MCI Communications Services, Inc. v. Maverick Cutting and Breaking LLC

          JAMES J. PROSZEK, HALL, ESTILL, HARDWICK, GABLE, GOLDEN, & NELSON, P.C., AND SETH J. S. LEVENTHAL, LEVENTHAL PLLC FOR PLAINTIFFS.

          RACHEL B. BEAUCHAMP, COUSINEAU, VAN BERGEN, MCNEE & MALONE, P.A., FOR DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         Plaintiffs MCI Communications Services, Inc. and MCImetro Access Transmission Services, LLC (collectively “MCI”) bring an action for trespass, negligence, and statutory liability as an excavator against Maverick Cutting and Breaking LLC (“Maverick”), who severed two of MCI's fiber-optic telecommunications cables while performing concrete saw cutting at an intersection. MCI seeks damages for repair costs and loss of use.

         Maverick now moves for summary judgment on all of MCI's claims and on loss-of-use damages. Maverick also seeks to exclude portions of MCI expert Ron Peterson's testimony, all of MCI expert Peter Tooley's testimony, and evidence of the rental cost of substitute cables. MCI seeks to exclude Maverick expert Steven Hamilton's testimony.

         The Court will grant Maverick's Motion for Summary Judgment in part and deny it in part. The Court will find that MCI is not entitled to loss of use damages and that no genuine disputes of material fact remain as to trespass or as to negligence based on contractual duties or a saw cutter industry standard of care. However, the Court will find that a genuine dispute of material fact remains as to whether Maverick was engaged in excavation under Minnesota statute and the common law. As such, a jury must determine whether Maverick is liable as an excavator under Minnesota statute or in negligence based on an excavator industry standard of care.

         The Court will grant Maverick's Motion in Limine in part and deny it in part. The Court will preclude Peterson's testimony on contract interpretation, what Brooks did when installing the Cables, and saw cutter industry standards of care. The Court will also preclude Tooley's testimony and evidence of rental cost of substitute cables because both are irrelevant given the Court's ruling on loss-of-use damages.

         The Court will grant MCI's Motion in Limine in part and deny it in part. The Court will preclude Hamilton from testifying as to saw cutter industry standards of care.

         BACKGROUND

         I. FACTUAL BACKGROUND

         In the spring of 2015, the City of St. Paul (the “City”) began construction on a public works project (the “Project”) to maintain and improve several bridges.

         A. The Players

         Brent Christensen, a civil engineer, was the City's manager of the Project. (See First Aff. of Rachel Beauchamp (“1^st Beauchamp Aff.”) ¶ 3, Ex. A (“Christensen Aff.”) ¶¶ 1-2, 5, July 5, 2018, Docket No. 38.) The City hired TKDA to design the Project and provide professional engineering services for the Project. (Id. ¶ 6.) TKDA was responsible for compiling information regarding utilities that might be impacted by the Project and coordinating solutions to identified conflicts. (1^st Beauchamp Aff. ¶ 4, Ex. B (“Quanbeck Aff.”) ¶¶ 1, 3.)

         Kraemer North America, LLC, (“Kraemer”) was the general contractor on the Project. (1^st Beauchamp Aff. ¶ 8, Ex. F (“Rosenberry Dep.”) at 14-15.) Kraemer hired Bolander & Sons (“Bolander”) for excavating and demolition, which included pavement removal and grading for new roadway pavements. (Beauchamp Aff. ¶ 9, Ex. G (“Caroon Dep.”) at 8.)

         Bolander hired Maverick via oral contract to perform saw cutting for the project. (Id. at 6.) Bolander told Maverick where to cut and how deep to cut. (Id.) Maverick performs about 90% of Bolander's concrete saw cutting work. (Id. at 5.) According to Bolander, Maverick's work involved only saw cutting, did not involve pavement removal or grading, and did not involve excavating. (Id. at 8.) Maverick asserts that its only job was to cut where Bolander directed and that it did not deal with utilities or their location. (1^st Beauchamp Aff. ¶ 13, Ex. K (“Lewis Dep.”) at 4, 11.)

