TALLAHASSEE – The First District Court of Appeal denied an appeal from The Keystone Airpark Authority Tuesday that challenged a May ruling against an aviation consulting engineering firm.

According to court documents, the airpark authority disagreed with the partial summary judgment from May that ruled that damages related to work Passero Associates performed on hangars and taxiways in 2008 were consequential.

The airpark claimed that Passero, “failed to properly supervise construction work,” when Starke-based contractor Pipeline Contractors Inc. performed the work at the airpark 10 years ago.

Pipeline Contactors used a building material called EZBase underneath the asphalt and buildings. The material is alleged to be toxic and unpredictable and was banned by the Clay County Board of County Commissioners in 2013. Clay Judge Don Lester found the use of the substance was not necessary, was not inspected or approved by an engineer and was not handled according to the prescribed instructions when using the product at a construction site. Lester ruled Pipeline breached its contract with the airpark.

In May, Lester ordered Pipeline Contractors Inc to pay $35,400 in estimated lost rent and $2,053,570.31 for remediation to the airport for a combined $2,088,970.31. The Hanover Insurance Company, which took out a bond based on Pipeline’s completion of the deal with the airport, also had to pay the Keystone Airpark Authority $1,128,691.50.

Passero countered that the airpark could not recover engineering costs because the damages were not general or direct damages.

The airpark argued Passero was liable due to a “failure to supervise.” The appeals court sided with the original ruling that Passero was not liable and the damages were consequential.

“… the damages were not a direct or necessary consequence of Passero’s alleged failure to properly supervise construction work. The contractor could have completed the job correctly without Passero’s supervision,” the appeals court wrote. “Instead the need for repair stemmed from loss incurred by the airpark in its dealings with the third party the contractor. While these damages were ‘reasonably foreseeable,’ they are consequential and not general or direct damages.”

The court, however, certified the issue as a question for a higher court.