Peoples Gas System, etc. v. Posen Construction, Inc., etc.

Supreme Court of Florida
____________
No. SC19-1305
____________
PEOPLES GAS SYSTEM, etc.,
Petitioner,
vs.
POSEN CONSTRUCTION, INC., etc.,
Respondent.
June 10, 2021
MUÑIZ, J.
The U.S. 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. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.
Peoples Gas System v. Posen Construction, Inc., 931 F 3d 1337,
1342 (11th Cir. 2019).
As we explain, we conclude that the Act creates a standalone
cause of action; that the cause of action sounds in negligence; that
liability under the Act is therefore subject to proof of proximate
causation and to the defense of comparative fault; that “losses”
recoverable under the Act can include purely economic damages,
independent of personal injury or property damage; and that the
Act does not create a cause of action for “statutory indemnity.” We
leave it to the court of appeals to apply the Act’s liability provisions,
so understood, to the claims involved in this case.
I.
The Legislature adopted the Underground Facility Damage
Prevention and Safety Act in 1993, expressing the intent “to provide
a single toll-free telephone number for excavating contractors and
the general public to call for notification of their intent to engage in
excavation or demolition.” Ch. 93-240, §1, Laws of Fla. The
function of the newly created notification system would be to
“provide the member operators an opportunity to identify and locate
their underground facilities.” Id. One of the Act’s express purposes
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was to “[a]id the public by preventing injury to persons or property”
resulting from excavation accidents that damage underground
facilities. Id.
As defined in the Act, the term “underground facility” refers
broadly to buried equipment like pipelines, sewers, and cables.
§ 556.102(13), Fla. Stat. (2019). A “member operator” is a person or
entity that “furnishes or transports materials or services by means
of an underground facility.” § 556.102(8), Fla. Stat. (2019). And an
“excavator” is “any person performing excavation or demolition
operations.” § 556.102(7), Fla. Stat. (2019).
Initially, the Act made membership in the notification system
optional, meaning that some underground facility users would not
be “member operators” for purposes of the Act. See ch. 93-240, § 2
Laws of Fla. (defining a “member operator” as “any person who
furnishes or transports materials or services by means of an
underground facility and who elects to participate as a member of
the one-call notification center”) (emphasis added). But by 2006, a
series of amendments to the Act had made participation in the
notification system mandatory for underground facility users. §
556.102(8), Fla. Stat. (2006).
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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. Stat. (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. Stat.
(2019). 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. Stat. (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. PGS is a natural gas distributor and
member operator. Posen is a road construction company and
excavator.
In November 2010, a Posen employee named Mario Santos
ruptured a PGS pipeline during an excavation. Peoples Gas Sys. v.
Posen Constr., Inc., 323 F. Supp. 3d 1362, 1364 (M.D. Fla. 2018).
The accident caused an explosion that left Santos severely injured.
Id. Although Posen had given advance notice of the excavation,
PGS maintained that the notice was deficient under the Act. Id.PGS and Posen sued and countersued each other in federal court,
eventually settling. Id.Santos (the injured employee) concurrently brought a personal
injury lawsuit against both Posen and PGS in state court. Santos
alleged in part that PGS had failed to carry out its statutory duty to
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mark its facilities within the statutorily prescribed time. Id. Santos
ultimately dismissed Posen from suit and settled with PGS. Id.After settling with Santos, PGS sued Posen in federal court,
claiming that the Act entitled PGS to recover the amount of the
settlement payment it had made to Santos. Id. The federal district
court dismissed PGS’s complaint. Id. at 1368. The court reasoned
that “PGS has failed to state a claim for relief because Posen had no
duty to indemnify under the Act.” Id. at 1366. More specifically,
the court concluded that “[w]hile the statute provides liability for
bodily injuries, the plain language creates no duty to indemnify a
member operator for money it paid during the settlement of a third-
party bodily injury claim.” Id. at 1367.
In PGS’s ensuing appeal, the court of appeals recognized
PGS’s position that it could recover the settlement payment either
as damages or as “statutory indemnity” under the Act. Peoples Gas
Sys. v. Posen Constr., Inc., 931 F.3d 1337, 1340 (11th Cir. 2019).
