Lawsuit Against Pcl Civil Constructors 5rj

THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISON

STATE OF NORTH CAROLINA COUNTY OF DARE

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Briggs McEwan, Las Olas, Inc., Tri-V Conery, Inc., Tami Lynette Gray, TJC Enterprises, and Family Water Adventures, individually and as representatives of a class

of those similarly situated, Plaintiffs v.

PCL Civil Constructors, Inc., PCL

Construction Enterprises, Inc. and PCL Construction Services, Inc., Defendants.

COMPLAINT

Plaintiffs, Briggs McEwan, Las Olas, Inc., Tri-V Conery, Inc., Tami Lynette Gray, TJC

Enterprises, and Family Water Adventures, on behalf of themselves and the class set forth below, bring this Complaint against Defendants, and allege as follows: I.

INTRODUCTION.

1.

This class action is brought against principal Defendant PCL Civil Constructors,

Inc., a corporation whose principal office is located in Raleigh, North Carolina, and whose conduct has caused a catastrophic power outage which has deprived thousands of residents

of North Carolina coastal communities of power and has had a devastating impact on local businesses during the peak tourist season. The Plaintiffs, on their own behalf and on behalf of other similar-situated persons, seek monetary damages and other relief.

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II.

THE PARTIES.

2.

Plaintiff Briggs McEwan is a resident of Salvo, North Carolina, in Dare County.

3.

Plaintiff Las Olas, Inc. is a North Carolina domestic corporation located in

Rodanthe, North Carolina. 4.

Plaintiff Tri-V Conery, Inc. is a North Carolina domestic corporation located in

Rodanthe, North Carolina. 5.

Plaintiff Tami Lynette Gray is a resident of Frisco, North Carolina in Dare

County.

6.

Plaintiff TJC Enterprises is a North Carolina domestic corporation located in

Frisco, North Carolina. 7.

Plaintiff Family Water Adventures is a North Carolina domestic corporation

located in Frisco, North Carolina. 8.

Defendant PCL Civil Constructors, Inc. is a corporation organized and existing

under the laws of Colorado.

Its principal office is located at 5440 Wade Park Blvd, Suite 102,

Raleigh, NC 27607-41 85. It may be served with process at that address, or through its ed agent, National ed Agents, Inc., 160 Mine Lake Ct Ste 200, Raleigh, NC 27615. .A

9.

Defendant PCL Construction Enterprises, Inc. is a corporation organized and

existing under the laws of Colorado, with a principal office located at 2000 South Colorado

Blvd., Tower Two, Suite 2-500, Denver, Colorado 80222. It may be served with process at that address, at its office address at 6700 Forum Drive, Suite 100, Orlando, FL 32821-8086, or through its ed agent, National ed Agents, Inc., 160 Mine Lake Ct Ste 200, Raleigh, NC 27615.

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10.

Defendant PCL Construction Services, Inc. is a corporation organized and

existing under the laws of Colorado, with a principal office located at 2000 South Colorado

Blvd., Tower Two, Suite 2-500, Denver, Colorado 80222. It may be served with process at that address, at its office address at 6700 Forum Drive, Suite 100, Orlando, FL 32821-8086, or through its ed agent, National ed Agents, Inc., 160 Mine Lake Ct Ste 200, Raleigh, NC 27615. III.

JURISDICTION AND VENUE.

11.

This Court has jurisdiction over the subject matter and the parties.

12.

This matter is properly subject to class action treatment under N.C.R. Civ. P. 23

and is not subject to Federal Court jurisdiction under the Class Action Fairness Act, 28 U.S.C.

§ 1332. All named plaintiffs are citizens of North Carolina. The putative class is defined to

include only or predominantly residents of North Carolina. A defendant is deemed to be a citizen of the state where it is incorporated and the state where it has its principal place of business. 28 U.S.C. § 1332(c). Defendant PCL Civil Constructors, Inc. is the principal Defendant herein and despite the fact that two Colorado-based PCL entities are also named, the matter still remains properly in State court because under 28 U.S.C. § 1332(d)(4)(B), "[a] district court shall decline to exercise jurisdiction" where "two-thirds or more of the of all proposed plaintiff

classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." Here, PCL Civil Constructors, Inc. is the primary defendant whose alleged liability is principal, fundamental and direct. 13.

Venue is proper because some or all named Plaintiffs reside in Dare County and

a substantial part of the events or omissions giving rise to the claim occurred in this County.

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IV.

14.

BACKGROUND FACTS.

Located in Raleigh, North Carolina, the PCL Transportation Infrastructure Group

manages projects throughout the United States. 15.

PCL's Raleigh Transportation Infrastructure Group markets itself as a civil

contractor providing construction and alternative delivery services for bridge and highway projects and specifically markets itself as having expertise in bridge replacement projects.

16.

Defendant PCL Civil Constructors, Inc. has a contract with the North Carolina

Department of Transportation for the replacement of the Herbert C. Bonner Bridge across Oregon Inlet from Bodie Island to Hatteras Island.

17.

