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Filing # 181597394 E-Filed 09/12/2023 10:28:42 AM
IN THE FIRST JUDICIAL CIRCUIT COURT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
JOHNNIE BLOCKER,
Plaintiff,
v. Case No. __________
SKANSKA USA CIVIL SOUTHEAST, INC.
and SKANSKA USA, INC., DEMAND FOR JURY TRIAL
Defendants.
_____________________________________/
COMPLAINT
COMES NOW Plaintiff, JOHNNIE BLOCKER, (“Plaintiff”) and files his Complaint
against Defendants, SKANSKA USA CIVIL SOUTHEAST, INC. and SKANSKA USA, INC.
(hereinafter collectively “Skanska”) 1 for damages resulting from the closure of the Pensacola Bay
Bridge. Specifically, Plaintiff alleges:
INTRODUCTION
1. This is a lawsuit brought on behalf of Plaintiff, whose business was, and continues
to be for the foreseeable future, impacted by Skanska’s negligence in failing to remove and/or
secure its barges prior to Hurricane Sally. At all material times, Skanska knew or should have
known that failing to secure or move its barges from Pensacola Bay before Hurricane Sally made
1
For purposes of this Complaint and the counts enumerated herein, in the interest of judicial efficiency, Defendants
Skanska USA, Inc. and Skanska USA Civil Southeast, Inc. will be referred to as one entity—“Skanska”—as the
conduct alleged in this Complaint applies equally and identically to both entities.
landfall on September 16, 2020 posed an unreasonable risk of damage and destruction to the
Pensacola Bay Bridge (“the bridge”), 2 the water and ecosystem of Pensacola Bay, and the
surrounding properties of both the cities and citizens of Pensacola and Gulf Breeze.
2. Plaintiff seeks recovery for all damages recoverable under applicable law, including
economic damages, including but not limited to loss of revenue, loss of business value, and
incidental expenses he otherwise would not have incurred. The damages sought in this complaint
do not involve economic losses from product liability. Plaintiff also seeks attorney’s fees and costs
and all other relief allowable under applicable law.
PARTIES, JURISDICTION, AND VENUE
3. Plaintiff Johnnie Blocker is an independent contractor who delivers goods for
Hackbarth Delivery Service Inc. Mr. Blocker operates out of his home, located at 226 Edison
Drive, Pensacola, FL 32505 in Escambia County.
4. Defendant Skanska USA Civil Southeast Inc. (“Skanska Southeast”) is
headquartered at 295 Bendix Rd., Suite 400, Virginia Beach, VA 23452, with its principal place
of business located at 2600 Maitland Center Parkway, Suite 250, Maitland, Florida 32751. It is
registered to do business in the State of Florida, and it is registered agent is located at Corporation
Service Company, 1201 Hays Street, Tallahassee, Florida 32301.
5. At all times material hereto, Defendant Skanska USA, Inc. (“Skanska USA”) has
owned 100% of stock of Skanska USA Civil, Inc., which, in turn, owns 100% of the stock of
Skanska Southeast. Skanska USA, Inc. has its principal place of business at 350 Fifth Avenue,
32nd Floor, New York, New York, 10118. It is registered to do business in the State of Florida,
2
In June 2020, Florida Governor DeSantis signed into law a bill renaming the new Pensacola Bay Bridge the
General Daniel “Chappie” James, Jr. Bridge. For purposes of continuity with the evidence presented and briefing
throughout the pendency of this litigation, Plaintiffs refer to the bridge throughout this Complaint as the Pensacola
Bay Bridge.
2
and it is registered agent is located at Corporation Service Company, 1201 Hays Street,
Tallahassee, Florida 32301.
6. This Court has personal jurisdiction over Defendants under §48.193, Florida
Statutes. Skanska regularly conducts business within the state of Florida, and it is engaged in—
and has been engaged for many years in—substantial activity within the state of Florida;
Defendant, Skanska designed and built the $398.5 million3 Pensacola Bay Bridge connecting
Pensacola to Gulf Breeze.
7. Additionally, the Florida Department of Transportation (“FDOT”) has awarded
Skanska other construction contracts throughout the state of Florida, and Skanska has financially
benefitted from such contracts. For example, in 2005 Skanska was awarded a $242.7 million
contract to repair the Escambia Bay Bridge after Hurricane Ivan. Skanska was also awarded a $25
million contract to construct the 17th Avenue Interchange adjacent to the Pensacola Bay Bridge.
Thus, Skanska has personally availed itself of the laws and benefits of the state of Florida, and it
could reasonably anticipate being sued in Florida courts.
8. Skanska has such continuous and systematic contacts in Florida so as to render it
“at home.” As of November 3, 2020, Skanska had three active construction contracts with FDOT. 4
Skanska has numerous offices within the state of Florida, and Florida is one of its largest markets.
For instance, in 2014 alone, Skanska had revenues of $645 million—just in Florida—out of its
$7.3 billion total revenue that year. 5 Furthermore, Skanska USA, Inc. owns Skanska USA Civil,
Inc. which maintains Florida-based headquarters.
3
As briefly discussed below, this number has substantially increased over the course of four years to now total
approximately $458,745,149.00. As of November 3, 2020, Skanska had already been paid approximately
$353,787,909. Design-Build Contracts, located at
https://fdotwp1.dot.state.fl.us/ibi_apps/WFServlet?IBIF_ex=designbuildstatus fex&IBIAPP_app=construction.
4
Id.
5
Joseph A. Mann, Jr., Skanska carrying out over 30 projects statewide, MIAMI HERALD (June 12, 2015, 6:08 p m.),
https://www.miamiherald.com/news/business/biz-monday/article23875768 html.
3
9. The damages sought in this lawsuit exceed fifty thousand dollars ($50,000.00)
exclusive of interest and costs.
10. Plaintiff, Johnnie Blocker has been delivering items to and from businesses located
in the Pensacola metropolitan area since 2006. Plaintiff suffered damages as a result of the closure
of the Pensacola Bay Bridge. In particular loss of revenue, and incidental expenses he otherwise
would not have incurred.
11. Florida law applies to this case. Under Florida’s “significant relationship test,”
courts apply the tort law of the state that has the most significant relationship to the cause of action.
In this case, the cause of action arose in, and Plaintiff is a citizen of, the state of Florida. Skanska’s
conduct at the center of Plaintiff’s cause of action relates to the construction of a new bridge and
the destruction of an existing bridge comprising the central transportation artery and hurricane
route for the Pensacola, Florida region that was built pursuant to a contract between a Florida-
based construction firm and a State of Florida agency.
12. Moreover, Defendants may not attempt to remove this case on the basis of
admiralty jurisdiction. Not only is this case not governed by admiralty jurisdiction, but, in the
Eleventh Circuit, “if [a] plaintiff elects to file a case in state court, that case may not be removed
to federal court solely on the basis of admiralty jurisdiction.” DeRoy v. Carnival Corp., 963 F.3d
1302, 1314 (11th Cir. 2020) (citation omitted); see Armstrong v. Ala. Power Co., 667 F.2d 1385,
1388 (11th Cir. 1982) (“[A] federal district court should not accept the removal of a saving clause
case solely because of its general maritime nature: the maritime nature simply does not provide
a ground for federal jurisdiction.”) (emphasis added); Pierce v. Parker Towing Co., Inc., 25 F.
Supp. 3d 1372, 1380 (S.D. Ala. 2014) (“[T]here is no jurisdiction in [the Eleventh Circuit], based
solely on § 1333, of in personam claims seeking common law remedies. Thus, where the common
law is competent to provide a remedy, as with in personam maritime claims filed in state court, a
4
plaintiff may elect to pursue his common law remedies and the case cannot be removed based on §
1333.”).
13. Pursuant to Section 47.051, Florida Statutes, venue is proper in this Court because
the cause of action accrued in Escambia County, Florida.
RES JUDICATA
14. Res judicata is a judicial doctrine used to bar parties from relitigating claims
previously decided by a final adjudication on the merits. Anderson v. Vanguard Car Rental USA
Inc., 60 So. 3d 570 (Fla. 4th DCA 2011); W & W Lumber of Palm Beach, Inc. v. Town & Country
Builders, Inc., 35 So. 3d 79 (Fla. 4th DCA 2010). Res judicata bars issues raised and which could
have been raised. Florida Dept. of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001).
15. Under the doctrine of res judicata, a final judgment issued by a court of competent
jurisdiction bars a subsequent suit between the same parties based upon the same cause of action.
Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010) (construing Florida law);
Felder v. State, Dept. of Management Services, Div. of Retirement, 993 So. 2d 1031 (Fla. 1st DCA
2008). Even if the causes of action are not identical, a point that was actually and directly in issue
in a former suit, and was there judicially passed upon and determined by a domestic court of
competent jurisdiction, cannot again be drawn in question in any future action between the same
parties or their privies. In re Senate Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d
872 (Fla. 2012).
16. Res judicata applies to this action and the issues decided by Senior District Judge
Lacey A. Collier in the United States District Court for the Northern District of Florida, and
affirmed by the Eleventh Circuit, in his Order and Final Judgment in the Limitation of Liability.
Such issues, including negligence and spoliation of evidence, cannot be re-litigated. Skanska filed
27 Limitation of Liability Act petitions, beginning with In Re Skanska USA Civil Southeast Inc.
5
and Skanska USA, Inc., as Owners of the Barge KS-5531 Praying for Exoneration from or
Limitation of Liability, 3:20-cv-5980, which was consolidated with 26 related Limitation of
Liability Actions. One petition was filed for each Skanska-owned construction platform (barge)
that broke loose and struck property or objects in the Pensacola area during Hurricane Sally. In a
Limitation of Liability action, liability is only established where the vessel owner’s negligent acts
were “a contributory and proximate cause of the accident.” Hercules Carriers, Inc. v. Claimant
State of Florida, 768 F.2d 1558, 1566 (citing Board of Comm’rs of the Port of New Orleans v.
M/V Farmsum, 574 F.2d 289, 297 (5th Cir.1978)).
17. Throughout the pendency of the Limitation of Liability Action, the parties,
including Plaintiff (there in the role of “Claimants”) and Skanska, engaged in substantial—albeit
expedited—discovery relating to Skanska’s liability in relation to the damages caused by its barge
fleet breaking free from mooring sites alongside the Pensacola Bay Bridge. Additionally, the
parties engaged in considerable motion practice, including competing dispositive motions.