As to damages, the court of appeals concluded that Florida law does
not conclusively establish “whether [the Act] authorizes damages
incurred under circumstances as remote as these.” Id. at 1340. As
to indemnity, the court concluded that “the caselaw is not
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conclusive and the statute is subject to multiple plausible
interpretations, including the one PGS embraces, which caselaw
still does not foreclose.” Id. at 1341.
Given its “substantial doubt” about the “potentially novel”
issues in play, the court of appeals decided to certify to us its
question about the Act. Id. at 1340, 1342.
III.
We begin with a threshold question identified by the court of
appeals: “whether the Act provides a standalone cause of action, or
whether it simply clarifies the legal analysis in a negligence claim.”
Id. at 1340. This question arises because the Act does not
expressly create a cause of action.
Our precedent says that “whether a cause of action exists
when a statute does not expressly provide for one” is primarily a
matter of “legislative intent.” Murthy v. N. Sinha Corp., 644 So. 2d
983, 985 (Fla. 1994). Any such intent must be gleaned from the
text, structure, and purpose of the Act.
We believe that the Act does implicitly create a standalone
cause of action. Importantly, the Act goes beyond simply imposing
regulations that advance public safety. See id. at 986 (finding no
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cause of action in a statute that was “created merely to secure the
safety and welfare of the public by regulating the construction
industry”). Instead, the Act imposes specific duties on member
operators and on excavators, and it expressly links violations of
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). 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 member operator,
it is rebuttably presumed that the person was negligent.
The person, if found liable, is liable for the total sum of
the losses to all member operators involved as those
costs are normally computed. Any damage for 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.
(b) If any excavator fails to discharge a duty
imposed by this chapter, the excavator, if found liable, is
liable for the total sum of the losses to all parties involved
as those costs are normally computed. Any damage for
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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 . . . as those costs are normally
computed” to describe the remedy available to injured plaintiffs.
And both begin by referring to two conditions that must be satisfied
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 reasonably be understood to be different.
We also infer negligence-based liability from the subject matter
of the Act and from the nature of the duties that the Act imposes.
An express purpose of the Act is to “aid the public by preventing
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 practices.”
Finally, we note that the Act in its original form contained the
following provision: “It is not the purpose of this act to create
liability for negligence on the part of any operator of an
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underground facility who elects not to 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. 2 We
agree that the two provisions differ from each other, but not in the
way that PGS advocates. The two subsections both provide for a
negligence-based cause of action for the recovery 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. at 5, 8 (emphasis added). 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 presumption of negligence; and that
the subsections protect different classes of potential plaintiffs.
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. Stat. (2019). As we have explained,
the duties that the Act imposes include the advance notice
requirement but also extend to the way an excavation is conducted.
Thus, unlike (2)(a), subsection (2)(b) gives member operators a
remedy in cases where an excavator complied with the advance
notice requirements but nonetheless performed a negligent,
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damage-causing excavation. Subsection (2)(b) also protects a
broader class of potential plaintiffs. 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. Both say that the 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
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. Stat. (2019). The only
difference is in the bracketed text, with subsection (2)(a) referring to
“all member operators involved” and subsection (2)(b) referring to
“all parties involved.” In each instance, the relevant sentence does
nothing more than speak to the damages element of the negligence-
based cause of action created by the Act.
Indemnification Versus Damages
Because the terms “indemnity” and “indemnification” are
broad terms, we must be clear about the “statutory indemnification”
position that we are rejecting. 4 PGS’s argument is that (1) its
settlement payment to Santos was “necessitated by Posen’s
violation of the Act” and that (2) the settlement payment therefore
“constitutes a loss for which PGS is entitled to indemnity under the
Act.” PGS does not allege that it was vicariously liable to Santos for
Posen’s negligence or that the settlement payment covered Posen’s
liability to Santos. Nor does PGS dispute that Santos had sued PGS
4. Black’s law dictionary defines “indemnity” as “[a] duty to
make good any loss, damage, or liability incurred by another.”
Black’s Law Dictionary 772 (7th ed. 1999). 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. Stat. (2019). As the court
of appeals noted, “PGS contends that ‘all parties’ means that a
negligent excavator is liable for losses of anyone involved, and ‘total
sum’ includes any conceivable loss.” Peoples Gas Sys., 931 F.3d at
1342.
