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Filing # 181913244 E-Filed 09/15/2023 01:11:18 PM
IN THE FIRST JUDICIAL CIRCUIT COURT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
RAY ETHERIDGE,
Plaintiff,
v. Case No.
Division:
SKANSKA USA CIVIL SOUTHEAST
INC. AND SKANSKA USA, INC., DEMAND FOR JURY TRIAL
Defendants.
_____________________________________/
COMPLAINT
COMES NOW Plaintiff RAY EITHERIDGE (“Plaintiff”) and files his Complaint against
Defendants SKANSKA USA CIVIL SOUTHEAST, INC. and SKANSKA USA, INC. (hereinafter
collectively “Skanska”) for damages resulting from the Defendants’ failure to secure a barge that
caused direct physical damage to Plaintiff’s property. 1 Specifically, Plaintiff alleges:
INTRODUCTION
1. This is a lawsuit brought on behalf of Plaintiff, whose property and person was, and
continues to be for the foreseeable future, impacted by Defendant 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 landfall on September 16, 2020 posed an unreasonable risk of damage and
1
For purposes of this Complaint and the counts enumerated herein, in the interest of judicial
efficiency, Defendants Skanska USA Civil Southeast, Inc. and Skanska USA Civil, Inc. will be
referred to as one entity—“Skanska”—as the conduct alleged in this Complaint applies equally
and identically to both entities.
destruction to Plaintiff’s property, 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
damage to property and incidental expenses he otherwise would not have incurred. Plaintiff also
seeks attorney’s fees and costs, and all other relief allowable under applicable law.
PARTIES, JURISDICTION, AND VENUE
3. Plaintiff, Ray Etheridge is an Escambia County resident and the owner of a parcel
of land in Escambia County known as Baywind Drive End of 32507.
4. Defendant Skanska USA Civil Southeast Inc. (“Skanska Southeast”) has its
headquarters 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,
and it is registered agent is located at Corporation Service Company, 1201 Hays Street,
Tallahassee, Florida 32301.
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
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 Southeast 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 interests and costs.
10. Plaintiff suffered damages as a result of Defendants’ negligence. In particular,
Plaintiff suffered physical damage to his pier, boardwalk, dock, and garage.
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. Further,
the damage caused by Skanska’s negligence was caused to Plaintiff’s property within 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,
4
Plaintiffs may elect to pursue their 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
5
27 Limitation of Liability Act petitions, beginning with In Re Skanska USA Civil Southeast Inc.
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.
6
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
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
time Skanska made its decision, the threat of tropical force winds remained a
7
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,
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
8
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
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
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
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.
32. On July 29, 2016, Skanska was awarded the construction contract by FDOT to build
10
and design the new bridge over Pensacola Bay.
33. 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.
34. 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.
35. 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.
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.
36. 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.
37. 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.
11
38. 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.
39. 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.
40. 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.]
41. 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.
42. The Final Request for Proposal, at p. 63, from FDOT required the Design-Build
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.”
43. 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.]
44. 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,
12
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.
45. 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
46. 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
any cranes on site, and move all construction barge mounted cranes and material barges to the East
Bay.
47. 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.
48. As Hurricane Sally approached Pensacola, Skanska failed to follow this Plan,
choosing instead to continue working as late as Monday, September 14, 2020.
49. Despite clear warnings about the coming storm, Skanska kept its construction
7
Trial Trans., Direct of Capt. DiNapoli at 36:25-37:3 (Oct. 22, 2021).
13
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.
50. 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
51. 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
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.
11
Capt. Allen Direct Exam, October 22, 2021, at 224:1-12.
12
Capt. Allen Direct Exam, October 22, 2021, at 247:7-21.
14
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
52. Any reasonable design-build firm in Skanska’s shoes would have foreseen the
consequences and potential for the destruction of property by not following the Hurricane
Preparedness Plan.
53. 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 devastation like that experienced by Plaintiff.
54. 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.
55. 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.
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
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.
56. 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
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.
16
57. 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
been dismissed, Plaintiff brings this action to recover the full measure of his own property and
economic damages.
58. Central to this matter is the requirement within various iterations of Skanska’s
Hurricane Preparedness 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.”
59. 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.
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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.
60. 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;
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
61. During the 2017 hurricane season, Skanska distributed its “General Hurricane
Preparedness Guidelines” to several employed leaders of the Project, including Project Manager
18
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.
62. 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 hurricane plan and demobilized its barges and cranes for three storms during the 2017
Hurricane Season: Hurricane Harvey, Hurricane Irma, and Hurricane Nate.