The Bonner Bridge project is a major bridge replacement project. The owner is

the North Carolina Department of Transportation. The value of the project is $250 million. It is a design-build project.

18.

This project includes the design-build delivery of a 2.8-mile long bridge on NC 12

over the Oregon Inlet. The project also includes the demolition of the existing structure. 19.

The Bonner Bridge is the only access route across Oregon Inlet between Bodie

Island and Hatteras Island. On its website, Defendant PCL Civil Constructors, Inc. touts how by

using "innovative construction methods" and an "accelerated schedule," it "saved the client $60 million over the other contractor proposals." Unfortunately, along with this cost savings came inadequate work to ensure that the power lines which are the lifeblood to these coastal communities would be protected.

20.

The Cape Hatteras Electric Cooperative ("CHEC") supplies power to residents and

businesses in relevant coastal communities using transmission cables near and under the south

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side of the Bonner Bridge. CHEC is a member-owned electric cooperative which serves approximately 7,600 homes and businesses on Hatteras Island in Dare County. The underground

transmission lines cany electricity to the island coastal communities from mainland Dare County. 21.

Early on the morning of Thursday, July 27, 2017, Defendant PCL Civil

Constructors, Inc. acting through its employees and agents acting in the normal course and scope of their employment negligently and recklessly drove a steel casing through underground transmission cables, causing a catastrophic power outage for the coastal communities at the heart

of the peak tourist season. At least two of the three underground transmission cables sustained damage. On information and belief, one was wholly severed.

22.

As a result of the power loss, Hyde County ordered visitors off of Ocracoke Island

on Thursday, July 27. Dare County issued a mandatory evacuation for visitors to Hatteras Island on Saturday, July 29. North Carolina Governor Roy Cooper declared a state of emergency.

23 .

It is estimated that approximately 9,000 customers have been without power on the

two islands of Hatteras and Ocracoke; about 7,700 on Hatteras and another 1,300 on Ocracoke. And, tens of thousands of visitors and tourists have been affected. «: J

24.

As of the date of filing of this complaint, a mandatory evacuation remains in effect

for all visitors to Hatteras Island. The power loss continues and CHEC estimates it will take significant additional time before the power is completely repaired and restored. 25.

Given the critical importance of these particular underground power lines to the

local region, Defendant PCL Civil Constructors, Inc. was fairly obligated to act in due care and with appropriate prudence, advance planning and caution in undertaking any relevant bridge excavation, demolition, construction or related activities, but it failed to do so.

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26.

Plaintiffs are informed and believe that Defendant PCL Civil Constructors, Inc.

during the pertinent times acknowledged and represented that it was aware of the specific location of the underground power lines.

27.

On information and belief, Defendant PCL Civil Constructors, Inc. during the

pertinent times received material assistance and logistical from co -Defendants, PCL

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Construction Enterprises, Inc. and PCL Construction Services, Inc., such that they are fairly implicated as tly and severally liable Defendants herein.

28.

Plaintiff Briggs McEwan has lived in Rodanthe, North Carolina for over 20 years.

He owns the corporate entity, Plaintiff Las Olas, Inc., which operates a pizza shop, Lisa's Pizzeria, in Rodanthe.

29.

Lisa's Pizzeria has proudly served community and tourists in the area for

many years. Due to the catastrophic loss of power, the business has incurred thousands of dollars in losses to date.

30.

Two years ago, Mr. McEwan through the corporate owner, Plaintiff Tri-V Conery,

also opened an ice cream shop, The Village Conery. This small business likewise has been injured due to the catastrophic power loss, incurring thousands of dollars in losses. 31.

Briggs McEwan also has a rental house which he rents out to visitors and tourists.

Due to the catastrophic power loss, he has lost significant rental income to date. 32.

Plaintiff Tami Lynette Gray operates a small business, TJC Enterprises. Through

TJC Enterprises, she offers commercial fishing charters to of the public. 33.

Ms. Gray also has another small business entity, Family Water Adventures, which

likewise offers fishing charters.

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34.

Ms. Gray and her small business entities have suffered thousands of dollars in

losses due to the catastrophic power outage. V.

CLASS ACTION ALLEGATIONS.

35.

In accordance with N.C. R. Civ. P. 23, Plaintiffs assert their claims against

Defendants both individually, and on behalf of the class defined as follows: a.

"All persons and business entities who have suffered power loss to their home or business or other real property located on Ocracoke Island, Hatteras Island or elsewhere in North Carolina as a result of the Cape Hatteras Electric Cooperative transmission line damage occurring on July 27, 2017."

b. 36.

Plaintiffs request being designated as class representatives for the Class.

Numerositv: The Class is so numerous that der of all Class is

impracticable. The outage has affected thousands of individuals and businesses. 37.

Typicality: Plaintiffs' claims are typical of the Class ' claims. The

violations suffered by Plaintiffs are typical of those suffered by other Class .

38.

Adequacy: Plaintiffs will fairly and adequately protect the interests of the Class,

has no known conflicts with Class and has retained counsel experienced in complex class action litigation.

39.

Commonality: Common questions of law and fact exist as to all Class

and predominate over any questions solely affecting individual Class , including but not limited to: a.

