CopyPublished | Supreme Court of Florida
...Court of Appeals for the Eleventh Circuit has certified
to us a question about the Underground Facility Damage Prevention
and Safety Act, codified in chapter 556 of the Florida Statutes. 1
The question asks:
Whether a member-operator has a cause of action under
Fla. Stat. § 556.106(2)(a)-(c) to recover damages (or
obtain indemnification) from an excavator for payments
to a third party for personal injuries related to the
excavator’s alleged violation of the statute?
1....
...And the Act says that, even after complying with the
statutory advance notice requirements, an excavator must
“perform[] an excavation or demolition in a careful and prudent
manner, based on accepted engineering and construction
practices.” § 556.106(2)(c), Fla....
...(2019).
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Finally, certain provisions in the Act address the liability of
excavators when there is a damage-causing excavation. This case
specifically is about the excavator liability provisions in sections
556.106(2)(a) and (2)(b), which we will later review in detail.
II.
The parties in this case are Peoples Gas System (PGS) and
Posen Construction, Inc....
...those duties to potential civil liabilities. That textual evidence is
decisive.
The Nature of the Cause of Action Created 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)....
... loss of revenue and loss of use may not exceed $500,000
per affected underground facility, except that revenues
lost by a governmental member operator whose revenues
are used to support payments on principal and interest
on bonds may not be limited.
§ 556.106(2)(a)-(b), Fla. Stat. (2019). We will examine these
provisions in some detail.
Sections 556.106(2)(a) and (2)(b) share a similar structure.
Both use the phrase “losses ....
...to establish entitlement to the provided remedy: the remedy
becomes available “if” the defendant violates the Act in a particular
way and “if” the defendant is “found liable.”
The key phrase “if found liable” appears in both sections
556.106(2)(a) and (2)(b)....
...This raises the question: liable on what
basis? We believe that the best reading of the statute is that this
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
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statutory advance notice provisions—and subsequently performs a
damage-causing excavation. Although section
556.106(2)(b) does
not similarly refer to negligence, it uses the same phrase “if found
liable.” Absent explicit textual evidence pointing in another
direction, we see no reason why the basis for liability under the two
sections could...
...injury to persons or property.” §
556.101(3)(a), Fla. Stat. (2019).
That, of course, is one of the quintessential functions of negligence
law. And the Act’s overarching standard of care for excavators
echoes a common law negligence standard. Section
556.106(2)(c)
says that, even after complying with the Act’s notice requirements,
an excavator is not excused “from performing an excavation or
demolition in a careful and prudent manner, based on accepted
engineering and construction...
...participate in the one-call
notification system created by this act.” Ch. 93-240, § 1, Laws of
Fla. In our view, this is further evidence that the liability the Act
does create is best understood as negligence-based liability.
How Section 556.106(2)(a) Differs from (2)(b)
PGS argues that section 556.106(2)(a) authorizes a claim for
money damages and that section 556.106(2)(b) authorizes a
separate claim for “statutory indemnity” against excavators....
...ry of damages. The
difference between the two subsections is that they address
2. In the appellate briefs PGS submitted to this Court, PGS
distinguished subsection (2)(a) from (2)(b), arguing that Posen bears
“liability for damages under Section 556.106(2)(a)” and bears
“liability for indemnification under Section 556.106(2)(b).”
Appellant’s Reply Br....
...Notably, PGS did
not make this distinction when it brought suit against Posen in
federal district court or when it argued its appeal in the Eleventh
Circuit. In the first count of PGS’s complaint (seeking damages),
PGS alleged that Posen breached duties under both sections
556.106(2)(a) and 556.106(2)(b), and PGS alleged entitlement to
recovery of damages “pursuant to both sections 556.106(2)(a) and
(b).” And in its second count (seeking indemnification), PGS
asserted entitlement under “section 556.106,” making no claim that
subsection (2)(b) in particular was an indemnification provision.
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different duties giving rise to potential liability; that only one
subsection creates a rebuttable p...
...aintiffs.
Subsection (2)(a) only addresses situations where a person
violates the Act’s advance notice provisions and “subsequently . . .
performs an excavation or demolition that damages an
underground facility of a member operator.” § 556.106(2)(a), Fla.
Stat. (2019). Subsection (2)(a) says that in such a circumstance, “it
is rebuttably presumed that the person was negligent.” The
potential class of plaintiffs under section 556.106(2)(a) is limited to
member operators as defined in the Act.
By contrast, instead of homing in on the Act’s advance notice
provisions, subsection (2)(b) applies more broadly to situations
where “any excavator fails to discharge a duty imposed by this
chapter.” § 556.106(2)(b), Fla....
