AT&T v. Atlas Excavating, Inc.

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 11 2013, 8:28 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
JULIE A. CAMDEN THOMAS A. PASTORE
COREY R. MERIDEW Thomas Pastore, P.C.
AARON M. COOK Indianapolis, Indiana
Camden & Meridew, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
AT&T, )
)
Appellant-Plaintiff, )
)
vs. ) No. 79A02-1207-PL-552
)
ATLAS EXCAVATING, INC., )
)
Appellee-Defendant. )
)
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-0907-PL-57
February 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
AT&T appeals the trial court’s denial of its motion for summary judgment. It
contends that the trial court erred in holding that Atlas Excavating, Inc. (“Atlas”) did not
violate the Damages to Underground Facilities Act in damaging AT&T’s underground
cable, and the proper negligence standard to use in analyzing the claim is negligence per
se. Finding that the appropriate standard is negligence per se and that the trial court did
err in denying AT&T’s motion for summary judgment, we reverse and remand with
instructions.
Facts and Procedural History
In August 2008, Atlas was performing an excavation project in the area of 1521
West Defenbaugh Street in Kokomo. It contacted the Indiana Underground Utility
Locate Service Association which conducted a survey in the area, revealing that several
utilities were buried in the path of Atlas’s construction. On September 8, 2008, Atlas
discovered AT&T’s underground cables. Atlas hand-excavated the area and uncovered
the underground cables. The cable remained intact, but it had two pieces of wood taped
to it with duct tape. As part of its excavation method, Atlas inserted a trench box into the
area of excavation underneath the cable and suspended the cable over the trench box to
provide support to and protect the cable during the project. The cables hung freely over
the four-foot-wide trench box, and the two pieces of wood duct-taped to the cable were
suspended over the middle of the trench box without any extra support for the extra
weight. Appellant’s App. p. 22.
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Atlas continued its work within the trench, but approximately one hour after the
trench box was installed, the cable separated, causing damage. According to Atlas, the
cable separated purely from its own weight and not from any contact from Atlas. Atlas
contacted AT&T, and its personnel arrived to repair the cable.
AT&T filed suit against Atlas, claiming violations of the Damages to
Underground Facilities Act (“DUFA”). AT&T filed a motion for summary judgment,
and the trial court held a hearing on the motion. AT&T’s motion was denied without
explanation. Id. at 5. The matter proceeded to a bench trial, and the trial court entered
judgment in favor of Atlas without entering any specific findings or conclusions.
AT&T now appeals the trial court’s denial of its motion for summary judgment
made before trial.
Discussion and Decision
AT&T makes two arguments on appeal, which we restate as: (1) whether the
correct negligence standard to apply in cases involving a violation of DUFA is
negligence per se and (2) whether the trial court erred in denying its motion for summary
judgment.
I. Negligence Standard
AT&T contends that the correct negligence standard to apply in cases involving a
violation of DUFA is negligence per se. We agree.
“[A]n unexcused or unjustified violation of a duty dictated by a statute is
negligence per se.” Lindsey v. DeGroot, 898 N.E.2d 1251, 1260 (Ind. Ct. App. 2009).
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The statute involved in this case is DUFA, and it articulates a specific duty. Indiana
Code section 8-1-26-20(a) provides in relevant part:
a person responsible for an excavation or demolition operation under
section 14 of this chapter shall do all of the following:
(1) Plan the excavation or demolition to avoid damage to or
minimize interference with underground facilities in and near the
construction area.
(2) Maintain a clearance between an underground facility, as marked
by the operator, and the cutting edge or point of mechanized
equipment . . . .
(3) Notify the association if:
(A) there is evidence of an unmarked pipeline facility in the
area of excavation or demolition; or
(B) the markings indicating the location of an underground
facility have become illegible.
With specific duties clearly dictated by DUFA, we hold that the correct negligence
standard to apply in cases involving a violation of DUFA is negligence per se.
II. Motion for Summary Judgment
AT&T also contends that the trial court erred by denying its motion for summary
judgment. We agree.
When reviewing the entry or denial of summary judgment, our standard of review
is the same as that of the trial court: summary judgment is appropriate only where there is
no genuine issue of material fact and the moving party is entitled to a judgment as a
matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904
N.E.2d 1267, 1269 (Ind. 2009). All facts established by the designated evidence, and all
reasonable inferences from them, are to be construed in favor of the nonmoving party.
Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind. 2007).
In applying the negligence per se standard,
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negligence per se does not mean that there is liability per se. The violation
of statutory duty is not actionable negligence unless it is also the proximate
cause of the injury . . . . In order to find that an injury was the proximate
result of a statutory violation, the injury must have been a foreseeable
consequence of the violation and would not have occurred if the
requirements of the statute had been observed.