We cannot agree with PGS’s reading of the text. In our view,
PGS’s argument overlooks the negligence-based liability created by
the Act. And that oversight causes PGS to read into the “losses”
provision far more than the statutory context allows. As one
treatise states, “Natural, proximate, and legal results are all that
damages can be recovered for, even under a statute entitling one to
recover any damage.” 3 John Davison Lawson, Rights, Remedies,
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and Practice § 1028 (1890) (quoted in Associated Gen. Contractors of
Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 532
n. 24 (1983)).
The Act does not use any language that one would associate
with the creation of a duty like the one urged by PGS. The terms
“indemnify” or “indemnification” do not appear in the Act. Nor does
the text say anything about making any party (whether member
operator, excavator, or anyone else) responsible or vicariously liable
for the acts—much less the negligence—of an unrelated party. And
the Act says nothing about a member operator being able to recover
damages without regard to its own fault, or for its liability to third
parties.
A basic rule of textual interpretation is that “statutes will not
be interpreted as changing the common law unless they effect the
change with clarity.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 318 (2012).5 Yet the
5. See also Essex Ins. Co. v. Zota, 985 So. 2d 1036, 1048 (Fla.
2008) (“It is a well-settled rule of Florida statutory construction that
‘[s]tatutes in derogation of the common law . . . will not be
interpreted to displace the common law further than is clearly
necessary.’ ”) (quoting Carlile v. Game & Fresh Water Fish Comm’n,
354 So. 2d 362, 364 (Fla. 1977)).
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substance of the “statutory indemnity” for which PGS argues is at
odds with Florida’s common law on indemnification. This Court
has explained that “[i]ndemnity rests upon the fault of another
which has been imputed to or constructively fastened upon the one
seeking indemnity, and there can be no indemnity between joint
tortfeasors.” Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 493
(Fla. 1979). Any fault on the part of the plaintiff in a common law
indemnity action—“no matter how slight” that fault—precludes the
plaintiff’s recovery. Id. at 494. 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). The two Florida laws PGS cites—one dealing with
off-duty sheriff’s deputies and the other with a corporate director’s
right to seek indemnification from the corporation6—have no textual
or substantive similarity with the statute here. And, as the
6. See § 30.2905(2)(a), Fla. Stat. (2011); § 607.0852, Fla. 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. That
section says:
(c) Obtaining 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), Fla. Stat. (2019). In our view, this provision does
nothing more than clarify that an excavator’s compliance with the
Act’s notice provisions does not create a safe harbor from liability.
As the text says, the excavator still retains a duty to do its work in a
“careful and prudent manner.”
7. 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 not a “statutory indemnification”
action along the lines advocated by PGS), we conclude by
addressing three discrete issues that may be relevant to the court of
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appeals’ resolution of this case: proximate causation, comparative
fault, and the meaning of the term “loss.”
Proximate Causation
Because the statutory cause of action here sounds in
negligence, a defendant cannot be “found liable” unless the
defendant’s negligence is a proximate cause of the plaintiff’s injury
and there is no defense to the plaintiff’s claim. See Restatement
(Second) of Torts § 5 (Am. Law Inst. 1965) (explaining these two
conditions as necessary for one “subject to liability” to become
“liable”). 8 And of course it is axiomatic that there can be no
recovery “if it is determined that a claimant’s negligence was the
sole legal cause of her injury.” Standard Havens Prods., Inc. v.
Benitez, 648 So. 2d 1192, 1197 (Fla. 1994); see also Hoffman v.
Jones, 280 So. 2d 431, 438 (Fla. 1973) (“A plaintiff is barred from
8. See, e.g., Limones v. Sch. Dist. of Lee Cnty., 161 So. 3d 384,
389 (Fla. 2015) (“We have long held that to succeed on a claim of
negligence, a plaintiff must establish the four elements of duty,
breach, proximate causation, and damages.”); Barnett v. State Dep’t
of Fin. Servs., 303 So. 3d 508, 513 (Fla. 2020) (“The elements of a
cause of action in tort are: (1) a legal duty owed by defendant to
plaintiff, (2) breach of that duty by defendant, (3) injury to plaintiff
legally caused by defendant’s breach, and (4) damages as a result of
that injury.”) (quoting Estate of Rotell v. Kuehnle, 38 So. 3d 783,
388 (Fla. 2d DCA 2010)).
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recovering damages for loss or injury caused by the negligence of
another only when the plaintiff’s negligence is the sole legal cause of
the damage, or the negligence of the plaintiff and some person or
persons other than the defendant or defendants was the sole legal
cause of the damage.”).
