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applying the standards provided in the Act to a routine common law negligence claim, ultimately finding disputes over the standard of care that precluded summary judgment
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CASE NO. 01-2059-CIV-GOLD/BANDSTRA
March 13, 2003
ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE is before the court upon defendant's motion for partial summary judgment [DE #99], and plaintiff's motion for partial summary judgment [DE #96]. MCI Worldcom Network Services ("MCI") has filed a two-count complaint alleging that defendant committed trespass and negligence when it allegedly severed plaintiff's fiber-optic cable while excavating on a roadway on July 13, 2000.
The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 insofar as parties to this cause are of diverse citizenship and the amount in controversy exceeds $75,000.
Plaintiff is a Delaware corporation, and Mastec is a Florida corporation.
On March 7, 2003, the court heard oral argument on the parties' motions. After carefully considering the motions, evidence, and arguments of counsel, the court denies in part and grants in part both motions for partial summary judgment.
Factual Background
Because both parties have filed motions for summary judgment in this case, there are two sets of statements of undisputed/material facts pursuant to Southern District of Florida Local Rule 7.5. With its motion, defendant has filed several exhibits, answers to interrogatories, depositions, and expert reports. With plaintiff's motion, MCI has also filed several exhibits, including various industry regulations regarding excavation, depositions, and answers to interrogatories. Much of the facts are disputed in this case and those disputes are noted.
According to MCI, on July 13, 2002, Mastec was conducting directional boring operations at the intersection of NW 12th Street and Milam Dairy Road in Miami, Florida. MCI owns and operates underground fiber-optic cables at that intersection. White conducting the boring operation at the intersection, Mastec severed one of MCI's fiber-optic cables. (Pl. 7.5 Stat. ¶ 1, 2). At the time the cable was severed, Mastec was installing conduits or ducts for Bell South.
MCI claims that prior to July 13th, Mastec, as required by statute, called "One-Call" of its intent to escavate, but Mastec did not give notice of the depth of the excavation. (Pl. 7.5 Stat. ¶ 14). A former employee of MCI, Aaron Lafferty, before the excavation commenced, marked the horizontal location of MCI's cable at the intersection using orange paint, using MCI's as-built plans and Lafferty's cable locating device for assistance. (Pl. 7.5 Stat. ¶ 17, 18).
According to Mastec's Rule 7.5 statement, which was incorporated in its motion for partial summary judgment, MCI provided Mastec with as-built plans prior to excavation that purportedly identified the depth of the fiber-optic cable. (Def. 7.5. Stat. p. 3). At the site where excavation was to take place, Mastec conducted a "soft dig" in order to visually locate the fiber-optic cable. (Def. 7.5. Stat. p. 3). But because the cable was buried beneath virgin coral rock, Mastec was unable to get a visual location of the cable. (Def. 7.5. Stat. p. 3). Mastec claims that there are no industry standards for locating cables beneath coral rock. As a result of its inability to locate the coral rock visually from soft digging, Mastec states that it relied on the as-built plans provided by MCI to ascertain the depth of the cable before excavation. (Def. 7.5. Stat. p. 3). Mastec asserts that it severed the cable during the boring operation because the as-built plans provided by MCI were inaccurate.
As a result of the damage to the fiber-optic cable, MCI seeks punitive damages, damages for repair or replacement, as well as damages for loss of use, totaling over $800,000. The parties do not dispute Mastec's claim that MCI suffered no commercial loss as a result of the damage to the fiber- optic cable.
Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment when the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party has the burden to establish the absence of a genuine issue as to any material fact. See Adickes v. S.H. Kress Co, 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Tyson Foods, Inc., 121 F.3d at 646. Once the moving party has established the absence of a genuine issue of material fact, to which the nonmoving party bears the burden at trial, it is up to the nonmoving party to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). Issues of fact are genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party. See Anderson, 477 U.S. at 247-51, 106 S.Ct. at 2510-11. In determining whether to grant summary judgment, the district court must remember that, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. 477 U.S. at 255, 106 S.Ct. at 2513.
Analysis
I. Mastec's Motion for Partial Summary Judgment
A. Parties' Arguments
Mastec's asserts that it is entitled to summary judgment on plaintiff's claims for the alleged loss of use damages and punitive damages. Defendant contends that MCI is not entitled to loss of use damages because they are inappropriate for this type of chattel as well as too speculative and conjectural. Mastec further argues that MCI's compensatory damages are limited by statute. In its motion for partial summary judgment, Mastec also claims that MCI is not entitled to punitive damages, contending that MCI has not put forth any evidence that Mastec was anything more than negligent.
