Boston’s Big Dig Spawns Big Malpractice

Boston’s “Big Dig” continues to spark lawsuits 15 years after construction was completed. The most expensive US highway project – in excess of $24 billion – the Big Dig rerouted a major highway in Boston into a 3.5 mile tunnel. The project was plagued by delay, leaks, design flaws, and substandard materials. Ten years after completion of the project, in 2006, 26 tons of ceiling tiles and concrete became dislodged, fell and killed one motorist, injuring others. Reportedly, the National Transportation Safety Board blamed the collapse on faulty epoxy. In the most recent lawsuit arising from this incident, an insurance carrier sued its attorneys for malpractice for allegedly failing to disclose a conflict of interest.

Modern Continental was a contractor responsible for completing the finishes in the project, including installation of ceiling tiles. Modern purchased commercial liability policies from National Union Fire Insurance Co as well as performance bonds through Travelers Insurance. Following the ceiling tile accident, National Union engaged a Chicago based law firm to provide a coverage analysis, including an opinion regarding financial responsibility for the loss. Although the law firm advised National Union to deny coverage, the firm failed to disclose to National Union that it also represented Travelers. Allegedly, the law firm was aware of the potential conflict but failed to disclose for two-years. According to National Union, the law firm was incapable of providing “zealous representation” because the firm’s clients had competing interests. National Union seeks tens of millions of dollars in damages.

While the “Big Dig” has taught us all important lessons about faulty workmanship and insurance disputes, this newest suit imparts lessons for all professionals regarding conflicts of interest. Although an initial conflict report may clear without a hitch, conflicts can arise at any point during the course of the representation – and even after the representation has concluded. Additionally, firms should disclose a potential conflict as soon as they become aware of it. Prompt disclosure can mean the difference between a written waiver and a multi-million dollar malpractice suit.