63. For Hurricane Harvey, Skanska engaged its hurricane 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.
64. Similarly, on September 7, 2017, Skanska engaged its hurricane plan and began
demobilizing 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.
65. On October 4, 2017, Skanska initiated its 2017 hurricane 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.
66. Shortly after, on October 6, 2017, Bill Klepac, an engineer with Eisman & Russo,
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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 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.
67. 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
68. 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 hurricane 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
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.
69. For the 2018 hurricane season, Skanska engaged its 2018 hurricane plan and
demobilized its barges and cranes under Condition Three for three storms: Subtropical Storm
Alberto; Tropical Storm Gordon; and Hurricane Michael.
70. On May 25, 2018, Skanska activated its hurricane 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.
71. On Monday, September 3, 2018, Skanska began to demobilize marine equipment
20
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 its hurricane 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.
72. 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
73. 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.
74. Skanska began demobilizing for Hurricane Dorian on August 28, 2019, without a
hurricane plan. The task of preparing the 2019 hurricane plan fell to a newly-hired field engineer,
Sarah Stephens. Ms. Stephens, by her own admission, had no qualifications for drafting a
hurricane preparedness plan.
75. Rather than relying on the 2018 hurricane 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 and deleted most
21
of the detail provided in the 2017 and 2018 plans—including Option A and Option B. 15 According
to Ms. Stephens’ emails and her own testimony, she prepared and finalized (or, as she put it,
“whipped up”) the 2019 Hurricane Plan in the span of one day.
76. Ultimately Ms. Stephens prepared and finalized the 2019 Plan, which included
Butcherpen Cove and Bayou Chico as demobilization anchorages yet retained East Bay as a “safe
harbor” location. Ms. Stephens changed the 2019 Plan to include graphical depictions of Skanska’s
barge placement at Butcherpen Cove, Bayou Chico, and an anchorage just east of Deadman’s
Island on the north side of Gulf Breeze (referred to herein as the “Gulf Breeze Anchorage”). The
text of the 2019 Plan, however, was not changed and continued describe East Bay. The 2019 Plan
not only continued to describe the safe harbor as East Bay, but it also failed to change the distance
to the hurricane location or update the time it would take to accomplish demobilization to these
much closer locations. The 2019 Plan was approved by Skanska’s project management.
77. According to Skanska’s Storm Summary, Skanska halted productive work and
engaged the Hurricane Preparedness Plan on August 28, 2019. Not only was Hurricane Dorian
outside of the Gulf of Mexico at that time, the project site was not in any cone of probability, nor
within any watches or warnings. Skanska began moving rigs to safe mooring on August 29, 2019
and used a third-party towing service the next day. At this time, while Hurricane Dorian had
shifted north of Puerto Rico, the project site was not in any cone of probability, nor within any
watches or warnings.
78. On August 31, 2019, Skanska Project Manager Rob Rodgers circulated a hurricane
plan “revised to show rig placement for Dorian.” This version of Skanska’s plan indicated that
15
See Sarah Stephens Depo. at 53:3-56:19 and 71:16-73:12.
22
Skanska’s barges were demobilized away from the bridge to mooring locations in Butcherpen
Cove (located east of the southern terminus of the Project), the Gulf Breeze Anchorage, and Bayou
Chico.
79. On October 18, 2019, Skanska began storm preparation activities that included
demobilizing its barges ahead of the storm that would become Tropical Storm Nestor. At this
time, the system that would become Tropical Storm Nestor was in the middle of the Gulf and
projected to arrive at or near the project site as a tropical storm.
80. On October 25, 2019, the NWS/NHC issued a Tropical Storm Warning for the area
of the project site for potential Tropical Storm Olga. Skanska began storm preparation activities
on October 25, 2019. The project site was not under a watch or warning or within the cone of
uncertainty at the time Skanska commenced demobilization efforts.
2020 Hurricane Season and Plan
81. For the 2020 hurricane season, Ms. Stephens continued to have responsibility for
preparing Skanska’s hurricane plan. She had a final, approved plan in place and submitted to
FDOT by June 8, 2020—seven days after hurricane season began.
82. Skanska’s 2020 hurricane plan was virtually the same as the 2019 hurricane plan in
all relevant respects except that the visual depictions in the 2020 plan no longer provided an image
of a hurricane location at the Gulf Breeze Anchorage. Like all of the plans for the prior hurricane
seasons, Skanska’s 2020 hurricane plan listed reviewers of the plan. Notably, one of the reviewers
of the 2020 hurricane plan, Catherine Burgess, had not reviewed the plan prior to Hurricane Sally
and was not qualified to review a hurricane plan.