Conditioning liability on a determination of proximate
causation—as opposed to mere but-for causation—is one of the
most basic principles of tort law. “[I]t has always been the practice
of common-law courts (and probably of all courts, under all legal
systems) to require as a condition of recovery, unless the legislature
specifically prescribes otherwise, that the injury have been
proximately caused by the offending conduct.” Holmes v. Sec.
Investor Prot. Corp., 503 U.S. 258, 287 (1992) (Scalia, J.,
concurring); see also Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 132 (2014) (“[W]e generally
presume that a statutory cause of action is limited to plaintiffs
whose injuries are proximately caused by violations of the statute.”).
In this case, PGS’s claimed damages consist of its settlement
payment to Santos (the injured employee). PGS disputes the court
of appeals’ characterization of this asserted loss as “remote,” see
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Peoples Gas Sys., 931 F.3d at 1339. In support of its argument,
PGS asserts that Santos’s accident “happened because of Posen,”
that “Posen’s decisions led to the injury and damage that the Act
seeks to prevent,” and that PGS incurred a loss (the settlement
payment to Santos) “because of the injury that Posen caused.” It is
not clear to us that PGS has overcome the court of appeals’ concern
about remoteness, or that, as a matter of law, PGS can establish
proximate causation under these circumstances.
However, because neither party has directly addressed the
issue of proximate causation, and because it is not our role to
decide the merits of this case, we will not preempt the court of
appeals from applying the principles of proximate causation to
PGS’s claim.
Comparative Fault
In this decision we do not purport to address all the defenses
that might be applicable to a claim brought under the Act or to the
specific claim involved in this case. 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. Stat. (2019). And that statute defines a
“negligence action” to include a “civil action for damages based
upon a theory of negligence.” § 768.81(1)(c), Fla. Stat. (2019).
Because the Act authorizes a negligence-based cause of action, we
conclude that the comparative fault statute governs claims brought
under the Act. Cf. Jacobs v. Westgate, 766 So. 2d 1175, 1180 (Fla.
3d DCA 2000) (in which the plaintiff claimed that the defendants
violated section 83.67, Florida Statutes (1997), and “the defendants
had the burden of proving the defense of comparative negligence”).
Beyond the applicability of section 768.81, we deem
comparative fault to be among the background principles that
inform a reasonable reading of the Act. In 1973, twenty years
before the Act came into existence, this Court adopted comparative
fault as the common law of our state. See Hoffman, 280 So. 2d at
438. 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.- 23 -
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 normally computed” is best understood
as including an implicit reference to principles of comparative fault.
We have said that the doctrine of comparative fault is “designed to
compute each party’s liability based on the damages they caused as
opposed to the damages they suffered.” American Home Assur. Co.
v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 468 (Fla. 2005) (first
emphasis added). 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. It appears that the Act uses
the term “losses” as a synonym for “damages” and does not
categorically exclude the recovery of any particular types of loss. 9
Given the breadth of the term, we do not think it would be
reasonable to read “losses” as necessarily precluding a plaintiff’s
ability to recover economic damages that are independent of
personal injury or property damage.
Instead, depending on the specific facts of each particular
case, other features of the Act will have the effect of limiting
recoverable damages. Such features include the proximate
causation requirement, applicable defenses (including comparative
fault), the limited class of potential plaintiffs (member operators and
“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. Stat. (2019).
- 25 -
V.
For the foregoing reasons, we answer the certified question by
concluding: (1) that the Underground Facility Damage Prevention
and Safety Act creates a standalone cause of action; (2) that the
cause of action sounds in negligence; (3) that liability under the Act
is subject to proof of proximate causation and to the defense of
comparative fault; (4) that “losses” recoverable under the Act can
include purely economic damages, independent of personal injury
or property damage; and (5) that the Act does not create a cause of
action for “statutory indemnity.” We return this case to the United
States Court of Appeals for the Eleventh Circuit.
It is so ordered.
CANADY, C.J., and LAWSON and COURIEL, JJ., concur.
POLSTON, J., dissents with an opinion, in which LABARGA, J.,
concurs.
GROSSHANS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
POLSTON, J., dissenting.
This case is before the Court for review of the following
question of Florida law certified by the United States Court of
Appeals for the Eleventh Circuit that is determinative of a cause
- 26 -
pending in that court and for which there appears to be no
controlling precedent:
Whether a member-operator has a cause of action under
Fla. Stat. § 5[5]6.106(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?