18. Following a bench trial before Judge Collier, held from October 18 through October
22, 2021, Judge Collier entered an Order and Final Judgement on December 29, 2021. Ex. 1, In re
Skanska USA Civ. Se. Inc., 577 F. Supp. 3d 1302 (N.D. Fla. 2021), aff'd sub nom. Skanska USA
Civ. Se. Inc. v. Bagelheads, Inc., No. 21-13850, 2023 WL 4917108 (11th Cir. Aug. 2, 2023)
(3:20cv5980/LAC/HTC, Doc. 1352). Specifically, Judge Collier found that “Skanska is not
entitled to any relief under the Limitation Action,” as Skanska was found to be negligent in its
efforts to prepare for Hurricane Sally. Id. at 1308. The issue of Skanska’s negligence has been
established by a court of competent jurisdiction and order the doctrine of res judicata cannot be re-
litigated as part of this action.
19. Judge Collier’s Final Order was based on a presentation of the claimants’ trial-
admitted evidence that included the facts set forth below in Plaintiff’s Factual Background, which
6
is largely taken from the claimants’ post-trial brief that was comprised solely of trial-admitted
evidence. Accordingly, pursuant to the doctrine of res judicata as interpreted by Florida courts,
Skanska is barred from re-litigating that its negligent acts were “a contributory and proximate
cause of the accident,” as this issue as fully litigated in the Limitation of Liability Action before
Judge Collier. See id. at 1313.
20. The findings of fact and conclusions of law included in Judge Collier’s Final Order
establish, undeniably, that Skanska exhibited negligence and acted unreasonably in moving its
barges to pilings off the Pensacola Bay Bridge rather than mooring the barges at the designated
“safe harbor” locations set forth in the Hurricane Preparedness Plan (hereinafter, the “Plan”) in
place at the time of Hurricane Sally. As Judge Collier found in consideration of the evidence
presented at trial:
As the piling stations evidently were not designed not (sic) for anything resembling
a safe harbor, the “verbal plan” had little to recommend it in the face of an
approaching tropical system. It is therefore clear to the Court that Butcherpen Cove
was a far superior location for the barges, and the failure to utilize it, absent any
other excuse, constitutes negligence.
Id. at p. 1317.
21. Judge Collier rejected Skanska’s claim that Hurricane Sally caught it by surprise.
As he explained:
In fact, as is shown by the entirety of the NHC advisories from Friday afternoon to
Wednesday morning when Hurricane Sally made landfall, the Pensacola Bay area
was at all times either in the cone of the storm’s predicted path or was under a watch
or warning for tropical storm winds or greater.
On this basis alone, the Court would reject Skanska’s argument that it was caught
off guard by the fact that Hurricane Sally strongly impacted Pensacola. While
Pensacola may not have been the most likely recipient of a direct strike during the
7
time Skanska made its decision, the threat of tropical force winds remained a
distinct possibility. It is difficult to accept Skanska’s expression of surprise over
the turn of events when at the time the Pensacola Bay area was under a tropical
storm warning and a hurricane watch.
Id. at 1315-16.
22. In the prior Federal litigation and trial, Skanska made only a perfunctory attempt to
disclaim privity or knowledge of its executives as to the negligence of defendants. The Court
described that effort and the outcome:
Here, Skanska’s claim of lack of privity or knowledge is perfunctory, based
apparently on its claim that negligence did not lie with the decisions Skanska made
with regard to the hurricane and that therefore any negligence that would have
occurred was at the hands of the crew that carried out its orders. But, as has been
seen, Skanska was indeed found negligent, and that negligence sprung wholly from
executive decision-making that resulted in the failure to take reasonable measures
to protect its barges from the impending storm. Because Skanska obviously cannot
establish any lack of privity or knowledge, it is unable to limit its liability to the
value of its barges under the Limitation Act.
Id. at 1234.
23. The Eleventh Circuit affirmed the District Court’s decision on privity and
knowledge, noting:
After all, the decision not to move the barges to safety was made by Skanska
executives, and when a corporation owns a vessel, “the privity and knowledge of
corporate managers vested with discretionary authority is attributed to the
corporation.”
Ex. 2 at *9 (quoting Suzuki of Orange Park Inc. v. Shubert, 86 F.3d 1060 at 1065 (11th Cir.
1996) (internal quotation omitted).
24. As Judge Collier explained, Skanska’s “executives tried to get by with doing less,
and that gambit backfired.” Id. at 36. He concludes by stating that:
In this case, Skanska’s own negligence in its failure to take reasonable precautions
prevents it from successfully proving a vis major defense. As was earlier discussed
in detail, Skanska had available an offsite location for its barges, Butcherpen Cove,
8
that would have been significantly more protective, and Skanska’s attempts to
convince the Court that Butcherpen Cove would not have kept the boats secure are
unavailing. Skanska received ample warning about Hurricane Sally’s approach, and
thus its negligence is – at the least – a contributing factor to the damages caused by
its barges. Skanska therefore fails to show that Hurricane Sally constituted a vis
major force that inevitably caused the damages brought by the escape of its barges
no matter what precautions it might have taken.
Id. at 38.
FACTUAL BACKGROUND
The Pensacola Bay Bridge Replacement Project (the “Project”)
25. This action concerns the Pensacola Bay Bridge, a critical artery connecting
Pensacola to its beaches and the City of Gulf Breeze. As the United States Court of Appeals for
the Eleventh Circuit described:
Pensacola is a city in the westernmost part of the Florida panhandle. It is known for
its access to beaches, which attract both locals and tourists from across the country.
But Pensacola Bay separates the actual city of Pensacola from the area’s major
beaches (and from several smaller towns such as Gulf Breeze). Pensacola remains
connected to its beaches thanks to the Pensacola Bay Bridge—a roughly three-mile
bridge across the Bay that has existed in some form since the 1930s. 6
26. Skanska entered into a contract with the Florida Department of Transportation
(“FDOT”) in 2016 to replace the Pensacola Bay Bridge (also known as the “Three Mile Bridge”),
which consists of two separate bridge spans standing side by side.
27. FDOT oversees, among other things, the construction of roads and bridges in the
State of Florida.
28. United States Route 98 (US 98), the longest U.S. road in Florida, is an east-west
U.S. highway that was originally established in 1933 as a route between Pensacola and
6
Ex. 3, Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., No. 21-13850, 2023 WL 4917108 at *2 (11th Cir. Aug. 2, 2023)
(Opinion of the Court on Appeal from the United States District Court for the Northern District of Florida, 3:20-CV-
05980-LC/HTC, Doc. No. 88-1)
9
Apalachicola, Florida. Since 1933, it has been extended significantly. At the time of these events,
US 98 extended from Meadville, Mississippi in the west, to Palm Beach, Florida in the east. The
overwhelming majority of the 964-mile-long US 98 is built on dry land.
29. Approximately three miles of US 98 (concurrently known as State Road 289)
traverses Pensacola Bay between Bayfront Parkway in Pensacola, Florida and Fairpoint Peninsula
in Gulf Breeze, Florida. US 98 is the sole, direct connection for traffic between the cities of
Pensacola and Gulf Breeze.
30. Before 1931, there was no bridge connecting Pensacola and Gulf Breeze. The
original three-mile Thomas A. Johnson Bridge, a narrow, two-lane structure, was opened on June
13, 1931. This bridge was replaced by the Sen. Phillip D. Beall, Sr., Bridge, a single, wider, four
lane structure on October 31, 1960, which carried four lanes of US 98 motor vehicle traffic across
Pensacola Bay for six decades.
31. At the time of these events, Skanska was engaged in a construction project to
replace the Pensacola Bay Bridge (also colloquially referred to as the “Three-Mile Bridge”). The
Project was intended to be undertaken in a manner that would maintain the free flow of motor
vehicle, pedestrian and bicycle traffic between Pensacola and Gulf Breeze throughout the
construction of the new bridge. At the time of Hurricane Sally, Skanska had opened a new, single
span containing four lanes of two-way motor vehicle traffic and one pedestrian/bicycle path and
had undertaken the demolition of the sixty-year-old Beall bridge. Therefore, all direct traffic
between Pensacola and Gulf Breeze became dependent upon this newly built span. Skanska along
with the State of Florida went to lengths to make the region, including Plaintiff, aware of the plan
to maintain four lanes of traffic throughout the project’s life cycle. Accordingly, Plaintiff, along
with the region, relied on this representation and expected that Skanska would follow through with
its obligation to maintain the open flow of traffic connecting these landmasses.
10
32. As the design-build general contractor that bid on FDOT’s contract for the
replacement of the Pensacola Bay Bridge, Skanska necessarily understood the importance and
necessity of the Pensacola Bay Bridge to Plaintiff—as well as all other business owners, sole
proprietors, and wage earners—whose livelihoods remain dependent on the free flow of traffic
traversing this central economic artery.
33. On July 29, 2016, Skanska was awarded the construction contract by FDOT to build
and design the new bridge over Pensacola Bay.
34. Skanska began construction on the bridge project on or about September 19, 2016.
The project site was not limited to the portion of the Pensacola Bay Bridge over the bay. In fact,
the project site traversed over land across portions of Gregory Street, Bayfront Parkway, and 17th
Avenue in Pensacola as well as Gulf Breeze Parkway in Gulf Breeze.
35. FDOT entrusted Skanska with every aspect of this project. As set forth in the
Design Build Specifications, published on March 8, 2016, pg. 74-75, Skanska, as the contractor,
agreed to take charge and custody of the work, and take every necessary precaution against damage
to the work, by the action of the elements or from any other cause whatsoever, until the
Department’s final acceptance of the work.
36. Skanska expressly agreed to rebuild, repair, restore, and make good, all damage to
any portion of the work occasioned by any of the above causes before final acceptance of the
Contract.
37. Skanska also expressly agreed to:
. . . provide all safeguards, safety devices, and protective equipment and take any
other needed actions as it determines, or as the contracting officer may determine,
to be reasonably necessary to protect the life and health of employees on the job
and the safety of the public and to protect property in connection with the
performance of the work covered by the contract.
