Motion For Summary Judgment

E-FILED
THURSTON COUNTY, WA
SUPERIOR COURT
July 24, 2017
Linda Myhre Enlow
1 EXPEDITE (if filing within 5 court days of hearing) Thurston County Clerk
No hearing is set.
Hearing is set:
2 Date: September 1, 2017
Time: 9:00 a.m.
3 Judge/Calendar: Carol Murphy - Civil
4 The Honorable Carol Murphy

5
7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR THURSTON COUNTY
8 WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION,
9 No. 16-2-00980-34
Plaintiffs,
10 (Consolidated with Cause No.
v. 16-2-04826-34)
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SEATTLE TUNNEL PARTNERS, a joint PLAINTIFF WSDOTS MOTION FOR
12 venture, PARTIAL SUMMARY JUDGMENT
13 Defendants.
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SEATTLE TUNNEL PARTNERS, a
15 Washington joint venture,
16 Third-Party Plaintiff,
17 v.
18 HITACHI ZOSEN U.S.A., LTD, a Delaware

corporation; HITACHI ZOSEN
19 CORPORATION, a foreign corporation; and
HNTB CORPORATION, a Delaware
20 corporation,
21 Third-Party Defendants.
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PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

JUDGMENT 1 STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
92913312.2 0081287-00001 Telephone (206) 624-0900
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HITACHI ZOSEN U.S.A. LTD.,
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Fourth-Party Plaintiff,
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v.
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WASHINGTON STATE DEPARTMENT OF
5 TRANSPORTATION, FIDELITY AND
DEPOSIT COMPANY OF MARYLAND;
6 ZURICH AMERICAN INSURANCE
COMPANY; LIBERTY MUTUAL
7 INSURANCE COMPANY; TRAVELERS
8 CASUALTY AND SURETY COMPANY OF
AMERICA; FEDERAL INSURANCE
9 COMPANY; AND SAFECO INSURANCE
COMPANY OF AMERICA,
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Fourth-Party Defendants.
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HITACHI ZOSEN U.S.A. LTD.,
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Plaintiff,
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v.
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WASHINGTON STATE DEPARTMENT OF
16 TRANSPORTATION and SHANNON &
WILSON, INC.,
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Defendants.
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SEATTLE TUNNEL PARTNERS, a joint
19 venture,
20 Plaintiff,
21
v.
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SHANNON & WILSON, INC., a Washington
23 corporation; and WSP USA, INC., formerly
known as PARSONS BRINCKERHOFF,
24 INC., a New York corporation,
25
Defendants.
26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 I. SUMMARY OF ARGUMENT AND RELIEF REQUESTED
2 This motion challenges a counterclaim asserted by Seattle Tunnel Partners (STP)
3 against the Washington State Department of Transportation (WSDOT). STP alleges that its
4 tunnel boring machine (TBM) was damaged by a steel well casing called TW-2 and that
5 WSDOT should pay for the damage because TW-2 was a Type 1 Differing Site Condition
6 (Type 1 DSC) as defined in STPs Design-Build Contract (Contract).1 This motion is
7 submitted to show that the central allegation in STPs claim -- that TW-2 was a Type 1 DSC --
8 fails as a matter of law and undisputed fact.2
9 Under Washington law, a contractor claiming a Type 1 DSC must show: (1) its contract
10 contains incorrect indications about subsurface conditions; (2) it reasonably relied on those
11 indications when it bid; (3) the actual conditions were materially different from those indicated;
12 and (4) the conditions complained of were not reasonably foreseeable. In addition, STPs
13 Contract requires timely notice of a Type 1 DSC. STP cannot satisfy any of these factors. What
14 really happened, as admitted by STPs own witnesses, is this. STPs Contract plainly showed
15 TW-2 lying in the path of the TBM. STP employees knew that TW-2 was there and intended to
16 do something about it. But time passed and STP forgot all about TW-2 until its TBM actually
17 struck it. Later, STP discovered that its TBM was damaged and needed repairs. Looking for a
18 way to blame WSDOT for this problem, STP claimed that its Contract described TW-2 as having
19 a two-inch PVC (plastic) casing, rather than a casing of eight-inch steel. STPs claim is
20 objectively unreasonable. Moreover, none of STPs employees ever relied on (or even thought
21 about) the two-inch PVC theory until it was invented months after the TBM struck TW-2.
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23 1
See STPs Answer, Counterclaim and Third Party Complaints filed 7/6/16 (Answer),
24 118. STP calls TW-2 the Abandoned Steel Well Casing see Id., 49. A casing is a vertical
pipe in the ground. See the Declaration of Karl F. Oles (Oles Decl.) filed herewith, 2.
25 2
WSDOT also denies that TW-2 caused any significant damage to the TBM, but that
26 issue is not raised in this motion.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 II. BACKGROUND FACTS
2 A. Type 1 Differing Site Conditions in STPs Contract.
3 Under the Contract, WSDOT may be responsible for extra time and compensation if
4 STPs work is affected by a Type 1 DSC.3 A Type 1 DSC is defined in the Contract, Appendix
5 2, by reference to three geotechnical reports, as follows:
6
actual subsurface or latent physical conditions at the Site that are substantially or
7 materially different from the conditions identified in the Geotechnical Baseline
Report [GBR], the Environmental Baseline Report [EBR], or the
8 Geotechnical & Environmental Data Report [GEDR] as set forth in Section
5.7.2 . . . .[bracketed abbreviations added]
9
10 Contract Section 5.7.2, referenced in this definition, provides that if the GBR and EBR are silent
11 about some condition, then STP may rely on the GEDR:
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In the event the [GBR] or [EBR], as applicable, is silent with respect to a
13 particular geotechnical or environmental condition, Design-Builder may rely upon
the [GEDR] . . . as describing such condition.
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15 STP admits that the GBR and EBR are silent with regard to TW-2.4
16 STP admits the [GBR] and [EBR] are silent with respect to the Abandoned
Steel Well Casing.
17
18 Therefore, the question whether TW-2 was a Type 1 DSC can be stated simply as follows: were
19 the actual conditions at TW-2 substantially or materially different from the conditions identified
20 in the GEDR?
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24 3
Unless otherwise noted, the statements in this paragraph are supported by the
25 Declaration of Brian Nielsen (Nielsen Decl.) filed herewith, 3.
4
26 Oles Decl., 3, attaching STP response to request for admission.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 B. What Does The GEDR Say About TW-2?5
2 The GEDR explains its general purpose and scope on the first page:
3 This [GEDR] presents geotechnical and environmental data collected for the
4 current and previous alignments of the project. The GEDR describes the
procedures and presents the results of field explorations and field and laboratory
5 testing completed during 2009 and 2010 for the purpose of collecting subsurface
information along the project alignment (Figure 1).
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7 As stated here, most of the GEDR is about work performed in 2009 and 2010, including
8 installation of wells and other instruments for the study of groundwater along the planned
9 alignment of the new highway tunnel. GEDR Figure 1 (Vicinity and Key Map) is a general
10 map of the project area that provides a key to a more detailed series of maps identified in the
11 GEDR as Figure 2 (Site and Exploration Plan). Figure 2 (sheet 3 of 12) shows TW-2 within
12 the Proposed Bored Tunnel Alignment. Sheet 3 of Figure 2 is reproduced on the next page
13 (the yellow highlighting is added).
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15 [Remainder of page left intentionally blank.]
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The statements in this Subsection B are supported by the Declaration of Paul Van Horne
26 (Van Horne Decl.), filed herewith, especially 4-9.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
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ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 In GEDR Figure 2, TW-2 is shown as a dot in a round circle, which means that it is a
2 soil boring constructed in the period 2001-2009 (note the indication that some of the soil
3 borings pre-date the 2009-2010 time frame). The dot and circle are blue, which means that TW-
4 2 has a Groundwater Monitoring Device installed, either a well or a vibrating wire piezometer
5 (the latter, also called a VWP, is a device that measures water levels). There is a superscript
6 w, which means that TW-2 is a well.
7 The first 26 pages of the GEDR describe work done in 2009-2010, including the
8 installation of wells and other instruments for the study of groundwater along the planned
9 alignment of the new highway tunnel. TW-2 is not mentioned in these pages. The first GEDR
10 reference to TW-2 is on page 27 in section 2.5.3 (Groundwater Sampling):
11 Many of the observation wells were sampled to collect water for chemical
12 analytical testing. In addition, the three pumping wells (PW-252, PW-254, and
PW-255) installed for this project and a previously installed pumping well (TW-
13 2) were also sampled during pumping tests (see Section 2.5.8). [Emphasis added.]
14 This tells us that TW-2 was installed before the 2009-2010 timeframe and that TW-2 was a