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. But I would conclude that the plain meaning of the
statutes broadly providing recovery for “the total sum of the losses”
does not limit the recovery of these damages. Further, I would not
reach the other issues ruled on by the majority that were neither
asked by the Eleventh Circuit nor addressed by the parties.
I respectfully dissent.
- 27 -
I. BACKGROUND
Peoples Gas System (PGS) sued Posen Construction, Inc.
(Posen) in federal district court for damages under the Florida
Underground Facility Damage Prevention and Safety Act. Id. at
1338. The Eleventh Circuit set forth the pertinent facts as follows:
PGS is 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.
PGS 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.
The 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.
- 28 -
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.
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. at 1338-39.
The district court concluded “that PGS has failed to state a
claim for relief because Posen had no duty to indemnify under the
Act.” Peoples Gas Sys. v. Posen Constr., Inc., 323 F. Supp. 3d 1362,
1366 (M.D. Fla. 2018). First, the district court concluded that “[a]
review of the statutory language shows that a claim for indemnity
would not fit the plain meaning of a ‘normally computed’ ‘cost.’
Rather, the plain language appears to contemplate costs related to
equipment damage or personal injury.” Id. at 1367 (citation
- 29 -
omitted).10 The district court explained, “PGS neither claims a
personal injury, nor a loss due to damaged equipment. A plain
reading of the statute supports no claim for indemnification.” Id.The district court further explained that “PGS conflates a claim for
personal injury with an indemnification claim based on a personal
injury.” Id. The district court also concluded that “the Act does not
include express—or indirect—indemnification language.” Id.Because of this dispositive ruling on the motion to dismiss, no
answer was ever filed by Posen alleging any defenses to the
complaint.
On appeal to the Eleventh Circuit, PGS argued “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.” Peoples Gas Sys., 931 F.3d at 1339. 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).
- 30 -
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. at 1340. The
Eleventh Circuit further concluded that the statutory term “losses”
“may or may not include relatively remote indemnity payments to
third parties in separate litigation proceedings.” Id. at 1341. The
Eleventh Circuit explained, “We seek clarification from the Florida
Supreme Court because the caselaw is not conclusive and the
statute is subject to multiple plausible interpretations, including
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. 11
11. The certified question is one of statutory interpretation,
which we review de novo. See Fla. Dep’t of Transp. v. Clipper Bay
Invs., LLC, 160 So. 3d 858, 862 (Fla. 2015).
- 31 -
A court’s determination of the meaning of a statute begins
with the language of the statute. Lopez v. Hall, 233 So. 3d 451, 453
(Fla. 2018). If that language is clear, the statute is given its plain
meaning, and the court does not “look behind the statute’s plain
language for legislative intent or resort to rules of statutory
construction.” City of Parker v. State, 992 So. 2d 171, 176 (Fla.
2008) (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64
(Fla. 2005)). “Even where a court is convinced that the Legislature
really meant and intended something not expressed in the
phraseology of the act, it will not deem itself authorized to depart
from the plain meaning of the language which is free from
ambiguity.” Forsythe v. Longboat Key Beach Erosion Control Dist.,
604 So. 2d 452, 454 (Fla. 1992) (quoting Van Pelt v. 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. See § 556.101(1),
- 32 -
Fla. Stat. (2010); see also ch. 93-240, Laws of Fla. The Act was
enacted, in part, to “[a]id the public by preventing injury to persons
or property and the interruption of services resulting from damage
to an underground facility caused by excavation or demolition
operations.” § 556.101(3)(a). The Act created a not-for-profit
corporation, Sunshine State One-Call of Florida, Inc., to act as a
clearing center for location of underground construction to avoid
damaging those improvements from further excavation. See
§§ 556.101(2), (3)(b), 556.103, Fla. Stat. (2010). The Act also
established a statewide one-call, toll-free notification system for
persons to give notice of their intent to excavate to owners of
underground facilities in the area to be excavated. 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. 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).
- 33 -
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 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 member operator,
it is rebuttably presumed that the person was negligent.
The person, if found liable, is liable for the total sum of the
losses to all member operators involved as those costs are
normally computed. Any damage for 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.