11
See Executed FDOT Contract at pg. 76, ex. 4 to Claimants’ Reply in Support of Motion to Dismiss,
[Doc. 51-5, p. 77]. By expressly agreeing to these provisions, Skanska acknowledged that it owed
a duty to the public, including Plaintiff.
38. In or around September 2019, Skanska completed the western (“southbound”)
segment of the bridge project and two lanes of traffic were able to freely move across the bridge
heading both north and south by sharing this segment.
39. Upon completion and activation of the western segment in a temporary two-way
configuration, Skanska began demolishing the existing, and up until that instant, operational,
Pensacola Bay Bridge in order to build the new eastern (“northbound”) segment.
40. To facilitate demolishing the old bridge and building the eastern (“northbound”)
segment of the bridge, Skanska utilized multiple construction barges as floating work platforms to
support construction and demolition activities and to hold equipment and materials for
construction.
41. The construction barges were used solely for the purpose of demolishing and
constructing the bridge, and their use bears no relationship to traditional maritime activity. The
barges were unpowered and un-crewed and used solely for construction-related purposes.
42. Following the destruction of the Pensacola Bay Bridge, an FDOT engineer
confirmed that the destruction was “the result of barges from an active construction project.” See
Sept. 17, 2020 Email from FDOT to Project CEI, ex. 1 to Claimants’ Reply in Support of Motion
to Dismiss. [Doc. 51-2, pg. 2-3.]
43. Skanska owned or leased their unpowered and un-crewed construction barges for
construction-related purposes on the Pensacola Bay Bridge and was in exclusive control of all of
the barges employed at the site.
44. The Final Request for Proposal, at p. 63, from FDOT required the Design-Build
12
Firm, here Skanska, to submit an Incident Management Plan that included “emergency
preparedness and recovery plans as well as traffic management and evacuation due to hurricanes,
tropical storms, fires, winter/ice system and other events.”
45. Skanska prepared an incident management plan required by FDOT that was specific
to tropical weather systems, like the one that became Hurricane Sally, which Skanska titled
“Hurricane Preparedness Work Plan.” [Doc. 16-1, pp. 2-16.]
46. The Plan included provisions relating to the use, mobilization, and demobilization
-of the construction barges. As set forth fully below, in the event of tropical weather conditions,
the Plan required Skanska personnel to secure the project site, including the Pensacola Bay Bridge,
and secure all marine based equipment, including the construction barges, to safe harbor. The Plan
applied project-wide, including to portions of the worksite over land.
47. As Claimant maritime construction expert witness Captain Richard DiNapoli
testified:
As I read it, the [underlying design-build] contract established a contractual
obligation to prepare - - to develop, submit, and implement a plan for evacuation of
barges in a number of instances, but including tropical storms and hurricanes. 7
48. The Plan set forth four conditions, each of which required Skanska personnel to
take different actions to in the event of a tropical weather system. As Hurricane Sally approached
ahead of its September 16, 2020 landfall, Condition Three became the applicable condition. Under
Condition Three (which is specified as sustained winds of 50 knots or 58 mph or greater expected
within 72 hours/3 days), Skanska was to cease all routine activities which might interfere with
securing operations, commence securing and stow all gear and portable equipment, begin to secure
7
Trial Trans., Direct of Capt. DiNapoli at 36:25-37:3 (Oct. 22, 2021).
13
any cranes on site, and move all construction barge mounted cranes and material barges to the East
Bay.
49. As discussed more fully below, no part of the Plan called for the construction barges
to be secured near the construction site. Skanska’s actions placed it in express violation of its
contractual obligations.
50. As Hurricane Sally approached Pensacola, Skanska failed to follow this Plan,
choosing instead to continue working as late as Monday, September 14, 2020.
51. Despite clear warnings about the coming storm, Skanska kept its construction
barges on site during this time to continue the bridge construction work. Skanska made the decision
not to secure its barges despite the requirements of the Plan to do so. As a result, the Pensacola
Bay Bridge, the Escambia Fishing Pier, and various surrounding public and private properties were
damaged by the barges.
52. When Skanska General Superintendent Patrick McGlynn was asked under oath if
Skanska complied with its own Plan in preparation for Hurricane Sally, Mr. McGlynn testified:
“Absolutely not.” 8 He further testified that the damage caused by Skanska’s barges was “definitely
avoidable,” and he hoped Skanska would have learned from Hurricane Sally “to follow work plans,
to follow policy, to follow – doing it right.” The same day as Hurricane Sally’s landfall, Mr.
McGlynn texted his fellow General Superintendent Ronnie Benton: “I have seen the massive fuck
ups we are going to have to deal with.”9 When asked why he was surprised to find that Skanska
had not demobilized its barges prior to Sunday, September 13, Mr. McGlynn testified:
[W]e’ve done it before prior to this hurricane, and it’s just what we do. It’s what
we – we’ve always done any time a hurricane, tropical storm threat; find safe
harbor. 10
8
McGlynn Depo. at 19:12-15, 19:20.
9
S:723; Benton Cross Exam, October 20, 2021, at 172: 8-19.
10
Fulton Depo. at 23:5-23:7, 23:11-23:23.
14
53. United States Coast Guard Captain of the Port, LaDonn Allen, serves as the Sector
Commander and Captain of the Port for the Mobile Sector that includes Pensacola Bay and the
Project Site. 11 Capt. Allen explained that the Coast Guard “couldn’t get in touch with [Skanska]
after the hurricane. Quite often, communications were very poor. We tried to contact them with no
success. . . .” 12 As. Capt. Allen continued:
I would have had concern had I known about [Skanska] and had I known what they
were going to do. Had I known they did not seek safe shelter, and had I known that
they would not be prudent in listening to my direction, then I would have been very
concerned, yes. 13
[...]
And had I known that they would not seek shelter, I probably would have issued a
Captain of the Port order. 14
54. Any reasonable design-build firm in Skanska’s shoes would have foreseen the
consequences of a Pensacola Bay Bridge outage if the Plan was not followed.
55. Design-build general contractors, including Skanska, must rely on data relating to
the region’s economic and anticipated growth in order to design and build a roadway project that
will accommodate present and future needs. To this end, FDOT commissioned numerous studies,
such as Project Development and Environmental (“PD&E”) studies, to provide the design-build
firm guidance to improve traffic safety, emergency evacuation efficiency, accommodate future
traffic density while minimizing impact on the surrounding environment. Skanska relied on these
studies when designing and building the Pensacola Bay Bridge.
56. Design-build firms, such as Skanska, must rely upon historical and projected traffic
density and volume data in order to prepare for and construct a roadway sufficient for the
11
Capt. Allen Direct Exam, October 22, 2021, at 224:1-12.
12
Capt. Allen Direct Exam, October 22, 2021, at 247:7-21.
13
Capt. Allen Direct Exam, October 22, 2021, at 239:2-6.
14
Capt. Allen Direct Exam, October 22, 2021, at 245:22-24.
15
surrounding community’s needs. This includes the annual average daily traffic (“AADT”) for the
Pensacola Bay Bridge, which, as of 2011, was approximately 55,000 vehicles. See FLORIDA
DEP’T OF TRANSP., PENSACOLA BAY BRIDGE REPLACEMENT PD&E STUDY, at 3-1
(July 18, 2011), https://www.santarosa.fl.gov/DocumentCenter/View/268/Pensacola-Bay-Bridge-
--Project-Development-and-Environment-PDE-PDF. Skanska relied upon this data set when
designing and building the bridge.
57. Skanska, as a design-build firm, relies on diverse data sets beyond traffic data to
design and build a bridge that fits a community’s needs. FDOT also provided Skanska with
“socioeconomic data, historical population data, and local sources such as the Chambers of
Commerce or Economic Development Council Information,” which included:
• Historical Escambia Population Data
• Historical Santa Rosa Population Data
• Pensacola Bay Bridge Historical Traffic Data
• US 98 east of Gulf Breeze Historical Traffic Data.
FDOT also provided Skanska with “Socioeconomic (SE) Data Development” to identify the
“Pensacola Bay Bridge area of influence” within the Pensacola Bay Bridge PD&E Report, which
accounts not only for population growth but also employment growth. Id. at 4-6 (graphic provided
below). Skanska relied upon this data set as well when designing and building the bridge.
16
58. Skanska further understood that the project was undertaken because the existing
bridge that needed replacement was recognized as a “critical link for commuters and freight
transportation.” Pensacola Bay Bridge PD&E Study at 4. Skanska knew early on that should the
bridge become unavailable, “the nearest detour route around the bridge would add approximately
27 miles to the trip length.” Id. Skanska’s negligence forced Plaintiff and Plaintiff’s customers to
use this detour regularly during to the bridge’s prolonged closure after Hurricane Sally.
59. Skanska understood that closure of the Pensacola Bay Bridge would separate
employers from employees and business owners from customers. Skanska also understood that
Escambia County is uniquely vulnerable to the closure of the region’s central commerce artery.
The Pensacola Bay Bridge closure not only restricts Gulf Breeze and Pensacola Beach customers
from easily reaching Pensacola businesses but also restricts Pensacola customers from easily
reaching Gulf Breeze and Pensacola Beach businesses. Skanska understood that the Escambia
County economy was uniquely dependent on regular two-way traffic on US 98 through Gulf
Breeze to Pensacola, Pensacola Beach, Navarre, and points beyond.
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60. FDOT underscored to Skanska the importance of the bridge to the region by
including a $35,000 a day penalty in the design-build contract to apply upon the closure of any
one of the bridge’s four lanes. See ex. D to Claimants’ Motion to Dismiss, Letter from FDOT to
Skanska (Oct. 22, 2020). FDOT, together with the region, including Plaintiff, relied on Skanska to
fulfill its obligation to ensure the bridge remained open to traffic.
61. A reasonable design-build firm would also understand the region’s history,
including that on January 14, 1989 a tug-driven barge knocked out a center span column of the
bridge it was contracted to replace, prompting a bridge outage and economic disruption. Bill
Kaczor, “Barge Knocks Three-Mile Bridge Out of Commission,” AP, January 14, 1989 at
https://apnews.com/article/5ace2bcffd3bdcd9c8376fedb32d1bca. Skanska understood or should
have known that a wayward barge would carry far worse devastation in light of the region’s growth
over the past 30 years.