83. The 2020 hurricane plan continued to describe East Bay as the hurricane location
while offering visual depictions of Bayou Chico and Butcherpen Cove—but not East Bay. The
23
2020 hurricane plan included a chart that identified 11 cranes and 40 barges, as well as the time it
took to move each with five tug boats available. However, at the time of Hurricane Sally, there
were at least 55 barges in use at the project site—not 40. Still, pursuant to the text of Skanska’s
2020 hurricane plan, it would take 30 hours at a minimum to demobilize 40 barges. The 2020
hurricane plan was reviewed and approved by Skanska’s project management.
84. On August 21, 2020, Skanska caught an error in the 2020 hurricane plan and
amended it. The amended plan changed the text of the hurricane location for cranes and barges
from East Bay to Butcherpen Cove to match the visual depictions of the barge locations. The text
of the 2020 hurricane plan failed, however, to describe any safe harbor location in Bayou Chico.
85. While the 2020 hurricane plan updated the hurricane location to Butcherpen Cove,
the plan failed to change the distance from the project site to Butcherpen Cove; the plan described
the project site as being 10.6NM from the mouth of Bayou Chico. Pensacola Bay Bridge Project
Director, Tom Fulton, Project Executive and Construction Manager, Tom DeMarco, and General
Superintendent, Rob Rodgers, all agree this distance was erroneous, and that it would take less
time to demobilize equipment from the Bridge to East Bay than to Butcherpen Cove. In reality,
Butcherpen Cove is less than half of the distance to East Bay and is only 4.8NM from the mouth
of Bayou Chico and approximately 2NM from the center of the bridge. The distance to move
barges from the bridge to Butcherpen Cove was approximately a mile and a half and a move to
Butcherpen Cove would take place a lot faster than to East Bay.
86. In addition to not updating the distance to safe harbor in the 2020 hurricane plan,
the plan failed to take into account the shorter amount of time to demobilize barges to safe harbor
in Butcherpen Cove than to East Bay. Likewise, the 2020 hurricane plan failed to adjust the 30-
hourtime frame for 40 barges from the 2017, 2018, and 2019 plans, despite the fact that Skanska
24
was then using at least 55 barge
Preview
Filing # 181913244 E-Filed 09/15/2023 01:11:18 PM IN THE FIRST JUDICIAL CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA RAY ETHERIDGE, Plaintiff, v. Case No. Division: SKANSKA USA CIVIL SOUTHEAST INC. AND SKANSKA USA, INC., DEMAND FOR JURY TRIAL Defendants. _____________________________________/ COMPLAINT COMES NOW Plaintiff RAY EITHERIDGE (“Plaintiff”) and files his Complaint against Defendants SKANSKA USA CIVIL SOUTHEAST, INC. and SKANSKA USA, INC. (hereinafter collectively “Skanska”) for damages resulting from the Defendants’ failure to secure a barge that caused direct physical damage to Plaintiff’s property. 1 Specifically, Plaintiff alleges: INTRODUCTION 1. This is a lawsuit brought on behalf of Plaintiff, whose property and person was, and continues to be for the foreseeable future, impacted by Defendant 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 landfall on September 16, 2020 posed an unreasonable risk of damage and 1 For purposes of this Complaint and the counts enumerated herein, in the interest of judicial efficiency, Defendants Skanska USA Civil Southeast, Inc. and Skanska USA Civil, Inc. will be referred to as one entity—“Skanska”—as the conduct alleged in this Complaint applies equally and identically to both entities. destruction to Plaintiff’s property, 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 damage to property and incidental expenses he otherwise would not have incurred. Plaintiff also seeks attorney’s fees and costs, and all other relief allowable under applicable law. PARTIES, JURISDICTION, AND VENUE 3. Plaintiff, Ray Etheridge is an Escambia County resident and the owner of a parcel of land in Escambia County known as Baywind Drive End of 32507. 4. Defendant Skanska USA Civil Southeast Inc. (“Skanska Southeast”) has its headquarters 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, and it is registered agent is located at Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 32301. 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 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 Southeast 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 interests and costs. 10. Plaintiff suffered damages as a result of Defendants’ negligence. In particular, Plaintiff suffered physical damage to his pier, boardwalk, dock, and garage. 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. Further, the damage caused by Skanska’s negligence was caused to Plaintiff’s property within 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, 4 Plaintiffs may elect to pursue their 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 5 27 Limitation of Liability Act petitions, beginning with In Re Skanska USA Civil Southeast Inc. 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. 6 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 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 time Skanska made its decision, the threat of tropical force winds remained a 7 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, 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 8 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 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 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 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. 32. On July 29, 2016, Skanska was awarded the construction contract by FDOT to build 10 and design the new bridge over Pensacola Bay. 33. 