         MCI is a telecommunications company that owns and operates underground fiber optic telecommunications cables in and under various streets in the City. (Compl. ¶¶ 9-10, Apr. 11, 2017, Docket No. 1.)^[1] MCI owned the Cables that Maverick cut. Brooks Fiber Communications (“Brooks”), MCI's predecessor-in-interest, originally installed the Cables in 1997 or 1998. (See Decl. of James J. Proszek (“Proszek Decl.”) ¶ 4, Ex. 1 (“As-Builts”), July 26, 2018, Docket No. 48; Proszek Decl. ¶ 5, Ex. 2 (“1^st RFA”) at 10.)

         B. The Preparations

         On April 26, 2013, TKDA sent a Gopher State One Call (“GSOC”) ticket requesting utility maps in the Project area. (Quanbeck Aff. ¶ 5.) MCI produced an internal document indicating “Action Taken” in response to TKDA's request related to the intersection of Kellogg and Wabasha (the “Intersection”) on May 1, 2013. (1^st Beauchamp Aff. ¶ 5, Ex. C; Proszek Decl. ¶ 10, Ex. 7 at 7-9.) MCI alleges that it sent “as-builts”^[2] of the Intersection but produced no records to show that TKDA received them. (Proszek Decl. ¶ 10, Ex. 7 at 7-9; see also 1^st Beauchamp Aff. ¶ 6, Ex. D (“Wilfong Dep.”) at 42-43.) TKDA has no record of receiving anything and the GSOC ticket of utility owner responses shows MCI had not responded as of May 20, 2013. (Quanbeck Aff. ¶ 6.)

         On January 16, 2014, TKDA invited MCI to attend a utility coordination meeting. (Id. ¶ 9.) The invitation referenced the Project area and attached drawings, which showed the Intersection. (Id.) MCI did not attend the meeting. (Id. ¶ 10.)

         On March 25, 2015, Bolander submitted a GSOC request for a “meet and locate” on March 31, 2015, for “road construction” at the Intersection. (1^st Beauchamp Aff. ¶ 10, Ex. H at 3.) The request expired April 14, 2015, at 9:00 a.m. and the duration of the work was listed as 6 months. (Id.) MCI locator Vince Johnson performed the meet and locate, marking the approximate horizontal locations of MCI's underground cables. (1^stBeauchamp Aff. ¶ 11, Ex. I (“Johnson Dep.”) at 8.)

         Johnson testified that MCI has as-builts available to internal locators that they can refer to if they “have a question about where the line might possibly run. . . .” (Id. at 3-4.) He testified that as-builts might give a depth location or estimate “if the depth features [of the cables] are unusual. . . .” (Id. at 3.) But Johnson testified that he typically only consults as-builts when locating in an area with which he is unfamiliar. (Id. at 5.) He further testified that the “receiver” used by locators to find the cables can give you a “very, very general idea of depth.” (Id. at 6.) The depth measurement setting must be separately turned on, but taking such a measurement does not cost anything. (Id.) Johnson testified that locators do not usually give depth readings to contractors because they do not want contractors to rely on them. (Id.) There is no evidence that Maverick or Bolander asked Johnson for depth information or that Johnson was required to mark depth under Minnesota law. See Minn. Stat. § 216D.04, subd. 3 (2018).

         MCI asserts that the contracts between the City and Kraemer and between Kraemer and Bolander required that all subcontractors comply with all the requirements of the City's specifications and drawings for the Project. (Proszek Decl. ¶ 12, Ex. 9 at 7; Proszek Decl. ¶ 13, Ex. 10 ¶¶ 2-3; Proszek Decl. ¶ 14, Ex. 11 §§ III(A)-(B), 1507.) MCI notes that the City's specifications warn that subsurface utility information is of the lowest possible level; thus, information concerning type and location of utilities shown in project drawings are not guaranteed to be accurate or all-inclusive. (Proszek Decl. ¶ 14, Ex. 11 § 1507.)