15 pumping well as opposed to an observation well. This information is confirmed in
16 Subsection 2.5.8.1:
17
Three wells, designated PW-252, PW-254, and PW-255, were installed and
18 developed for use in the pumping tests. . . .
In addition to the newly installed pumping wells, a test well (TW-2) installed in
19 2002 . . . was incorporated into the pumping test program.
20 In a pumping test, water is pumped out of one or more wells (pumping wells) and
21 groundwater levels are measured in surrounding wells (observation wells). The behavior of the
22 observation wells provides information about subsurface conditions. For example, if during a
23 pumping test the water level goes down in an observation well, it can be concluded that the
24 pumping well and observation well are connected by a soil layer that allows water movement.
25 Subsection 2.5.8.2.1 provides further details about TW-2s role in the pumping tests:
26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1
The PW-252 pumping test included pumping PW-252 for six days and TW-2 for
2 the last three days of the test. TW-2 was pumped for the latter half of the PW-252
test . . . . A total of 52 surrounding observation wells and VWPs were monitored
3 during the pumping test.
4 The information reported here is clear and consistent. The GEDR is describing pumping
5 tests that involved four pumping wells, three of which were installed in 2009-10 (PW-252, PW-
6 254, and PW-255). The fourth had been installed in 2002 (TW-2). Water was pumped out of the
7 pumping wells and various monitoring points (observation wells and VWPs) were studied to
8 see how their water levels changed. With respect to these tests, TW-2 is clearly and repeatedly
9 identified as a pumping well as distinguished from an observation well.6
10 The GEDR appendices provide additional information about TW-2. Figure C.4-1, part of
11 GEDR Sub-Appendix C.4, again identifies TW-2 as a pumping well (a half-circle) surrounded
12 by monitoring points (circles with dots). That figure is reproduced on the next page:
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16 [Remainder of page left intentionally blank.]
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This point is emphasized because, as explained below, STPs counterclaim depends on
26 the (incorrect) assertion that TW-2 was indicated to be an observation well.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
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ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 Report C.4-1, also in GEDR Sub-Appendix C.4, sets forth the Pumping Test Work
2 Plan and includes Table 1, which identifies TW-2 as having an eight-inch diameter casing.
3 That table is reproduced below.
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16 Summarizing the above, the GEDR provides the following information about TW-2:
17 TW-2 was a pumping well installed in 2002.
18 TW-2 was used as a pumping well in March 2010.
19 TW-2 was located in the path of STPs tunnel boring machine.
20 TW-2 had an eight-inch diameter casing.
21 All of this information is accurate. The actual condition of TW-2 in the field did not
22 differ (materially or otherwise) from what the GEDR says about it.
23 C. STP Knew That TW-2 Was Within the Tunnel Alignment, Then Forgot About It.
24 As STP got ready to begin mining, its employee Justin McCain tested groundwater levels
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26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 in TW-2 on two occasions.7 His first visit was on November 28, 2011. On the morning of the
2 28th, Mr. McCain received an email from Tony Stirbys, the head of STPs geotechnical
3 department. In that email, Mr. Stirbys provided a list of wells which are located very close to
4 our tunnel alignment and he noted that TW-2 was right in line and that it would have to be
5 closed down before we tunnel. After receiving this email, Mr. McCain went to TW-2, using
6 Figure 2 in the GEDR as a guide. He took a water level reading by lowering an electronic
7 measuring device, commonly referred to as a water whistle, down inside the well casing to
8 measure the groundwater level. Mr. McCain no longer remembers his actions in detail, but he
9 admits that he must have looked down at the well casing in order to lower the water whistle in
10 the right place. After measuring the water level, Mr. McCain sent an email back to Mr. Stirbys
11 the same day, reporting that, [a]s of right now I know that TW-2 (2.5 MW) and TW-21 (8.5
12 MW) are functional.8 This confirms that Mr. McCain noticed the eight-inch diameter casing of
13 TW-2. Mr. McCain visited TW-2 again on February 9, 2012, and performed another water level
14 reading, using the same method as before.
15 Mr. Stirbys caution about closing down TW-2 before we tunnel never led to any
16 action. In late 2012 and early 2013, STP or its subcontractors put crushed concrete and gravel
17 over TW-2 and the surrounding area, burying the top of TW-2 and making it inaccessible.9
18 Apparently no one at STP was concerned about this. In fact, Mr. Stirbys, STPs geotechnical
19 manager, did not learn that TW-2 had been buried until he was preparing for his deposition in
20 2017.
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The statements in this paragraph are supported by the Oles Decl., 4-10, which reports
22 deposition testimony from Justin McCain and Tony Stirbys.
23 8
Mr. McCain testified that MW stands for the generic term monitoring well and that
24 his report mixed up or mistransposed the diameter measurements for TW-2 and another nearby
well, TW-21.
25 9
The statements in this paragraph are supported by the Oles Decl., 11-12, which
26 reports deposition testimony from STP witnesses Chris Dixon, and Tony Stirbys.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 When the TBM approached TW-2 in December 2013, none of STPs TBM operators or
2 supervisors on duty knew anything about it.10 Consequently, in the early hours of December 4,
3 2013, STP ran its TBM through TW-2, pushing a portion of the well casing up out of the ground.
4 Below is a picture of that well casing sticking up out of the ground:
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21 Several days after mining through TW-2, STP found that its TBM was not advancing as
22 expected. STP investigated, eventually concluded that the TBM had sustained damage, and shut
23 it down for repairs.11
24 10
The statements in this paragraph are supported by the Oles Decl., 13-14, which
25 reports deposition testimony from Mr. Dixon and Mr. McCain.
11
26 See STPs Answer, 82-89.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 D. STPs Theory of Differing Site Conditions.
2 1. STP Blames the TBM Stoppage on TW-2.12
3 Shortly after the TBM struck TW-2, STP claimed that TW-2 might be a Type 1 DSC
4 because this pipe was not identified on any of the Contract Documents. Then, realizing that
5 the GEDR does indeed identify TW-2, STP revised its theory. It claimed next that the Contract
6 Documents did not identify the material making up TW-2s well casing. WSDOT rejected this
7 claim, pointing out that a claim of Type 1 DSC requires proof that the contract contains
8 materially incorrect information, that incomplete information (if what is given is accurate) is not
9 enough. STP then looked into the GEDR to try to find something that it could characterize as
10 materially incorrect information. This led to its current theory, stated in a letter dated July 30,
11 2014:
12 It is clear . . . that the [GEDR] describes TW-2 as constructed with a 2-inch
13 diameter, polyvinyl chloride (PVC) well casing. . . . There is nothing in the
[GEDR] that describes TW-2 as constructed with an 8-inch-diameter steel casing,
14 and therefore, the presence of an eight-inch steel casing at TW-2 is a Type 1
Differing Site Condition.
15
16 What STP now alleges as clear is an interpretation invented in the summer of 2014
17 purely for claim purposes. No one at STP -- not Mr. Dixon, not Mr. McCain, and not Mr.
18 Stirbys -- ever actually believed that TW-2 had a two-inch PVC casing. Excerpts from the
19 Dixon, McCain, and Stirbys depositions follow:
20 Mr. Dixon:
21
Q: And before June 2014 you had not looked into the GEDR and drawn the
22 conclusion that it described TW-2 as having a two-inch PVC casing?
A: No.
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Q: And do you know, before June of 2014 do you know of anybody else at STP
24 or its partners who had looked into the GEDR and concluded that it said TW-2
has a two-inch PVC casing?
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26 The statements in this section are supported by the Oles Declaration, 15-20.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 A: No.
2 Mr. McCain:
Q: [D]o you know anybody at STP who thought that TW-2 had a PVC casing
3
before it was struck?
4 [Objection, lack of foundation]
5 A: I cant speak of what other may or may not know at STP.
6 Q: Okay. You didnt think it, one way of the other, whether it had a PVC casing
before it was struck, did you?
7 A: No.
8 Mr. Stirbys:
9 Q: [Y]ou never heard from anyone that it [TW-2] had a steel well casing prior to
that date, December 4, 2013?
10 A: Not that Im aware of.
11 Q: Did you have a view personally that it was -- that it was made of PVC TW-2
before December 4, 2013, or did you not have a view?
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A: I did not have a view.
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14 2. STPs Argument to the Disputes Review Board.
15 The Contract establishes a Disputes Review Board (DRB) to make non-binding