(b) If any excavator fails to discharge a duty
imposed by this chapter, the excavator, if found liable, is
liable for the total sum of the losses to all parties involved
as those costs are normally computed. Any damage for
- 34 -
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.
(c) Obtaining 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.
(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 excavator who has complied with this act, as a
proximate result of the member operator’s failure to
discharge such duty, the excavator is not liable for such
damage and the member operator, if found liable, is
liable to such person for the total cost of any loss or
injury to any person or damage to equipment resulting
from the member operator’s failure to comply with this
act. Any damage for loss of revenue and loss of use shall
not exceed $500,000 per affected underground facility,
except that revenues lost by a governmental member
operator, which revenues are used to support payments
on principal and interest on bonds, shall not be limited.
(4) If an owner of an underground facility fails to
become a member of the corporation in order to use and
participate in the system, as required by this act, and
that failure is a cause of damage to that underground
facility caused by an excavator who has complied with
this act and has exercised reasonable care in the
performance of the excavation that has caused damage to
the underground facility, the owner has no right of
- 35 -
recovery against the excavator for the damage to that
underground facility.
(5) If, after receiving proper notification, the system
fails to discharge its duties, resulting in damage to an
underground facility, the system, if found liable, shall be
liable to all parties, as defined in this act. Any damage
for loss of revenue and loss of use shall not exceed
$500,000 per affected underground facility, except that
revenues lost by a governmental member operator, which
revenues are used to support payments on principal and
interest on bonds, shall not be limited.
(6) The system does not have a duty to mark or
locate underground facilities and may not do so, and a
right of recovery does not exist against the system for
failing to mark or locate underground facilities. The
system is not liable for the failure of a member operator
to comply with the requirements of this chapter.
(7) An excavator or a member operator who
performs any excavation with hand tools under
s. 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
- 36 -
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 operator “for the total sum of the losses to all member
operators,” as normally computed and with some specified
limitations.
13. “Person” is further defined to mean “any individual, firm,
joint venture, partnership, corporation, association, municipality, or
other political subdivision, governmental unit, department, or
agency, and includes any trustee, receiver, assignee, or personal
representative of a person.” § 556.102(9).
- 37 -
To state the obvious, section 556.106(2)(b) provides a different
statutory cause of action than section 556.106(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”). Further, (2)(a) restricts its application to
the excavation or demolition, subsequent to the statutory violations,
“that damages an underground facility of a member operator.”
There are no restrictions in (2)(b). Instead, if the excavator is found
liable for the statutory violation, it “is liable for the total sum of the
losses to all parties involved as those costs are normally computed.”
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. The majority
downplays the distinction between “all member operators” and “all
parties involved.” See majority op. at 14 (“The only difference is in
the bracketed text, with subsection (2)(a) referring to ‘all member
operators involved’ and subsection (2)(b) referring to ‘all parties
- 39 -
involved.’ In each instance, the relevant sentence does nothing
more than speak to the damages element of the negligence-based
cause of action created by the Act.”)). However, this distinction is
significant as it broadens the scope of the recovery of damages
available under subsection (2)(b).
B. The Plain Meaning of the Statutes Providing Recovery for
“Total Sum of the Losses” Does Not Limit Recovery of These
Damages
Both subsections (2)(a) and (2)(b) provide for the recovery of
damages “for the total sum of the losses . . . as those costs are
normally computed.” The Act does not define the terms “loss,”
“losses,” “costs,” and “normally computed.” Under such
circumstances, we must give the statutory language its plain and
ordinary meaning. See, e.g., State v. Brake, 796 So. 2d 522, 528
(Fla. 2001) (“[W]here a statute does not specifically define words of
common usage, such words are construed in their plain and
ordinary sense.”). “In ascertaining the plain meaning of statutory
language,” this Court has determined that “consulting dictionary
definitions is appropriate.” State v. Weeks, 202 So. 3d 1, 7 (Fla.
2016).
- 40 -
“Total” is defined as “whole, entire, an entire quantity.”
Merriam-Webster’s Collegiate Dictionary 1246 (10th ed. 1994); see
also Black’s Law Dictionary (11th ed. 2019) (defining “total” as
“[w]hole; not divided; full; complete”). “Sum” is defined as “the
whole amount; aggregate.” Merriam-Webster’s Collegiate Dictionary
1179 (10th ed. 1994); see also Black’s Law Dictionary (11th ed.
