Kiska Const. Corp. v. Washington Metro. Area Tran.
| Citation | 321 F.3d 1151 |
| Decision Date | 11 March 2003 |
| Docket Number | No. 01-7156.,01-7156. |
| Parties | KiSKA CONSTRUCTION CORPORATION, U.S.A., and Kajima Engineering and Construction, Incorporated, A Partner in KiSKA-Kajima, A Joint Venture, Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (No. 97cv02677).
Kenneth W. Starr argued the cause for the appellants. Christopher Landau and Grant M. Dixton were on brief.
Kenneth B. Weckstein argued the cause for the appellee. Phillip T. Staub was on brief.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
Appellee Washington Metropolitan Area Transit Authority ("WMATA") contracted with Appellants KiSKA Construction Corporation-U.S.A. and Kajima Engineering and Construction, Inc. (collectively "KiSKA") in early 1994 to construct two subway tunnels in Washington, D.C. for a fixed price of $43 million. After experiencing various difficulties completing the project, KiSKA filed suit against WMATA in the United States District Court for the District of Columbia alleging counts of: (1) fraudulent misrepresentation; (2) negligent misrepresentation; (3) unilateral mistake; (4) material breach of contract; and (5) quantum meruit.
The district court dismissed KiSKA's two tort claims—fraudulent misrepresentation and negligent misrepresentation—for lack of subject matter jurisdiction, concluding that WMATA had not waived its sovereign immunity from liability for torts occurring in the performance of a governmental function. The district court then granted summary judgment to WMATA on KiSKA's quantum meruit claim. After a five-week trial on the remaining contract claims, the jury returned a verdict for WMATA on both counts. The district court subsequently entered final judgment in WMATA's favor on March 23, 2001 and denied KiSKA's motion for a new trial on August 20, 2001.
On appeal, KiSKA challenges three pre-trial rulings that the district court's August 20, 2001 opinion and order incorporated by reference. First, KiSKA argues that the district court erred in dismissing its tort claims on sovereign immunity grounds. Second, KiSKA argues that the district court misinterpreted the contract's dewatering provisions. Third, KiSKA argues that the district court likewise misinterpreted the contract's grout hole provisions. We find all three of KiSKA's challenges to be without merit and, accordingly, affirm the judgment of the district court.
This litigation arises out of the extension of WMATA's Green Line subway train under 14th Street in Washington, D.C. Before soliciting bids for the tunnel project, WMATA retained an outside technical expert, GZA GeoEnvironmental, Inc. ("GZA"), to analyze the subsurface conditions in the project area and to study the feasibility of various tunneling methods, tunneling equipment and dewatering systems.1 GZA submitted its first Tunnel Alternative Report ("TAR") in November 1992. The first TAR reported that "[g]roundwater for most of the [tunnel] alignment is anticipated to be above the crown [i.e., the top of the tunnel]," and that, in light of this soil condition, "even... fairly extensive dewatering" was not likely to be entirely "[e]ffective." Joint Appendix (JA) 30-31. Accordingly, GZA recommended not only that "some type of closed face tunnel boring machine" be used for the project, but also that "open face tunneling be strictly prohibited on this contract."2 JA 31.
GZA submitted a revised TAR in January 1993. The second TAR reaffirmed the conclusions of the first, noting that "dewatering considerations dictate closed face mining methods," JA 32, and that "[o]pen faced tunneling in conjunction with dewatering is not judged a viable construction technique on this [c]ontract," JA 33. After reviewing the second TAR, WMATA's Board of Engineers met with GZA. Shortly thereafter, in March 1993, GZA issued a third and final TAR, which authorized the use of an open face machine, but cautioned that "[e]xtensive dewatering will be an essential element of the open faced shield option." JA 34. Noting that "effective dewatering of the alignment is at best going to be difficult," the third TAR recommended that "an extensive pre-support grouting/ground improvement program... be required for most of the alignment."3 JA 35.