16 recommendations about resolving project disputes.13 In 2015, STP and WSDOT asked the
17 DRB to consider whether TW-2 was a Type 1 DSC. STP submitted position papers to the DRB
18 that advanced its two-inch PVC theory. In its written submissions and in its oral presentation,
19 STP suggested that it had been misled by erroneous information in the GEDR. STP did not tell
20 the DRB that (a) no one at STP ever believed that TW-2 had a two-inch PVC casing, (b) STP
21 actually knew about TW-2 and its eight-inch casing and in fact had used it to measure
22 groundwater levels, (c) STP recognized that TW-2 should be closed down before we tunnel,
23 (d) after burying TW-2 with crushed concrete and gravel, STP forgot that it was there until the
24 TBM mined through it, and (e) STP invented the two-inch PVC theory after-the-fact for claim
25
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26 The statements in this paragraph are supported by the Nielsen Decl., 4.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 purposes. WSDOT did not know these facts at the time of the DRB hearing and STP did not
2 volunteer them.14
3 3. STPs Claim Today.
4 STPs counterclaim in this litigation is based on the same two-inch PVC theory that it
5 submitted to the DRB (and that the DRB did not accept).15 This is evidenced by STPs discovery
6 responses and by its certified claim letter to WSDOT dated September 30, 2016:
7 The [GBR] and the [EBR] were silent with respect to TW-2, which was
8 encountered by the TBM on December 4, 2013, so the [GEDR] was relied upon to
describe this condition. The [GEDR] identifies TW-2 as a two-inch diameter,
9 polyvinyl chloride (PVC) well casing, not as the 8-inch diameter steel well casing
(Differing Site Condition) encountered by the TBM on December 4, 2013.
10 Section 2.5, Groundwater Monitoring Devices, and Hydrogeologic Testing, of the
[GEDR] states that the locations and numbers of the observation wells and VWPs
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(Vibrating Wire Piezometers) are indicated in Table 1 and shown in Figure 2 (as
12 blue shaded symbols). Section 2.5.1, Well Installation and Development, of the
[GEDR] states that each observation well was constructed using a two-inch
13 diameter, polyvinyl chloride (PVC) well casing with a slotted portion (screen) that
allows for inflow of water. Section 1.1.1, Phase 1, of the [GEDR] describes the
14 locations of groundwater monitoring devices (observation wells) as indicated in
blue in Figure 2. Figure 2, Site and Exploration Plan, Sheet 3 of 12, of the
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[GEDR] shows TW-2 as a blue-shaded symbol, identifying TW-2 as an
16 observation well, shows TW-2 as having a groundwater monitoring devices [sic]
(observation well), and shows TW-2 with a blue W superscript, identifying
17 TW-2 as a well (observation well), which means that the Contract Documents
identified TW-2 as a two-inch diameter, polyvinyl chloride (PVC) well casing.
18
19 E. Additional Relevant Facts.