After describing the relationship between the fiber-optic cables and nodes that send and receive telecommunication signals, Mastec contends that if the cables were not connected to the nodes, the cables themselves have no intrinsic value. Mastec asserts that the "ring" configuration of MCI's nodes system allows traffic to be rerouted with no interruption in service and therefore MCI would suffer no loss of service as a result of the severing of one cable.
Mastec acknowledges that under Florida law, recovery of damages for loss of use of commercial chattel is generally available. But it claims that this rule should not apply to MCI because there was no loss of service to customers and thus no loss of profits, even though there was a disruption in the use of the fiber-optic cable itself Mastec asserts that the only damages suffered by MCI were the costs associated with the labor and repair of the damaged fiber-optic cable. Mastec therefore concludes that awarding damages for loss of use would be an "unconscionable windfall" for MCI. Mastec also states that if negligence is found, Florida law limits recovery for loss of use to $500,000 per affected facility. (citing Fla. Stat. 556.106(2)(a)).
In response to defendant's motion, plaintiff asserts that partial summary judgment is not warranted on loss of use damages and punitive damages because genuine issues of material facts still remain. Notably, plaintiff argues that it disputes whether Mastec contacted MCI regarding its intent to excavate and the depth of that excavation in accordance with Florida law. Further, MCI disputes the argument that Mastec would not have been able to find the fiber-optic cable beneath the coral rock. MCI claims that punitive damages are also at issue because the defendant "knowingly violated numerous statutes, regulations, industry standards and its own policies and procedures."
B. Applicable Law
Under Florida law, loss of use damages are available for an individual or entity whose chattel has been damaged by another party. Meakin v. Dreier, 209 So.2d 252, 254 (Fla. 2d DCA 1968). In this case, MCI is suing Mastec for trespass and negligence for damages to a fiber-optic cable. It is not in dispute that damage occurred to the cable as a result of Mastec's actions. The parties dispute, however, if that damage occurred as a result of defendant's trespass and negligence. Before reaching those issues, which is the subject of plaintiff's own motion for partial summary judgment to be discussed later in this Order, the court must decide if Mastec is entitled to summary judgment on the issues of loss of use and punitive damages.
a. Loss of Use
In Florida, the applicable standard for loss of use damages is determined by Restatement (Second) of Torts § 928 (1970), which states:
Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for (a) the difference between the value of the chattel before the harm and the value after the harm or; at his election in an appropriate case, the reasonable cost of repair or restoration, with due allowance for any difference between the original value after repairs, and (b) the loss of use.Meakin, 209 So.2d at 254 (quoting Restatement). As indicated in the standard above, reasonable cost of repair or restoration as well as loss of use are available in the "appropriate case." Whether this is such a case, based on the circumstances surrounding the excavation, is in dispute.
Much of the discussion between the parties focuses on several cases and how those cases apply to the facts in the present matter. In AT T Corp. v. Lanzo Construction Co., 74 F. Supp.2d 1223 (S.D.Fla. 1999), the district court faced an issue almost identical to the facts of the current case. Mastec argues that Lanzo was wrongly decided, while MCI asserts that Lanzo is on point and should serve as persuasive authority.
In Lanzo, the plaintiff, ATT, had one of its underground fiber-optic cables damaged by the defendant. ATT, like MCI here, was able to reroute all of its calls through other fiber-optic cables in its network. Lanzo, 74 F. Supp.2d at 1224. As a result, it did not suffer any "commercial loss." Similar to this case, the defendant in Lanzo argued that under Florida law, loss of use damages are available only when there has been a total loss due to damage to property. Id. The defendant in that case also argued that the measure of damages based on reasonable rental value was flawed. See id. The district court disagreed with the defendant's position on whether there had been a total loss and to which property. The court agreed that under Florida law, "loss of damages are only recoverable when an owner suffers a complete deprivation of his property." Id. at 1225 (citing Schryburt v. Olesen, 475 So.2d 715, 717 (Fla. 2d DCA 1985)). But the district court viewed "complete deprivation of property" differently from the defendant. The defendant argued that because ATT was able to continue its business using other lines, there was no complete deprivation. See id. at 1224. The district court held, however, that the property to examine is the single damaged fiber- optic cable itself, regardless of how ATT reacted to the problem to continue serving its customers. Id. Because the fiber-optic cable was completely damaged and not able to be used for a period of time while being repaired, the district could held that there had indeed been a total loss of use. See id. at 1225. The Lanzo court further stated that reasonable rental value was the correct measure of damages, writing that "Florida law explicitly provides that loss of use damages are measured by the amount necessary to rent a similar article or other suitable article within which to perform the services usually performed by the damaged article during the period of repair." Id. (citing Mortellaro Co. v. Atlantic C.L.R. Co., 91 Fla. 230, 107 So. 528 (1926); Maserati Automobiles, Inc. v. Caplan, 522 So.2d 993 (3d DCA 1988)).
