2017 UT App 68
THE UTAH COURT OF APPEALS
CONOCOPHILLIPS COMPANY AND PIONEER PIPE LINE COMPANY,
Appellees,
v.
UTAH DEPARTMENT OF TRANSPORTATION AND AMES
CONSTRUCTION INC.,
Appellants.
Opinion
No. 20160221-CA
Filed April 20, 2017
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 120700141
Miles M. Dewhirst, Rick N. Haderlie, and Kyle L.
Shoop, Attorneys for Appellants
Robert E. Mansfield and Steven J. Joffee, Attorneys
for Appellees
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 The appellants seek to set aside the district court’s
judgment against them. They contend that, during the jury trial,
the court erred (1) by ruling that portions of a deponent’s
testimony did not qualify as admissible expert testimony
pursuant to Utah Rule of Evidence 702 and (2) by failing to strike
portions of a percipient witness’s testimony that amounted to an
unsolicited expert opinion. We conclude that the district court
properly excluded the relevant portions of the deposition and
that any error in failing to strike the trial testimony was invited;
ConocoPhillips Company v. UDOT
consequently, we affirm. We remand to the district court for the
limited purpose of calculating attorney fees incurred on appeal.
BACKGROUND
¶2 The Utah Department of Transportation (UDOT) hired
Ames Construction Inc. (collectively, Defendants) as the general
contractor for a highway construction project. Completion of the
project required the relocation of several utilities, including a
pipeline owned by ConocoPhillips Company (Conoco). UDOT
therefore entered into written agreements with Conoco under
which Conoco agreed to relocate the relevant section of pipeline
and UDOT agreed to reimburse Conoco for the costs of doing so.
The pipeline relocation was completed in March 2007; the
pipeline was inspected before, during, and after the relocation to
ensure that it was not damaged. Portions of the new pipeline run
parallel to and under the new highway, approximately 28 feet
underground.
¶3 After the relocation was completed, Defendants installed
wick drains in the ground around the highway project. Wick
drains are used to remove excess moisture from the ground in
construction areas. They are essentially ‚pipes‛ driven into the
ground that allow groundwater to seep through semi-permeable
sides and collect inside the drain for removal or evaporation.
During the highway project, Defendants used hundreds of wick
drains driven up to 100 feet underground.
¶4 On April 3, 2007, one of Conoco’s supervisors noticed that
27 to 30 wick drains had been installed within 7 or 8 feet of the
surface markers indicating the pipeline’s underground location.1
1. In their written agreements, UDOT and Conoco had agreed
that a Conoco-appointed inspector would be ‚required to be
onsite during all phases of work impacting the pipeline,‛
including ‚any time work is being done within 25 *feet+ of the
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20160221-CA 2 2017 UT App 68
ConocoPhillips Company v. UDOT
At least one of the wick drains was within 4 feet of the pipeline
markings. The supervisor halted all work in the area to
investigate whether the wick-drain installation had damaged the
pipeline or the pipeline’s cathodic anti-corrosion coating. See
generally 49 C.F.R. §§ 195.563, 195.571 (2017) (federal regulations
requiring cathodic protection of certain types of underground
pipelines).
¶5 As part of the investigation, Conoco hired Brent Cathey to
conduct a direct-current-voltage-gradient (DCVG) test. DCVG
testing indirectly detects ‚holidays[2] or voids in a pipeline’s
coating‛ by measuring voltage gradients in the soil. Cathey did
not detect any holiday indications at the site.
¶6 Several years later, in 2010, the pipeline was physically
inspected, and damage to its upper portion was found in two
areas. The first was a 0.6-inch-deep dent at the ‚12:15 position.‛
The second was a 1.05-inch-deep dent ‚located at the 11:00
position.‛ The GPS coordinates of the damaged areas were ‚in
very close proximity‛ to where two of the wick drains had been
installed in April 2007.
¶7 Conoco filed this lawsuit against Defendants, alleging
breach of contract and negligence. During the three-day jury
trial, Conoco presented evidence suggesting that the wick-drain
installation caused the dents on the pipeline. Defendants
presented contrary evidence including Cathey’s deposition.3 The
(