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. 34. 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. 35. 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. 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. 36. 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. 37. 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. 11 38. 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. 39. 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. 40. 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.] 41. 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. 42. The Final Request for Proposal, at p. 63, from FDOT required the Design-Build 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.” 43. 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.] 44. 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, 12 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. 45. 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 46. 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 any cranes on site, and move all construction barge mounted cranes and material barges to the East Bay. 47. 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. 48. As Hurricane Sally approached Pensacola, Skanska failed to follow this Plan, choosing instead to continue working as late as Monday, September 14, 2020. 49. Despite clear warnings about the coming storm, Skanska kept its construction 7 Trial Trans., Direct of Capt. DiNapoli at 36:25-37:3 (Oct. 22, 2021). 13 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. 50. 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 51. 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 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. 11 Capt. Allen Direct Exam, October 22, 2021, at 224:1-12. 12 Capt. Allen Direct Exam, October 22, 2021, at 247:7-21. 14 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 52. Any reasonable design-build firm in Skanska’s shoes would have foreseen the consequences and potential for the destruction of property by not following the Hurricane Preparedness Plan. 53. 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 devastation like that experienced by Plaintiff. 54. 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. 55. 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. 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 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. 56. 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 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. 16 57. 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 been dismissed, Plaintiff brings this action to recover the full measure of his own property and economic damages. 58. Central to this matter is the requirement within various iterations of Skanska’s Hurricane Preparedness 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.” 59. 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. 17 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. 60. 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; 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 61. During the 2017 hurricane season, Skanska distributed its “General Hurricane Preparedness Guidelines” to several employed leaders of the Project, including Project Manager 18 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. 62. 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 hurricane plan and demobilized its barges and cranes for three storms during the 2017 Hurricane Season: Hurricane Harvey, Hurricane Irma, and Hurricane Nate. 63. For Hurricane Harvey, Skanska engaged its hurricane 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. 64. Similarly, on September 7, 2017, Skanska engaged its hurricane plan and began demobilizing 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. 65. On October 4, 2017, Skanska initiated its 2017 hurricane 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. 66. Shortly after, on October 6, 2017, Bill Klepac, an engineer with Eisman & Russo, 19 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 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. 67. 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 68. 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 hurricane 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 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. 69. For the 2018 hurricane season, Skanska engaged its 2018 hurricane plan and demobilized its barges and cranes under Condition Three for three storms: Subtropical Storm Alberto; Tropical Storm Gordon; and Hurricane Michael. 70. On May 25, 2018, Skanska activated its hurricane 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. 71. On Monday, September 3, 2018, Skanska began to demobilize marine equipment 20 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 its hurricane 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. 72. 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 73. 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. 