOAB"). Basically, the claims relate to certain asphalt overlay projects performed at separate but closely related times on the North-South and East-West runways at New Orleans International Airport. The North-South project began in 1976 and continued through September, 1977. The East-West project began in late 1977 and continued into November, 1978.
2. NOAB initially sued Vicon, Inc. ("Vicon"), the contractor on both projects, and its surety, Reliance Insurance Company ("Reliance"), in state court. Those proceedings were removed to this court in December, 1979, and January, 1980.
3. Thomas B. Catchings and Associates, succeeded by Laurence L. Lambert and Associates, and, thereafter, succeeded by Laurence L. Lambert, C. E. ("Lambert"), were the engineering firms successively (and continuously) engaged to perform services as project engineer on both projects.
4. Delta Testing and Inspection, Inc. ("Delta") designed the so-called "job mix" with respect to the asphalt and was generally responsible for performing various testing services and functions on both projects.
5. Southland Oil Company, Inc. ("Southland") supplied the liquid asphalt used by Vicon in the preparation of the asphalt mix on both projects.
6. During the course of this litigation, various insurers were added as defendants. These include Northbrook Insurance Company ("Northbrook"), the insurer of Lambert, Independent Laboratories Assurance Company, Ltd. ("Independent"), the insurer of Delta, and Fidelity & Casualty of New York ("Fidelity"), the insurer of Southland.
7. The Federal Aviation Administration ("FAA"), which provided grant funds to finance portions of each runway project pursuant to the Airport and Airway Development Act of 1970, 49 U.S.C. § 1701, et seq., was sued as a third party defendant by the original defendants.
8. In September, 1976, the City advertised for bids for the restoration of the pavement on the North-South runway. In conjunction with this action, Lambert was retained as the engineer on the project under a contract between Lambert and the NOAB. Detailed plans and specifications were prepared by the engineer consistent with current FAA specifications. These were then made available to bidders and ultimately became part of the construction contract. Vicon was the successful bidder for a proposed price of $1,601,024.13 based in part on estimates of the quantities of asphalt materials to be supplied. The contract between Vicon and NOAB was executed October 22, 1976. Delta was appointed the testing laboratory for the project under the provisions of a separate contractual agreement with NOAB.
9. In September, 1977, NOAB accepted bids for the restoration of the pavement on the East-West runway. In conjunction with this action, Lambert was retained as the engineer on the project under a contract between Lambert and NOAB. Detailed plans and specifications were prepared by the engineer consistent with current FAA specifications. These were then made available to bidders and ultimately became part of the construction contract. Vicon was the successful bidder for a proposed price of $3,378,545.89 based in part on estimates of the quantities of asphalt materials to be supplied. The contract between Vicon and NOAB was executed September 13, 1977. Delta was appointed the testing laboratory for the project under the provisions of a separate contractual agreement with NOAB.
10. Reliance provided performance and payment bonds in behalf of Vicon on the North-South and East-West runway projects. Those bonds were executed as integral parts of the contracts and were at risk in the amounts provided for in the contracts.
11. On the North-South runway job, the plans and specifications called for the placement of an asphalt base course, an asphalt wearing course and a covering porous friction course. On the East-West runway, a base course and wearing course were specified. On both jobs, the liquid asphalt that was specified was furnished by Southland.
12. Premature failures occurred on both the North-South and East-West runways which rendered the runways unfit to provide the service required under applicable safety regulations and considerations. The failure on each runway became apparent shortly after the acceptance of the jobs. Although failures occurred on both the runways, the mechanisms by which the runways failed were, in some ways, different. Failures occurred primarily in the wearing courses — or P-401 layer — of each runway.
13. The porous friction course ("pfc") was the top layer of asphalt mixture placed by Vicon on the North-South runway. It was designed to provide traction for takeoffs and landings and to facilitate the runoff of rainfall. Immediately after the completion of the North-South runway job, problems developed in the pfc. When airplanes landed on the runway, aggregate in the pfc would be dislodged by the airplane wheels and created a dangerous condition to jet aircraft. This failure of the aggregate to remain part of the pavement could be described as "ravelling," a situation in which the aggregate becomes separated from the asphalt. This loose aggregate on the runway created a hazard because the loose material could be ingested into a jet engine. In an attempt to correct this problem, an emulsion was laid on a portion of the runway in October, 1977. The problem of aggregate pick-up subsided sometime after the emulsion was placed on the pfc, although the lessening of the problem was due, in part, to the onset of cooler weather.
14. The North-South runway developed further problems in the summer of 1978. When aircraft took off from the runway, the blasts of jet engines were responsible for blowing quantities of asphalt out of the runway, leaving potholes several inches deep. These holes began to appear in July, 1978, and their appearance increased in frequency thereafter. In addition, depressions began to appear in the pfc, evidencing a lack of cohesion in the asphalt mixture below the surface. It was discovered that sections of the wearing course (below the pfc) had deteriorated to the point where the consistency of the wearing course was that of loose aggregate held down only because of the presence of the porous friction course.
15. The material below the pfc was wet or damp, and it was essentially confirmed that "stripping," a process in which the asphalt is stripped from the aggregate in the presence of water, had occurred. The NOAB was required, thereupon, to institute daily inspection and repair operations because of the frequent appearance of depressions and potholes on the runway.
16. Very soon after the East-West runway was completed and accepted, "ravelling" began to occur on that runway. Loose rocks broke apart from the asphalt pavement in the trafficked areas. More or less continuous sweeping operations became necessary. Thus, a studied consideration of the reasons for the apparent deterioration condition of the asphalt was required almost immediately after it went into service.
17. The asphalt on the East-West runway appeared brown, rather than black. Aggregate was ravelling out of the surface. The ravelling was accelerated at joints between lanes and the joints could be observed as deteriorating along the entire length of the runway. Foreign material, including sticks, roots, pieces of metal, bolts, a beer can, and clay balls ravelled out of the asphalt. Small holes developed where clay balls were washed away by rain.
18. Asphalt concrete is a composition of various mineral aggregates and asphalt cement. The aggregate includes gravel, crushed rock or similar sized material, coarse and fine sand, and "filler" material. These materials are mixed in specific proportions and heated in an asphalt plant to a specified temperature. The asphalt mixture is thereafter conveyed to the job site, where it is laid with the use of spreaders in lanes of designated width and thickness and compacted with the use of rollers.
19. The specifications permitted Vicon to select certain of the materials to be included in the asphalt mixture, so long as the general requirements of the specifications were complied with. Vicon chose to use a Louisiana "chert" gravel in the mix. In addition, the specifications generally mandated the use of asphalt cement of a certain grade, but permitted the contractor to obtain the asphalt cement from any source so long as it complied with the minimum requirements of the specifications. Vicon purchased the asphalt cement that was incorporated into the mixture from Southland.
20. The various materials selected by the contractor were to be submitted to the testing laboratory, Delta, for testing. The results of these tests were to be reported to the contractor, the engineer, the NOAB, and the FAA. The tests were required to determine whether the runway materials satisfied the minimum requirements of the specifications.
21. The specifications on both jobs provided the boundaries of the proportions of the materials that could be specified in the job mix design. As to any size aggregate or the proportion of liquid asphalt, the engineer and testing...
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