2019) (defining “sum” as “[a] quantity of money”). “Loss” is defined
as “a person or thing or an amount lost.” Merriam-Webster’s
Collegiate Dictionary 689 (10th ed. 1994); see also Black’s Law
Dictionary (11th ed. 2019) (defining “loss” as “[a]n undesirable
outcome of a risk; the disappearance or diminution of value, usu. in
an unexpected or relatively unpredictable way”). “Cost” is defined
as “the amount of equivalent paid or charged for something.”
Merriam-Webster’s Collegiate Dictionary 262 (10th ed. 1994).
Accordingly, given the broad, plain, and ordinary meaning of
the words “total,” “sum,” and “losses,” a member operator has a
cause of action 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 if the
excavator is found liable. Given the broad language, the settlement
- 41 -
paid by PGS to Posen’s employee as a result of an excavation
incident arising out of Posen’s alleged violations of the Act would
qualify under the plain meaning as the “total sum of the losses” to
PGS.
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. See
majority op. 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. at 18, while failing
to acknowledge the broad scope of “all parties involved” in this case.
Santos was an employee of a member operator, involved in the
- 42 -
excavation, and was injured as a result of the excavator’s alleged
violations of the Act. Accordingly, “all parties involved” would
encompass the settlement paid by PGS to Posen’s employee as a
result of an excavation incident arising out of Posen’s alleged
violations of the Act.
The majority also rejects PGS’s reading 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. To the contrary, the use of the phrase “total sum of the
losses to all parties involved” indicates the whole amount without
reduction, and “indemnity” is a recovery from another for a loss
suffered because of a third party’s or one’s own actions. See
Black’s Law Dictionary (11th ed. 2019). 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.
- 43 -
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). Accordingly, subsection (2)(c) makes clear that the
excavator is liable for any damage or injury resulting from any
- 44 -
excavation. See Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks,
LLC, 986 So. 2d 1260, 1265 (Fla. 2008) (“A ‘statute should be
interpreted to give effect to every clause in it, and to accord
meaning and harmony to all of its parts’ and is not to be read in
isolation, but in the context of the entire section.” (quoting Jones v.
ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 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 excavator who has complied with this act, as a
proximate result of the member operator’s failure to
discharge such duty, the excavator is not liable for such
damage and the member operator, if found liable, is
liable to such person for the total cost of any loss or
injury to any person or damage to equipment resulting
from the member operator’s failure to comply with this
act. Any damage for loss of revenue and loss of use shall
not exceed $500,000 per affected underground facility,
except that revenues lost by a governmental member
- 45 -
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
damages if the facilities are not correctly marked and a 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. Fla. 95-04 (1995) (“[T]he act recognizes that excavators
who do not follow the procedures prescribed therein may be found
liable for the damages they cause. The manner in which a civil
operator, which revenues are used to support payments
on principal and interest on bonds, shall not be limited.
- 46 -
action would be instituted in order to seek such damages would be
governed by the Florida Rules of Civil Procedure. It would appear
that a civil suit for damages would be brought by the member
operators whose underground facilities are damaged due to the
excavator’s failure to comply with Chapter 556, Florida Statutes.”).
C. Issues Not in the Certified Question Should Not be Decided
The majority then reaches the issues of comparative fault and
proximate cause that were not yet addressed by the parties or
federal courts where the case originated and remains pending. See
Peoples Gas Sys., 931 F.3d 1337; Peoples Gas Sys., 323 F. Supp.
3d 1362. The United States District Court for the Middle District of
Florida granted a motion to dismiss on narrow legal grounds that
were certified by a question from the Eleventh Circuit Court of
Appeals and are answered by this opinion. To reach these issues,
the majority rules that the statutory causes of action sound in
negligence. We should decline to anticipate what additional legal
arguments and facts may arise in the federal litigation and decline
to address these issues not briefed or argued by the parties and not
addressed by the federal courts. See Savona v. Prudential Ins. Co. of
Am., 648 So. 2d 705, 707 (Fla. 1995) (“[N]either the federal district
- 47 -
court nor circuit court addressed this issue, and we decline to
address it in this proceeding. We have held that we have the
authority to consider issues other than those upon which
jurisdiction is based, but this authority is discretionary and should
be exercised only when those other issues have been properly
briefed and argued, and are dispositive of the case.”).