62. Finally, the bridge’s closure following its September 2020 destruction came many
years after Skanska began work alongside the previous bridge as well as the new southbound span
that was fully open prior to Hurricane Sally. For every day since 2016, Skanska was a literal first-
hand witness to the traffic that traversed the Bay in either direction. Just like Plaintiff and his
customers, Skanska itself used the bridge to travel between the Pensacola and Gulf Breeze
landmasses.
63. Again, Skanska fully understood the disruption that would follow an outage
severing the central artery connecting Pensacola with Gulf Breeze and Pensacola Beach.
Understanding the stakes, Skanska repeatedly asked FDOT to limit its liability across five separate
bid questions. 15
15
See ex. 4 to Claimants’ Reply in Support of Motion to Dismiss [Doc. 51-5] at SKAN-PBB-0000070 (Question
13428), SKAN-PBB-0000072 (Question 13434), SKAN-PBB-0000077 (Question 13867), SKAN-PBB-0000085
18
64. Plaintiff’s damages were necessarily foreseeable to Skanska: Skanska had foreseen
them enough to try to escape future liability due to any bridge closure. When the state did not agree
to limit liability, rather than forego the near $400-million-dollar construction contract, Skanska
agreed to the state’s terms with full awareness of what consequences would apply should the bridge
close due to its negligence.
65. Under Skanska’s design-build contract with FDOT, Skanska was contractually
obligated to “develop, submit, and implement a plan for evaluation of barges in a number of
instances, but including tropical storms and hurricanes.” These obligations were expressly set forth
in the Request for Proposal that was incorporated into the design-build contract reached with
FDOT. In compliance with its contract and with company policy, Skanska submitted one or more
hurricane preparedness plans to FDOT during the life of the Project.
66. Judge Collier found that, “the Hurricane Plan is a creature of contract, created
pursuant to Skanska’s construction contract with the Florida Department of Transportation.” Ex.
1 at p. 1315. Judge Collier continued:
That said, the fundamental goal of the Hurricane Plan is obviously the mitigation
of damage during a hurricane, and so while Skanska and the FDOT might have
been chiefly concerned with their own interests in the drafting of the Plan, it is fair
to assume that those interests in large part would coincide with the interests
underpinning this cause of action.
Id.
Skanska’s Preparation for Tropical Storms Prior to Hurricane Sally Confirmed Its
Acceptance of Its Duty and Ability to Prepare for and Prevent Severe Weather Damage.
67. The Pensacola area has been battered by tropical weather since its founding. On
September 19, 1559, just weeks after Don Tristan de Luna y Arellano established Pensacola as the
(Question 14229), and SKAN-PBB-0000086 (Question 14230). FDOT denied each request. See e.g., id. at SKAN-
PBB-0000072 (Question 13434) (“Please place a cap on liquidated damages and overall liability.” “No.”).
19
first European settlement in the continental United States, a hurricane decimated his settlement.
Since the advent of named tropical storms and hurricanes, Pensacola has found itself within or
affected by the following storms: Baker, Florence, Flossy, Debbie, Irene, Hilda, Ethel, Eloise,
Frederic, Elena, Juan, Alberto, Erin, Opal, Danny, Helene, Barry, Hanna, Ivan, Arlene, Dennis,
Ida, Cindy, Nate, Gordon, Michael, and Cristobal. Don Tristan de Luna did not have access to
modern weather forecasting; Skanska did, yet it chose to ignore it. 461 years after the hurricane
that destroyed de Luna’s settlement, and exactly 16 years after Hurricane Ivan, Hurricane Sally
brought yet another wave of destruction to Pensacola. However, this time, the destructive forces
of the September 16, 2020, Hurricane Sally were exacerbated by the negligence and gross
negligence of Skanska.
68. In federal court, Skanska sought exoneration or limitation of its liability for the
damages associated with its own corporate negligence and gross negligence in advance of
Hurricane Sally—albeit unsuccessfully. That petition having been denied, and that action having
20
been dismissed, Plaintiff brings this action to recover the full measure of his own economic
damages.
69. Central to this matter is the requirement within various iterations of Skanska’s Plans
that Skanska move barges and cranes to safe harbor prior to the effects of tropical weather systems
reaching the Pensacola Bay Bridge Project Site—which is known as “demobilization.” Skanska’s
obligation to demobilize its barges and cranes to safe harbor has been set forth in Condition Three
of the Plan. From 2017 to the present, Condition Three has been triggered upon “sustained winds
of 50 knots 58 miles per hour or greater expected within 72 hours or three days.”
70. Prior to Hurricane Sally, Skanska began its demobilization efforts of moving its
crane and material barges before a tropical weather system had even reached the Gulf of Mexico.
Skanska Project Manager Rob Rodgers acknowledged that the Plan did not apply only to
impending hurricanes and agreed that it would be wrong to take the position that the plan has no
application to tropical storms.
71. As set forth fully below, Skanska demobilized and secured its equipment ahead of
prior storm events in conditions far less threatening than what was forecast in the days prior to
Hurricane Sally, including tropical storms and hurricanes in 2017, 2018, 2019, and 2020, despite
the application of an identical Condition Three threshold to move and cranes to safe harbor.
Specifically:
a. For the 2017 hurricane season, Skanska engaged its 2017 Plan and demobilized its
barges and cranes for three storms: Hurricane Harvey, Hurricane Irma, and
Hurricane Nate;
b. For the 2018 hurricane season, Skanska engaged its 2018 Plan and demobilized its
barges and cranes under Condition Three for three storms: Subtropical Storm
Alberto, Tropical Storm Gordon, and Hurricane Michael;
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c. For the 2019 hurricane season, Skanska engaged its 2019 Plan and demobilized its
barges and cranes under Condition Three for three storms: Hurricane Dorian,
Tropical Storm Nestor, and Tropical Storm Olga; and
d. For the 2020 hurricane season, Skanska engaged its 2020 Plan and demobilized its
barges and cranes under Condition Three for Tropical Storm Cristobal and the
storm system that would become Hurricane Marco.
2017 Hurricane Season and Plan
72. During the 2017 hurricane season, Skanska distributed its “General Hurricane
Preparedness Guidelines” to several employed leaders of the Project, including Project Manager
Daniel Francis, Project Director Tom Fulton, and General Superintendent Pat McGlynn, which
included the following guidance:
According to experts, forecasters only have a 10% chance of accurately predicting
where a storm will hit 72 hours in advance. They have a 74% chance within 24
hours. Just because your project is not in the storm’s projected path does not mean
that it could change course, therefore projects near but outside of the storm’s
predicted path need to take precautions regardless.
73. Prior to Hurricane Sally, Skanska seemingly heeded its own Plan, often
demobilizing its barges and cranes before a tropical weather system even reached the Gulf of
Mexico, much less situating the project site within a watch or warning. In fact, Skanska engaged
its 2017 Plan and demobilized its barges and cranes for three storms during the 2017 Hurricane
Season: Hurricane Harvey, Hurricane Irma, and Hurricane Nate.
74. For Hurricane Harvey, Skanska engaged its Plan and began to demobilize its fleet
of barges and cranes under Condition Three on August 25, 2017. At this time, the project site was
not under a watch or warning, nor was it within the probable path of the storm.
75. Similarly, on September 7, 2017, Skanska engaged its Plan and began demobilizing
22
under Condition Three for Hurricane Irma. At that time, the project site was not under a watch or
warning, and it was not within the path of a probable storm. In fact, Hurricane Irma was between
Puerto Rico and the Dominican Republic at the time Skanska took action to demobilize its barges
and cranes to safe harbor.
76. On October 4, 2017, Skanska initiated its 2017 Plan in anticipation of Hurricane
Nate, demobilizing its cranes and barges under Condition Three on October 4 and 5, 2017. At this
time, the project site was not within a watch or a warning but was within the potential Day 4-5
track area.
77. Shortly after, on October 6, 2017, Bill Klepac, an engineer with Eisman & Russo,
directed Skanska to create 1-2 contingency plans in the event of a scenario in which there was not
enough time to fully demobilize to East Bay. He wrote emailed Skanska’s project manager, Daniel
Francis, recommending that:
Skanska’s plan should be modified to include one or more contingent plans to allow
for scenarios in which there is insufficient time to fully implement mass evacuation
of material and crane barges to East Bay.
78. It was the rapid development of Hurricane Nate that led to the decision to move
barges to Butcherpen Cove in place of East Bay.
2018 Hurricane Season and Plan
79. Skanska’s 2018 Plan provided greater detail for the 2018 hurricane season. The
Plan, prepared by Michelle Brown and dated June 13, 2018, maintained all of the requirements
from the 2017 Plan pertaining to “Condition Three.” The hurricane location for barges continued
to be East Bay, and the time to demobilize to East Bay continued to be a minimum of 30 hours
(for 40 barges). In addition to the hurricane location of East Bay, the 2018 Plan added a
contingency—Option B “for short term moves for short notice storms.” The 2018 plan further
contained detailed descriptions, along with visual depictions under Option A and Option B, for the
23
placement of marine equipment. In fact, in Skanska’s 2018 Marine Management Plan for the
Pensacola Bay Bridge, safe harbor was required to be identified in the Plan.
80. For the 2018 hurricane season, Skanska engaged its 2018 Plan and demobilized its
barges and cranes under Condition Three for three storms: Subtropical Storm Alberto, Tropical
Storm Gordon, and Hurricane Michael.
81. On May 25, 2018, Skanska activated its Plan in anticipation of a subtropical
depression that would become Tropical Storm Alberto. On that day, the subtropical depression
was off the Yucatan peninsula and the site was under a tropical storm watch.
82. On Monday, September 3, 2018, Skanska began to demobilize marine equipment
to protected waters ahead of the storm system that would form into Tropical Storm Gordon. Over
the course of that day, Tropical Storm Gordon crossed the Florida Keys and entered the Gulf of
Mexico. According to Skanska’s Storm Summary, Skanska completed its preparations on
Tuesday, September 4, 2018. At the time Skanska engaged the Plan and demobilized under
Condition Three for Tropical Storm Gordon, the project site was not in the path of the cone, and
no warnings or watches were in place.
83. October 8, 2018, Skanska decided to demobilize for the storm that would become
Hurricane Michael. Even by the next day, on Monday, October 9, 2018, the project site was still
not under a watch or a warning but was within the four- to five-day probable path of a tropical
storm. Skanska demobilized its barge fleet to both Butcherpen Cove and Bayou Chico.