20 The following additional facts support WSDOTs motion:
21 1. Notice Requirement for Type 1 DSC Claims.
22 STPs contract, Section 5.7.3.1, provides:
23
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24 The DRB recommended that TW-2 be accepted as a Type 1 DSC, but the DRB lacked
important facts and did not accept STPs two-inch PVC theory. Its recommendation does not
25 support the counterclaim that WSDOT now seeks to dismiss. See the Oles Decl., 21.
15
26 The statements in this paragraph are supported by the Oles Decl., 22-23.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
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[I]f in the exercise of due diligence and standard of care Design-Builder [STP]
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determines or reasonably should have determined that it has encountered
3 Differing Site Conditions, [STP] shall provide written notice to WSDOT. Such
notice shall be provided within seven days (for the tunnel) or promptly (for all
4 other areas) after the date of such determination or date [STP] should have known
of the conditions.
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6 Contract Section 5.7.3.4 provides that failure to give timely notice shall result in a waiver of
7 STPs claim for Differing Site Conditions.16
8 2. STPs Duty to Comply With Applicable Laws.
9 STPs Contract, Section 2.2(f), requires STP to comply with all requirements of all
10 Laws.17 Laws are defined broadly to include applicable Washington laws and regulations.
11 RCW 18.104.030 and WAC 173-160-381 require that wells (including wells like TW-2)
12 be decommissioned only in specific permitted ways.18 Not surprisingly, running into a well
13 with a tunnel boring machine is not a permitted method of decommissioning. Mr. McCain
14 admitted in a 2015 email that STP was in violation of the law relating to decommissioning
15 wells; Mr. Stirbys similarly admitted that STP was guilty for not decommissioning.19
16 3. STPs Duty to Protect Existing Wells.
17 The Technical Requirements in STPs Contract, Section TR 2.54.3.2, provide that one of
18 STPs responsibilities was to Protect from damage instruments installed by Design-Builder and
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The statements in this paragraph are supported by the Nielsen Decl., 5.
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The statements in this paragraph are supported by the Nielsen Decl., 6.
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RCW 18.104.030 provides, in pertinent part, that ([i]t is unlawful: (1) [f]or any person
23 to . . . alter, or decommission a well without complying with the provisions of this chapter . . .
24 WAC 173-160-381 sets standards for decommissioning wells. For cased wells, the regulation
requires either (a) perforating and then pressure sealing the casing or (b) removing the casing and
25 filling the hole with concrete or grout.
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26 Oles Decl., 24-25.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 existing instruments installed by others. Repair or replace damaged instruments.20 TW-2 was
2 one of the existing instruments that STP had a duty to protect.
3 4. Claims Barred If Caused by STPs Own Breach or Fault.
4 STPs Contract, Section 11.7.1, provides that STP is not entitled to any increase in
5 compensation for costs caused by the breach of contract or fault or negligence, or act or failure
6 to act of any DB-Related Entity.21 Section 11.7.2.2(c) imposes the same restriction on claims
7 for damages due to delay. DB-Related Entities are defined in STPs Contract to include STP.
8 III. LEGAL ARGUMENT
9 STPs claim that TW-2 was a Type 1 Differing Site Condition and that WSDOT is
10 consequently responsible for any damage it caused to the TBM fails for six reasons, each of
11 which is independently sufficient:
12 1. STPs two-inch PVC interpretation is contrary to the GEDRs plain language.
13 2. STP did not rely on the two-inch PVC interpretation when it bid.
14 3. Actual conditions at TW-2 were consistent with the information in the GEDR.
15 4. The eight-inch steel casing at TW-2 was foreseeable.
16 5. STP failed to give timely notice of Differing Site Conditions, as required by the
17 Contract.
18 6. STPs claim is barred by its own fault and violation of law.
19 A. The Legal Requirements for Type 1 Differing Site Conditions.
20 The legal requirements for any claim of Type 1 DSC include:
21 (1) the contract documents indicated certain conditions,