Despite Lanzo, Mastec continues to argue that MCI is not entitled to loss of use damages. And even if it were, MCI's calculation of damages is unsupported. In support of its argument, Mastec attaches the opinions of several other cases from this district that handled similar issues. First, it references a recent order from Magistrate Judge Garber in MCI Worldcom v. Morris Plumbing, 00-4250-Civ-Garber (S.D.Fla. Oct. 23, 2002) (Def's Exhibit 2), in which Judge Garber, addressing similar issues to this case noted that in a previous order he had relied on Lanzo, but in light of the motion for reconsideration, he would reconsider his decision because the MCI system was set up differently from the ATT system. See id. at *8. Judge Garber also noted that rental cost is not always the most appropriate measure of damages in loss-of-use cases, citing Meakin, 209 So.2d at 254, and that awarding MCI rental value in that case would be "grossly unfair." Id. at *11. Similarly in this case, if this court were to accept MCI's calculation as the accurate amount of loss of use damages, the result would be grossly unfair because MCI seeks damages in excess of $800,000 when, as Mastec argues and MCI does not dispute, MCI did not suffer any commercial loss as a result of the damage to the cable.
In another supplemental authority, filed by Mastec, another district court decision disagreed with the holding of Lanzo. In MCI Worldcom v. Michael Lind, 00-4407-Civ-Jordon (S.D.Fla. Dec. 17, 2002), MCI sued the defendant for negligence and trespass for severing a fiber-optic cable. The facts in Lind are virtually identical to the case at hand. In Lind, MCI's fiber-optic cable was severed and unable to be used until repaired, but because a system was already in place to reroute telecommunication traffic, MCI was able to continue service to its customers without interruption. See id. at *2. The question before the court was the proper measure of loss of use damages. In denying MCI's motion for partial summary judgment, Judge Jordan held that deciding what would be the relevant property — the single cable severed or the entire local fiber-optic system — is a question of fact not appropriately decided on summary judgment. See id. at *4. Judge Jordan, similar to the Garber decision discussed above, noted that the MCI system in the Lind case may have been designed to operate as an "integrated unit," and as a result differs significantly than the system involved in Lanzo. See id. The Lind court noted that if the system is indeed integrated, then MCI would not be entitled to loss of use damages because there was no "total" loss of use. Id. at *5.
With regard to measure of damages, Judge Jordan explained that rental value is just one of several ways to calculate loss of use damages, citing Meakin and Tolin v. Doudov, 626 So.2d 1054, 1055 (Fla. 4th DCA 1993). Lind, 00-4407-Civ-Jordan, at *5, Judge Jordan outlined that rental value would not be appropriate in the case before him because of the rationale in the Florida cases for allowing calculation based on rental value — financial ability and fairness. Judge Jordan also noted that the damages cannot exceed the pre-injury value of the property. See id. at *6. In Lind, MCI was seeking damages of almost $1 million dollars, while the value of the fiber-optic cable before being severed was only $1,400. Agreeing that the damages sought by MCI would be grossly unfair, the court held that if MCI were to prevail on the liability issues, it "will be able to recover only the value of the damaged cable, plus any incidental damages such as the costs of installation." Id. at 7. Likewise in this case, MCI seeks damages that exceed the value of the cable pre-injury, even when MCI did not suffer any actual loss of business.
In another supplemental authority filed by Mastec, Judge Jordan, in a similar case decided on the same day as the Lind case, MCI Worldcom v. Lewis Krantz, 00-4249-Civ-Jordan (S.D.Fla. Dec. 17, 2002), denied summary judgment on the same grounds. In Krantz, the parties, like MCI and Mastec here, disputed which "property" was damaged. MCI argued that the single fiber-optic cable was at issue, while Mastec asserted that the entire "ring" is the property at stake. See id. at *4-5. Determining the relevant damaged property is critical to the loss of use analysis. As Judge Jordan noted in Krantz, if the fiber-optic cable is just part of a more integrated whole that continued to function without interruption, then there was no "total" loss of use of the property and damages for loss of use would not be warranted. See id. at *4, If the relevant property is the single fiber optic cable, however, then the Lanzo decision would be instructive in the applicable analysis. Judge Jordan concluded that it was disputed what property should be considered in the loss of use analysis, therefore summary judgment was precluded. See id.
