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SCC, DOT and road contractor debate who should fix damage to campus building

fr roadA three-way finger-pointing contest over cracks in Southwestern Community College’s biggest building — and their relation to construction work on the R-5000 connector road project — could result in a lawsuit if the parties involved aren’t able to decide who should pay to fix it.

SEE ALSO: Contractor walks away from $15.9 million road contract

“It’s just going to depend on where the blame settles, so everybody’s going to blame everybody else,” said Jack Debnam, a member of the N.C. Department of Transportation board and former chairman of the Jackson County Commissioners. 

The “everybody” involved at this point includes: the DOT; Devere Construction Company, the recently defaulted contractors on the project; and SCC — and, by extension, Jackson County, as county governments in North Carolina are required to pay for community college buildings.

Basically, what happened is that in the summer of 2014 Devere drove a set of anchors into the ground to stabilize the soil as it worked on the road project, a $29.6 million endeavor to build a 0.7-mile road connecting N.C. 116 and N.C. 107 through the SCC campus. In January and February 2015, the anchors were removed, and during the process vibrations — reportedly severe enough that, on the top floor of the Balsam Center, picture frames fell off desks and shelves — ensued. When the movement stopped, cracks appeared in the building. 

To county and college representatives, the logic is simple. Before the anchors were removed, there were no cracks. After the anchors came out, there were cracks. 

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“I don’t see the county being willing to accept that responsibility until a judge says there’s nobody at fault,” said County Manager Chuck Wooten. 

That’s basically the position SCC is taking, said the school’s attorney Chad Donnahoo. The college has given Devere and the DOT a Feb. 29 deadline to deliver a plan to fix the damages. 

“If we don’t get the information and things aren’t going the way that is in the best interest of the college, the board (of trustees) will have to consider whether it will want to file a lawsuit,” Donnahoo said. 

Donnahoo has been in communication with Devere’s lawyer, from a firm based out of Raleigh, and says the correspondence has been “open,” and consisted of “sharing documents, sharing information.” 

It’s unknown at this point how much it might cost to fix the damage, though the consensus seems to be that it shouldn’t be extremely expensive, well under a million dollars. 

“Fortunately none of those damages that have occurred to this point are safety-related issues,” Wooten said. “There’s no reason why the building can’t be used, can’t be occupied.” 

One concern, however, is that the damage apparent now might not be all that is to come. The cracks are believed to be the result of the building settling in the soil, so it’s possible that further settling could cause further damage. 


Faulty fill?

While SCC and county leaders say unequivocally that someone needs to pay for the damage — and not with local dollars — DOT and Devere don’t see eye-to-eye on who should foot the bill. 

In a September 2015 study commissioned by Devere’s insurance company, Travelers Insurance, engineer Beau Menard indicated that DOT was the one at fault, reporting that soil samples indicated that the fill used around the Balsam Center’s original foundation — it was constructed in 1988 over an old creek bed — was a loose, silty sand that compresses poorly and lends itself to spontaneous settling. Though a subsurface investigation was done before the R-5000 project began, Menard’s report says, it is “unknown what information from the subsurface investigations was provided” to the college, and “with proper information regarding the subsurface conditions,” SCC could have “prepared proper protocols for the observation and assessment of damages that occurred during the construction process.” 

The report does not say whether Devere received a copy of the subsurface investigation or considered sharing it with SCC. 

When asked for comment, Menard said his company’s policy doesn’t allow him to discuss files with anyone other than the client. Neither Devere nor its attorney returned requests for comment. 

The study also pointed out that the peak vibrations surrounding the anchor removal were below the U.S. Bureau of Mines’ threshold for damage to gypsum wallboard and that, while anchor work occurred along the entire length of the building, damage occurred only on the north side.

And because no pre-construction survey was conducted, Menard said, it “cannot be verified” what damages existed before and which came after the construction activities. When asked whether a pre-construction survey was required in this case, DOT communications manager Steve Abbott said he couldn’t say and would require multiple days to research the answer. 

Menard’s suggestion concerning the lack of a pre-construction survey is not an argument Wooten buys. 

“None of that happened until after that work started taking place outside of that building,” he said. 


Out-of-bounds anchors

It’s also not the end of Menard’s comment on the situation. In November, he submitted a follow-up to the study issued in September, this one indicating that there might be some fault on Devere’s part after all. 

Installing anchors into poor-quality soil like that beneath the Balsam Center would have caused a disturbance, Menard wrote, and when the anchors were removed, no fill was placed in the void created. 

“Voids created in the subsurface soils would be a catalyst for settlement,” Menard wrote.

Installation of the anchors “cannot be ruled out as a cause and/or contributing factor” of damage to the northwest corner of the building, he said, but there’s no correlation between the anchors and damage to the building’s east wall. 

The DOT followed Menard’s finding with a report of its own, agreeing with the finding that the anchors were likely to blame for the cracks but taking things one step further, placing the fault on Devere for going outside of the easement granted for construction purposes. 

Devere “failed to recognize that the helical anchors for the shoring extended beyond the provided construction easement and, even more concerning, extended 20 to 30 feet into the footprint of the north end of the Balsam Center,” the DOT report says. 

Basically, the anchors extended as far as 30 feet under or into the foundation of the Balsam Center. To make things worse, the DOT report found, preliminary drawings had not given any indication that the anchors would come that close to the buildings. Because the construction plan included no restrictions on which kind of shoring should be used, Devere had other options if it wasn’t going to have space to place the anchors — it didn’t have to run the risk of damaging the building to get the job done. 

From where Donnahoo sits, Devere and DOT are one and the same when it comes to defining fault. 

“I think you walk away (from reading the studies) with the conclusion that the legal and proximate cause of the damage was done by DOT or its subcontractor Devere,” Donnahoo said. “If Devere is negligent, then DOT is negligent as well because Devere works (for DOT).”

Abbott does not concur with that assessment. 

“Any damage caused in a project is the responsibility of the contractor,” he said. 

Of course, the whole discussion is complicated by the fact that Devere has defaulted on the four contracts it holds with the NCDOT (see related story on page 12). The company — a large corporation that does everything from design work to construction of hospitals, roads, schools and more — appears to still be in existence, but its bonding company Liberty Mutual is set to take over the road projects in which it had been engaged. 

“It drags things out,” Wooten said. “This is one of those things that patience is a virtue.” 

The Smoky Mountain News reached out to Devere, its attorney and SCC for comment but did not receive a response by press time.

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