         C. The Incident

         On April 14, 2015, Maverick performed saw cutting for Bolander at the Intersection. (Caroon Dep. at 5.) Maverick saw cut with mechanized equipment over locator marks in the concrete and severed the Cables. (See Id. at 8; 1^st Beauchamp Aff ¶ 12, Ex. J (“Incident Report”) at 1.) The Cables were inside a four inch pipe, the top of which was seven inches down in the 13-inch concrete. (Incident Report at 1-2.) The area Maverick was saw cutting when it severed the Cables consisted of concrete pavement on top of soil. (Proszek Decl. ¶ 8, Ex. 5 at 12.)

         Maverick had no knowledge of the Cables, was “there at the sole discretion of [Bolander], ” and cut what Bolander told it to cut. (Lewis Dep. at 4.) Maverick had not been in contact with MCI, the City, or Kraemer. (Id. at 5.) Maverick never received plans or as-builts related to the Intersection. (Id. at 9.) Maverick did nothing to determine the location of the Cables and does not provide any training to its employees as to what precautions they should take regarding underground utilities. (Id. at 4, 8, 11.)

         D. The Aftermath

         The day after Maverick severed the Cables, a meeting was held with the City, TKDA, Bolander, and representatives of MCI. (Christensen Aff. ¶ 18 & Ex. C.) They discussed cable depth. (Id. ¶ 18.) MCI was expected to, and did, mark the rest of its cables for depth. (Id.) MCI also had to relocate conflicting cables at its own cost. (Id. ¶ 19; 1^stBeauchamp Aff. ¶ 7, Ex. E (“Bonczkowski Dep.”) at 9.)

         1. Cable Repairs

         The Cables were repaired over approximately eight and a half hours. (1^st Beauchamp Aff. ¶ 14, Ex. L (“Damages Calculation”) at 1.) Plaintiffs seek $52, 024.68 in damages for the cost of repairing the Cables. (Id. at 5.)

         2. Loss-of-Use Damages

         While the Cables were being repaired, MCI rerouted traffic to spare capacity in its network on its own established cables. (Wilfong Dep. at 24-26, 28-29, 33.) Nevertheless, Plaintiffs seek $859, 326.59 in loss of use damages based on how much it would have cost to route capacity to a third party and return it back to the network. (Damages Calculation at 1-5.) MCI did not pay third parties but rather used “dedicated, spare restoration capacity on other cables in MCI's network which MCI reserves for use in emergencies and does not use in the ordinary course of its business. . . .” (1^st Beauchamp Aff. ¶ 16, Ex. N at 2-3.)

         MCI's extra capacity is not located on a separate set of cables but rather on cables that MCI uses in its ordinary course of business, just not to their full capacity. (2d Aff. of Rachel Beauchamp ¶ 1, Ex. V at 48-49, Aug. 9, 2018, Docket No. 52-1.) Occasionally, MCI rolls traffic over to this spare capacity when it has to perform a “hot cut, ” which involves “splic[ing] in another piece of cable to extend the length of [a] cable. . . .” (Id. at 31-32.) MCI provided damage calculations for the total capacity that the severed Cables were capable of carrying but did not distinguish between “active” and “standby” capacity. (Id. at 58-59.) MCI has spent “a lot of money to make sure that [its] network is resilient” and to ensure that it has the capacity to move traffic over to other lines in emergencies. (Wilfong Dep. at 51-52.)