MCI served its own supplemental authority regarding a similar case, but this case, MCI Worldcom Network Services, Inc. v. OSP Consultants, Inc., 00-919-Civ-Payne (N.D. Ok. Nov. 20, 2002), applies Oklahoma, not Florida law. in OSP, which involved a breach of contract under Oklahoma law, the district court held that MCI would be able to recover rental value for loss of use damages. But in OSP, unlike in this case, MCI contended that over 15,000 calls were blocked or lost as a result of the damage to one of its cables. OSP is therefore distinguishable from this case in assessing the fairness of the damage calculation.
This court has reviewed the Lanzo, Morris Plumbing, Lind, and the Krantz decisions and concludes that they are instructive, though not binding on this court. Unlike in Morris-Pluming or Lind, this court does conclude that the ATT system in Lanzo is similar to the system in dispute in this present case. Even though the designs may have not been identical, the systems in place in the event of damage to a cable allowed for continued service to customers without interruption. Thus, both MCI and ATT had mechanisms in place to redirect telecommunications traffic once a fiber- optic cable is damaged. The main difference between the Lanzo decision and the decisions in Lind, Krantz, and Morris Plumbing, is that the property at issue in Lanzo was seen as the one damaged fiber-optic cable, while the other decisions suggested that the property could be the entire system, here suggested by Mastec to be the "ring." In this case, the parties dispute vigorously which property should be the chattel on which damages is based. During oral argument, however, the plaintiff, MCI, admitted that the fiber-optic cable damaged is indeed part of an integrated system of cables. The other cables were able to reroute all of MCI's calls with no disruption in service and no commercial loss to MCI.
Therefore, upon careful review of the parties' arguments, the court concludes that there has been no complete loss of use of property that would necessitate loss of use damages. At oral argument, defendants presented a diagram of the network of fiber-optic cables and this diagram showed that the cable damaged is part of a ring system. MCI confirmed that the diagram reflects the type of system in place when the cable was damaged. Based on that diagram, other cables connected to the ring were able to continue working while the damaged cable was being repaired. According to MCI, it took approximately 97 hours to repair the damaged cable. In addition, the cable itself did not have to be replaced, just repaired with a technique called fusion. The total cost of that repair was approximately $23,000 according to the plaintiff. It would certainly be an unfair windfall for the plaintiff to receive over $800,000 in damages for harm that only cost them $23,000. Based on the information provided in the pleadings as well as at oral argument, the court is satisfied that sufficient information has been presented to support the conclusion that MCI is not entitled to loss of use damages. If MCI is able to prove liability on its negligence and trespass claims, it will only be able to recover the costs associated with the repair of the damaged cable (which remains to be determined) because there was no total loss of use of property pursuant to Florida law. Possible entitlement to punitive damages is discussed later in this Order.
1. Measure of Damages
Even if MCI were entitled to loss of use damages, the measure of such damages do not comport with the argument it has presented. MCI is correct in noting that a measure of loss of use damages includes reasonable rental value, including an assessment of the reasonable amount of time necessary to conduct repairs. See Meakin, 209 So.2d at 254. But Florida law does not state that reasonable rental value is the only way to calculate loss of use damages. See, e.g., Central State Transit Leasing Corp. v. Jones Boat Yard, Inc., 206 F.3d 1373, 1376 (11th Cir. 2000) (noting that damages for loss of use of a pleasure boat could equal loss of profits); Foresight Enterprises, Inc. v. Leisure Time Properties, Inc., 466 So.2d 283, 287 (Fla. 5th DCA 1985) ("Appellees shall also be entitled to an award for loss of use damages measured by the legal rate of interest, during the period of time the plane was withheld from appellees."); but see Maryland Casualty co. v. Florida Produce distributors, Inc., 498 So.2d 1383, 1384 (Fla. 5th DCA 1986) ("First we agree that when the measure of damages properly involves the loss of use of tangible property used in a business, profits' allegedly lost because of the loss of use of the property is a concept subject to too many other variables to be properly used as a measure of the value of loss of use of property and the best evidence of lost use value of personal property is the actual or theoretical reasonable rental value of similar property.") (citation omitted). As indicated by these cases, rental value is not the only means by which one can calculate loss of use damages under Florida law.
In Meakin, discussed by both parties as instructive with regard to the issue of loss of use damages, the district court of appeal, while analyzing loss of use of a pleasure vehicle, noted that the "measure of damages is `loss of use' not rental value. . . . Thus, `rent' and `loss of use' are not interchangeable terms." Meakin, 209 So.2d at 254. The court went on to explain that in that particular case, it would base loss of use damages on the reasonable rental value, but the court did not state that reasonable rental value was the only way to ascertain loss of use damages. See id. Consequently, based on the Meakin decision, MCI's insistence that rental value must be the measure of loss of use damages is flawed.
