HomeMy Public PortalAboutBox 505 REK #1 AFFIDAVIT OF JOHN EIGLERI
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RON T. BLEWETT
ISB NO. 2963
CLARK and FEENEY
The Train Station, Suite 201
13th and Main Streets
P. O. Drawer 285
Lewiston, Idaho 83501
Telephone: (208)743-9516
Facsimile: (208)746-9160
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
EMPLOYERS INSURANCE OF WAUSAU)
A MUTUAL COMPANY, a Wisconsin )
mutual company, )
)
Plaintiff, )
)
vs. )
)
ST. CLAIR CONTRACTORS, INC., an )
Idaho corporation; ARLISS A. ST. CLAIR; )
RANDALL T. ST. CLAIR and )
CINDY M. ST. CLAIR, husband and wife; )
DENNIS RAY ST. CLAIR and )
KAREN ELAINE ST. CLAIR, husband )
and wife; THE CITY OF McCALL, an )
Idaho municipal corporation; )
INTERWEST SUPPLY, INC., an Idaho )
corporation; and DEVELOPERS SURETY )
& INDEMNITY CO., an Iowa corporation, )
)
)
)
INTERWEST SUPPLY, INC., an Idaho )
)
)
Defendants.
corporation,
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
1
U.S. District Court
Case No. CIV01-0629-S-BLW
AFFIDAVIT OF JOHN EIGLER
IN SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
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Counterclaimant and Crossclaimant, )
)
vs. )
)
EMPLOYERS INSURANCE OF )
WAUSAU A MUTUAL COMPANY, a )
Wisconsin Mutual Company, )
)
Counterdefendant, )
)
and )
)
THE CITY OF McCALL, an Idaho )
municipal corporation, )
)
Crossdefendant. )
)
ST. CLAIR CONTRACTORS, INC., an )
Idaho corporation, )
)
Crossclaimant, )
)
vs. )
)
THE CITY OF McCALL, an Idaho )
municipal corporation, )
)
Crossdefendant. )
)
ST. CLAIR CONTRACTORS, INC. , an )
Idaho corporation, )
)
Third -Party Plaintiff, )
)
vs. )
)
OLDCASTLE PRECAST, INC., d/b/a )
AMCOR PRECAST, )
)
Third -Party Defendant. )
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
2
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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STATE OF
County of
)
) ss.
JOHN EIGLER, after first being duly sworn on oath deposes and says:
1) That I am a bond claim consultant, and was retained by Employers Insurance of
Wausau ("Wausau") in the year 2000 to perform investigation, advice, and provide recommendations
to bond claim supervisor, Judith Rheinschmidt, for her consideration in regard to the J-Ditch Phase
II Project. I have reviewed the Project Manual, the Performance Bond, and have visited the project
at various times and had various meetings with the engineer and the contractors involved, and have
familiarity with the facts described in this Affidavit.
2) That I was involved in assisting Wausau in coordination of a replacement contractor
to complete the work after the termination of St. Clair Contractors, Inc. ("St. Clair"). As these
efforts were initiated in January and February, 2000, I found that the City of McCall had paid nothing
for the geomembrane liner (Bid Item 19) which had been installed the previous year. One of my early
priorities with Wausau was to obtain payment for the liner.
3) In order to obtain payment for the liner, I helped to coordinate the return of St. Clair's
liner subcontractor, Serrot International, to the jobsite. I was familiar with the work that Serrot
International did in the spring of 2001. Serrot's work in the spring of 2001 involved some
comparatively minor quality control testing, inspection and repair prior to Pay Application No. 8.
I have reviewed Deposition Exhibit 61, a copy of which is attached, and which includes a true copy
of Pay Application No. 8 submitted to the City of McCall. I was involved in preparation of the
information for the pay application. As of April 6, 2001, J-U-B Engineers, through Matt Uranga,
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
3
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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Project Engineer, had authorized payment through Pay Application No. 8 of $309,095.83 for
installation of geomembrane liner which had been installed in the reservoir. His signature is shown
on Pay Application No. 8. At the time that the payment was authorized, the work described in Serrot
International's letter of April 2, 2001, (which is part of Pay Application No. 8), was still required to
be performed. This included 130 repairs, a final walk-through, repair of final walk-through areas,
and installation of ladders, all in relation to panels 1 through 62. Even though the work was not
100% complete in this respect, J-U-B authorized payment for the work. There was never any
explanation from J-U-B Engineers why these funds were not earlier authorized for payment based
upon a percentage of completion to St. Clair in the previous year.
