David Adelstein | Florida Construction Legal Updates
Florida’s Underground Facility Damage Prevention and Safety Act is set forth in Florida Statutes Chapter 556. Any owner or operator of underground infrastructure as well as contractors that perform underground excavation and demolition operations are familiar (or, need to be familiar) with this Act and the requirements it imposes on them.
In a nutshell, this Act requires excavators to notify operators of underground facilities (e.g., pipelines, cables, sewers) through a notification system before excavating or demolishing an underground location. Then notification system gives the operator of the underground facility two days’ advance notice that an excavation will be taking place. After receiving this notice, the operator of the underground facility must mark the area where its infrastructure is located which could be affected by the underground excavation or demolition operations. The Act further imposes duties on excavators to use increased caution, supervise mechanized equipment, perform excavation and demolition operations in a careful an prudent manner, and to re-notify the notification system if the operator’s marking is no longer visible so the location of the operator’s underground facility can be re-marked.
The Florida Supreme Court in Peoples Gas System v. Posen Construction, Inc., 46 Fla.L.Weekly S166b (Fla. 2021) recently analyzed whether the Act creates a private statutory cause of action. This case dealt with a road contractor that ruptured an underground gas pipeline during an excavation. The rupture caused an explosion that injured an employee of the road contractor. A dispute arose between the operator of the underground gas line and the road contractor with the operator of the gas line claiming the excavator’s advance notification was deficient. The injured employee sued the operator of the underground gas line and the operator settled with the employee. The operator then sued the road contractor to recover the amount of the settlement claiming it should be entitled to recover the settlement payment as damages under the Act or for “statutory indemnity.” The issue was whether the Act provides any such private statutory cause of action. The Florida Supreme Court held it does create a private statutory cause of action for violations sounding in negligence, but not for “statutory indemnity”:
(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 [i.e., the defendant’s negligence needs to be the proximate cause of the plaintiff’s injury] and to the defense of comparative fault [i.e., a party is liable for the damages they caused per Florida Statute s. 768.81]; (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.”
Peoples Gas System, supra.
This decision that the Act creates a negligence-based cause of action is supported by Florida Statute s. 556.106(2)(a) and (b) contained in the Act that discusses liability for violations of the Act.
It is uncertain what doors will be opened by this Florida Supreme Court decision. However, what is clear is that a negligence-based statutory cause of action can be asserted for violations of the Act and the damages can include economic damages that have nothing to do with personal injury or property damage.