Lawsuit ‘imminent’ over Longboat Pass damage

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The Town of Longboat Key may soon face a lawsuit the Florida Department of Transportation (FDOT) subcontractor due to cracks and loss of structural integrity in the support columns of the Longboat Pass Bridge, which connects northern Longboat Key and Anna Maria Island.

Town Attorney Maggie Mooney-Portale asked the commission at a Dec. 10 workshop to approve the retention of special counsel to deal with what she characterized as “imminent litigation” and “multiple complex litigation issues.”

Commissioner Lynn Larson immediately protested the request, “I believe there’s no damage in us waiting until January and getting the status then.” Larson said attorneys are in the business to bill hours and that the more attorneys that get involved the more likely reasons will be established for them to proceed and start costing the town money. Larson also told Mooney-Portale that her firm is being paid $20,000 per month and that it should have sufficient expertise to get through the Christmas break and make an assessment in January.

The town has been put on legal notice by FDOT subcontractor Infrastructure Corporation of America, an entity that is hired to repair and maintain the Longboat Pass Bridge.

Commissioner Terry Gans said he was “persuaded” by the advice of the town counsel and added, “there is no guarantee our attorney will carry the ball to the finish line.”

Commissioner Pat Zunz said through her conversation with the attorney she felt the issue was more complex than may be apparent at the meeting.


Town drilling may be to blame

The issue at hand centers around cracks in the bridge that appeared in late October of 2014. On Oct. 24, the Longboat Pass drawbridge was not working correctly due to the bridge span shifting. That forced the closure of the bridge and large vessels on that day were unable to access the Gulf of Mexico through Longboat Pass.

According to FDOT spokesman, the issue is the shifting of the bridge’s foundational pilings. FDOT is still investigating and monitoring to make sure the bridge structures are not continuing to shift.

Diving crews including FDOT engineers determined that the concrete supports of the bridge had shifted about two inches and did not allow the pins which held the drawbridge in place to release, in order for the drawbridge to be raised. Subsequently, Longboat Key has been put on notice by the FDOT that there is a “cause for action” and that the town may be held liable for activities that led to the damage to the bridge. Primarily, the most recent activity the town has undertaken is the installation of a water line underneath the bridge and town contractors were drilling at the period of the bridge closure. And according to town Public Works Department, the new water pipe is being installed to update the old water supply line that the town utilizes as its main drinking supply.

The litigation may grow complex because the town relied on engineers to determine how and where to drill its water pipe, who may be liable for the cost of repairs or for the structural damage of the bridge.

The town hired Tampa engineering firm, CDM Smith, which through a contractor set in place the methodology of horizontal directional drilling through the sand, limestone and rock that lay about 50 feet below the bottom of the bay. CDM Smith designed the depth and angle of entry for the drill and the contractor pulled a 16-inch in diameter carrier pipe that will soon be connected to Longboat’s water supply from Manatee County. The old water supply pipe, which is still being utilized, is directly attached to the current drawbridge and is not underground.

According to Public Works Director Juan Florensa, the town contractor was drilling when FDOT noticed the bridge span was shifting upwards. They agreed to stop the job for a couple of days while the bridge was repaired temporarily and the town has since completed the drilling and pipe installation.


Who will pay?

Another issue is whether the town’s insurance will pay for special counsel or covers the cost of any defense or any settlement.

The drawbridge was opened to allow the marine traffic on Oct. 31, seven days after it jammed.

At the commission workshop, Attorney Mooney-Portale said, “The point of this request for special counsel is to serve as a backstop. Our firm is engaged in the defense, but we anticipate complex litigation with multiple adverse parties. “

Mooney-Portale added that with the holidays upon the town her effort is to get the best team possible together and that the suggested firm for special counsel would be “selected but not engaged.”

Mooney-Portale said that she had interviewed several attorneys in the Tampa and Sarasota area and felt that Attorney Phil Hemsley of Norton, Hemsley and Yaw was the most qualified to represent the town.

Vice Mayor Jack Duncan said he saw the upside in having “someone on the ground from day one.” He then asked Mooney-Portale what the downside of moving forward now with securing a firm. Mooney-Portale said she didn’t see a downside and again said the special counsel would serve as a “backstop” in case the town was not extended a defense by its insurer.

Larson was not pleased.

“You have already picked an attorney and you’re looking at billing, billing, billing. You don’t even know if we have a problem yet. We could decide in January. You would think that for $22,000 per month we pay your firm, it would get reviewed. If that insurer of ours is going to give us a problem, then maybe we should look at another insurer. But if we engage, we are starting the clock and the expense.,” said Larson.

Mooney-Portale responded that if it is the will of the commission she will ask Hemsley to be retained but to not start his billing clock.

Duncan did not agree.

“I’m not saying that at all, that is your duty as our counsel to make that determination for the commission,” said Duncan.

Mayor Jim Brown said, “We don’t want to be penny wise and pound foolish, don’t wait a month for our authorization if you need them to get going.”

Larson said all attorneys sell is their time.

Mayor Brown called the question and the commission authorized the town attorney to retain special counsel to defend its position in the bridge issue.

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