Injury, Negligence, Fines, and Lawsuits Plague Florida Company

Southwest Florida’s Posen Construction has been having a hard time getting much of anything right lately, if the local news and court dockets are to be believed. And whether things are going to improve appears to be anybody’s guess.

According to the Occupational Safety and Health Administration (OSHA) Posen intentionally ignored safety standards, causing a November gas explosion on Colonial Boulevard in Ft. Myers, for which it fined Posen the allowable maximum of $70,000 for failing to "proceed using caution and detection equipment or other acceptable means to locate underground utility installations when the utility company could not establish the exact locations of these installations."

 Posen construction equipment struck an 8-inch, high pressure, steel gas line owned by Tampa-based TECO People Gas causing a huge explosion and days of gas outage for about 6,000 residential and 1,200 commercial customers in Lee and Collier counties. One of their trucks’ rotary blades struck the buried line, which ignited and engulfed the equipment and its operator in flames, OSHA reported. Employee Mario Santos suffered burns over 50 percent of his body in the accident, and after months of hospital surgeries and therapy, only returned to his family’s home in Bonita Springs in March.

Immediately after the fine, Peoples Gas System filed a federal lawsuit against Posen in U.S. District Court in Fort Myers. The lawsuit alleges Posen, receiving $16.7 million as contractor, destroyed markers for gas line locations in the area of the road widening project in Fort Myers. Although contractors are urged to “call before you dig,” OSHA found no call was made before excavation. The suit maintains that a Posen representative contacted Peoples Gas to say it wanted to begin excavation in the area. Posen asked that Peoples Gas locate and mark the pipeline in that area. “That same day, a PGS representative ... was unable to do so because Polsen had destroyed all previously installed locating test stations and other marks in that area during its construction activity,” says the 11-page lawsuit.

In the meantime, Posen is up against it in its attempt to finish its Metro Parkway project. If the company continues to fall behind on the $29.8 million road project, state officials say they will pull Posen from the job without notice.

David A. Sadler, director of the state’s construction office, sent a strongly worded letter to the company, offering them one more shot at the project, which extends Metro Parkway south from Ben C. Pratt/Six Mile Cypress Parkway to U.S. 41 south of Alico Road.

“There’s a real reluctance to default,” said Bob Burleson, president of the Florida Transportation Builders Association. “It doesn’t happen much.”

In addition to delaying completion, default could bring costly legal disputes with Posen and Safeco, the company guaranteeing the project, Burleson suggested. He has seen the state go that route about 10 times in the past 15 years.

Posen’s temporary reprieve comes six weeks after the state gave the company yet another ultimatum.

In March, the company owed $794,000 to seven subcontractors with only 35 percent of the work completed, after eating up 65 percent of the two year construction time frame. Days after the state complaint, Posen cut checks to the seven subcontractors and promised to increase the pace, and after a month of deliberations in Tallahassee, the state decided to give Posen one more chance. The company is still behind on a bridge over Alico Road, a letter states, despite a promise to put on more workers.

 “The lack of performance on the bridge work, which remains the critical path for the project, continues to impact the project on a daily basis,” Sadler wrote.

Posen now says it will finish the project 45 days late. The state could fine the company up to $7,100 every day past the deadline. Stan Cann, at the state Department of Transportation, revealed that Posen had about 40 people working on Metro — not enough manpower to hit the deadline.

Still, in a release last month, the county’s transportation and legal staff said they had no intention of removing Posen from widening work on Summerlin Road and Colonial Boulevard. Both projects are set for completion this summer. Both have been riddled with problems.

However, multiple past violations are expected to be a factor in holding Posen responsible for delays on the Colonial Blvd. project resulting from the explosion and will be considered prior to letting future County road contracts as the County currently reviews safety history in greater detail concerning road contractor responsibility. Additionally, safety history will be part of the criteria for any future contractor prequalification requirements.

PREVIOUS FINES/VIOLATIONS

A ruling on September 23, 2010 found the company had serious safety violations during dismantling a crane at Colonial and Forum Boulevards in Fort Myers. The initial $3,250 penalty was dropped to $2,437.50.

On June 23, 2009, OSHA ruled Posen had a repeat violation involving protective systems at a site in Rockledge, Florida. A $20,000 fine was reduced to $16,000.

On October 19, 2007, OSHA fined the company $1,925 for safety violations involving requirements for protective systems at a site on Alico Road in Fort Myers. That fine was settled to $1,443.75.