...Specifically, it protects “all
parties involved” in a damage-causing excavation, not just member
operators. This distinction was particularly significant at Act’s
inception, when not all underground facility users were “member
operators” for purposes of the Act.
A key difference between section 556.106(2)(a) and section
556.106(2)(b) is that only the former creates a rebuttable
presumption of negligence....
...It makes sense that the Legislature
would have included such a provision as an incentive for
underground facility owners to become “member operators” and
thereby to gain enhanced protection under the Act.3
When it comes to the available remedy, however, sections
556.106(2)(a) and (2)(b) are the same....
...member operators involved/all parties involved] as those costs are
3. As mentioned, the Act was amended to make membership
mandatory for underground facility users. However, subsequent
amendments to the Act have not changed the substantive terms of
liability under sections 556.106(2)(a) or (2)(b). Compare ch. 2006-
138, Laws of Fla., and ch. 2010-100, Laws of Fla., with
§ 556.106(2), Fla. Stat. (2019).
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normally computed.” § 556.106(2)(a)-(b), Fla....
...It defines
“indemnification” as “[t]he action of compensating for loss or
damage sustained.” Black’s Law Dictionary 772 (7th ed. 1999).
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for its own alleged negligence. Indeed, PGS maintains that the
section
556.106(2)(b) “right to indemnification arises even if the
utility is also negligent.”
As the court of appeals recognized, in making this argument
PGS purports to rely on the “plain language” of the Act. See Peoples
Gas Sys.,
931 F.3d at 1342. PGS emphasizes the text of section
556.106(2)(b) stating that an excavator, “if found liable, is liable for
the total sum of the losses to all parties involved as those costs are
normally computed,” §
556.106(2)(b), Fla....
...Given the Act’s silence on
indemnity, it would not be reasonable to read the Act as having
created a new substantive duty so different from this common-law
baseline.
Nor does PGS identify any similarly worded statute that has
been interpreted to bear the meaning PGS urges for section
556.106(2)(b)....
...Stat.
(2019).
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Eleventh Circuit observed, the out-of-state laws that PGS relies on
are materially differently worded and therefore inapposite. See
Peoples Gas Sys., 323 F.3d at 1341-42. 7
Finally, we are unpersuaded by the argument that section
556.106(2)(c) supports PGS’s position on statutory indemnity....
...from performing an excavation or demolition in a careful
and prudent manner, based on accepted engineering and
construction practices, and it does not excuse the
excavator from liability for any damage or injury resulting
from any excavation or demolition.
§ 556.106(2)(c), Fla....
...Among other differences, section 40-360.28(B), Arizona
Revised Statutes (1999), and section 55-2404, Idaho Code
Annotated (1992), refer to “damages to third parties” and “damages
to third persons,” respectively.
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Reading section 556.106(2)(c) in pari materia with other
sections of the Act shows that this provision does not purport to
make an excavator solely liable for all damage or injury resulting
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 which it would be responsible under appliable
law.” And finally, section
556.106(2)(c) on its face says nothing
about the relative fault and liability of any other party.
IV.
Having established that the Act creates a standalone cause of
action sounding in negligence (and...
...However, a centerpiece of PGS’s
arguments is that the Act allows full recovery of its asserted loss
without regard to PGS’s own negligence. We therefore must clarify
that claims brought under the Act—whether under section
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556.106(2)(a) or section
556.106(2)(b)—are governed by principles of
comparative fault.
Florida’s comparative fault statute applies to “negligence
action[s].” §
768.81(2), Fla....
...In Hoffman we said: “In the field of tort law, the most
equitable result that can ever be reached by a court is the equation
of liability with fault.” Id.
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The principle of comparative fault thus helps to give meaning
to the statutory text. Recall that sections 556.106(2)(a) and
556.106(2)(b) say that an excavator, “if found liable, is liable for the
total sum of the losses to [all member operators involved/all parties
involved] as those costs are normally computed.” In our view, the
phrase “as those costs are norma...
...And there would be nothing “normal” about
calculating a defendant’s liability in a negligence action without
regard to the plaintiff’s fault.
Recovery of “Losses”
Finally, we turn to the parties’ disagreement over the meaning
of the term “losses” as used in sections 556.106(2)(a) and (2)(b).
The Act does not include a definition for the term. Posen argues
that the term refers only to property damage or lost revenue. PGS
responds that “losses” is a broad term and that sections
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556.106(2)(a) and (2)(b) do not limit the type of recoverable
damages.
On this point we agree with PGS....
...“all parties involved”), and the statutory phrase “as those costs are
normally computed.”
9. However, the Act does, with certain identified exceptions,
limit the amount recoverable on two types of loss: loss of revenue
and loss of use. § 556.106(2)(a)-(b), Fla....
