• January 7, 2009

In addition to the medical device and pharmaceutical mult-district litigation in the U.S. District Court, D. Minn., the largest Minnesota litigation in 2009 (aside from what will likely be the current but transient MN Senate election-related litigation) will probably be the fall-out from the August 1, 2007 35W Bridge Collapse.

Covering the various 35W cases and likely myriad skirmishes comprehensively is beyond this blogger’s capabilities, but I will try to follow the lawsuits from the disaster from a distance from time to time.

Recently, defendant engineering firm, URS, brought a motion to dismiss plaintiffs’ breach of contract claims, which plaintiffs attempt to bring as third-party beneficiaries to the contracts between URS and the Minnesota Department of Transportation (Hennepin Cty. Dist. Ct., Hedlund, J.). The issue is whether the public should be considered “intended beneficiaries” or “incidental beneficiaries” the the URS/MinnDOT contracts. The former are able to bring a third-party beneficiary claim, but not the latter.

Query: if the unfortunate victims of the collapse on 8/1/07 were “intended beneficiaries” by virtue of the bridge-related road work, inspection, or “professional and technical services” contracts, wouldn’t the thousands of drivers forced to detour their routes after the collapse also have claims under the same theory? Many (particularly commuters) had higher gasoline bills, among other damages, I expect, related to the collapse. Impacted nearby businesses? Granted, one could draw the distinction between those who suffered physical injury (i.e., damage to “public safety”) and those who suffered economic damages. Apparently, a comment in the Restatement (2d) on Contracts gives some support to plaintiffs. If so, how much would Minnesota public works projects cost with such an immeasurable degree of liability risk?

URS moves to dismiss the third-party beneficiary claim, leaving the negligence claim for another day. Regardless of the outcome of the present motion, this battle is far from over and URS is clearly targeted.

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