In American Equity Ins. Co. v. Van Ginhoven, 788 So.2d 388, 391 (Fla. 5th DCA 2001), the court explained that another manner to compute damages — computing the value of the property before and after the damage occurred — is available. The court noted that "where injury to property is permanent in nature, the measure of damages is the difference in value of the property before and after the injury. . . . However, if the damaged property may be repaired, restored or replaced, the court may award the cost of replacement, repair or restoration." Id. at 391 (citations omitted). In another case out of the fifth district court of appeal, the court in Badillo v. Hill, 570 So.2d 1067 (Fla. 5th DCA 1990), addressed the issue of the proper standard for awarding loss of use damages. Though the property involved in Badillo was a vehicle, it's analysis is instructive in this case. In Badillo the owner of the vehicle was forced to rent other cars while her property was out of commission. See id. at 1068. The court noted that considering the cost of renting was appropriate. Id. But the court said the damage award based on rental value also had to be reduced because it exceeded the value of the vehicle prior to the accident. See id. at 1069. Thus, based on these two cases, it is clear that Florida law does not mandate a strict adherence to the practice of using rental value to determine loss of use damages in the manner prescribed by MCI, even if MCI were entitled to such damages, which the court has already determined it is not.
Defendant also contends that even if it is liable for the damage caused to plaintiff's cable, rental value, as calculated by the plaintiff, is not the appropriate measure because the Underground Facility Damage Prevention and Safety Act ("Damage Prevention Act"), Fla. Stat. § 556.106, limits the amount of recovery available. MCI argues that damages should be based on the reasonable rental value, currently calculated as over $800,000. As both parties confirm, no Florida case has specifically determined whether in a case such as this one, the appropriate measure for loss of use damages is the reasonable rental value. This court has carefully reviewed the statute, however, and concludes that defendant's statement that damages are limited is correct. The Damage Prevent Act limits the amount recoverable. See Fla. Stat. § 556.106(2)(b) ("If any excavator fails to discharge a duty imposed by the provisions of this act, such excavator, if found liable, shall be liable for the total sum of the losses to all parties involved as those costs are normally computed. Any damage for loss of revenue and loss of use shall not exceed $500,000 per affected underground facility, except that revenues lost by a governmental member operator, which revenues are used to support payments on principal and interest on bonds, shall not be limited."). Accordingly, any recovery by MCI for damage to its fiber-optic cable would have had to be limited to $500,000.
Additionally, defendant notes that plaintiff's calculation of rental value is based on the intangible service carried on the cable, rather than on renting a cable with the capacity of the actual cable severed. At a minimum, argues the defendant, plaintiff should be limited to the theoretical rental value of the cable itself, not some indefinable service. Loss of use cannot be based on loss of profits either, asserts the defendant, because it is undisputed that MCI did not lose any profits as a result of the severed cable as all service was redirected through other systems. Another measure of damages, according to the defendant, may simply be the difference between the pre-injury value of the cable and the cost of repairs.
Plaintiff claims that its loss of use damages should not be limited to decrease in value. It should receive as damages, urges the plaintiff, the cost of replacement or rental of the cable. Here, plaintiff not only seeks the damages for the rental of a cable, but also for a cable that performs "services usually performed by the damages cable during the period or repairs." Plaintiff is correct that it may elect its theory of recover, see Badillo, 570 So.2d at 1068, but its election should be from a pool of appropriate theories of recovery, properly calculated. Plaintiff's election for loss of use damages here appears to be based on the use of services, according to Mastec, that would not have been performed by the cable in question. In addition, plaintiff's election unlawfully pushes its amount of recovery over the statutory limit and results in a windfall. If the damaged cable were not part of an integrated ring and the defendant's actions resulted in the loss of use of that cable and ultimately loss of service to customers, then MCI might have been entitled to loss of use damages. The facts of this case do not indicate that such a scenario is present. Loss of use damages are not applicable and even if they were, MCI's calculation of such damages is unsupported by Florida caselaw.
