Wis. Supreme Court takes deep tunnel case (UPDATE)

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The state Supreme Court’s decision to hear a deep tunnel lawsuit has placed the Milwaukee Metropolitan Sewerage District at risk of spending at least $16 million to resolve the dispute.

It’s not the first time.

MMSD and Bostco LLC have tangled since 2003 over the deep tunnel’s effect on the company’s Boston Store at 331 W. Wisconsin Ave. in downtown Milwaukee.

The company alleges MMSD’s negligence in maintaining and operating the 19-mile tunnel, which is 300 feet below downtown Milwaukee, has damaged the foundation of the building, according to court records. Bostco claimed the deep tunnel, which stores wastewater, pulled groundwater away from the wood pilings beneath the building, exposing them to air and leading to rot and structural damage.

But James Petersen, MMSD senior staff attorney, said the drainage was happening long before the tunnel’s construction in 1984.

“Most of downtown Milwaukee is constructed on what used to be a swamp,” he said. “You start squeezing water out of it as soon as you start building on it.”

Mark Cameli, a Bostco attorney who works for Reinhart Boerner Van Deuren SC, Milwaukee, did not immediately return multiple calls seeking comment.

The Supreme Court, which accepted the case Friday, will have several previous decisions to consider.

On July 27, 2006, a Milwaukee County Circuit Court jury awarded Bostco $6.3 million in damages for the negligence, but the award was overturned and reduced to $50,000 by Circuit Court Judge Jeffrey Kremers on Sept. 11, 2006. Kremers cited a state law that caps damages at $50,000 for a municipality in a tort claim. Parisian Inc., also a plaintiff in the case, was awarded $50,000.

Another estimated $10 million could be on the line when the Supreme Court considers whether MMSD should place concrete lining along one mile of the tunnel, portions of which are beneath the store.

A circuit court judge in 2007 ruled the tunnel caused the damage to Boston Store and that MMSD needed to strengthen the groundwater barrier. But in May, a state appeals court overturned the decision.

District officials have estimated the concrete lining would cost $10 million, Petersen said.