Florida/Georgia Personal Injury & Workers Compensation

...those figures are "normally computed costs," while Hinson asserts that BellSouth can only recover "losses" that are directly attributable to the excavator's negligence. In its entirety, § 556.106(2)(a), Florida Statutes, reads: If a person violates s. 556.105(1) or (6), and subsequently, whether by himself or herself or through the person's employees, contractors, subcontractors, or agents, performs an excavation or demolition that damages an underground facility of a member operator, it is rebuttably presumed that the person was negligent....

...One-Call provides member operators the opportunity to locate and mark their underground facilities before excavation activity begins. Under the Act, every excavator must provide notice of its activities through One-Call not less than two days before commencing excavation. Fla. Stat. § 556.105(1). Excavation should not begin until: (1) each member operator underground facility has been marked and located; (2) the excavator is notified that there are no underground facilities in the location; or (3) two business days have passed. Fla. Stat. § 556.105(6)(a). If, after commencing excavation, an excavator does make contact with or damages an underground facility, the Act requires the excavator to immediately notify the member operator and stop activities that could cause additional damage. Fla. Stat. § 556.105(12)....

...avation or demolition operations." § 556.101(3)(a). Excavators are required to notify member operators (utilities) of their activities so operators can identify the locations of their underground utility lines and prevent damage to their lines. See § 556.105....

...First, the locate request was restricted to the property located at 865 S.W. 50th Terrace and did not include the adjoining property at 875 S.W. 50th Terrace. Second, they were not liable because the excavation was commenced outside the time limits established by section 556.105, Florida Statutes (1997)....

...The plaintiffs argue the trial court erred when it granted summary judgment because there are genuine issues of material fact concerning the area covered by the locate request. We disagree and affirm on both grounds relied upon by the trial court. We write specifically to address section 556.105, Florida Statutes (1997)....

...ures for determining the existence of underground utilities prior to excavation. One-Call eliminated the need for excavators to contact each utility individually to determine the existence of underground facilities in the area to be excavated. Under section 556.105(1)(a), Florida Statutes (1997), not less than two, nor more than five business days before beginning an excavation, an excavator must notify One-Call of its intent to excavate....

...tion will be performed, the commencement date and anticipated duration of the excavation, and the type of work to be done. Id. One-Call then records the information and generates a written record of the locate request known as a "locate ticket." See § 556.105(2), Fla. Stat. (1997). One-Call is required to promptly route the notification to operators of underground facilities to make sure they can determine whether the proposed excavation is in proximity to or in conflict with their underground facilities. See § 556.105(4), Fla....

...underground facilities, the operator is then required to identify the horizontal route of the facility by using "stakes, paint, flags, or other suitable means within 48 hours" (exclusive of non-business days) of its receipt of the notification. See § 556.105(5), Fla....

...If the excavation is determined not to be near an existing underground facility, the operator must notify the excavator within 48 hours (exclusive of non-business days) from the time of the notification to the system that no conflict exists and the area is clear. See § 556.105(9), Fla. Stat. (1997). An excavator may not proceed with the excavation until that 48-hour period has expired. See § 556.105(6), Fla....

..."If the language of the statute is clear and unambiguous, courts enforce the law according to its terms and there is no need to resort to rules of statutory construction." Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 323 (Fla.2001). Section 556.105(1)(c), Florida Statutes (1997) states: "[i]nformation provided by an excavator shall be considered valid for a period of 20 calendar days after each date such information is provided to the system." However, when read in conjunction with the other provisions of the statute, its meaning becomes clear....

member is also acting as the excavator? In sum: Section 556.105(4), Florida Statutes, imposes a mandatory notification

...(2006). -3-  Along with establishing the notification system, the Act imposes various duties on member operators and excavators. For example, an excavator must use the system to give two days’ advance notice before beginning an excavation. § 556.105(1)(a), Fla. Stat. (2019). Then, after receiving notice, a member operator whose underground facility could be affected by the excavation must mark the area involved. § 556.105(5)(a)-(b), Fla....

...(2019). The Act also imposes duties that govern the actual performance of an excavation. For example, in defined instances the Act requires excavators “to use increased caution” and to supervise “[a]ny use of mechanized equipment.” § 556.105(5)(c), Fla. Stat. (2019). If underground facility markings are no longer visible, an excavator must stop the excavation and notify the system to have the area re-marked. § 556.105(11), Fla....

...ed by the Act The parties’ dispute in this case thus turns on identifying the nature of the cause of action implicitly created by sections 556.106(2)(a) and (2)(b). Those provisions read as follows: (2)(a) If a person violates s. 556.105(1) or (6), and subsequently, whether by himself or herself or through the person’s employees, contractors, subcontractors, or agents, performs an excavation or demolition that damages an underground facility of a memb...

...phrase refers to liability based on negligence. That the Act creates a negligence-based cause of action is most evident from the text of section 556.106(2)(a). That section expressly creates a rebuttable presumption of “negligence” when a person violates sections 556.105(1) or (6)—which contain the -9- statutory advance notice provisions—and subsequently performs a damage-causing excavation....

...from any excavation or demolition, no matter what. Section 556.106(2)(a) expressly indicates that even an excavator that has violated the Act’s notice requirements is only presumed to have been negligent (and therefore potentially liable) in performing a damage-causing excavation. Section 556.105(13), which makes member operators and excavators responsible for their own costs of complying with the Act, concludes by saying that it “shall not excuse a member operator or excavator from liability for any damage or injury for...

