United States District Court, M.D. Florida, Fort Myers Division
PEOPLES GAS SYSTEM, a division of Tampa Electric Company, a Florida corporation Plaintiff,
POSEN CONSTRUCTION, INC., Defendant.
OPINION AND ORDER 
POLSTERCHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Posen Construction,
Inc.'s Motion to Dismiss the Complaint (Doc. 10) and
Motion to Take Judicial Notice (Doc. 11) filed on February
27, 2018. After the Court granted Plaintiff Peoples Gas
System's Unopposed Motion for Extension of Time to
Respond (Docs. 14; 15), Plaintiff filed a Request for
Judicial Notice (Doc. 16) and Response to Posen's Motion
to Dismiss (Doc. 17) on March 27, 2018. These matters are now
ripe for review.
an action under Florida's Underground Facility Damage
Prevention and Safety Act, Fla. Stat, §§
556.101-106 (the “Act”). Peoples Gas System
(“PGS”) owns and maintains natural gas
distribution facilities throughout Florida, including a
natural gas pipeline in Lee County. (Doc. 1 at 2). Posen is a
road construction contractor. (Id.). In 2009, the
Lee County Board of County Commissioners solicited bids for a
lane expansion/drainage system project in east Fort Myers,
Florida. (Id. at 3). Posen submitted a bid and was
awarded general contractor of the project. (Id. at
4). Construction began in August 2009. (Id.).
maintained the pipeline underneath the project, which
provided natural gas to Lee County residents. (Id.).
This was a “critical line” and required caution
when working around it. (Id.). PGS marked the
pipeline with flags and paint and installed testing stations.
(Id. at 5). As the project continued, the parties
learned that, at certain locations, construction would be
impossible unless PGS removed the pipeline ahead of
Posen's work. (Id. at 4).
October 2010, Posen submitted a request to Sunshine One,
which is a notification system by which excavators obtain the
location of underground utilities before excavating.
(Id. at 8). Fla. Stat. § 556.101(2). PGS
alleges that Posen's request violated the Act because it
failed to describe the specific areas for excavation, as
required by the statute. (Id. at 9). In November
2010, Posen's roadway superintendent, Greg Menuez,
directed his subordinate, Mark Santos, to dig and till the
ground located at testing stations 452-456 with a Bomag
mixer. (Id.). PGS alleges that Menuez knew that the
gas main was not properly marked. (Id. at 9-10).
When Santos operated the mixer, he struck and ruptured the
pipeline, which caused a natural gas fire. (Id. at
10). Santos suffered severe injuries. (Id. at 10).
incident triggered several years of litigation. First, in
2011, Santos sued PGS and Posen in Florida state court.
(Docs. 1 at 12; 11-1). Several years later, Santos
voluntarily dismissed Posen as a defendant to the action.
(Doc. 11-3). In 2017, Santos and PGS ultimately settled.
(Doc. 1 at 12). Around the same time Santos filed his state
action, PGS sued Posen in federal court for the same
incident, seeking damages for the cost to repair its pipeline
and facilities under claims of negligence. (Doc. 11-4). In
response, Posen filed counterclaims against PGS. (Doc. 16-1).
The parties ultimately settled and stipulated for dismissal
with prejudice. (Doc. 16-2).
PGS sues Posen under § 556.106(2)(a) and makes an
alternative claim for statutory indemnity under the Act.
(Doc. 1). In essence, Posen asserts both counts are
duplicative because, under both counts, PGS relies on the Act
to receive the same remedy: indemnification for the
settlement amount it paid to Santos (Docs. 1 at 12-13; 10 at
7). Posen moves to dismiss the complaint for failure to state
a claim, and both parties move the Court to take judicial
notice of court filings. (Docs. 10; 11; 16). For the reasons set
forth below, Posen's Motion to Dismiss (Doc. 10) is
considering a motion to dismiss under Rule 12(b)(6), the
court must accept all factual allegations as true and view
them in a light most favorable to the plaintiff. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This
preferential standard of review, however, does not permit all
pleadings adorned with facts to survive to the next stage of
litigation. The Supreme Court has been clear on this point -
a district court should dismiss a claim where a party fails
to plead facts that make the claim facially plausible.
See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible when the court
can draw a reasonable inference, based on the facts pled,
that the opposing party is liable for the alleged misconduct.
See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.(citing Twombly, 550 U.S. at 557
(internal quotation marks omitted)).
presents two arguments as grounds for dismissing both counts
of the Complaint. (Doc. 10 at 6-13). First, it argues that
the damage PGS seeks is not a “loss” under the
statute. (Id. at 10-13). Second, it asserts there is
no statutory right to indemnification under the Act.
(Id. at 7-10). PGS avers that it has a right to
indemnification under the broad language of the statute.
(Doc. 17 at 12-14). For the reasons stated below, the Court
agrees with Posen.
preliminary matter, Florida substantive law binds the Court
on these state law issues. The Eleventh Circuit summarized
In rendering a decision based on state substantive law, a
federal court must decide the case the way it appears the
state's highest court would. Where the state's
highest court has not spoken to an issue, a federal court
must adhere to the decisions of the state's intermediate
appellate courts absent some ...