4) Through the course of my work on the J-Ditch Phase II Project, I also became aware
of work on the wet well, which J-U-B Engineers required for the first time in the year 2001, based
upon a review of photographs taken in the year 2000. In discussions with Matt Uranga and George
Wagner during the summer and fall of 2001, they told me on various occasions that they had
reviewed photographs with a magnifying glass and determined based on the photos that the work
photographed the previous year was defective. This work was identified in George Wagner's letter
of July 25, 2001, and in Matt Uranga's letter of September 5, 2001, which are Deposition Exhibits
54 and 55, respectively, true copies of which are attached here. The work included without limitation
the alleged defects in the exterior thrust restraint on the bottom and middle penetrations to the
primary wet well, as well as the fact that the middle penetration to the primary wet well was cored
on a joint in the wet well sections. These alleged defects could have been comparatively easily and
quickly fixed had the notice of alleged defect been given by J-U-B Engineers while these
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
4
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
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components of the construction were photographed. At the time they were photographed, they were
above ground and readily accessible. These components of construction were buried in the ground
from 30 to 60 feet deep, they were encased in the dike embankment, the dike embankment was in
turn covered with geomembrane liner, and the effluent reservoir was filling with sewage effluent,
all before any notice of defect was given. The late notice of defect made it very difficult to correct
the problem and delayed the project substantially in that, among other things, J-U-B had to design
a new system to repair the alleged defects to the satisfaction of J-U-B Engineers, and one had to
repair the alleged defects from the interior wet well by supplemental construction components, rather
than simply fixing the alleged problem while it was above ground and before it was encased in
concrete.
5) The belated notice of these defects genuinely worked to the disadvantage of Wausau
as surety because Wausau couldn't even inspect many of the alleged defective components (now
underground) to determine whether or not the defects actually existed. Furthermore, the repair was
more difficult and expensive after the construction components were encased in concrete and buried,
and since the repair had to come from the inside of the wet well. The ultimate completion of the
work was delayed by reason of the late notice, thereby increasing completion cost of the project as
well as increasing the time for final completion. Work on these items continued until at least late in
2002.
Further your affiant sayeth not.
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
5
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
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DATED this 1/6 day of April, 2003.
JOHN E
SUBSCRIBED AND SWORN to before me this if day of April, 2003.
6.4-€L7iN-729
NOTAR UBLIC FOR S/TAT OF NtUR4Y/ CO
Residin at: 57e W- 6/6/6 g7.1-7(6
Commission expires: /h 3
- • /
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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I hereby certify on the
day of April, 203, a true copy
of the forego instrument
was: �' ' Mailed
Faxed
Hand delivered
Overnight mail to:
Ms. Susan E. Buxton
Moore, Smith, Buxton & Turcke, Chtd.
225 N. 9th Street, Suite 420
Boise, ID 83702
Mr. William A. McCurdy
Brassey, Wetherell, Crawford & McCurdy
1001 W. Idaho, 3`d Floor
P. O. Box 1009
Boise, ID 83701-1009
Mr. Geoffrey J. McConnell
Mr. Paul Boice
Meuleman & Miller, L.L.P.
960 Broadway Avenue, Suite 400
Boise, ID 83706
Mr. Kenneth D. Nyman, Esq.
Anderson, Julian & Hull
250 S. 51h, Suite 700
P. O. Box 7426
Boise, ID 83707
Mr. David Kerrick
David Kerrick & Associates
1001 Blaine Street
P. O. Box 44
Caldwell, ID 83606
CLARK and FEENEY
By
Attomeys for Plaintiff
AFFIDAVIT OF JOHN EIGLER IN
SUPPORT OF PLAINTIFF'S
CONSOLIDATED MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
7
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
DEPOSITION
EXHIBIT 54
" J u d i t h . R h e i n s c h m i d t " "
. W a u s a u . I n s u r a n c e ; C o m p a n i e s " '