Following the issuance of the third TAR, GZA calculated the extent of the dewatering and grouting necessary to allow for open face tunneling. Even extensive pre-support grouting would not permit open face tunneling, GZA warned WMATA, "if groundwater is not depressed [through dewatering] the recommended two feet below tunnel invert [i.e., the bottom of the tunnel]." JA 35. WMATA then directed GZA to design an appropriate dewatering system for the project. GZA produced a dewatering design that included over three hundred dewatering wells. JA 1045-46
On December 6, 1993, WMATA issued an Invitation for Bids ("IFB") on the 14th Street tunnel project. The IFB set forth detailed design specifications and required bidders to submit lump-sum bids for carrying out the work based upon those specifications.4 WMATA did not include GZA's TARs in the bid package, however, nor did WMATA conform the design specifications to GZA's recommended dewatering system. In particular, WMATA's design specifications called for only 61 dewatering wells. JA 40. Based upon the specifications provided by WMATA, KiSKA submitted a lump-sum bid of approximately $43 million. WMATA accepted KiSKA's bid and, in early 1994, the two parties signed a construction contract.
Section 205 of the contract governed dewatering. It not only set forth a detailed dewatering system for the project, but also required KiSKA to implement the system specified therein: "The Contractor shall proceed with the installation of the specified dewatering system as soon as possible after notice to proceed." Contract § 205, ¶ 1.1(A). Two subsections touched on the question whether the contract required the dewatering system to maintain the groundwater level at two feet below tunnel invert. Section 205(1.2)(B)(3) read, in pertinent part, as follows:
For mined earth tunnels, additional wells beyond the specified minimum dewatering system may be required to effectively reduce hydrostatic pressure and control groundwater in soil surrounding each tunnel in order to prevent the following:
a. Heaving of the invert, blowups, hazardous seepage and sudden flow of soil in tunnel face.
b. Loss of ground and surface subsidence.
c. Maintain groundwater 2 feet below invert.
Id. § 205, ¶ 1.2(B)(3). Section 205(1.1)(A) also addressed dewatering, stating that Id. § 205, ¶ 1.1(A). This subsection further provided that "[a]dditional dewatering wells may be required based on the observed performance of the dewatering system." Id.
Section 239 of the contract covered pre-support chemical grouting, specifying the precise location of thousands of surface pre-support grout holes to stabilize the soil around the tunnels. In particular, Section 239(1.1)(B) provided that "[p]re-support chemical grouting shall be preformed [sic] from the existing ground surface at locations shown on the contract drawings." Id. § 239, ¶ 1.1(B). Although these drawings depicted grout holes drilled vertically at five-foot intervals in a diamond grid pattern, see JA 1001, Section 239(3.2)(A) stated that grout piping should be installed "horizontally, vertically or inclined, as required," Contract § 239, ¶ 3.2(A). "In [the] case of [a] discrepancy between Drawings and Specifications," the contract's General Provisions provided that "the Specifications shall govern." JA 755.
During the tunnel's construction, KiSKA experienced a number of difficulties with both the dewatering system and the excavation methods required by the contract. Two complications proved particularly troublesome: (1) the dewatering system specified by WMATA failed to lower the groundwater table two feet below the tunnel invert and (2) the great majority of surface grout holes could not be drilled vertically at their specified locations without damaging underground utility lines. Although KiSKA overcame these difficulties and eventually completed the project, it did so at a cost of almost double its $43 million lump-sum bid. Upon completion of the project, KiSKA filed a five-count complaint against WMATA asserting both tort and contract claims.
Before the case went to trial, the district court issued several pre-trial rulings, three of which KiSKA now challenges on appeal. First, the district court dismissed KiSKA's tort claims on sovereign immunity grounds, holding that "the challenged decisions are `susceptible to policy judgment,' and therefore immune from judicial review, because they involve planning and design rather than implementation or operation." KiSKA Constr. Corp. v. WMATA, Civ. No. 97-2677 at 5 (D.D.C. Feb. 7, 2000) (mem.) (First Order). Second, the district court held that the contract was "ambiguous, but not patently so," with respect to whether the contract required that the dewatering system maintain the groundwater level at two feet below tunnel invert. KiSKA Constr. Corp. v. WMATA, Civ. No. 97-2677 at 7 (D.D.C. June 9, 2000) (mem.) (Second Order).5 Third, the district court held that while "the contract affords no flexibility with regard to...
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