Travelers Casualty & Surety Company of America v. Vazquez-Colon

CourtDistrict Court, D. Puerto Rico
DecidedMarch 19, 2025
Docket3:18-cv-01795
StatusUnknown

This text of Travelers Casualty & Surety Company of America v. Vazquez-Colon (Travelers Casualty & Surety Company of America v. Vazquez-Colon) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Casualty & Surety Company of America v. Vazquez-Colon, (prd 2025).

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO

TRAVELERS CASUALTY & SURETY ) COMPANY OF AMERICA, ) ) Plaintiff/Counterclaim Defendant, ) ) v. ) No. 3:18-cv-01795-JAW ) ALBERTO VÁZQUEZ-COLON, et al., ) ) Defendants/Counterclaim Plaintiffs. )

ORDER ON PRASA’S MOTION IN LIMINE REGARDING USE OF THE MODIFIED TOTAL COST METHODOLOGY

A defendant moves in limine to prevent an opposing party’s financial expert from relying on Modified Total Cost methodology and to strike the opposing party’s damages calculation reached through use of this methodology. Recognizing that the court previously issued an order on the same issues the defendant now presents in limine and concluding that this prior order contains no clear error and does not work a manifest injustice, the court dismisses the defendant’s motion in limine pursuant to the law of the case doctrine. I. BACKGROUND With trial looming, on March 11, 2025, Puerto Rico Aqueduct and Sewer Authority (PRASA) filed a motion in limine “request[ing] the Court to order that the [Modified Total Cost (MTC)] methodology cannot be used in this case, and to strike Aluma’s valuation of the damages reached through that methodology.” Mot. in Lim. Re: Use of the MTC Methodology at 1 (ECF No. 644) (PRASA’s Mot.).1 On March 14, 2025, Aluma Construction Corporation (Aluma) filed its opposition. Opp’n to Mot. in Lim. Regarding Modified Total Cost Method (Dkt. 638/644) (ECF No. 654) (Aluma’s

Opp’n). II. OVERVIEW In 2012, Travelers Casualty & Surety Company of America (Travelers) issued a General Agreement of Indemnity in favor of Aluma and issued surety bonds, securing Aluma’s performance and its fulfillment of three construction contracts in Puerto Rico. Travelers was required to pay on the surety bond, indemnified by

corporate and individual indemnifiers, and this lawsuit is its attempt to collect from the indemnifiers its surety payment plus costs and expenses. Furthermore, Travelers asserted that it had paid claims from Aluma’s subcontractors, workers, materialmen, and others and that Travelers was, therefore, subrogated against PRASA for that amount. Travelers’ relatively straightforward claims against the owner of the construction project and the indemnifiers subsequently devolved into a complicated

1 First, although all motions in limine were due on March 7, 2025, Rep. of Final Pretrial Conf. and Order at 3 (ECF No. 623), and the motion the Court considers in this order was filed on March 11, 2025, the Court considers PRASA’s motion timely filed. PRASA initially submitted this motion in limine by the deadline, but later removed the motion because “[c]ounsel filed using another counsel’s login/password.” Mot. in Lim. Re: Use of the MTC Methodology (ECF No. 638). PRASA then resubmitted the same motion on March 11, 2025; the Court addresses this latter filing in this order. Second, PRASA’s motion “requests the Court to order that the MTS cannot be used in this case, and to strike Aluma’s valuation of the damages reached through that methodology.” PRASA’s Mot. at 1. This is the only instance in the motion in which PRASA refers to Aluma’s expert’s methodology by the abbreviation “MTS”; the rest of the order uses “MTC” in reference to Modified Total Cost methodology. The Court assumes MTS was a typographical error and corrects it to MTC. dispute among PRASA, Aluma, and the indemnifiers as to who was responsible for construction delays and cost. Aluma and the other Defendants/Crossclaimants2 seek damages for

contractual torts, alleging they were induced into a construction contract that was negligently designed and managed by PRASA. In the alternative, Aluma seeks damages pursuant to the terms of the contract for unpaid costs and/or damages caused by the numerous change orders and different site conditions in the project site. Chubb Insurance Company, a third-party defendant, is an insurer of PRASA. The only pending matter concerning Travelers is the imposition of attorney’s fees and

costs, and interest on the debt. III. THE PARTIES’ POSITIONS A. PRASA’s Motion in Limine PRASA’s motion in limine “requests the Court to order that the MT[C] methodology cannot be used in this case, and to strike Aluma’s valuation of the damages reached through that methodology.” PRASA’s Mot. at 1. It proffers that Aluma’s financial expert, Carlos J. Iglesias Colon, used the MTC methodology and

2 At the final pretrial conference, the Court asked about the status of several of the parties, who are listed as active parties on the docket but are not represented by counsel. The docket currently lists as Defendants/Crossclaimants: Alberto Vazquez-Colon, Hilda Pineiro-Caceres, Carlos Gonzalez- Torres, Ivette Gomez-Diaz, Miguel Bermudez-Carmona, Aluma Construction Corporation, Vieques Concrete Mix Corporation, Inter-Island Ferry System Corporation, Vieques F.O.&G. Inc., PRASA, Conjugal Partnership Vazquez-Pineiro, Conjugal Partnership Gonzalez-Gomez. After some discussion, the parties suggested that some of the individuals and entities should no longer be parties to the case. The Court instructed the parties to file an update as to the status of all the parties, except for those represented at the final pretrial conference, by February 26, 2025. As of the date of this order’s docketing, no such informative motion has been filed. points out that “[i]t has been admitted that this methodology can only be used if five criteria are met.” Id. Here, PRASA says, at least two criteria are absent: (1) Aluma must prove there is no other method for establishing the claim, and (2) Aluma must

be able to establish what percentage of the costs was caused by its own inefficiency. Id. After quoting from the Supreme Court’s holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, see id. at 2-5, PRASA presents a series of “uncontested facts.” First, it says, that after final completion was achieved, Aluma sent a letter to CH Caribe, the Project Manager, presenting its

“claim for the losses suffered and not compensated in the reference[d] project” and stating “[n]otwithstanding the provisions of Art. 10 of the General Conditions and for the reasons set forth herein, the Modified Total Cost [MTC] Method is used as a vehicle for filing the claim.” Id. at 6 (quoting id., Attach. 1, June 16, 2014 Letter at 1) (PRASA’s emphasis). PRASA proceeds to state that the same letter communicated that the MTC Method can be applied if the following five prerequisites are satisfied: 1. There is no other way of accurately estimating the economic damages that Aluma received in the project;

2. There were no noticeable errors in the Aluma Proposal and it was for the fair value (not underbid);

3. The inefficiency of Aluma can be distinguished from the damages caused by the acts of third parties;

4. The current cost incurred by Aluma is reasonable in light of the project’s circumstances;

5. The contractor used a reasonable accounting method to accumulate project costs. Id. (citing June 16, 2014 Letter at 7-8) (PRASA’s emphasis) (enumeration altered). PRASA’s statement of allegedly uncontested facts continues that on July 14, 2014, CH Caribe evaluated and rejected Aluma’s claim. Id. (citing id., Attach. 2, July

14, 2014 Letter). PRASA says Change Order L “was the last change order of the project and was signed by the parties on separate days in August and September 2014,” id. (citing id., Attach. 3, Change Order L Letter at 1, 3), and “[t]he last approved amendment to Aluma’s contract (which corresponds to Change Order L) is dated September 11[], 2014, but signed by the parties in separate days in August and September 2014.” Id. (citing id., Attach. 4, Written Am.). PRASA reports that these

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