22 (2) the contractor reasonably relied on those indications when making its bid,
23 (3) actual conditions materially differed from those which were indicated in the
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25 The statements in this paragraph are supported by the Oles Decl., 26.
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26 The statements in this paragraph are supported by the Nielsen Decl., 7.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
contract, and
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2 (4) the materially different conditions were not foreseeable.
3 King County v. Vinci Construction Grands Projets/Parsons RCI/Frontier-Kemper JV,
4 191 Wn. App. 142, 166, 364 P.3d 784 (2015) (King County v. VPFK). STP cannot satisfy
5 even one of these requirements, much less all of them.
6 B. The GEDR Does Not Indicate That TW-2 Has a Two-Inch PVC Casing.
7 The counterclaim challenged in this motion is based on the allegation that the GEDR
8 identifies TW-2 as having a two-inch PVC casing. Determining what the GEDR indicates is a
9 question of contract interpretation. When the relevant provisions are clear, as they are here,
10 contract interpretation is a question of law that is appropriate for summary judgment. See
11 Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 83, 60 P.3d 1245 (2003) (summary judgment is
12 proper if the written contract, viewed in light of the parties objective manifestations, has only
13 one reasonable meaning).
14 Section II.B above reviews parts of the GEDR that describe TW-2 as a pumping well
15 with an eight-inch casing. The Court may reasonably ask, Does any part of the GEDR say that
16 TW-2 has a two-inch PVC casing? The answer is no. The GEDR never says that TW-2 has a
17 two-inch PVC casing.
18 STPs argument to the contrary fails, as can be seen by analyzing the statement of that
19 claim quoted in Section II.D.3 above. Summarizing, STPs argument is this:
20 1. GEDR Section 1.1.1 says that certain groundwater monitoring devices