Lindsey, 898 N.E.2d at 1260. Therefore, AT&T must have been a foreseeable plaintiff
and Atlas’s violation of DUFA must have been the cause of the damages in order for
Atlas to be liable.
We find that AT&T is a foreseeable plaintiff in this case. DUFA, by its very
name, is a statute that applies to underground facilities. “Facility” is defined under the
statute as “a line or system used for producing, storing, conveying, transmitting, or
distributing communication, information, electricity, gas . . . .” Ind. Code § 8-1-26-7.
“Operator” is defined under the statute as “a person who owns or operates an
underground facility other than an underground facility that: (1) is located on real
property that the person owns or occupies; and (2) the person operates for the person’s
benefit.” Ind. Code § 8-1-26-10. AT&T falls squarely under these statutory definitions
as the operator of an underground facility based on its cable lines that were in the area of
Atlas’s excavation project. AT&T is therefore a foreseeable plaintiff under DUFA in this
case.
We also find that Atlas violated DUFA and that violation led to the cable damage.
Atlas employees removed the soil that provided its structural and lateral support from
under and around the cable. AT&T’s cables were then deliberately suspended over the
trench box, allowing them to hang freely and consequently without support. Appellant’s
App. p. 51. Atlas employees were aware of the piece of wood taped to the wire that hung
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over the trench box, but there is no evidence of any precautionary measures that were
taken to support the extra weight. Id. at 22, 30 (“the reason it came undone was because
there was a large piece of wood (board) taped to the repair sleeve making it even heavier,
thus pulling the wires out of the repair.”). This lack of support was what caused the cable
to separate. Id. at 30 (“a previously spliced line from one of the unmarked lines came
undone over [Atlas’s trench] box . . . .”).
We therefore find that there is no genuine issue of material fact that Atlas was
negligent per se under DUFA for the damage caused to AT&T’s cable. It was error for
the trial court to deny AT&T’s motion for summary judgment, so we reverse. We
remand the matter to the trial court with instructions for the trial court to vacate its
judgment in favor of Atlas from the bench trial, enter summary judgment in favor of
AT&T, and conduct proceedings to determine damages. Such amount shall include
damages, costs, and attorney’s fees, as allowed under Indiana Code section 8-1-26-22.
This amount may also include appropriate appellate attorney’s fees, as a “statute that
provides for the recovery of ‘reasonable attorney’s fees’ include[s] appellate attorney fees
. . . .” St. Vincent Hosp. Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind. 2002).
Reversed and remanded with instructions.
BAILEY, J., concurs.
BROWN., J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
AT&T, )
)
Appellant-Plaintiff, )
)
vs. ) No. 79A02-1207-PL-552
)
ATLAS EXCAVATING, INC., )
)
Appellee-Defendant. )
BROWN, Judge, dissenting
I respectfully dissent from the majority’s conclusion that the trial court erred in
denying AT&T’s motion for summary judgment.
Initially, the majority opinion does not cite to authority in support of the
conclusion that a violation of subsection (a) of Ind. Code § 8-1-26-20, alone, would
constitute negligence per se. More importantly, the designated evidence included in the
record reveals that there is a genuine issue of material fact as to whether Atlas violated
subsection (a) of Ind. Code § 8-1-26-20. Ind. Code § 8-1-26-20, part of the Damage to
Underground Facilities Act (“DUFA”), provides in its entirety:
(a) In addition to the notice required in section 16 of this chapter, a
person responsible for an excavation or demolition operation under
section 14 of this chapter shall do all of the following:
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(1) Plan the excavation or demolition to avoid damage to
or minimize interference with underground facilities in
and near the construction area.
(2) Maintain a clearance between an underground facility,
as marked by the operator, and the cutting edge or
point of mechanized equipment. The clearance must
be not less than two (2) feet on either side of the outer
limits of the physical plant. However, if the clearance
is less than two (2) feet, exposure of the underground
facility may be accomplished only by the use of hand
excavation, air cutting, or vacuum excavation.
(3) Notify the association if:
(A) there is evidence of an unmarked
pipeline facility in the area of the
excavation or demolition; or
(B) the markings indicating the location of
an underground facility have become
illegible.
(b) A person who:
(1) violates subsection (a); and
(2) causes damage to a pipeline facility in the area of the
excavation or demolition;
may be subject to a civil penalty in an amount recommended by the
advisory committee and approved by the commission, not to exceed
ten thousand dollars ($10,000).
(Emphases added).