b. Punitive Damages
Plaintiff argues that a question of fact is raised whether it is entitled to summary judgment on punitive damages because it has presented evidence that the defendant acted with conscious disregard of the applicable industry standards when it severed the fiber-optic cable. Under Florida law:
The character of negligence necessary to sustain an award of punitive damages must be of a `gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28, 31 (Fla. 4th DCA 2002) (quoting American Cyanamid Co. v. Roy, 498 So.2d 859, 861-62 (Fla. 1986)). In this case, Mastec argues that MCI has put forth no evidence that Mastec acted with such gross negligence that punitive damages are appropriate. A question of fact still remains as to whether Mastec was negligent when it severed the fiber-optic cable, as discussed in more detail below, which would prevent the conclusion of whether such negligence was gross and flagrant or wanton and reckless. In addition, the Florida Supreme Court in Owens-Corning Fiberglass Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999), noted that the "decision whether to award punitive damages and the amount that should be awarded have traditionally been questions of the jury to determine." (citation omitted). The Ballard court also stated that the court may decide at the conclusion of the evidence that there is a legal basis for punitive damages, but it is the jury that decides whether to award such damages and in what amount. See id. Mastec vehemently disputes that it severed MCI's cable with reckless indifference, contending that it was an accident. Accordingly, it would not be appropriate at this stage to grant summary judgment on this issue that is still dependent on issues of fact in dispute.
II. MCI's Motion for Partial Summary Judgment
MCI, on the same date as the defendant, filed its own motion for partial summary judgment, requesting that this court grant summary judgment on eight issues: 1) defendant violated the Florida Damage Prevention Act and other applicable regulations and industry standards; 2) defendant was negligent as a matter of law; 3) defendant's negligence was the proximate cause of the damage to MCI's cable; 4) defendant's severance of MCI's cable constituted a trespass for which Mastec is liable to MCI; 5) MCI was not contributory negligent; 6) even if MCI were contributory negligent, contributory negligence is not a defense of MCI's trespass claim; 7) MCI completely lost the use of its cable; and 8) MCI is entitled to recover damages for the loss of use of its cable as measured by the actual or theoretical rental value of similar property or capacity.
In response to MCI's motion, Mastec claims that summary judgment is not warranted regarding liability on the two counts of the complaint because genuine issues of material fact remain. Specitically, defendant disputes the facts as outlined in MCI's motion and incorporates its own
version of the facts from Mastec's motion for partial summary judgment.
a. Florida Underground Facility Damage Prevention and Safety Act and other applicable regulations and Negligence
On its negligence claim, MCI argues that Mastec owed it a duty of care, it breached that duty, that breach was the proximate cause of MCI's injury, and MCI suffered damages as a result of that breach. MCI first explains that an excavator has the duty to inform himself of underground cables before commencement of excavation. The Damage Prevention Act, Fla. Stat. § 556.106(2)(d), sets forth certain practices to follow when performing excavations. MCI argues that Mastec failed to follow the proper procedures in compliance with the Damage Prevention Act and as a result committed negligence. MCI claims that defendant breached its duty of care, as mandated by the Damage Prevention Act, when it used its directional boring equipment to dig into the street before exposing MCI's cable.
To support its claim that defendant's actions were negligent, MCI writes that there were orange marks on the street indicating the location of its cables; defendant failed to use only hand tools or vacuum excavation within the 24-inch safety zone on either side of the marks; defendant did not expose the cable before drilling; and defendant did not maintain a clearance between the cutting edge of its equipment and the cable.
A violation of the Damage Prevention Act creates a rebuttable presumption of negligence. See Fla. Stat. § 556.106(2)(a) ("In the event any person violates s. 556.105(1) or (5), and subsequently . . . performs an excavation or demolition which damages an underground facility of a member operator, it shall be rebuttably presumed that such person was negligent."). Because the presumption is rebuttable, once plaintiff presents evidence that defendant failed to comply with the provisions of the Act, the burden shifts to the defendant to show that negligence should not be presumed. Mastec claims that it did not violate the Damage Prevention Act. Because the Act requires that defendant conduct the excavation in a manner "based on accepted engineering and construction practices" and there is a genuine issue of material fact as to what these accepted practices are and whether Mastec complied with them, defendant contends that summary judgment is not warranted.
Mastec further argues that negligence is rebutted in this case because the presence of the coral rock made it difficult to determine the depth of the cable. As a result, defendant requested the as-built plans from MCI and conducted its excavation based on those plans. Mastec contends that it struck the cable because the plans given to it by MCI contained inaccurate measurements. MCI responds that the as-built plans were accurate. And even if they were not accurate, claims plaintiff, these same plans were originally provided to it by Mastec because it was Mastec that installed the fiber-optic cable. According to the Damage Prevention Act, Mastec's argument that it relied on MCI's as-built plans will not necessarily relieve it of liability. The Act states that "obtaining information as to the location of an underground facility from the member operator as required by this act does not excuse any excavator from performing an excavation or demolition in a careful and prudent manner, based on accepted engineering and construction practices, nor does it excuse such excavator from liability for any damage or injury resulting from any excavation or demolition." Flat. Stat. 556.106(2)(d). But questions remain unanswered because Mastec claims that its actions were "careful and prudent."