(observation wells) are shown in blue in Figure 2.
21
22 2. GEDR Section 2.5 says that certain observation wells are shown in Figure 2 (as
blue shaded symbols).
23
3. GEDR Section 2.5.1 says each observation well was constructed with a two-
24 inch diameter PVC casing.
25 4. TW-2 is shown in Figure 2 with a blue shaded symbol.
26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 5. Therefore, the GEDR indicates that TW-2 is an observation well with a two-inch
2 diameter PVC casing.
3 STPs point (1) is correct but irrelevant. GEDR Section 1.1.1 does say that certain wells
4 are shown on Figure 2 with blue symbols, but that section is not talking about TW-2.22 Section
5 1.1.1 begins:
6 Phase 1 included drilling 17 borings and performing associated testing along a
previous alignment of the Project. Borings TB-100 through TB-116 were drilled
7 during the period of March to May 2009.
8 TW-2 is obviously not a boring in the series running from TB-100 to TB-116. Moreover,
9 Section 1.1.1 says that borings TB-100 to TB-116 were installed in 2009. We know from GEDR
10 Section 2.5.8.1 that TW-2 was installed in 2002. It follows that Section 1.1.1 has nothing to do
11 with TW-2.
12 STPs point (2) is also correct but irrelevant. Section 2.5 says:
13 The locations and numbers of the observation wells and VWPs are indicated at
Table 1 and shown in Figure 2 (as blue shaded symbols). The installation details
14 for the observation wells and VWPs are summarized in Tables C-1 and C-2,
respectively, included in Appendix C.
15
16 If TW-2 were one of the observation wells being discussed in this section, it would be
17 listed on GEDR Tables 1 and C-1.23 But TW-2 is not listed there. Every observation well listed
18 in Tables 1 and C-1 has an installation date in 2009 or 2010. TW-2, which we know from
19 repeated GEDR references is a pumping well installed in 2002, is not one of the things being
20 discussed in GEDR Section 2.5.
21 STPs point (3) is also correct but again irrelevant. GEDR Section 2.5.1 begins, Each
22 observation well was constructed using a 2-inch-diameter, polyvinyl chloride (PVC) well
23 casing. But Section 2.5.1 is talking about the observation wells described in Section 2.5 which,
24
22
25 Cited portions of the GEDR are in Exhibit C to the Nielsen Decl.
23
26 Table C-2 lists VPWs, so it is not relevant here.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 as explained above, do not include TW-2.
2 STPs point (4) is correct. TW-2 is shown on GEDR Figure 2 with a blue symbol.
3 However, nothing in that Figure identifies it as an observation well with a two-inch PVC
4 casing.24
5 STPs premises 1-4 are correct but provide no support for STPs conclusion. STP ends
6 up arguing from the true fact that some observation wells are shown in blue on Figure 2 to the
7 false conclusion that all things shown in blue on Figure 2 must be observation wells. We know
8 that this conclusion is false. PW-252, PW-254, and PW-255, all of which are identified in
9 GEDR Section 2.5.1 as pumping wells with eight-inch steel casings, are shown with blue
10 symbols in Figure 2.25 TW-2, clearly identified in the GEDR as a pumping well with an eight-
11 inch casing, is also shown in blue.
12 STP gets from true premises to a false conclusion by committing a logical fallacy.
13 Consider the following parallel argument:
14 (1) On a map of Thurston County, freshwater lakes are colored blue.
15 (2) Budd Inlet is colored blue on the map.
16 (3) Therefore, Budd Inlet is shown as a freshwater lake.
17 The premises are true but the conclusion is false because it is a logical fallacy to argue from all
18 lakes are blue to all blue things are lakes. Similarly, from the fact that observation wells are
19 shown in blue on Figure 2, it does not follow that everything shown in blue on Figure 2 is an
20 observation well. As soon as this fallacy is exposed, STPs argument collapses.
21 C. STP Admits It Did Not Rely On TW-2 Having a Two-Inch PVC Casing.
22 Because the GEDR did not indicate that TW-2 had a two-inch PVC casing, STP could
23 not reasonably have relied on any such indication at bid time. In fact, it did not rely at all. STP
24 24
Mr. McCain testified that GEDR Figure 2 does not indicate, one way or the other,
25 whether TW-2 is a pumping well. See Oles Decl., 27.
25
26 See Van Horne Decl., 10.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 witnesses have admitted that they had no specific expectations about TW-2s makeup before the
2 TBM struck it.26 STPs corporate witness under CR 30(b)(6) testified that no STP employees
3 ever believed, at any time, that TW-2 had a two-inch PVC casing. The two-inch PVC theory
4 was invented in 2014, years after STPs bid was submitted. STP cannot show that it reasonably
5 relied on an indication in the GEDR that TW-2 had a two-inch PVC casing when making its
6 bid.
7 D. The Actual Conditions Were Consistent With the Contract.
8 The GEDR described TW-2 as a pumping well with an eight-inch casing located in the
9 path of the tunnel boring machine. The actual conditions were fully consistent with that
10 description. STP cannot show that actual conditions differed materially from those disclosed in
11 its Contract.
12 Admittedly, STPs Contract did not say that TW-2s eight-inch casing was made of steel
13 or any other material. But silence does not support a claim of Type 1 DSC. In Maryland
14 Casualty Co. v. City of Seattle, 9 Wn.2d 666, 675-76, 116 P.2d 280 (1941), the contractor
15 complained that, to complete the agreed scope of work, it had to use expensive pressurized air
16 methods that it did not plan for in its bid. The court found that the contract was silent on whether
17 or not pressurized air methods would be required, and denied the contractors claim. The same
18 principle was applied in King County v. VPFK:
19 A differing site condition cannot exist where the plans and specifications do not
show or indicate anything about the alleged unforeseen condition, i.e., if they say
20 nothing one way or the other about the subsurface condition.
21 191 Wn. App. at 168 (quoting Renda Marine, Inc. v. United States, 66 Fed. Cl. 639 (2005)); see
22 also Conner Bros. Constr. Co. v. United States, 65 Fed. Cl. 657, 673 (2005) ([w]here the
23 contract contains no affirmative (positive or negative) representations of the . . . conditions,
24 purportedly relied on by the contractor, the government has no liability); Ragonese v. United
25
26
26 See Oles Decl., 17, 19-20.