2019 Hurricane Season and Plan
84. The detail and thoroughness contained in Skanska’s 2016, 2017, and 2018
hurricane plans drastically changed in 2019. Given that hurricane season begins each year on June
1, Skanska had been working on the Project for nearly three months without a hurricane plan for
the 2019 hurricane season.
24
85. Skanska began demobilizing for Hurricane Dorian on August 28, 2019, without a
hurricane plan. The task of preparing the 2019 Plan fell to a newly-hired field engineer, Sarah
Stephens. Ms. Stephens, by her own admission, had no qualifications for drafting a Plan.
86. Rather than relying on the 2018 Plan (which contained detailed descriptions of
multiple options for safe harbor/hurricane locations), Ms. Stephens copied large portions of
another hurricane plan for a land-based Skanska project in Orlando, Florida a
Preview
Filing # 181597394 E-Filed 09/12/2023 10:28:42 AM IN THE FIRST JUDICIAL CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA JOHNNIE BLOCKER, Plaintiff, v. Case No. __________ SKANSKA USA CIVIL SOUTHEAST, INC. and SKANSKA USA, INC., DEMAND FOR JURY TRIAL Defendants. _____________________________________/ COMPLAINT COMES NOW Plaintiff, JOHNNIE BLOCKER, (“Plaintiff”) and files his Complaint against Defendants, SKANSKA USA CIVIL SOUTHEAST, INC. and SKANSKA USA, INC. (hereinafter collectively “Skanska”) 1 for damages resulting from the closure of the Pensacola Bay Bridge. Specifically, Plaintiff alleges: INTRODUCTION 1. This is a lawsuit brought on behalf of Plaintiff, whose business was, and continues to be for the foreseeable future, impacted by Skanska’s negligence in failing to remove and/or secure its barges prior to Hurricane Sally. At all material times, Skanska knew or should have known that failing to secure or move its barges from Pensacola Bay before Hurricane Sally made 1 For purposes of this Complaint and the counts enumerated herein, in the interest of judicial efficiency, Defendants Skanska USA, Inc. and Skanska USA Civil Southeast, Inc. will be referred to as one entity—“Skanska”—as the conduct alleged in this Complaint applies equally and identically to both entities. landfall on September 16, 2020 posed an unreasonable risk of damage and destruction to the Pensacola Bay Bridge (“the bridge”), 2 the water and ecosystem of Pensacola Bay, and the surrounding properties of both the cities and citizens of Pensacola and Gulf Breeze. 2. Plaintiff seeks recovery for all damages recoverable under applicable law, including economic damages, including but not limited to loss of revenue, loss of business value, and incidental expenses he otherwise would not have incurred. The damages sought in this complaint do not involve economic losses from product liability. Plaintiff also seeks attorney’s fees and costs and all other relief allowable under applicable law. PARTIES, JURISDICTION, AND VENUE 3. Plaintiff Johnnie Blocker is an independent contractor who delivers goods for Hackbarth Delivery Service Inc. Mr. Blocker operates out of his home, located at 226 Edison Drive, Pensacola, FL 32505 in Escambia County. 4. Defendant Skanska USA Civil Southeast Inc. (“Skanska Southeast”) is headquartered at 295 Bendix Rd., Suite 400, Virginia Beach, VA 23452, with its principal place of business located at 2600 Maitland Center Parkway, Suite 250, Maitland, Florida 32751. It is registered to do business in the State of Florida, and it is registered agent is located at Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 32301. 5. At all times material hereto, Defendant Skanska USA, Inc. (“Skanska USA”) has owned 100% of stock of Skanska USA Civil, Inc., which, in turn, owns 100% of the stock of Skanska Southeast. Skanska USA, Inc. has its principal place of business at 350 Fifth Avenue, 32nd Floor, New York, New York, 10118. It is registered to do business in the State of Florida, 2 In June 2020, Florida Governor DeSantis signed into law a bill renaming the new Pensacola Bay Bridge the General Daniel “Chappie” James, Jr. Bridge. For purposes of continuity with the evidence presented and briefing throughout the pendency of this litigation, Plaintiffs refer to the bridge throughout this Complaint as the Pensacola Bay Bridge. 2 and it is registered agent is located at Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 32301. 6. This Court has personal jurisdiction over Defendants under §48.193, Florida Statutes. Skanska regularly conducts business within the state of Florida, and it is engaged in— and has been engaged for many years in—substantial activity within the state of Florida; Defendant, Skanska designed and built the $398.5 million3 Pensacola Bay Bridge connecting Pensacola to Gulf Breeze. 7. Additionally, the Florida Department of Transportation (“FDOT”) has awarded Skanska other construction contracts throughout the state of Florida, and Skanska has financially benefitted from such contracts. For example, in 2005 Skanska was awarded a $242.7 million contract to repair the Escambia Bay Bridge after Hurricane Ivan. Skanska was also awarded a $25 million contract to construct the 17th Avenue Interchange adjacent to the Pensacola Bay Bridge. Thus, Skanska has personally availed itself of the laws and benefits of the state of Florida, and it could reasonably anticipate being sued in Florida courts. 8. Skanska has such continuous and systematic contacts in Florida so as to render it “at home.” As of November 3, 2020, Skanska had three active construction contracts with FDOT. 4 Skanska has numerous offices within the state of Florida, and Florida is one of its largest markets. For instance, in 2014 alone, Skanska had revenues of $645 million—just in Florida—out of its $7.3 billion total revenue that year. 5 Furthermore, Skanska USA, Inc. owns Skanska USA Civil, Inc. which maintains Florida-based headquarters. 3 As briefly discussed below, this number has substantially increased over the course of four years to now total approximately $458,745,149.00. As of November 3, 2020, Skanska had already been paid approximately $353,787,909. Design-Build Contracts, located at https://fdotwp1.dot.state.fl.us/ibi_apps/WFServlet?IBIF_ex=designbuildstatus fex&IBIAPP_app=construction. 4 Id. 5 Joseph A. Mann, Jr., Skanska carrying out over 30 projects statewide, MIAMI HERALD (June 12, 2015, 6:08 p m.), https://www.miamiherald.com/news/business/biz-monday/article23875768 html. 3 9. The damages sought in this lawsuit exceed fifty thousand dollars ($50,000.00) exclusive of interest and costs. 10. Plaintiff, Johnnie Blocker has been delivering items to and from businesses located in the Pensacola metropolitan area since 2006. Plaintiff suffered damages as a result of the closure of the Pensacola Bay Bridge. In particular loss of revenue, and incidental expenses he otherwise would not have incurred. 11. Florida law applies to this case. Under Florida’s “significant relationship test,” courts apply the tort law of the state that has the most significant relationship to the cause of action. In this case, the cause of action arose in, and Plaintiff is a citizen of, the state of Florida. Skanska’s conduct at the center of Plaintiff’s cause of action relates to the construction of a new bridge and the destruction of an existing bridge comprising the central transportation artery and hurricane route for the Pensacola, Florida region that was built pursuant to a contract between a Florida- based construction firm and a State of Florida agency. 12. Moreover, Defendants may not attempt to remove this case on the basis of admiralty jurisdiction. Not only is this case not governed by admiralty jurisdiction, but, in the Eleventh Circuit, “if [a] plaintiff elects to file a case in state court, that case may not be removed to federal court solely on the basis of admiralty jurisdiction.” DeRoy v. Carnival Corp., 963 F.3d 1302, 1314 (11th Cir. 2020) (citation omitted); see Armstrong v. Ala. Power Co., 667 F.2d 1385, 1388 (11th Cir. 1982) (“[A] federal district court should not accept the removal of a saving clause case solely because of its general maritime nature: the maritime nature simply does not provide a ground for federal jurisdiction.”) (emphasis added); Pierce v. Parker Towing Co., Inc., 25 F. Supp. 3d 1372, 1380 (S.D. Ala. 2014) (“[T]here is no jurisdiction in [the Eleventh Circuit], based solely on § 1333, of in personam claims seeking common law remedies. Thus, where the common law is competent to provide a remedy, as with in personam maritime claims filed in state court, a 4 plaintiff may elect to pursue his common law remedies and the case cannot be removed based on § 1333.”). 13. Pursuant to Section 47.051, Florida Statutes, venue is proper in this Court because the cause of action accrued in Escambia County, Florida. RES JUDICATA 14. Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided by a final adjudication on the merits. Anderson v. Vanguard Car Rental USA Inc., 60 So. 3d 570 (Fla. 4th DCA 2011); W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79 (Fla. 4th DCA 2010). Res judicata bars issues raised and which could have been raised. Florida Dept. of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001). 15. Under the doctrine of res judicata, a final judgment issued by a court of competent jurisdiction bars a subsequent suit between the same parties based upon the same cause of action. Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010) (construing Florida law); Felder v. State, Dept. of Management Services, Div. of Retirement, 993 So. 2d 1031 (Fla. 1st DCA 2008). Even if the causes of action are not identical, a point that was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot again be drawn in question in any future action between the same parties or their privies. In re Senate Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d 872 (Fla. 2012). 16. Res judicata applies to this action and the issues decided by Senior District Judge Lacey A. Collier in the United States District Court for the Northern District of Florida, and affirmed by the Eleventh Circuit, in his Order and Final Judgment in the Limitation of Liability. Such issues, including negligence and spoliation of evidence, cannot be re-litigated. Skanska filed 27 Limitation of Liability Act petitions, beginning with In Re Skanska USA Civil Southeast Inc. 5 and Skanska USA, Inc., as Owners of the Barge KS-5531 Praying for Exoneration from or Limitation of Liability, 3:20-cv-5980, which was consolidated with 26 related Limitation of Liability Actions. One petition was filed for each Skanska-owned construction platform (barge) that broke loose and struck property or objects in the Pensacola area during Hurricane Sally. In a Limitation of Liability action, liability is only established where the vessel owner’s negligent acts were “a contributory and proximate cause of the accident.” Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1566 (citing Board of Comm’rs of the Port of New Orleans v. M/V Farmsum, 574 F.2d 289, 297 (5th Cir.1978)). 17. Throughout the pendency of the Limitation of Liability Action, the parties, including Plaintiff (there in the role of “Claimants”) and Skanska, engaged in substantial—albeit expedited—discovery relating to Skanska’s liability in relation to the damages caused by its barge fleet breaking free from mooring sites alongside the Pensacola Bay Bridge. Additionally, the parties engaged in considerable motion practice, including competing dispositive motions. 