In support of its contention, Mastec responds that the presence of the virgin coral rock made it virtually impossible to comply with the general rule that underground facilities should be exposed before excavation. Defendant claims that it is impossible to hand dig or vacuum excavate coral rock and there are no accepted standards on how to excavate coral rock, which is why it requested and relied on the as-built plans. The excavation guidelines which MCI provides as exhibits to its motion for partial summary judgment are not applicable to this case, argues the defendant, because they do not address the particular landscape in Florida and MCI has also failed to show that these guidelines are highly regarded and accepted in the industry. Mastec consequently claims that it could not violate the Act by not being prudent and careful in violation of accepted engineering and construction practices because no such accepted engineering and construction practices exist for excavation of virgin coral rock.
Despite section 556.106(2)(d) of the Damage Prevention Act above, which does not automatically excuse liability when the excavator gets information from the member operator, the Act does addresses when the member operator has inaccurate information:
A member operator that states that it does not have accurate information concerning the exact location of its underground facilities is exempt from the requirement of paragraph (4)(b) and (c), but shall provide the best available information to the excavator in order to comply with the requirements of this section. An excavator is not labile for any damage to an underground facility under the exemption in this subsection if the excavation or demolition is performed with reasonable care and detection equipment or other acceptable means to locate underground facilities are used.
Fla. Stat. 556.105(6)(a). In the present case, Mastec claims that it used that reasonable care required by the statute, while MCI claims that Mastec violated accepted standards. Whether Mastec used the care required or whether the standards it allegedly violated are "accepted" is a question of fact that cannot be determined on summary judgment. As a result, this court is unable to grant summary judgment on the claim that Mastec violated the Damage Prevention Act and is therefore negligent.
Finally, MCI claims that Mastec violated the Damage Prevention Act when it failed to give proper notice of the depth of the excavation. This notification is required by Section 556.105(1)(a)(8) of the Act. The parties also dispute where the cable was severed. Mastec asserts that the damage occurred at 17 feet, 6 inches, and thus the as-built plans were wrong; while MCI claims that the damage occurred between 9 and 12 feet, supporting its contention that the as-built plans were accurate. This dispute over a material fact confirms the court's conclusion that summary judgment would not be appropriate on plaintiff's claim of negligence, including violation of the Damage Prevention Act.
b. Trespass
Plaintiff asserts here that damage to its fiber-optic cable constitutes a trespass, regardless of whether Mastec is found to be negligent. Because it is undisputed that MCI had its cable lawfully in place and it did not give Mastec permission to drill in that area, and because Mastec intentionally drilled in the area of the cable, severing it, MCI asserts that no genuine issue of material fact remains with regard to the trespass claim and it is therefore entitled to summary judgment.
Defendant argues that summary judgment cannot be granted on the trespass claim because an innocent mistake would not constitute trespass. Because defendant claims that its severing of the cable was not intentional, but based instead on the faulty as-built plans, trespass cannot be determined as a matter of law. Mastec argues that other state courts are split when it comes to "intent" and the damaging of underground cables. Defendant further emphasizes that trespass is not a strict liability tort in Florida.
This court was unable to find any Florida cases that address the same trespass issue presented in this case. But based on a trespass statute in Florida, it would appear that if faced with this issue, the Florida courts would ascribe to the notion that some form of "willful" intent must be present in order for trespass to occur. Thus, an accident or unintentional action would not constitute trespass necessarily. For example, Fla.Stat. 810.09 addresses trespass on property other than a structure or conveyance and states that the unauthorized entry must be done "willfully." See also Seago v. State of Florida, 768 So.2d 498, 500 (2000) ("Thus, to convict for violating this statute, the State must prove four elements: (1) the defendant willfully entered or remained on property. . . .) (emphasis added). Here, it is not alleged that the defendant did not have a lawful right to conduct the excavation at the intersection in question. It is only alleged that they excavated at a depth where they should not have because the fiber-optic cables were in placed there. A question of fact is therefore presented if the defendants "wilfully" continued to drill even though they knew that there were fiber-optic cables at a certain depth and they were therefore unauthorized to continue digging.
