FORT MYERS — Posen Construction is accusing TECO Peoples Gas System of slander, alleging the utility falsely blamed it for a November gas explosion that was actually caused by the utility moving a gas line without alerting anyone.
Those are the allegations in a countersuit Posen filed in U.S. District Court in Fort Myers, the latest salvo in a legal battle that began April 20, when the Tampa-based utility sued Posen.
The recent counterclaim contends Peoples Gas, a division of Tampa Electric Co., slandered Posen by providing the Daily News, the News-Press and other media with false statements, including calling Posen the “sole cause” of the Nov. 11 explosion that knocked out gas to businesses and restaurants in Southwest Florida for days.
Through media statements and its April lawsuit, the counterclaim contends Peoples Gas falsely accused Posen of knocking down gas line markers — claiming it warned the contractor it changed gas line locations and cautioned the contractor not to work there.
However, Posen alleges Peoples Gas (PGS) never told anyone it redirected a gas line 90 degrees from its original planned location and moved it closer to the surface.
“The effect of the diversion was also to place the new gas line directly underneath the planned roadway expansion,” the counterclaim says, referring to Colonial Boulevard in Fort Myers. “... At no time ... did PGS or its representatives advise Posen of the new location of the gas line.”
Peoples Gas recently asked for more time to respond to the answer, affirmative defenses and counter-claim and U.S. Magistrate Sheri Polster Chappell extended the deadline to this week.
Tampa attorney Pedro F. Bajo Jr., who represents Peoples Gas with lawyers Stephen Cohen of Tampa and Carl Joseph Coleman of Fort Myers, referred calls to the utility.
“We stand behind what we said in our complaint and we look forward to the court’s resolution in the matter,” TECO spokeswoman Cherie Jacobs said.
Posen’s attorney, Kevin Crews of Wicker, Smith, O’Hara, McCoy & Ford in Naples, declined comment beyond what he alleged in the cross-claim. Posen is based in Michigan, but has offices in Estero.
TECO’s lawsuit came just days after the federal Occupational Safety and Health Administration fined Posen $70,000, the maximum, for failing to call or take other precautions before digging, a willful violation of safety standards.
It was the third time since 2007 that OSHA cited Posen, which always negotiated fine reductions.
U.S. Department of Labor spokesman Mike D’Aquino said Posen is appealing its fine to the Occupational Safety and Health Review Commission, which will set a hearing.
TECO’s lawsuit alleged Posen, a general contractor paid $16.7 million for the project, destroyed gas location markers on the south side of Colonial Boulevard, between State Road 82 and Treeline Avenue. Although contractors are urged to “call before you dig,” OSHA found no call was made to Florida’s Sunshine One-Call system.
The lawsuit contends a gas employee warned Posen no excavation work should occur until the pipeline was located and marked and Posen agreed to work elsewhere and return to the excavation area on Nov. 15.
But on Nov. 11, Posen’s bulldozer blades hit an 8-inch buried natural gas line, critically burning the driver, Mario Santos, 26, of Bonita Springs, destroying the bulldozer and causing the outage. Santos, who returned home in late March, was burned over 50 percent of his body.
Posen’s counterclaim contends it began work on the project in August 2009, including building the roadbed, installing underground drains and street lighting. Posen maintains it called Sunshine One-Call that month and every 30 days to report planned work and request that underground line owners mark them.
But the counterclaim says there were numerous conflicts identified between Posen’s planned work and Peoples Gas lines that were discussed at numerous biweekly meetings between Posen, Johnson Engineering, the project’s construction engineer, and others.
“PGS failed to attend many of these meetings,” the 28-page countersuit alleges.
The two agreed the utility would assist Posen when it worked in a known conflict area to temporarily move a gas line so Posen could install pipes and Peoples Gas or its subcontractor moved lines in several areas, including the area of the explosion.
The counterclaim says the gas line, which ran next to drain conduits, was moved a few feet horizontally so drain pipes could be installed.
From May 12 to May 19, 2010, Posen saw the gas line next to the drain pipes while working there. The counterclaim says everyone agreed Peoples Gas, its subcontractor or both would clear conflicts by lowering gas lines below conflict areas, but within original locations. The utility cleared various conflicts that way.
On June 7, 2010, the utility, Posen, and Johnson Engineering held a meeting to discuss conflicts. A Johnson email said the conflict in that area was “cleared by TECO,” but didn’t detail how.
On Oct. 18, Posen renewed its Sunshine One request to “locate” the line. Three days later, Sunshine One told Posen all underground lines were marked or identified.
Around Nov. 5, Posen contacted Peoples Gas, requesting that it locate and mark a gas line so Posen could install the lighting system. Peoples Gas said an employee would be there Nov. 8, but the counterclaim alleges that employee didn’t adequately mark or locate it. Posen didn’t work there that day and contacted Peoples Gas again.
Posen was told another employee would be there the next day. He told Posen he’d order another “gas line locate.”
Posen didn’t do lighting work that day or the next and by Nov. 11, the line still wasn’t marked despite requests. Based on visual observations of the gas line, construction plan reviews and a “reasonable investigation,” Posen determined it could proceed there — and the explosion occurred.
The diversion violated minimum federal safety standards and gas pipeline regulations, the counterclaim says, alleging Peoples Gas never appropriately or sufficiently marked, located, identified or flagged the new location.
People Gas still hasn’t moved the line, delaying the project and preventing Posen from completing work under its Lee County contract, according to the counterclaim, which alleges the utility also hasn’t cleared other conflicts, causing other delays and preventing Posen from adhering to its contract.
The counterclaim alleges Peoples Gas was negligent and interfered with Posen’s contract, causing increased construction costs and damages, including to property. The counterclaim’s allegations are supported by exhibits of emails, construction plans and newspaper articles.