74. Skanska began demobilizing for Hurricane Dorian on August 28, 2019, without a hurricane plan. The task of preparing the 2019 hurricane plan fell to a newly-hired field engineer, Sarah Stephens. Ms. Stephens, by her own admission, had no qualifications for drafting a hurricane preparedness plan. 75. Rather than relying on the 2018 hurricane 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 and deleted most 21 of the detail provided in the 2017 and 2018 plans—including Option A and Option B. 15 According to Ms. Stephens’ emails and her own testimony, she prepared and finalized (or, as she put it, “whipped up”) the 2019 Hurricane Plan in the span of one day. 76. Ultimately Ms. Stephens prepared and finalized the 2019 Plan, which included Butcherpen Cove and Bayou Chico as demobilization anchorages yet retained East Bay as a “safe harbor” location. Ms. Stephens changed the 2019 Plan to include graphical depictions of Skanska’s barge placement at Butcherpen Cove, Bayou Chico, and an anchorage just east of Deadman’s Island on the north side of Gulf Breeze (referred to herein as the “Gulf Breeze Anchorage”). The text of the 2019 Plan, however, was not changed and continued describe East Bay. The 2019 Plan not only continued to describe the safe harbor as East Bay, but it also failed to change the distance to the hurricane location or update the time it would take to accomplish demobilization to these much closer locations. The 2019 Plan was approved by Skanska’s project management. 77. According to Skanska’s Storm Summary, Skanska halted productive work and engaged the Hurricane Preparedness Plan on August 28, 2019. Not only was Hurricane Dorian outside of the Gulf of Mexico at that time, the project site was not in any cone of probability, nor within any watches or warnings. Skanska began moving rigs to safe mooring on August 29, 2019 and used a third-party towing service the next day. At this time, while Hurricane Dorian had shifted north of Puerto Rico, the project site was not in any cone of probability, nor within any watches or warnings. 78. On August 31, 2019, Skanska Project Manager Rob Rodgers circulated a hurricane plan “revised to show rig placement for Dorian.” This version of Skanska’s plan indicated that 15 See Sarah Stephens Depo. at 53:3-56:19 and 71:16-73:12. 22 Skanska’s barges were demobilized away from the bridge to mooring locations in Butcherpen Cove (located east of the southern terminus of the Project), the Gulf Breeze Anchorage, and Bayou Chico. 79. On October 18, 2019, Skanska began storm preparation activities that included demobilizing its barges ahead of the storm that would become Tropical Storm Nestor. At this time, the system that would become Tropical Storm Nestor was in the middle of the Gulf and projected to arrive at or near the project site as a tropical storm. 80. On October 25, 2019, the NWS/NHC issued a Tropical Storm Warning for the area of the project site for potential Tropical Storm Olga. Skanska began storm preparation activities on October 25, 2019. The project site was not under a watch or warning or within the cone of uncertainty at the time Skanska commenced demobilization efforts. 2020 Hurricane Season and Plan 81. For the 2020 hurricane season, Ms. Stephens continued to have responsibility for preparing Skanska’s hurricane plan. She had a final, approved plan in place and submitted to FDOT by June 8, 2020—seven days after hurricane season began. 82. Skanska’s 2020 hurricane plan was virtually the same as the 2019 hurricane plan in all relevant respects except that the visual depictions in the 2020 plan no longer provided an image of a hurricane location at the Gulf Breeze Anchorage. Like all of the plans for the prior hurricane seasons, Skanska’s 2020 hurricane plan listed reviewers of the plan. Notably, one of the reviewers of the 2020 hurricane plan, Catherine Burgess, had not reviewed the plan prior to Hurricane Sally and was not qualified to review a hurricane plan. 83. The 2020 hurricane plan continued to describe East Bay as the hurricane location while offering visual depictions of Bayou Chico and Butcherpen Cove—but not East Bay. The 23 2020 hurricane plan included a chart that identified 11 cranes and 40 barges, as well as the time it took to move each with five tug boats available. However, at the time of Hurricane Sally, there were at least 55 barges in use at the project site—not 40. Still, pursuant to the text of Skanska’s 2020 hurricane plan, it would take 30 hours at a minimum to demobilize 40 barges. The 2020 hurricane plan was reviewed and approved by Skanska’s project management. 84. On August 21, 2020, Skanska caught an error in the 2020 hurricane plan and amended it. The amended plan changed the text of the hurricane location for cranes and barges from East Bay to Butcherpen Cove to match the visual depictions of the barge locations. The text of the 2020 hurricane plan failed, however, to describe any safe harbor location in Bayou Chico. 85. While the 2020 hurricane plan updated the hurricane location to Butcherpen Cove, the plan failed to change the distance from the project site to Butcherpen Cove; the plan described the project site as being 10.6NM from the mouth of Bayou Chico. Pensacola Bay Bridge Project Director, Tom Fulton, Project Executive and Construction Manager, Tom DeMarco, and General Superintendent, Rob Rodgers, all agree this distance was erroneous, and that it would take less time to demobilize equipment from the Bridge to East Bay than to Butcherpen Cove. In reality, Butcherpen Cove is less than half of the distance to East Bay and is only 4.8NM from the mouth of Bayou Chico and approximately 2NM from the center of the bridge. The distance to move barges from the bridge to Butcherpen Cove was approximately a mile and a half and a move to Butcherpen Cove would take place a lot faster than to East Bay. 86. In addition to not updating the distance to safe harbor in the 2020 hurricane plan, the plan failed to take into account the shorter amount of time to demobilize barges to safe harbor in Butcherpen Cove than to East Bay. Likewise, the 2020 hurricane plan failed to adjust the 30- hourtime frame for 40 barges from the 2017, 2018, and 2019 plans, despite the fact that Skanska 24 was then using at least 55 barge