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 States, 120 F. Supp. 768, 769 (Ct. Cl. 1954) (where a contract is silent as to certain conditions, it
2 cannot be said that the contractor encountered subsurface or latent conditions materially
3 differing from those specifically shown on the drawings or indicated in the specifications).
4 This principle applies here. If STP admits (as it must) that the GEDR disclosed the
5 existence of TW-2 as a well in the path of the tunnel, but argues that its steel construction was
6 not disclosed, this fails to prove a Type 1 DSC. The GEDR said nothing one way or the other
7 (and therefore nothing incorrect) about the material making up TW-2s casing.
8 E. The Presence of an Eight-Inch Steel Casing Was Foreseeable.
9 TW-2 was expressly disclosed in the GEDR as a pumping well with an eight-inch casing.
10 The other pumping wells (PW-252, PW-254, and PW-255) were expressly identified as having
11 eight-inch casings made of steel. STP could reasonably foresee that TW-2 would have similar
12 construction. Conditions that are foreseeable cannot be Type 1 DSC. See King County v. VPFK,
13 191 Wn. App. at 166 ([A] contractor cannot recover additional compensation for a changed
14 condition if the complained of condition was foreseeable.) (quoting Basin Paving v. Mike M.
15 Johnson, Inc., 107 Wn. App. 61, 66-68, 27 P.3d 609 (2001)).
16 F. STP Failed to Give Timely Notice of a Differing Site Condition.
17 Even if STP had been misled into thinking that TW-2 had a two-inch PVC casing, it
18 actually discovered the eight-inch steel casing when Mr. McCain measured the groundwater
19 level in TW-2 in November 2011. Mr. McCain cannot now recall his movements in detail, but
20 he must have seen the steel well casing because he dropped his water whistle into it and
21 reported its diameter and functional condition to his supervisor, Mr. Stirbys, later the same
22 day. Under Contract Section 5.7.3.1, STP had seven days to give notice of a Differing Site
23 Condition. It waited over two years and then gave notice only after its TBM actually struck TW-
24 2 in December 2013. Under Contract Section 5.7.3.4, lack of timely notice waives a claim for
25 Differing Site Conditions.
26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
1 G. STPs Violation of Law Bars its Claim for Differing Site Conditions.
2 STP had a contractual obligation to (a) preserve existing wells, and (b) to follow
3 Washington law regarding the decommissioning of wells. STP failed to protect TW-2 from
4 damage when it covered it up with concrete and gravel, forgot about it, and then ran its TBM into
5 it. It failed to follow Washington law when it decommissioned TW-2 by destroying it with a
6 TBM. STP may not recover for damages caused by its own fault or negligence or failure to act.
7 Contract Sections 11.7.1, 11.7.2.2(c).
8 IV. CONCLUSION
9 STPs claim that TW-2 was a Type 1 Differing Site Condition and that WSDOT is
10 consequently responsible for any damage it caused to the TBM fails for multiple independently
11 sufficient reasons:
12 1. TW-2 was not a Type 1 DSC. STPs two-inch PVC interpretation is contrary to
13 the GEDRs plain language.
14 2. STP did not rely on the two-inch PVC interpretation when it bid.
15 3. Actual conditions at TW-2 were consistent with the information in the GEDR.
16 4. It was foreseeable that TW-2s disclosed eight-inch casing would be made of
17 steel, just like the casings on the other pumping wells.
18 5. STP failed to give timely notice of Type 1 DSC and has waived its claim.
19 6. STPs claim is barred by its own fault and violation of law.
20 STPs counterclaim for damages against WSDOT based on its theory of Type 1 DSC
21 should be dismissed.
22
23
24
25
26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900
DECLARATION OF SERVICE
1
2 Cindy Castro hereby declares as follows:
3 1. I am a legal practice assistant employed by the law firm of Stoel Rives LLP, a
citizen of the United States, over the age of 18 years, not a party to this matter, and competent to
4 testify herein.
5 2. On the date indicated below, I caused to be delivered one true and correct copy of
the foregoing document on counsel of record as follows:
6
Attorneys for Defendant and Third Party
7 Plaintiff Seattle Tunnel Partners hand delivery via legal messenger
overnight delivery
John Parnass, WSBA #18582
8
Zachary Tomlinson, WSBA #35940 mailing with postage prepaid
Sarah S. Washburn, WSBA #44418 e-service per agreement of the parties:
9 john.parnass@pacificalawgroup.com
PACIFICA LAW GROUP, LLP
1191 Second Avenue, Suite 2000 zak.tomlinson@pacificalawgroup.com
10
Seattle, WA 98101 sarah.washburn@pacificalawgroup.com
11 Phone: 206 245-1700
Joseph L. Luciana, III, PA Bar #50286*

