Metropolitan St. Louis Sewer District wins some claims but no money

Despite a finding of breach of contract, St. Louis County jurors rendered a mixed verdict and awarded zero dollars to the Metropolitan Sewer District in its battle with a contractor about a collapsed sewer line.

Thomas J. Magee of HeplerBroom represented defendant Gershenson Construction Company in the suit, in which MSD sought damages for replacement and cleanup expenses in the wake of the 2015 collapse of the sanitary sewer in Fenton.

“About a mile of it had failed,” Magee said. “The pipe essentially broke apart.”

According to an emailed statement from MSD spokesman Sean Hadley, Gershenson had been retained as part of a $6.98 million contract and was one of four entities sued in the matter. MSD settled with three of the four defendants for $6.4 million, Hadley said.

MSD claimed total damages exceeding $12 million before setoffs from the other settlements.

In the Gershenson matter, jurors found in favor of MSD on breach of contract but awarded no money. The jury sided with Gershenson on counts of contractual indemnity and negligence.

Hadley noted that the jury also found in favor of MSD on a breach of contract counterclaim filed by Gershenson which “allowed MSD to keep funds it had retained pursuant to the contract with Gershenson — nearly $220,000.”

Magee said that MSD also was seeking costs for damage alleged to have been caused to a local treatment plant due to sediment intrusion after the pipe failure.

“They claimed we failed to connect the pipes correctly together and that we didn’t do the bedding right,” he said. “Our defense was that we did everything right, and essentially our argument was that it was a design issue.”

Magee said the judge barred the defense from blaming the other defendants, which included the designer, pipe manufacturer and soil consultant. He  said the pipe’s problems may also have been exacerbated by groundwater issues and flooding from the nearby Meramec River.

“The design did not take into account the effect of groundwater on the pipe,” he said, noting that his client followed the plans they were given.

He said jurors found there were problems with Gershenson’s actions, but they were not serious ones.

“In talking with the jury, they thought there were some technical breaches of the contract in that we didn’t have some paperwork that we were obligated to keep,” Magee said. “But they didn’t think anything we did caused any damage to MSD.”

Hadley said the case was settled after the December trial.

“In February 2020, the parties determined it was in their best interests to enter into a settlement to avoid future appeals and additional legal fees and costs, and to address future work between them,” he wrote. “MSD believes that such a resolution will best serve the interests of its ratepayers.”

Pamela Meanes, Paul Brown and Paul Sonderegger of Thompson Coburn along with MSD’s in-house counsel Todd Aschbacher represented the defense. Requests to the firm for comment resulted in the statement from MSD.

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