...d. See § 556.104, Fla. Stat. (2010). The intent of the Legislature was “to provide access for excavating contractors and the public to provide notification to the system of their intent to engage in excavation or demolition.” § 556.101(2). Section 556.105, Florida Statutes (2010), sets forth procedures between member operators12 and 12....

...(1) There is no liability on the part of, and no cause of action of any nature shall arise against, the board members of the corporation in their capacity as administrators of the system. (2)(a) If a person violates s. 556.105(1) or (6), and subsequently, whether by himself or herself or through the person’s employees, contractors, subcontractors, or agents, performs an excavation or demolition that damages an underground facility of a...

...Section 556.106(2)(a)-(c) are the statutory provisions cited in the certified question. Pursuant to the text, section 556.106(2)(a) creates a rebuttable presumption of negligence where a “person” 13 violates the requisite procedures set forth in section 556.105(1) or (6), and provides that, if found liable, the person will be liable to a member operator “for the total sum of the losses to all member operators,” as normally computed and with some specified limitations. 13....

...(2)(a). Otherwise, there would be no need for it. The scope of whom the provisions pertain to is different: (2)(a) (“a person”) and (2)(b) (“any excavator”). What triggers the liability in the provisions is different: (2)(a) (“violates s. 556.105(1) or (6)”) and (2)(b) (“fails to discharge a duty imposed by this chapter”)....

...And there is no mention of a rebuttable presumption of negligence in (2)(b) as there is in (2)(a). In fact, the word negligence does not appear at all. Further, the liability in (2)(b) is specific as to an excavator and is greater than (2)(a). The duties under section 556.105(1) and (6), are included within the (2)(b) requirements of discharging its duty imposed by the entire chapter. There are many additional excavator duties required by the Act, including (i) its increased - 38 - caution and specified digging methods within a tolerance zone (section 556.105(5)(c)); (ii) verification of the system’s positive responses before beginning excavation, and contacting the member operator if the facility is not marked and a positive response has not been received by the system (section 556.105(9)(c)); (iii) stopping excavation or demolition activities if the marking of the horizontal route of any facility is removed or no longer visible, and notifying the system for re-marking or documentation (section 556.105(11)); and (iv) immediately notifying the member operator in specified circumstances and ceasing excavation or demolition activities that may cause further damage to the underground facility (section 556.105(12)). Sections 556.106(2)(a) and 556.106(2)(b) also establish civil liability of the excavator, if found liable, to “all member operators” for violations of the notice procedures and to “all parties involved” for failing to discharge a duty under the Act....

...3 The cost of such administration is funded exclusively by contributions from the member operators. 4 Member operators are persons who furnish or transport materials or services by means of an underground facility in Florida and who have elected to participate in the system. 5 Section 556.105 , Florida Statutes, sets forth the procedures that must be followed by those persons who wish to engage in excavation or demolition that may affect underground facilities....

...not appear to convey the additional substantive authority to determine the amount of a civil penalty that may be imposed. 14 Section 556.106 (2), Florida Statutes, imposes the following liability upon excavators: (a) In the event any person violates s. 556.105 (1) or (6), and subsequently ....

...556.101 , Fla. Stat. (1993) stating, "It is not the purpose of this act to create liability for negligence on the part of any operator of an underground facility who elects to not participate in the one-call notification system created by this act." 6 See, s. 556.105 (1)(a) and (b), Fla. Stat. (1993). 7 Section 556.105 (2) and (3), Fla. Stat. (1993). 8 Section 556.105 (5), Fla. Stat. (1993). 9 Section 556.105 (6)(a), Fla. Stat. (1993). 10 Section 556.105 (6)(b), Fla....

...thin two days, unless they do not have accurate information as to the lines' location. Where lines are unmarked, the excavator may proceed after two business days but must do so with "reasonable care" using "detection equipment" pursuant to sections 556.105(5)(a) and 556.105(6)(a)....

...Did the City Satisfy Its Statutory Obligations? The first issue we address is whether the City's communications with the One Call system and Suncoast satisfied its statutory obligation to either mark the utilities or notify the appropriate person or entity that it was unable to do so within the statutory two-day period. Section 556.105(4)(b) requires the member operator (in this case, the City) to communicate with the person making the request (the excavator, Suncoast) if the member operator is unable to respond within two business days. Section 556.105(5)(a) provides: *708 "If a member operator has not located and marked its underground facilities within the time allowed for marking," then "the excavator may proceed with the excavation, provided the excavator does so with reasonable...

...We, therefore, conclude that the trial court correctly found that the City failed to mark the underground water line and to timely notify Suncoast. Thus, Suncoast was statutorily permitted to proceed with the excavation. Did Suncoast Comply with Its Statutory Duty? Pursuant to section 556.105(5)(a), when a member operator fails to mark an underground facility within the time limit or to notify the excavator that it needs more time, the excavator has an obligation to use reasonable care when proceeding with the excavation....

...partnership, corporation, association, municipality, or other political subdivision, governmental unit, department, or agency. . . ." 15 See, s. 556.104 , Fla. Stat. (1993), requiring the corporation to establish a one-call notification system; and s. 556.105 , Fla....

...(1993), providing procedures for filing information with the system. 16 See, s. 556.107 , Fla. Stat. (1993). 17 See, s. 119.07 (1), Fla. Stat. (1993). 18 Section 119.011 (2), Fla. Stat. (1993). 19 352 So.2d 1230 (Fla. 4th DCA 1977). 20 I would note that section 556.105 (2), Florida Statutes, requires that: Each notification by means of the system shall be recorded to document compliance with this act....