Whether Defendant PCL Civil Constructors, Inc. caused the underground power transmission lines in the vicinity of the Bonner Bridge construction project to be damaged or severed.

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b.

c.

Whether Defendant PCL Civil Constructors, Inc. 's conduct was negligent, negligent per se or reckless or otherwise foreseeably led to proximately cause injury to the class; Whether Defendants PCL Construction Enterprises, Inc. and PCL Construction Services, Inc. provided assistance and to Defendant PCL Civil Constructors, Inc. sufficient to make them tly and severally liable;

d.

The proper measure of damages; and

e.

The proper scope of injunctive relief.

40.

This case is maintainable as a class action under Rule 23 because Defendants

acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the Class as a whole. Class

certification is also appropriate because questions of law and fact common to the Class

predominate over any questions affecting only individual , and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. Many Class ' individual claims maybe small compared to the expense and burden

of individual prosecution.

Class certification also will obviate the need for unduly duplicative

litigation that might result in inconsistent judgments concerning Defendants' practices. Moreover, management of this action as a class action will not present any likely difficulties. In the interests of justice and judicial efficiency, it would be desirable to concentrate the litigation of all Class ' claims in a single forum.

41 .

North Carolina law properly applies to the entire putative class. All affected

property owners and individuals should be allowed recourse and protection under the North Carolina law for the damage caused by this catastrophic power loss.

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COUNT I Negligence 42.

Plaintiffs re-allege and incorporate by reference the preceding paragraphs herein.

43 .

Defendants had a duty to exercise due care in performing the relevant work in

relation to the Bonner Bridge project. 44.

Defendants breached their duty of due care by its acts and omissions which had

caused damage to underground power transmission lines in the Bridge area. 45.

As a direct and proximate result of Defendants' negligence, Plaintiffs and class

have been damaged in an amount exceeding the jurisdictional minimum for this Court. COUNT II Negligence Per Se

46.

Plaintiffs re-allege and incorporate by reference the preceding paragraphs herein.

47.

Defendants had a duty to exercise due care in performing the relevant work in

relation to the Bonner Bridge project.

48.

Defendants breached its duty of due care by their acts and omissions which caused

damage to underground power transmission lines in the Bridge area.

49.

On information and belief, in the course of performing the activities which

resulted in the damage to the underground power lines, the Defendants violated one or more building and construction standards, codes, regulations or other laws.

50.

As a direct and proximate result of Defendants' negligence per se, Plaintiffs and

class have been damaged in an amount exceeding the jurisdictional minimum for this Court.

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COUNT III Injunctive and Equitable Relief

51 .

Plaintiffs re-allege and incorporate by reference the preceding paragraphs herein.

52.

Plaintiffs and the Class are entitled to an award of injunctive and equitable relief,

including that Defendants be ordered to engage in prompt efforts to remedy the power

interruption and damage to the transmission lines, and that the Defendants satisfy other injunctive and equitable relief as the facts may warrant as this matter proceeds. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves and the Class, pray for relief as follows and that the Court order and award as follows: A.

Order and certify that this action may proceed as a class action under Rule 23 of the North Carolina Rules of Civil Procedure;

B.

Designate Plaintiffs as class representatives and designate Plaintiffs' counsel as counsel for the Class;

C.

Order that proper notice be provided to the Class at Defendants' expense;

D.

Enter judgment in favor of Plaintiffs on all counts;

E.

Award all allowable damages as sought herein;

F.

Award all allowable pre-judgment and post-judgment interest as provided by law;

G.

Order appropriate injunctive and equitable relief; and

H.

Award reasonable attorneys' fees and costs.

DEMAND FOR JURY TRIAL

Plaintiffs and the Class respectfully demand a trial by jury.

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Respectfully submitted, this the 31st day of July, 2017.

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Dermis C. Rose NCSB 19241

M. Peebles Harrison NCSB 22726

Rose Harrison & Gilreath, P.C. Post Office Box 405 Kill Devil Hills, NC 27948

Telephone: (252) 480-1414 Facsimile: (252) 480-1765 Email: [email protected]

www.outerbankslaw.com Mona Lisa Wallace NCSB 9021

William M. Graham NCSB 17972

John Hughes NCSB 22126

WALLACE & GRAHAM, P.A. 525 N. Main St. Salisbury, NC 28144 704-633-5244 Telephone [email protected]

James R. Gilreath NCSB 9021

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THE GILREATH LAW FIRM, P.A. 110 Lavinia Avenue (zip 29601) P.O. Box 2147

Greenville, South Carolina 29602 Phone: (864)242-4727 Fax: (864)232-4395 Website: www. gilreathlaw. com

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Cheryl F. Perkins Charles W. Whetstone, Jr. Whetstone Perkins & Fulda, LLC 601 Devine Street Columbia, South Carolina 29201 Mailing Address:

Post Office Box 8086 Columbia, South Carolina 29202 Telephone: (803) 799-9400 Facsimile: (803) 799-2017 [email protected] Pro hac to be filed.

Attorneys for Plaintiffs