Court Revives Claims|Against Levee Contractor

     NEW ORLEANS (CN) – A contractor hired by the U.S. Army Corps of Engineers can’t assert government-contractor immunity from claims that it performed shoddy excavation and backfill work on a New Orleans levee system that failed during Hurricane Katrina, the 5th Circuit ruled.

     The federal appeals court reversed a lower court’s ruling for Washington Group International (WGI), which was hired to prepare an Inner Harbor industrial area for a canal lock replacement project.
     Its work included demolishing existing structures in the area and eliminating any environmental contaminants.
     “Once work had begun, WGI discovered previously unknown subsurface structures in the area to be remediated,” the ruling states.
     The Corps found the contractor’s remediation plan too costly and suggested backfilling the excavations with material from another site.
     WGI finished the project in the spring of 2005.
     The levee system failed during Hurricane Katrina, resulting in the New Orleans’ Industrial Canal giving way and causing extensive flooding of New Orleans East, the Lower Ninth Ward and St. Bernard Parish.
     When Katrina made landfall near New Orleans in August 2005, “the flood protection system in the Inner Harbor Navigation Canal project, consisting of levees and floodwalls, failed,” according to the ruling.
     Two of the levee breaches were near areas that were part of the zone where WGI had worked.
     Property owners affected by the flood claimed the levee failure was a result of WGI’s shoddy work in backfilling and compacting, as it allowed water to seep under the undermining their integrity and ultimately causing them to fail.
     A federal judge dismissed the case based on government-contractor immunity, but a three-judge panel of the 5th Circuit reversed.
     WGI is not immune from liability, the court wrote, because it maintained “significant discretion” over its work and did not follow precise specifications from the corps of engineers.
     “The Corps did not ‘make’ WGI use the exact backfill material that was utilized, nor did it ‘require’ WGI select the compaction method that was employed. In the absence of reasonably precise Corps specifications, these decisions were made by WGI,” Judge Jerry Smith wrote.           
     “Significantly, the evidence in the record shows that the sole consideration for the Corps in evaluating the backfill was the cost of the material,” Smith added.
     The panel reinstated the property owners’ claims and sent the case back to the district court for further proceedings.

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