In Amoco Pipeline Co. v. Herman Drainage Systems, Inc., 212 F. Supp.2d 710, 720 (W.D. Mich. 2002), the plaintiff alleged that the defendants had intruded on the plaintiff's easement and interfered with a pipeline. Although this case involved easements and is not a Florida case, the court did write that "[although the defendant's intent is generally irrelevant to a claim of trespass,/. . . the defendant must intend to enter the plaintiff's property without authorization to do so." Id. In Amoco, the question before the court involved whether the defendants had actual or constructive notice of the sewer line that was damaged, even if the entry on the easement itself was unauthorized. See id. The Michigan court agreed with the defendants' argument that simply proving that the defendants intruded on the plaintiff's sewer line without permission is not enough to receive judgment as a matter of law on the claim of trespass. See id. The court stated that the plaintiff also had to show that the "defendants had `actual or constructive notice of the location and existence of the' pipeline." Id. Applying Amoco's reasoning to this case, summary judgment cannot be granted on the trespass claim. It is still in dispute whether Mastec knew exactly where the fiber-optic cable was located before it began digging. MCI claims that based on the information Mastec had received it should have known that the cable would be in the area where it was drilling. Mastec counters that according to the as-built plans, the cable was located at a higher level than where it was actually damaged. This factual dispute between the parties, along with Florida's basic requirement of wilfulness in trespass, as well as the Michigan court's recent handling of a similar matter, this court concludes that trespass is not a strict liability offense in the manner in which plaintiff describes it. Plaintiff must prove some kind of wilful action on the part of the defendant, with actual or constructive notice of the location of the fiber-optic cable. According, summary judgment is not granted for the trespass claim.
c. Contributory Negligence and Trespass Claim
MCI claims that it was not contributorily negligent because it has no duty to have a locator on site and it also had no need to indicate the depth of its cable in the ground. MCI further argues that contributory negligence is no defense to the trespass claim because trespass is an intentional tort. In response, Mastec argues that a question of fact remains as to whether MCI was contributorily negligent. Mastec asserts that when MCI gave it the as-built plans, MCI owed a duty of care in the accuracy of those plans. As explained in detail above, the Damage Prevention Act addresses specifically this issue of obtaining information about the location of an underground facility from a member operator. Fla. Stat. 556.106(4)(b) and (c) outline when a member operator, here MCI, ought to provide information to the excavator regarding the location of an underground facility. But the Act notes that obtaining such information does not excuse an excavator from using "careful and prudent" behavior during excavation. As a result, Mastec's liability would not be automatically eliminated merely because it can perhaps show that the plans received from MCI were faulty.
Mastec's argument of contributory negligence for the negligence claim is factually disputed, but plaintiff is correct that contributory negligence is not a defense to the trespass claim, which constitutes an intentional tort. See Cruise v. Graham, 622 So.2d 37, 40 (Fla. 4th DCA 1993) (noting that another DCA court "properly refused to reduce the amount of a judgment because comparative negligence is not a defense to any tort legally classified as intentional," and citing Leonard v. Nat Harrison Assocs., Inc. 122 So.2d 432, 434 (Fla. 2d DCA 1960) (noting that contributory negligence is not a proper defense to the intentional tort of trespass)) (citation omitted).
d. Loss of Use of Cable and Rental Value
When responding to Mastec's motion for partial summary judgment, MCI claims that the existence of a genuine issue of material fact precludes summary judgment on the loss of use issue, but MCI itself has moved for summary judgment on the same issue of loss of use. it is not in dispute that Mastec damaged one fiber-optic cable. But the issue that is relevant to the present matter is whether the court should consider the property as the single cable or the system of which it was a part. Because of the reasons discussed earlier in this Order, the court denies MCI's motion for partial summary judgment on the issue of loss of use damages.
Based on the foregoing analysis, both counts of the complaint remain pending, including subclaims regarding violation of the Damage Prevention Act. In addition, the court grants summary judgment on defendant's claim of loss of use damages, but not on the claim for punitive damages.
Accordingly, it is hereby:
ORDERED AND ADJUDGED THAT:
1. MCI's Motion for Partial Summary Judgment [DE #96] is DENIED.
a. Plaintiff's trespass claim remains pending, but the court concludes that contributory negligence shall not be a defense to the trespass claim.
b. Plaintiff's negligence claim also remains pending, including whether the Damage Prevention Act has been violated.
2. Mastec's Motion for Partial Summary Judgment [DE #99] is DENIED IN PART AND GRANTED IN PART.
a. Summary Judgment is granted in favor of defendant on the claim for loss of use damages. The court concludes that plaintiff shall not be entitled to loss of use damages because there has been no complete loss of use of property.
b. Summary Judgment is denied on the issue of punitive damages because a genuine issue of material fact remains with regard to this issue.
c. Plaintiff's claim for compensatory damages also remains pending.DONE AND ORDERED.