...excavator’s alleged violation of the statute?
Peoples Gas Sys. v. Posen Constr., Inc.,
931 F.3d 1337, 1342 (11th
Cir. 2019). Although not explicitly saying so, the majority answers
the certified question in the negative, holding that sections
556.106(2)(a) and
556.106(2)(b) create standalone statutory causes
of action that do not provide for the recovery of these damages. For
the reasons explained below, I would answer the narrow, certified
question in the affirmative. I would also conclude that sections
556.106(2)(a) and
556.106(2)(b) create standalone statutory causes
of action....
...paid Santos in the earlier settlement.
The Act creates a rebuttable presumption of
negligence against the excavator if an excavator
“performs an excavation or demolition that damages an
underground facility of a member operator.” Fla. Stat. §
556.106(2)(a). Under the Act, the excavator is liable “for
the total sum of the losses to all parties involved as those
costs are normally computed.” Id. at § 556.106(2)(b).
Posen moved to dismiss, claiming that PGS’s damages do
not qualify as a “loss” under the statute, and because the
Act does not provide a statutory right to indemnification.
The district court agreed, and on June 26, 2018, it
dismissed the complaint.
Id....
...The Eleventh Circuit
concluded that “Florida case law does not conclusively establish the
purpose of the Act, including whether it creates a cause of action to
10. The district court only addressed “costs” and “normally
computed” in section 556.106(2)(a) and did not address sections
556.106(2)(b) or 556.106(2)(c).
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recover damages paid to third parties or simply clarifies a common
law negligence claim, and whether it authorizes damages incurred
under circumstances as remote as these.” Id....
...the one PGS embraces, which caselaw still does not foreclose.” Id.
II. ANALYSIS
I would answer the certified question in the affirmative and
hold that, based on the plain meaning, a member operator has a
cause of action under section 556.106(2)(a)-(c) to recover damages
or obtain indemnification from an excavator for payments to a third
party for personal injuries related to the excavator’s alleged
violation of the statute....
...Hilliard,
78 So.
693, 694-95 (Fla. 1918)). “[T]he fact that appellate courts may
differ with regard to the application of statutory provisions does not
necessarily render a statute ambiguous.” Nettles v. State,
850
So. 2d 487, 495 (Fla. 2003).
Section
556.106, the statute at issue in this case, is found
within the Florida Underground Facility Damage Prevention and
Safety Act (the Act), which was enacted in 1993....
...A “member operator” is defined as “any person who
furnishes or transports materials or services by means of an
underground facility.” §
556.102(8), Fla. Stat. (2010).
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excavators relating to notification and marking of underground
facilities.
A. Sections
556.106(2)(a) and
556.106(2)(b) are Separate,
Standalone Statutory Causes of Action
Section
556.106 provides liability for member operators,
excavators, and for the system. It also creates, and takes away any
argument for, certain safe harbors for compliance with the Act:
556.106 Liability of the member operator,
excavator, and system.—
(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 capac...
...556.108(4)(c) or (5) is liable for any damage to any
operator’s underground facilities damaged during such
excavation.
(8) Any liability of the state, its agencies, or its
subdivisions which arises out of this chapter is subject to
the provisions of s.
768.28.
§
556.106, Fla. Stat. (2010) (emphasis added).
Section
556.106 begins by providing that “[t]here 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.” §
556.106(1). Section
556.106 then
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proceeds to outline the liability of the member operator, excavator,
and system. See §
556.106(2) (imposing liability upon an excavator
who violates notice requirements or fails to discharge a duty under
the Act); §
556.106(3) (imposing liability upon a member operator
who fails to comply with the provisions of the Act); §
556.106(5)
(imposing liability upon the system for failure to discharge its duties
under the Act).
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 opera...
...y, or
other political subdivision, governmental unit, department, or
agency, and includes any trustee, receiver, assignee, or personal
representative of a person.” §
556.102(9).
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To state the obvious, section
556.106(2)(b) provides a different
statutory cause of action than section
556.106(2)(a)....
...(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....
...While characterizing this issue as “discrete,” the majority
states that the definition of “losses” is broad and may include
purely economic damages, independent of personal injury or
property damage, agreeing with PGS that sections 556.106(2)(a) and
556.106(2)(b) do not limit the type of recoverable damages....
...at 20, 25. But the majority ignores this ruling when it
answers the certified question in the negative by holding that PGS
is unable to recover the payments it made to the employee because
indemnification is not recognized by the Act. While sections
556.106(2)(a) and 556.106(2)(b) do not expressly include language
referring to indemnity, subsection (2)(b) broadly provides recovery to
“all parties involved.” The majority distinguishes other out-of-state
laws based on their use of the language “damages to third parties”
and “damages to third persons,” see majority op....