When interpreting a statute, we independently review a statute’s meaning and
apply it to the facts of the case under review. Gargano v. Lee Alan Bryant Health Care
Facilities, Inc., 970 N.E.2d 696, 702 (Ind. Ct. App. 2012) (citing Cook v. Atlanta, Ind.
Town Council, 956 N.E.2d 1176, 1178 (Ind. Ct. App. 2011) (citing Bolin v. Wingert, 764
8
N.E.2d 201, 204 (Ind. 2002)), reh’g denied), reh’g denied. The first step in interpreting
any Indiana statute is to determine whether the legislature has spoken clearly and
unambiguously on the point in question. Id. If a statute is unambiguous, we must give
the statute its clear and plain meaning. Id. A statute is unambiguous if it is not
susceptible to more than one interpretation. Id. However, if a statute is susceptible to
multiple interpretations, we must try to ascertain the legislature’s intent and interpret the
statute so as to effectuate that intent. Id. We presume the legislature intended logical
application of the language used in the statute, so as to avoid unjust or absurd results. Id.
In addition, we will avoid an interpretation that renders any part of the statute
meaningless or superfluous. Id.
A strict reading of Ind. Code § 8-1-26-20(a)(1) provides that a person shall “[P]lan
the excavation . . . to avoid damage to or minimize interference with underground
facilities.” (Emphases added). The majority does not address or give effect to either of
the above italicized portions of the statutory provision. The majority’s holding suggests
that a party is negligent per se as soon as any damage occurs whether or not a plan was
established to avoid the damage or minimize interference with the underground facilities.
The plain language of the statute suggests that it is possible for a person subject to
the statute to “plan” the excavation in a manner to avoid damage to or minimize
interference with underground facilities, thereby complying with subsection (a), even
where damage may subsequently occur. This interpretation is supported by subsection
(b) of the statute, which provides that a penalty may be imposed only if there is a
violation of subsection (a) and there is damage. Although subsection (b) relates to the
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civil penalty, the language of that subsection suggests that it was the intent of the
legislature that a violation of subsection (a) is not deemed to have occurred simply
because damage has occurred.
The designated evidence includes the affidavit of Bradley Whittaker, who had
worked for over ten years as foreman and supervisor on utility installation projects and
was working with Atlas on the project on September 8, 2008. In his affidavit, Whittaker
states that Atlas hand excavated the area where the underground utilities were located and
uncovered, without damaging, the AT&T telephone cable. He further states that “at the
point where it was uncovered, about 2 to 3 feet of the cable had two pieces of wood
attached to it by wrapping the cable and wood with duct tape,” that “[t]o comply with our
safety responsibilities, Atlas was able to slide a trench box under the cable and allowed
the cable to bridge across the trench box so that Atlas personnel could enter the trench
and perform the sewer installation work,” and that “[t]he wood/duct tape apparatus was
located approximately mid way across the trench box.” Appellant’s Appendix at 51. He
also states that he had never worked as an underground telephone cable installer and had
no knowledge of how such cables are installed or spliced together. Whittaker’s affidavit
then states:
At no time during this work did Atlas’ work ever touch or hit the
telephone cable that was hanging across the trench box. Nonetheless, after
about one hour while the cable was suspended across the trench box, the
cable itself separated at the point where the wood/duct tape apparatus was
attached to the cable revealing that the apparatus was likely a device
intended to protect or give strength to a splice that had previously been
placed on the cable. Prior to that time, I was not aware the duct tape/wood
apparatus was any kind of protection for the cable or that the cable had
been spliced.
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Id.
The designated evidence shows that this is not a case where Atlas failed to make
any attempts to avoid damage to or to minimize interference with AT&T’s cables. The
question is whether the steps taken by Atlas constituted a “[p]lan” to “avoid damage to”
or “minimize interference” with AT&T’s facilities as contemplated by subsection (a)(1)
of Ind. Code § 8-1-26-20, which is a factual determination. The statute is clear, in my
view, that the fact that damage occurs to underground facilities alone does not mean that
a violation of subsection (a) has occurred. The trier of fact must determine whether Atlas
took steps which would satisfy the requirements of DUFA and Ind. Code § 8-1-26-20(a).
This court cannot say as a matter of law based upon the designated evidence that Atlas
failed to take the steps necessary to satisfy those requirements. At a minimum, the
designated evidence demonstrates that there exists a genuine issue of material fact as to
whether Atlas violated the statute.
For the foregoing reasons, based upon Ind. Code § 8-1-26-20 and the designated
evidence, I would affirm the trial court’s order denying AT&T’s motion for summary
judgment.
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