18. Following a bench trial before Judge Collier, held from October 18 through October 22, 2021, Judge Collier entered an Order and Final Judgement on December 29, 2021. Ex. 1, In re Skanska USA Civ. Se. Inc., 577 F. Supp. 3d 1302 (N.D. Fla. 2021), aff'd sub nom. Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., No. 21-13850, 2023 WL 4917108 (11th Cir. Aug. 2, 2023) (3:20cv5980/LAC/HTC, Doc. 1352). Specifically, Judge Collier found that “Skanska is not entitled to any relief under the Limitation Action,” as Skanska was found to be negligent in its efforts to prepare for Hurricane Sally. Id. at 1308. The issue of Skanska’s negligence has been established by a court of competent jurisdiction and order the doctrine of res judicata cannot be re- litigated as part of this action. 19. Judge Collier’s Final Order was based on a presentation of the claimants’ trial- admitted evidence that included the facts set forth below in Plaintiff’s Factual Background, which 6 is largely taken from the claimants’ post-trial brief that was comprised solely of trial-admitted evidence. Accordingly, pursuant to the doctrine of res judicata as interpreted by Florida courts, Skanska is barred from re-litigating that its negligent acts were “a contributory and proximate cause of the accident,” as this issue as fully litigated in the Limitation of Liability Action before Judge Collier. See id. at 1313. 20. The findings of fact and conclusions of law included in Judge Collier’s Final Order establish, undeniably, that Skanska exhibited negligence and acted unreasonably in moving its barges to pilings off the Pensacola Bay Bridge rather than mooring the barges at the designated “safe harbor” locations set forth in the Hurricane Preparedness Plan (hereinafter, the “Plan”) in place at the time of Hurricane Sally. As Judge Collier found in consideration of the evidence presented at trial: As the piling stations evidently were not designed not (sic) for anything resembling a safe harbor, the “verbal plan” had little to recommend it in the face of an approaching tropical system. It is therefore clear to the Court that Butcherpen Cove was a far superior location for the barges, and the failure to utilize it, absent any other excuse, constitutes negligence. Id. at p. 1317. 21. Judge Collier rejected Skanska’s claim that Hurricane Sally caught it by surprise. As he explained: In fact, as is shown by the entirety of the NHC advisories from Friday afternoon to Wednesday morning when Hurricane Sally made landfall, the Pensacola Bay area was at all times either in the cone of the storm’s predicted path or was under a watch or warning for tropical storm winds or greater. On this basis alone, the Court would reject Skanska’s argument that it was caught off guard by the fact that Hurricane Sally strongly impacted Pensacola. While Pensacola may not have been the most likely recipient of a direct strike during the 7 time Skanska made its decision, the threat of tropical force winds remained a distinct possibility. It is difficult to accept Skanska’s expression of surprise over the turn of events when at the time the Pensacola Bay area was under a tropical storm warning and a hurricane watch. Id. at 1315-16. 22. In the prior Federal litigation and trial, Skanska made only a perfunctory attempt to disclaim privity or knowledge of its executives as to the negligence of defendants. The Court described that effort and the outcome: Here, Skanska’s claim of lack of privity or knowledge is perfunctory, based apparently on its claim that negligence did not lie with the decisions Skanska made with regard to the hurricane and that therefore any negligence that would have occurred was at the hands of the crew that carried out its orders. But, as has been seen, Skanska was indeed found negligent, and that negligence sprung wholly from executive decision-making that resulted in the failure to take reasonable measures to protect its barges from the impending storm. Because Skanska obviously cannot establish any lack of privity or knowledge, it is unable to limit its liability to the value of its barges under the Limitation Act. Id. at 1234. 23. The Eleventh Circuit affirmed the District Court’s decision on privity and knowledge, noting: After all, the decision not to move the barges to safety was made by Skanska executives, and when a corporation owns a vessel, “the privity and knowledge of corporate managers vested with discretionary authority is attributed to the corporation.” Ex. 2 at *9 (quoting Suzuki of Orange Park Inc. v. Shubert, 86 F.3d 1060 at 1065 (11th Cir. 1996) (internal quotation omitted). 24. As Judge Collier explained, Skanska’s “executives tried to get by with doing less, and that gambit backfired.” Id. at 36. He concludes by stating that: In this case, Skanska’s own negligence in its failure to take reasonable precautions prevents it from successfully proving a vis major defense. As was earlier discussed in detail, Skanska had available an offsite location for its barges, Butcherpen Cove, 8 that would have been significantly more protective, and Skanska’s attempts to convince the Court that Butcherpen Cove would not have kept the boats secure are unavailing. Skanska received ample warning about Hurricane Sally’s approach, and thus its negligence is – at the least – a contributing factor to the damages caused by its barges. Skanska therefore fails to show that Hurricane Sally constituted a vis major force that inevitably caused the damages brought by the escape of its barges no matter what precautions it might have taken. Id. at 38. FACTUAL BACKGROUND The Pensacola Bay Bridge Replacement Project (the “Project”) 25. This action concerns the Pensacola Bay Bridge, a critical artery connecting Pensacola to its beaches and the City of Gulf Breeze. As the United States Court of Appeals for the Eleventh Circuit described: Pensacola is a city in the westernmost part of the Florida panhandle. It is known for its access to beaches, which attract both locals and tourists from across the country. But Pensacola Bay separates the actual city of Pensacola from the area’s major beaches (and from several smaller towns such as Gulf Breeze). Pensacola remains connected to its beaches thanks to the Pensacola Bay Bridge—a roughly three-mile bridge across the Bay that has existed in some form since the 1930s. 6 26. Skanska entered into a contract with the Florida Department of Transportation (“FDOT”) in 2016 to replace the Pensacola Bay Bridge (also known as the “Three Mile Bridge”), which consists of two separate bridge spans standing side by side. 27. FDOT oversees, among other things, the construction of roads and bridges in the State of Florida. 28. United States Route 98 (US 98), the longest U.S. road in Florida, is an east-west U.S. highway that was originally established in 1933 as a route between Pensacola and 6 Ex. 3, Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., No. 21-13850, 2023 WL 4917108 at *2 (11th Cir. Aug. 2, 2023) (Opinion of the Court on Appeal from the United States District Court for the Northern District of Florida, 3:20-CV- 05980-LC/HTC, Doc. No. 88-1) 9 Apalachicola, Florida. Since 1933, it has been extended significantly. At the time of these events, US 98 extended from Meadville, Mississippi in the west, to Palm Beach, Florida in the east. The overwhelming majority of the 964-mile-long US 98 is built on dry land. 29. Approximately three miles of US 98 (concurrently known as State Road 289) traverses Pensacola Bay between Bayfront Parkway in Pensacola, Florida and Fairpoint Peninsula in Gulf Breeze, Florida. US 98 is the sole, direct connection for traffic between the cities of Pensacola and Gulf Breeze. 30. Before 1931, there was no bridge connecting Pensacola and Gulf Breeze. The original three-mile Thomas A. Johnson Bridge, a narrow, two-lane structure, was opened on June 13, 1931. This bridge was replaced by the Sen. Phillip D. Beall, Sr., Bridge, a single, wider, four lane structure on October 31, 1960, which carried four lanes of US 98 motor vehicle traffic across Pensacola Bay for six decades. 31. At the time of these events, Skanska was engaged in a construction project to replace the Pensacola Bay Bridge (also colloquially referred to as the “Three-Mile Bridge”). The Project was intended to be undertaken in a manner that would maintain the free flow of motor vehicle, pedestrian and bicycle traffic between Pensacola and Gulf Breeze throughout the construction of the new bridge. At the time of Hurricane Sally, Skanska had opened a new, single span containing four lanes of two-way motor vehicle traffic and one pedestrian/bicycle path and had undertaken the demolition of the sixty-year-old Beall bridge. Therefore, all direct traffic between Pensacola and Gulf Breeze became dependent upon this newly built span. Skanska along with the State of Florida went to lengths to make the region, including Plaintiff, aware of the plan to maintain four lanes of traffic throughout the project’s life cycle. Accordingly, Plaintiff, along with the region, relied on this representation and expected that Skanska would follow through with its obligation to maintain the open flow of traffic connecting these landmasses. 10 32. As the design-build general contractor that bid on FDOT’s contract for the replacement of the Pensacola Bay Bridge, Skanska necessarily understood the importance and necessity of the Pensacola Bay Bridge to Plaintiff—as well as all other business owners, sole proprietors, and wage earners—whose livelihoods remain dependent on the free flow of traffic traversing this central economic artery. 33. On July 29, 2016, Skanska was awarded the construction contract by FDOT to build and design the new bridge over Pensacola Bay. 34. Skanska began construction on the bridge project on or about September 19, 2016. The project site was not limited to the portion of the Pensacola Bay Bridge over the bay. In fact, the project site traversed over land across portions of Gregory Street, Bayfront Parkway, and 17th Avenue in Pensacola as well as Gulf Breeze Parkway in Gulf Breeze. 35. FDOT entrusted Skanska with every aspect of this project. As set forth in the Design Build Specifications, published on March 8, 2016, pg. 74-75, Skanska, as the contractor, agreed to take charge and custody of the work, and take every necessary precaution against damage to the work, by the action of the elements or from any other cause whatsoever, until the Department’s final acceptance of the work. 36. Skanska expressly agreed to rebuild, repair, restore, and make good, all damage to any portion of the work occasioned by any of the above causes before final acceptance of the Contract. 37. Skanska also expressly agreed to: . . . provide all safeguards, safety devices, and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 11 See Executed FDOT Contract at pg. 76, ex. 4 to Claimants’ Reply in Support of Motion to Dismiss, [Doc. 51-5, p. 77]. By expressly agreeing to these provisions, Skanska acknowledged that it owed a duty to the public, including Plaintiff. 38. In or around September 2019, Skanska completed the western (“southbound”) segment of the bridge project and two lanes of traffic were able to freely move across the bridge heading both north and south by sharing this segment. 39. Upon completion and activation of the western segment in a temporary two-way configuration, Skanska began demolishing the existing, and up until that instant, operational, Pensacola Bay Bridge in order to build the new eastern (“northbound”) segment. 