CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 13569, 2012 WL 3326341
...In this case involving underground utilities interfering with a county road expansion project, the utility company appeals from the circuit court’s final judgment awarding damages to the county’s contractor for the costs incurred to avoid the interference. The utility company argues that sections
337.403 and
337.404, Florida Statutes (1999), provide the exclusive remedy for such interference situations, and the county failed to pursue that remedy....
...The contractor alleged that the utility company was negligent in failing to remove or relocate the duct bank which interfered with the project. The contractor sought to recover the additional costs incurred in remedying the interference. In response, the utility company argued that sections
337.403 and
337.404 provided the county with the exclusive remedy of requiring the interfering utilities to be removed or relocated before damages could be awarded....
...The utility company argues that the circuit court erred in denying the motion for summary judgment and entering final judgment for the contractor on the negligence claim. As in the circuit court, the utility company contends that sections
337.403 and
337.404 provided the county with the exclusive remedy of requiring the interfering utilities to be removed or relocated before damages could be awarded, and because the county failed to pursue that remedy, summary judgment in its favor was appropriate....
...are based upon alleged legal error, the standard of review is de novo) (citation omitted). We disagree with the utility company’s argument. The utility company has not cited any applicable case law supporting its argument that sections
337.403 and
337.404 provided the county with the exclusive remedy of requiring the interfering utilities to be removed or relocated before damages could be awarded....
...Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law. Id. at 918 (citations omitted). Here, sections
337.403 and
337.404 do not unequivocally state that they change the common law, nor are those statutes so repugnant to the common law that the two cannot coexist....
...... and the [utility company] fails to remove or [relocate] the same at [its] own expense to conform to the order within the time stated in the notice, the authority shall proceed to cause the utility to be removed.... §
337.403, Fla. Stat. (1999). Section
337.404 then provides, in pertinent part: (1) Whenever it shall become necessary for the authority to remove or relocate any utility as provided in the preceding section, the [utility company] shall be given notice of such removal or relocation and an order requiring the payment of the cost thereof, and shall be given reasonable time, which shall not be less than 20 nor more than 30 days, in which to appear before the authority to contest the reasonableness of the order.... §
337.404, Fla. Stat. (1999) (emphasis added). The phrase which we have emphasized from section
337.404, “[w]henever it shall become necessary for the authority to remove or relocate any utility,” is significant in the instant case....