12
John R. Dingess, PA Bar #28861* overnight delivery
Samantha L. Brutout, PA Bar #203553* mailing with postage prepaid
13 e-service from King County ECF system
Brian R. Davidson, PA Bar #74684*
14 James S. Malloy, PA Bar #89354* e-mail service per agreement of the
DINGESS, FOSTER, LUCIANA, DAVIDSON parties:
15 & CHLEBOSKI, LLP jluciana@dfllegal.com
20 Stanwix Street, 3rd Floor jdingess@dfllegal.com
16 Pittsburgh, PA 15222
*Admitted pro hac vice sbrutout@dfllegal.com
bdavidson@dfllegal.com
17 jmalloy@dfllegal.com
18
Attorneys for Third Party Defendants and
19 Fourth Party Plaintiff Hitachi Zosen U.S.A.,
Ltd. and Hitachi Zosen Corporation hand delivery via legal messenger
20
Richard O. Prentke, WSBA #5786 overnight delivery
Andrew L. Greene, WSBA #35548 mailing with postage prepaid
21 e-service per agreement of the parties:
Brendan J. Peters, WSBA #34490
22 V.L. Woolston, WSBA #9453 rprentke@perkinscoie.com
Mica D. Simpson, WSBA #46596 vwoolston@perkinscoie.com
23 Nicholas P. Gellert, WSBA #18041 agreene@perkinscoie.com
Jonathan P. Goddard, WSBA #49872 bpeters@perkinscoie.com
24 Todd W. Rosencrans, WSBA #26551
PERKINS COIE LLP msimpson@perkinscoie.com
1201 Third Avenue, Suite 4900 ngellert@perkinscoie.com
25
Seattle, WA 98101 jgoddard@perkinscoie.com
26 Phone: 206 359-8000 trosencrans@perkinscoie.com


ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900

1 Attorneys for Third Party Defendants HNTB
Corporation
2
hand delivery via legal messenger
Bradley G. Taylor, WSBA #18611
3 John V. Leary, WSBA #36345 overnight delivery
Petra N. Ambrose, WSBA #48924 mailing with postage prepaid
4 GORDON & REES, LLP e-service per agreement of the parties:
701 Fifth Avenue, Suite 2100 btaylor@gordonrees.com
5 Seattle, WA 98104 jleary@gordonrees.com
Phone: 206 689-5100 pambrose@gordonrees.com
6
7 Stephen B. Hart*
Christine E. Drage* hand delivery via legal messenger
8 Jenifer J. Brannen* overnight delivery
Mark E. Petersen* mailing with postage prepaid
9 Sheila K. McDonald* e-service per agreement of the parties:
Catherine L. Rigney* bhart@weildrage.com
10 WEIL & DRAGE
23212 Mill Creek Drive cdrage@weildrage.com
11 Laguna Hills, CA 92653 jbrannen@weildrage.com
Phone: 949 837-8200 mpetersen@weidrage.com
12 (*Admitted Pro Hac Vice) smcdonald@weildrage.com
13 crigney@weildrage.com
Attorneys for Defendant Shannon & Wilson
14
Terry Scanlan, WSBA #19498 hand delivery via legal messenger
15 Patricia A. Robert, WSBA #46716 overnight delivery
Rochelle Y. Nelson, WSBA #48175
SKELLENGER BENDER mailing with postage prepaid
16 e-service per agreement of the parties:
1301 Fifth Avenue, Suite 3401
Seattle, WA 98101 tscanlan@skellengerbender.com
17
Phone: 206 623-6501 aschuchman@skellengerbender.com
18 probert@skellengerbender.com
rnelson@skellengerbender.com
19 Attorneys for Fourth-Party Defendants, the
20
Sureties
hand delivery via legal messenger
Thomas K. Windus, WSBA #7779 overnight delivery
21 WATT, TIEDER, HOFFAR
& FITZGERALD, LLP mailing with postage prepaid
22 1215 Fourth Avenue, Suite 2210 e-service per agreement of the parties:
Seattle, WA 98161 twindus@watttieder.com
23 Phone: 206 204-5800
24
25
26

ATTORNEYS
92913312.2 0081287-00001 Telephone (206) 624-0900

Motion For Summary Judgment

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Motion For Summary Judgment

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E-FILED

4 The Honorable Carol Murphy

7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

18 HITACHI ZOSEN U.S.A., LTD, a Delaware

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

13 (the yellow highlighting is added).

15 [Remainder of page left intentionally blank.]

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

9 identified as a pumping well as distinguished from an observation well.6

16 [Remainder of page left intentionally blank.]

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

14 2. STPs Argument to the Disputes Review Board.

15 The Contract establishes a Disputes Review Board (DRB) to make non-binding

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

19 E. Additional Relevant Facts.

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

21 (1) the contract documents indicated certain conditions,

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

2 (4) the materially different conditions were not foreseeable.

3 King County v. Vinci Construction Grands Projets/Parsons RCI/Frontier-Kemper JV,

5 even one of these requirements, much less all of them.

13 one reasonable meaning).

17 two-inch PVC casing.

19 claim quoted in Section II.D.3 above. Summarizing, STPs argument is this:

20 1. GEDR Section 1.1.1 says that certain groundwater monitoring devices

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

2 Cindy Castro hereby declares as follows:

Joseph L. Luciana, III, PA Bar #50286*

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

PLAINTIFF WSDOTS MOTION FOR PARTIAL SUMMARY

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