40. To facilitate demolishing the old bridge and building the eastern (“northbound”) segment of the bridge, Skanska utilized multiple construction barges as floating work platforms to support construction and demolition activities and to hold equipment and materials for construction. 41. The construction barges were used solely for the purpose of demolishing and constructing the bridge, and their use bears no relationship to traditional maritime activity. The barges were unpowered and un-crewed and used solely for construction-related purposes. 42. Following the destruction of the Pensacola Bay Bridge, an FDOT engineer confirmed that the destruction was “the result of barges from an active construction project.” See Sept. 17, 2020 Email from FDOT to Project CEI, ex. 1 to Claimants’ Reply in Support of Motion to Dismiss. [Doc. 51-2, pg. 2-3.] 43. Skanska owned or leased their unpowered and un-crewed construction barges for construction-related purposes on the Pensacola Bay Bridge and was in exclusive control of all of the barges employed at the site. 44. The Final Request for Proposal, at p. 63, from FDOT required the Design-Build 12 Firm, here Skanska, to submit an Incident Management Plan that included “emergency preparedness and recovery plans as well as traffic management and evacuation due to hurricanes, tropical storms, fires, winter/ice system and other events.” 45. Skanska prepared an incident management plan required by FDOT that was specific to tropical weather systems, like the one that became Hurricane Sally, which Skanska titled “Hurricane Preparedness Work Plan.” [Doc. 16-1, pp. 2-16.] 46. The Plan included provisions relating to the use, mobilization, and demobilization -of the construction barges. As set forth fully below, in the event of tropical weather conditions, the Plan required Skanska personnel to secure the project site, including the Pensacola Bay Bridge, and secure all marine based equipment, including the construction barges, to safe harbor. The Plan applied project-wide, including to portions of the worksite over land. 47. As Claimant maritime construction expert witness Captain Richard DiNapoli testified: As I read it, the [underlying design-build] contract established a contractual obligation to prepare - - to develop, submit, and implement a plan for evacuation of barges in a number of instances, but including tropical storms and hurricanes. 7 48. The Plan set forth four conditions, each of which required Skanska personnel to take different actions to in the event of a tropical weather system. As Hurricane Sally approached ahead of its September 16, 2020 landfall, Condition Three became the applicable condition. Under Condition Three (which is specified as sustained winds of 50 knots or 58 mph or greater expected within 72 hours/3 days), Skanska was to cease all routine activities which might interfere with securing operations, commence securing and stow all gear and portable equipment, begin to secure 7 Trial Trans., Direct of Capt. DiNapoli at 36:25-37:3 (Oct. 22, 2021). 13 any cranes on site, and move all construction barge mounted cranes and material barges to the East Bay. 49. As discussed more fully below, no part of the Plan called for the construction barges to be secured near the construction site. Skanska’s actions placed it in express violation of its contractual obligations. 50. As Hurricane Sally approached Pensacola, Skanska failed to follow this Plan, choosing instead to continue working as late as Monday, September 14, 2020. 51. Despite clear warnings about the coming storm, Skanska kept its construction barges on site during this time to continue the bridge construction work. Skanska made the decision not to secure its barges despite the requirements of the Plan to do so. As a result, the Pensacola Bay Bridge, the Escambia Fishing Pier, and various surrounding public and private properties were damaged by the barges. 52. When Skanska General Superintendent Patrick McGlynn was asked under oath if Skanska complied with its own Plan in preparation for Hurricane Sally, Mr. McGlynn testified: “Absolutely not.” 8 He further testified that the damage caused by Skanska’s barges was “definitely avoidable,” and he hoped Skanska would have learned from Hurricane Sally “to follow work plans, to follow policy, to follow – doing it right.” The same day as Hurricane Sally’s landfall, Mr. McGlynn texted his fellow General Superintendent Ronnie Benton: “I have seen the massive fuck ups we are going to have to deal with.”9 When asked why he was surprised to find that Skanska had not demobilized its barges prior to Sunday, September 13, Mr. McGlynn testified: [W]e’ve done it before prior to this hurricane, and it’s just what we do. It’s what we – we’ve always done any time a hurricane, tropical storm threat; find safe harbor. 10 8 McGlynn Depo. at 19:12-15, 19:20. 9 S:723; Benton Cross Exam, October 20, 2021, at 172: 8-19. 10 Fulton Depo. at 23:5-23:7, 23:11-23:23. 14 53. United States Coast Guard Captain of the Port, LaDonn Allen, serves as the Sector Commander and Captain of the Port for the Mobile Sector that includes Pensacola Bay and the Project Site. 11 Capt. Allen explained that the Coast Guard “couldn’t get in touch with [Skanska] after the hurricane. Quite often, communications were very poor. We tried to contact them with no success. . . .” 12 As. Capt. Allen continued: I would have had concern had I known about [Skanska] and had I known what they were going to do. Had I known they did not seek safe shelter, and had I known that they would not be prudent in listening to my direction, then I would have been very concerned, yes. 13 [...] And had I known that they would not seek shelter, I probably would have issued a Captain of the Port order. 14 54. Any reasonable design-build firm in Skanska’s shoes would have foreseen the consequences of a Pensacola Bay Bridge outage if the Plan was not followed. 55. Design-build general contractors, including Skanska, must rely on data relating to the region’s economic and anticipated growth in order to design and build a roadway project that will accommodate present and future needs. To this end, FDOT commissioned numerous studies, such as Project Development and Environmental (“PD&E”) studies, to provide the design-build firm guidance to improve traffic safety, emergency evacuation efficiency, accommodate future traffic density while minimizing impact on the surrounding environment. Skanska relied on these studies when designing and building the Pensacola Bay Bridge. 56. Design-build firms, such as Skanska, must rely upon historical and projected traffic density and volume data in order to prepare for and construct a roadway sufficient for the 11 Capt. Allen Direct Exam, October 22, 2021, at 224:1-12. 12 Capt. Allen Direct Exam, October 22, 2021, at 247:7-21. 13 Capt. Allen Direct Exam, October 22, 2021, at 239:2-6. 14 Capt. Allen Direct Exam, October 22, 2021, at 245:22-24. 15 surrounding community’s needs. This includes the annual average daily traffic (“AADT”) for the Pensacola Bay Bridge, which, as of 2011, was approximately 55,000 vehicles. See FLORIDA DEP’T OF TRANSP., PENSACOLA BAY BRIDGE REPLACEMENT PD&E STUDY, at 3-1 (July 18, 2011), https://www.santarosa.fl.gov/DocumentCenter/View/268/Pensacola-Bay-Bridge- --Project-Development-and-Environment-PDE-PDF. Skanska relied upon this data set when designing and building the bridge. 57. Skanska, as a design-build firm, relies on diverse data sets beyond traffic data to design and build a bridge that fits a community’s needs. FDOT also provided Skanska with “socioeconomic data, historical population data, and local sources such as the Chambers of Commerce or Economic Development Council Information,” which included: • Historical Escambia Population Data • Historical Santa Rosa Population Data • Pensacola Bay Bridge Historical Traffic Data • US 98 east of Gulf Breeze Historical Traffic Data. FDOT also provided Skanska with “Socioeconomic (SE) Data Development” to identify the “Pensacola Bay Bridge area of influence” within the Pensacola Bay Bridge PD&E Report, which accounts not only for population growth but also employment growth. Id. at 4-6 (graphic provided below). Skanska relied upon this data set as well when designing and building the bridge. 16 58. Skanska further understood that the project was undertaken because the existing bridge that needed replacement was recognized as a “critical link for commuters and freight transportation.” Pensacola Bay Bridge PD&E Study at 4. Skanska knew early on that should the bridge become unavailable, “the nearest detour route around the bridge would add approximately 27 miles to the trip length.” Id. Skanska’s negligence forced Plaintiff and Plaintiff’s customers to use this detour regularly during to the bridge’s prolonged closure after Hurricane Sally. 59. Skanska understood that closure of the Pensacola Bay Bridge would separate employers from employees and business owners from customers. Skanska also understood that Escambia County is uniquely vulnerable to the closure of the region’s central commerce artery. The Pensacola Bay Bridge closure not only restricts Gulf Breeze and Pensacola Beach customers from easily reaching Pensacola businesses but also restricts Pensacola customers from easily reaching Gulf Breeze and Pensacola Beach businesses. Skanska understood that the Escambia County economy was uniquely dependent on regular two-way traffic on US 98 through Gulf Breeze to Pensacola, Pensacola Beach, Navarre, and points beyond. 17 60. FDOT underscored to Skanska the importance of the bridge to the region by including a $35,000 a day penalty in the design-build contract to apply upon the closure of any one of the bridge’s four lanes. See ex. D to Claimants’ Motion to Dismiss, Letter from FDOT to Skanska (Oct. 22, 2020). FDOT, together with the region, including Plaintiff, relied on Skanska to fulfill its obligation to ensure the bridge remained open to traffic. 61. A reasonable design-build firm would also understand the region’s history, including that on January 14, 1989 a tug-driven barge knocked out a center span column of the bridge it was contracted to replace, prompting a bridge outage and economic disruption. Bill Kaczor, “Barge Knocks Three-Mile Bridge Out of Commission,” AP, January 14, 1989 at https://apnews.com/article/5ace2bcffd3bdcd9c8376fedb32d1bca. Skanska understood or should have known that a wayward barge would carry far worse devastation in light of the region’s growth over the past 30 years. 62. Finally, the bridge’s closure following its September 2020 destruction came many years after Skanska began work alongside the previous bridge as well as the new southbound span that was fully open prior to Hurricane Sally. For every day since 2016, Skanska was a literal first- hand witness to the traffic that traversed the Bay in either direction. Just like Plaintiff and his customers, Skanska itself used the bridge to travel between the Pensacola and Gulf Breeze landmasses. 63. Again, Skanska fully understood the disruption that would follow an outage severing the central artery connecting Pensacola with Gulf Breeze and Pensacola Beach. Understanding the stakes, Skanska repeatedly asked FDOT to limit its liability across five separate bid questions. 