...ng of the statute,
concluding that PGS reads into the statute “far more than the
statutory context allows,” and PGS’s interpretation would provide
for the recovery of “any conceivable loss.” See majority op. at 15.
However, in sections 556.106(2)(a) and 556.106(2)(b), there is no
mention of reducing the damages or coming to a “net” recoverable
amount....
...Further, the Legislature
chose only to include one limitation or exception to the “total sum of
the losses” for certain categories of damages: “Any damage for loss
of revenue and loss of use may not exceed $500,000 per affected
underground facility.” §
556.106(2)(a), (2)(b); see also Facchina v.
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Mut. Benefits Corp.,
735 So. 2d 499, 502 (Fla. 4th DCA 1999) (“In
crafting new statutory causes of action, the legislature is master of
the elements and boundaries on the new cause of action.”). If the
Legislature had intended that section
556.106(2) contain an
additional exception to the “total sum of the losses,” it would have
explicitly provided for such an exception....
...See Cont’l Assur. Co. v.
Carroll,
485 So. 2d 406, 409 (Fla. 1986) (“This Court cannot grant
an exception to a statute nor can we construe an unambiguous
statute different from its plain meaning.”).
Moreover, when read in context, the plain meaning of section
556.106(2)(a)-(b) is consistent with section
556.106(2)(c), which
states that “[o]btaining information as to the location of an
underground facility from the member operator as required by this
chapter does not excuse any excavator from performing an
excavation or demolition in a careful and prudent manner, based on
accepted engineering and construction practices, and it does not
excuse the excavator from liability for any damage or injury resulting
from any excavation or demolition.” §
556.106(2)(c) (emphasis
added)....
...2001))).
Although this provision itself takes away an argument for a safe
harbor instead of providing a cause of action, it explains the type of
damages that are otherwise available from an excavator.
Florida case law construing a different provision of the Act,
section 556.106(3), Florida Statutes (2010), 14 which imposes
14. Section 556.106(3), Florida Statutes (2010), provides,
(3) If, after receiving proper notice, a member
operator fails to discharge a duty imposed by this act and
an underground facility of a member operator is damaged
by an...
...not exceed $500,000 per affected underground facility,
except that revenues lost by a governmental member
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liability upon a member operator who fails to comply with the
provisions of the Act, further supports the plain meaning of section
556.106(2). See Southland Constr., Inc. v. Greater Orlando Aviation,
860 So. 2d 1031, 1037 (Fla. 5th DCA 2003) (“We agree with
Southland that section
556.106(3), Florida Statutes, could be the
source of a statutorily created duty owed by Peoples’ Gas to
Southland to correctly mark the location of its underground
facilities and it could be the basis for Southland to recover its own
da...
...statutorily
specified injury or damage results.”); A & L Underground, Inc. v. City
of Port Richey,
732 So. 2d 480, 481 (Fla. 2d DCA 1999) (concluding
an excavator is entitled to recovery of delay and repair costs in an
action for violations of section
556.106(3), Florida Statutes (1995),
because the language providing for the recovery of “the total cost of
any loss” allowed recovery for purely economic losses); see also Op.
Att’y Gen....
...of Fla., Inc. v. Welker,
908 So. 2d 317, 321 (Fla.
2005) (declining to address an issue not presented in the certified
question and not raised by the parties in the trial court, district
court, or this Court).
The majority “infers” negligence into section
556.106(2)(b) as a
basis for the application of the comparative fault defense....
...Further, the Legislature can
impose its own statutory requirements and liability that flows to
“[a]id the public by preventing injury to persons or property”
without requiring negligence. §
556.101(3)(a). It may provide a
statutory scheme with its own cause of action and remedies, as it
has done here. In section
556.106(2)(c), the Legislature notes that
an excavator’s compliance does not excuse it from performing its
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work in a “careful and prudent manner, based on accepted
engineering and construction p...
...ng to a recoverable
amount “net” of comparative negligence.
Likewise, we should not inject “proximate causation” into the
statutory causes of action when it has not been argued by the
parties and considered by the federal courts. In section 556.106(3),
the language “proximate result” is explicitly used but does not
appear in sections 556.106(2)(a) or 556.106(2)(b)....
...to consider them.
III. CONCLUSION
For the above reasons, I would answer the certified question in
the affirmative and hold that, based on the plain meaning of the
Act, a member operator has a cause of action under section
556.106(2)(a)-(c) to recover damages or obtain indemnification from
an excavator for payments to a third party for personal injuries
related to the excavator’s alleged violation of the statute....
