Judge sends T dispute over warranty to jury

A federal judge has set a jury trial date for Nov. 7 in the MBTA’s $91.5 million suit against the maker of its faulty concrete ties, saying a “less than complete record” has made it impossible for him to determine if the agency had the 15-year warranty it claims it has.

“After extended review of the less than complete record regarding the warranty applicable to the parties’ agreement, it is apparent that fact finding will be necessary to resolve the underlying factual dispute whether the parties entered into a limited warranty as contended by the defendant,” wrote Judge Douglas P. Woodlock in his terse order, which was issued late Friday and posted online over the weekend.

Woodlock had ordered the T to submit all its records regarding the original request for purchase and the contract but said the documents contain nothing that would dispute the contention of Denver-based Rocla Concrete Ties nor support the MBTA’s version. He said the facts are going to have to be determined by a jury, though he indicated he could still rule on Rocla’s motion to dismiss after all the facts are presented.

The MBTA filed suit against Rocla last year after failing to convince the company to cover the costs associated with replacing nearly 150,000 defective ties along the Old Colony Commuter Rail line. The T says Rocla claimed in its marketing that the ties would last 50 years, but they began breaking and crumbling less than 10 years after installation. The T, though, could not show Woodlock definitive records upholding its claim about Rocla’s marketing.

Rocla, which denied ever pitching the 50-year life span, sought summary judgment as well as a motion to dismiss the suit, submitting memos and communications that indicated T officials agreed to reduce the 15-year warranty for replacement to just a limited 3-year warranty. Rocla officials said that, when they negotiated the sale in 1995, they reached an agreement with MBTA officials for a limited three-year warranty that capped the company’s liability at no more than $9 million, the cost of the original ties.

The Old Colony lines, running from Kingston/Plymouth and Middleboro/Lakeville, began operation in the fall of 1997 and the first defective ties were seen in the spring of  2007, as first reported in CommonWealth magazine. After engineering studies and talks with Rocla officials, the T determined a faulty mix of concrete was responsible for the faulty ties and decided to replace all the concrete ones with wooden ones.