35W suits: One more to come?

In the flurry of lawsuits over the Interstate 35W bridge collapse, perhaps the most intriguing is one that has not been filed.

Bridge victims and state officials have both filed legal claims against the company that was resurfacing the bridge when it fell. State officials did the same with Jacobs Engineering, a successor company of the firm that designed the bridge in the 1960s.

But though victims have taken legal action against URS Corp., the state's longtime engineering consultant on the bridge, the state has provided few details to illuminate why it has not pursued URS in court.

"The court documents speak for themselves," said Kevin Gutknecht, Minnesota Department of Transportation spokesman, adding that the agency would not comment further.

Lawyers for victims of the August 2007 tragedy, who have repeatedly targeted the company, say it is puzzling that URS has escaped legal action by the state. One lawsuit, part of a series of new legal actions filed by victims and their families on June 18, said that more than three years after getting a state contract, URS had done "nothing to rectify the known problems with the bridge" and that its negligence played a "substantial" role in the collapse.

The state's legal stance may reflect the complicated -- some have suggested compromised -- relationship MnDOT had with the company. URS' project manager on the 35W bridge was Don Flemming, who went to work for URS shortly after leaving his job as MnDOT's bridge engineer. State officials, after making URS its lead consultant on the bridge, steered the company away from a more aggressive and expensive replating project in the year leading up to the collapse.

"I can't imagine why the state would not have brought a cross-claim against URS just like it did against" Progressive Contractors Inc. (PCI), the company that was working on the bridge when it collapsed, said Kyle Hart, a lawyer for PCI. "It's routine."

PCI has joined others in filing its own legal claim against URS, charging that URS negligently "failed to properly inspect and evaluate" the bridge's gusset plates, a series of connecting steel plates, even though MnDOT had hired URS to assess the bridge's condition. The National Transportation Safety Board (NTSB), after investigating for more than a year, said last November that the gusset plates on the 40-year-old bridge were under-designed when it was built and were likely a principal cause for the tragedy.

A spokesman for URS said the company would have no comment.

Ben Wogsland, a spokesman for Minnesota Attorney General Lori Swanson, whose lawyers are defending MnDOT over the bridge collapse, said it is possible that a claim could be made at some point against URS. "This office is in continuing discussions with MnDOT and the governor's office regarding potential claims against URS," he said.

Hart said that as discovery begins in the lawsuits, state officials and URS may have agreed to at least temporarily set aside going after each other legally because of their relationship. A spokesperson for the attorney general said there was no formal agreement between the state and URS.

Questions of conflict

Flemming's role with MnDOT, and then URS, was detailed in an investigation completed last year by Gray Plant Mooty. The Minneapolis law firm was hired by the Legislature to investigate how MnDOT's actions played into the collapse and what changes the agency might make in the aftermath.

One month after leaving MnDOT in December 2000, after 14 years as state bridge engineer, Flemming was hired by URS. In a court deposition, Flemming said he and other URS officials asked to meet with Dan Dorgan, Flemming's successor as the state bridge engineer, "to demonstrate our expertise in doing the work that we thought was coming out shortly" regarding the aging 35W bridge.

But in the years that followed, state documents showed, URS found itself at odds with state officials, who were cool toward a URS plan to strengthen the bridge with a $2 million steel plating project.

In its own court filings in May, the state singled out PCI and Jacobs Engineering -- but not URS -- as culpable for the collapse, which killed 13 people and injured 145.

Sverdrup & Parcel, the company that designed the bridge and which is now owned by Jacobs Engineering, failed to properly design the bridge's gusset plates, according to the state.

The state also accused PCI of improperly placing equipment and materials atop the bridge -- and not notifying MnDOT officials of its actions -- during a concrete overlay project that was occurring at the time the tragedy happened.

MnDOT, URS friction

With the state having created a compensation fund last year for the victims, in return for them agreeing not to sue the state, much of the legal focus has shifted to private companies with ties to the bridge.

But Rep. Ryan Winkler, DFL-Golden Valley, the House sponsor of the victims fund, said ignoring URS' role is troubling.

"When we created the bridge compensation fund, the goal was not to hide the causes, but to take care of the survivors and let the state and the contractors sort out responsibility in court," he said.

There have, however, been signs of friction between MnDOT and URS. In court documents, URS has asked state officials to identify everyone who acted negligently -- at PCI, Jacobs Engineering, as well as URS -- and contributed to the collapse. State officials said such a disclosure is "premature," and is the subject of an ongoing probe.

URS also asked state officials to "describe, in detail, your understanding of the cause of the collapse." The state, in its reply, referred the company to the NTSB findings, and the state's legal claims against PCI and Jacobs Engineering.

Chris Messerly, a lawyer for some of the victims, said that ignoring URS' role in the tragedy is perplexing. "If not for them, the bridge wouldn't have fallen," he said. "Had they done what they were obligated to do under the law, this would never have happened."

Mike Kaszuba • 651-222-1673