First, “comparative negligence,” a possible defense not yet
raised because of the beginning procedural posture of this case in
federal court, should not be addressed. Far from being “a
centerpiece” in this case, see majority op. at 22, comparative
negligence has not been discussed, much less reached by the
federal courts, or argued in any brief. The certified question does
not ask about any defenses yet to be asserted, and we should
decline to address legal issues not yet at issue in the case. See
S. Baptist Hosp. 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. For
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example, the majority erroneously reasons that because subsection
(2)(a) sounds in negligence, (2)(b) also sounds in negligence. And
because of the negligence-based cause of action, the comparative
fault statute would apply. However, this is premature, and we
should not make this determination. The majority rules that
subsection (2)(a) sounds in negligence because it explicitly provides
for a rebuttable presumption of negligence. However, the majority
then “infers” negligence into subsection (2)(b) to conclude that “[t]he
two subsections both provide for a negligence-based cause of action
for the recovery of damages.” See majority op. at 7, 11. But,
arguably, these inferences are unreasonable. See majority op. at 9-
11. The use of the same language “if found liable” does not make
the two subsections the same when the scope of whom they pertain
to and what is required are different. 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 practices.” As the majority states,
these are common law negligence standards, but they are simply
used to eliminate any safe harbor argument that the excavators
might make in a separate negligence action outside the scope of
these statutes. They do not support an inference that the statutes
themselves sound in negligence. The same applies to the original
provision in the Act that eliminated any claim for negligence by an
operator who chose not to participate.
A statutory cause of action, as the name implies, is a cause of
action derived directly from a statute, and it is the statute that
defines what elements must be satisfied. Instead of using the plain
language, the majority rewrites (2)(b) as follows by adding the
underlined terms:
If any excavator fails to discharge a duty imposed by this
chapter, the excavator, if found liable of negligence, is
liable for the total sum of the losses, as a proximate
result of the excavator’s failure to discharge such duty, to
all parties involved as those costs are normally
computed. Any damage for 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
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limited. Any liability by an excavator which arises herein
is subject to the provisions of s. 768.81.
“[A] court cannot construe an unambiguous statute in a way which
would extend, modify, or limit its express terms or its reasonable
and obvious implications.” Casais v. State, 204 So. 3d 969, 970
(Fla. 5th DCA 2016) (quoting Jefferson v. State, 927 So. 3d 1037,
1039 (Fla. 4th DCA 2006) (Reyes, J., concurring)).
Further, even if both subsections (2)(a) and (2)(b) sound in
negligence, both subsections also contain the language providing
recovery “for the total sum of the losses.” An argument could be
made that the use of this express language does not provide for a
reduction based on comparative negligence, which reduces the
damages awarded. See generally Fla. Std. Jury Instrs. (Civ.) app. B,
Form 1, Model Form of Verdict for General Negligence with
Apportionment of Fault (“If you find that (claimant)(decedent) or
(identify additional person(s) or entit(y)(ies) [was][were] negligent [or
at fault], the court in entering judgment will make an appropriate
reduction in the damages awarded.”). “Total sum of the losses”
means the whole amount without reduction, and there is no
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mention of reducing the damages or coming 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). An argument
could be made that the exclusion of the “proximate result” in (2)(a)
and (2)(b) was intentional by the Legislature and we should apply
the plain meaning of the statute and apply proximate cause only
when the Legislature says so. The parties should have an
opportunity to make these arguments and allow the federal courts
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. I would
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limit the decision to the narrow question presented and not address
any legal or factual defenses that may be raised to the statutory
claim.
I respectfully dissent.
LABARGA, J., concurs.
Certified Question of Law from the United States Court of Appeals
for the Eleventh Circuit – Case No. 18-13291
Julissa Rodriguez, Miami, Florida, Jason Gonzalez, Daniel E.
Nordby, and Amber Stoner Nunnally of Shutts & Bowen LLP,
Tallahassee, Florida; and V. Stephen Cohen, Pedro F. Bajo, Jr., and
James C. Mooney of Bajo Cuva Cohen & Turkel, P.A., Tampa,
Florida,
for Appellant
Hinda Klein of Conroy Simberg, Hollywood, Florida,
for Appellee
Frank A. Shepherd of Gray Robinson, P.A., Miami, Florida; and
William W. Large of Florida Justice Reform Institute, Tallahassee,
Florida,
for Amicus Curiae Florida Justice Reform Institute
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