PEOPLES GAS SYSTEM, a division of Tampa Electric Company, a Florida corporation, Plaintiff - Appellant,
POSEN CONSTRUCTION, INC., a Michigan corporation, Defendant-Appellee.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 2:18-cv-00240-SPC-CM
JORDAN, GRANT, and DUBINA, Circuit Judges.
DUBINA, CIRCUIT JUDGE.
FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO FLA. R.
APP. P. 9.150(a). TO THE SUPREME COURT OF FLORIDA AND ITS
appeal requires us to determine whether a Florida law
regulating underground utility infrastructure recognizes a
standalone cause of action for reimbursement of damages paid
to third parties and/or a statutory right of indemnification.
The plaintiff, Peoples Gas System ("PGS"), sues the
defendant construction company, Posen Construction, Inc.
("Posen"), for damages under the Florida
Underground Facility Damage Prevention and Safety Act
("the Act"). Fla. Stat. § 556.101-106. The Act
permits utilities to recover damages when construction
workers negligently damage utility lines. In this case,
however, PGS seeks indemnification from Posen, claiming that
PGS has paid out damages to other plaintiffs in prior
litigation for damages that Posen caused. The Act does not
expressly speak to the possibility of indemnification, and
Florida courts have not directly addressed whether the Act
creates a cause of action to recover damages such as these.
Therefore, we deem it important to certify the question of
Florida substantive law presented in this case to the Supreme
Court of Florida.
a Florida natural gas distributor that maintains underground
pipelines, and Posen is a road construction company. During
one of Posen's road construction projects near Ft. Myers,
Florida, Posen learned that it would need to have PGS remove
a section of gas pipeline ahead of Posen's work. In
October 2010, Posen submitted a request to obtain the
location of PGS's pipeline. The Act mandates specific
procedures and notifications when, in a situation like this,
a construction company requires the assistance of an
underground utility company.
alleges the request was unlawful because Posen's request
failed to describe the excavation area with the specificity
the Act requires. In November 2010, Posen's
superintendent, Greg Menuez ("Menuez"), directed
his subordinate, Mark Santos ("Santos"), to dig and
till the ground around the excavation area with heavy
machinery. Importantly, PGS alleges that Menuez knew that a
gas pipeline in the area was not properly marked. Santos
ruptured the gas pipeline, caused a fire, and was severely
injured. Unsurprisingly, years of litigation followed.
litigation began in 2011 in Florida state court, when Santos
sued PGS and Posen. At some point between the 2011
commencement of the litigation and 2017, Santos dismissed
Posen and settled with PGS. Concurrent with the commencement
of the Santos litigation, PGS also sued Posen in federal
court, seeking damages for the repair costs under a
negligence claim. Posen counterclaimed, and the parties
ultimately settled. The present litigation commenced in
January 2018, when PGS sued Posen under the Act, claiming
either damages or an alternative claim for indemnity for the
money it paid Santos in the earlier settlement.
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. This appeal followed.
Does the Act provide a cause of action to recover damages
paid to a third party?
first argues that the district court wrongfully dismissed the
action because, in its two-count complaint, only the second
count sought indemnity as an alternative claim, while the
first count sought direct damages under the Act. Under
PGS's theory, the first claim should have survived
because the broad language of the Act provides that the
negligent party, "if found liable, is liable for the
total sum of the losses to all parties involved as those
costs are normally computed." Fla. Stat. §
556.106(2)(b). Under that reading, "all losses" is
the covered category of liability, with no restrictions on
types of losses. In addition, the only statutory limitations
on these losses are found in the next sentence that sets caps
on damages in dollar amounts, which does not speak to
categories of losses. Id. Posen counters that,
first, both claims turn on whether the Act permits
indemnification, PGS's arguments notwithstanding, and
second, that the Act is not designed to create a new cause of
action for utilities that was not already found in Florida
parties both agree that there is sparse case law addressing
the issue, much less binding precedent from the Florida
Supreme Court. When we lack guidance from the Florida Supreme
Court, we must adhere to the decisions of Florida's
intermediate appellate courts "absent some persuasive
indication that the state's highest court would decide
the issue otherwise." Ernie Haire Ford, Inc. v. Ford
Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (quoting
Ins. Co. of N. Am. v. Lexow, 937 F.2d 569, 571 (11th
Cir. 1991)). And ...