15 15 See ex. 4 to Claimants’ Reply in Support of Motion to Dismiss [Doc. 51-5] at SKAN-PBB-0000070 (Question 13428), SKAN-PBB-0000072 (Question 13434), SKAN-PBB-0000077 (Question 13867), SKAN-PBB-0000085 18 64. Plaintiff’s damages were necessarily foreseeable to Skanska: Skanska had foreseen them enough to try to escape future liability due to any bridge closure. When the state did not agree to limit liability, rather than forego the near $400-million-dollar construction contract, Skanska agreed to the state’s terms with full awareness of what consequences would apply should the bridge close due to its negligence. 65. Under Skanska’s design-build contract with FDOT, Skanska was contractually obligated to “develop, submit, and implement a plan for evaluation of barges in a number of instances, but including tropical storms and hurricanes.” These obligations were expressly set forth in the Request for Proposal that was incorporated into the design-build contract reached with FDOT. In compliance with its contract and with company policy, Skanska submitted one or more hurricane preparedness plans to FDOT during the life of the Project. 66. Judge Collier found that, “the Hurricane Plan is a creature of contract, created pursuant to Skanska’s construction contract with the Florida Department of Transportation.” Ex. 1 at p. 1315. Judge Collier continued: That said, the fundamental goal of the Hurricane Plan is obviously the mitigation of damage during a hurricane, and so while Skanska and the FDOT might have been chiefly concerned with their own interests in the drafting of the Plan, it is fair to assume that those interests in large part would coincide with the interests underpinning this cause of action. Id. Skanska’s Preparation for Tropical Storms Prior to Hurricane Sally Confirmed Its Acceptance of Its Duty and Ability to Prepare for and Prevent Severe Weather Damage. 67. The Pensacola area has been battered by tropical weather since its founding. On September 19, 1559, just weeks after Don Tristan de Luna y Arellano established Pensacola as the (Question 14229), and SKAN-PBB-0000086 (Question 14230). FDOT denied each request. See e.g., id. at SKAN- PBB-0000072 (Question 13434) (“Please place a cap on liquidated damages and overall liability.” “No.”). 19 first European settlement in the continental United States, a hurricane decimated his settlement. Since the advent of named tropical storms and hurricanes, Pensacola has found itself within or affected by the following storms: Baker, Florence, Flossy, Debbie, Irene, Hilda, Ethel, Eloise, Frederic, Elena, Juan, Alberto, Erin, Opal, Danny, Helene, Barry, Hanna, Ivan, Arlene, Dennis, Ida, Cindy, Nate, Gordon, Michael, and Cristobal. Don Tristan de Luna did not have access to modern weather forecasting; Skanska did, yet it chose to ignore it. 461 years after the hurricane that destroyed de Luna’s settlement, and exactly 16 years after Hurricane Ivan, Hurricane Sally brought yet another wave of destruction to Pensacola. However, this time, the destructive forces of the September 16, 2020, Hurricane Sally were exacerbated by the negligence and gross negligence of Skanska. 68. In federal court, Skanska sought exoneration or limitation of its liability for the damages associated with its own corporate negligence and gross negligence in advance of Hurricane Sally—albeit unsuccessfully. That petition having been denied, and that action having 20 been dismissed, Plaintiff brings this action to recover the full measure of his own economic damages. 69. Central to this matter is the requirement within various iterations of Skanska’s Plans that Skanska move barges and cranes to safe harbor prior to the effects of tropical weather systems reaching the Pensacola Bay Bridge Project Site—which is known as “demobilization.” Skanska’s obligation to demobilize its barges and cranes to safe harbor has been set forth in Condition Three of the Plan. From 2017 to the present, Condition Three has been triggered upon “sustained winds of 50 knots 58 miles per hour or greater expected within 72 hours or three days.” 70. Prior to Hurricane Sally, Skanska began its demobilization efforts of moving its crane and material barges before a tropical weather system had even reached the Gulf of Mexico. Skanska Project Manager Rob Rodgers acknowledged that the Plan did not apply only to impending hurricanes and agreed that it would be wrong to take the position that the plan has no application to tropical storms. 71. As set forth fully below, Skanska demobilized and secured its equipment ahead of prior storm events in conditions far less threatening than what was forecast in the days prior to Hurricane Sally, including tropical storms and hurricanes in 2017, 2018, 2019, and 2020, despite the application of an identical Condition Three threshold to move and cranes to safe harbor. Specifically: a. For the 2017 hurricane season, Skanska engaged its 2017 Plan and demobilized its barges and cranes for three storms: Hurricane Harvey, Hurricane Irma, and Hurricane Nate; b. For the 2018 hurricane season, Skanska engaged its 2018 Plan and demobilized its barges and cranes under Condition Three for three storms: Subtropical Storm Alberto, Tropical Storm Gordon, and Hurricane Michael; 21 c. For the 2019 hurricane season, Skanska engaged its 2019 Plan and demobilized its barges and cranes under Condition Three for three storms: Hurricane Dorian, Tropical Storm Nestor, and Tropical Storm Olga; and d. For the 2020 hurricane season, Skanska engaged its 2020 Plan and demobilized its barges and cranes under Condition Three for Tropical Storm Cristobal and the storm system that would become Hurricane Marco. 2017 Hurricane Season and Plan 72. During the 2017 hurricane season, Skanska distributed its “General Hurricane Preparedness Guidelines” to several employed leaders of the Project, including Project Manager Daniel Francis, Project Director Tom Fulton, and General Superintendent Pat McGlynn, which included the following guidance: According to experts, forecasters only have a 10% chance of accurately predicting where a storm will hit 72 hours in advance. They have a 74% chance within 24 hours. Just because your project is not in the storm’s projected path does not mean that it could change course, therefore projects near but outside of the storm’s predicted path need to take precautions regardless. 73. Prior to Hurricane Sally, Skanska seemingly heeded its own Plan, often demobilizing its barges and cranes before a tropical weather system even reached the Gulf of Mexico, much less situating the project site within a watch or warning. In fact, Skanska engaged its 2017 Plan and demobilized its barges and cranes for three storms during the 2017 Hurricane Season: Hurricane Harvey, Hurricane Irma, and Hurricane Nate. 74. For Hurricane Harvey, Skanska engaged its Plan and began to demobilize its fleet of barges and cranes under Condition Three on August 25, 2017. At this time, the project site was not under a watch or warning, nor was it within the probable path of the storm. 75. Similarly, on September 7, 2017, Skanska engaged its Plan and began demobilizing 22 under Condition Three for Hurricane Irma. At that time, the project site was not under a watch or warning, and it was not within the path of a probable storm. In fact, Hurricane Irma was between Puerto Rico and the Dominican Republic at the time Skanska took action to demobilize its barges and cranes to safe harbor. 76. On October 4, 2017, Skanska initiated its 2017 Plan in anticipation of Hurricane Nate, demobilizing its cranes and barges under Condition Three on October 4 and 5, 2017. At this time, the project site was not within a watch or a warning but was within the potential Day 4-5 track area. 77. Shortly after, on October 6, 2017, Bill Klepac, an engineer with Eisman & Russo, directed Skanska to create 1-2 contingency plans in the event of a scenario in which there was not enough time to fully demobilize to East Bay. He wrote emailed Skanska’s project manager, Daniel Francis, recommending that: Skanska’s plan should be modified to include one or more contingent plans to allow for scenarios in which there is insufficient time to fully implement mass evacuation of material and crane barges to East Bay. 78. It was the rapid development of Hurricane Nate that led to the decision to move barges to Butcherpen Cove in place of East Bay. 2018 Hurricane Season and Plan 79. Skanska’s 2018 Plan provided greater detail for the 2018 hurricane season. The Plan, prepared by Michelle Brown and dated June 13, 2018, maintained all of the requirements from the 2017 Plan pertaining to “Condition Three.” The hurricane location for barges continued to be East Bay, and the time to demobilize to East Bay continued to be a minimum of 30 hours (for 40 barges). In addition to the hurricane location of East Bay, the 2018 Plan added a contingency—Option B “for short term moves for short notice storms.” The 2018 plan further contained detailed descriptions, along with visual depictions under Option A and Option B, for the 23 placement of marine equipment. In fact, in Skanska’s 2018 Marine Management Plan for the Pensacola Bay Bridge, safe harbor was required to be identified in the Plan. 80. For the 2018 hurricane season, Skanska engaged its 2018 Plan and demobilized its barges and cranes under Condition Three for three storms: Subtropical Storm Alberto, Tropical Storm Gordon, and Hurricane Michael. 81. On May 25, 2018, Skanska activated its Plan in anticipation of a subtropical depression that would become Tropical Storm Alberto. On that day, the subtropical depression was off the Yucatan peninsula and the site was under a tropical storm watch. 82. On Monday, September 3, 2018, Skanska began to demobilize marine equipment to protected waters ahead of the storm system that would form into Tropical Storm Gordon. Over the course of that day, Tropical Storm Gordon crossed the Florida Keys and entered the Gulf of Mexico. According to Skanska’s Storm Summary, Skanska completed its preparations on Tuesday, September 4, 2018. At the time Skanska engaged the Plan and demobilized under Condition Three for Tropical Storm Gordon, the project site was not in the path of the cone, and no warnings or watches were in place. 83. October 8, 2018, Skanska decided to demobilize for the storm that would become Hurricane Michael. Even by the next day, on Monday, October 9, 2018, the project site was still not under a watch or a warning but was within the four- to five-day probable path of a tropical storm. Skanska demobilized its barge fleet to both Butcherpen Cove and Bayou Chico. 2019 Hurricane Season and Plan 84. The detail and thoroughness contained in Skanska’s 2016, 2017, and 2018 hurricane plans drastically changed in 2019. Given that hurricane season begins each year on June 1, Skanska had been working on the Project for nearly three months without a hurricane plan for the 2019 hurricane season. 24 85. Skanska began demobilizing for Hurricane Dorian on August 28, 2019, without a hurricane plan. The task of preparing the 2019 Plan fell to a newly-hired field engineer, Sarah Stephens. Ms. Stephens, by her own admission, had no qualifications for drafting a Plan. 86. Rather than relying on the 2018 Plan (which contained detailed descriptions of multiple options for safe harbor/hurricane locations), Ms. Stephens copied large portions of another hurricane plan for a land-based Skanska project in Orlando, Florida a