         E. Disputed Facts

         1. Standard Cable Depth

         Brent Christensen, manager of the Project, attests that, in his training and experience in civil engineering and project management, he has never experienced telecommunications utilities placed inside poured concrete sections of road pavements. (Christensen Aff ¶ 21.) Ronald Quanbeck, a Senior Registered Engineer with TKDA, attested that, in his training and experience, utility lines are expected to be below the pavement. (Quanbeck Aff. ¶ 14.) Aaron Rosenberry, a corporate representative of Kraemer North America, testified that Kraemer was surprised to learn about MCI's utility running seven inches down from the top of the roadway through concrete, and that he had never seen that done before in his 32 years of experience. (Rosenberry Dep. at 7, 48-49.) He also testified that no one had told Kraemer the depth of the Cables. (Id. at 49-50.) John Caroon, Project Manager and Estimator for Bolander, testified that no one ever provided Bolander with an as-built showing that the cable was located seven inches down within the concrete nor did anyone tell Bolander that there was a cable running directly through the concrete. (Caroon Dep. at 2, 9.) He also testified that the industry standard depth for telecommunications cables is 36 inches. (Id. at 10.) Jamen Lewis, Maverick's 30(b)(6) representative, testified that Maverick had no knowledge of the cables and performed work at the sole discretion of Bolander, cutting what Bolander directed it to. (Lewis Dep. at 4.)

         Vincent Johnson, a Senior MCI Technician, testified that the depth of cables can vary “significantly, ” but the ideal depth is three to four feet. (Johnson Dep. at 3.) He said that he has encountered cables running less than one foot below ground and through concrete “at least 30 times.” (Id. at 15.) He has visited approximately 2000 sites per year. (Id.) Ron Peterson, MCI's expert witness, agreed that MCI's cables were not placed at a common standard depth or an industry standard depth, stating that 24 or 36 inches are common standards. (1^st Beauchamp Aff. ¶ 19, Ex. Q (“Peterson Dep.”) at 1, 16.)

         Neither the City nor MCI has located a permit or other written authority that would allow MCI's cables to run at seven inches below pavement surface through concrete. (Christensen Aff. ¶ 12; Wilfong Dep. at 48-50; Bonczkowski Dep. at 8-9.) Nevertheless, MCI asserts that cities generally have inspectors overseeing installation and would have ensured that Brooks installed the Cables in a manner consistent with the construction drawings it submitted. (Proszek Decl. ¶ 6, Ex. 3 (“Bonczkowski Decl.”) ¶ 7.) As such, MCI argues that the Cables could not have been installed as they were unless the City had approved such an installation. (Id. ¶ 8.) Brooks's As-Builts for the Cables show that they were encased in steel, 12 inches down, and encased in concrete. (As-Builts at 3.)

         2. Possession of the Installation Area

          MCI alleges that it had a permit from the City, which gave it undisturbed possession of the area in which it installed the cables that Maverick damaged. (1^st Beauchamp Aff. ¶ 17, Ex. O at 8.) MCI has not found the referenced permit but argues that ample circumstantial evidence supports its existence. It alleges that, as part of the installation process, Brooks would have obtained a permit from the city that would have required Brooks to submit proposed construction drawings to the City. (See 1^st RFA at 13.) MCI points to affidavits and depositions by several employees attesting that, based on their experience, “it is highly unlikely” that Brooks could have installed the Cables without getting a permit from the City. (Proszek Decl. ¶¶ 7-9, Ex. 3 ¶ 5, Ex. 4 ¶ 5, Ex. 5 at 5, Ex. 6 at 10.) MCI produced a permit and drawings for Brooks' installation of underground cables for another part of the same project. (Proszek Decl. ¶ 7, Ex. 4 ¶¶ 9-11.)

         Christensen attests that the City “is the local authority that provides legal authority for utilities to run and operate their lines underground within the City of St. Paul right-of-way.” (Christensen Aff. ¶ 8.) He attests that, when one of the City's construction projects conflicts with these lines, “the City reserves the right to require those utility owners with conflicting lines to relocate their lines at their own expense.” (Id. ¶ 9.)

         Stephen Bonczkowski, an MCI employee testifying on behalf of MCI, also testified that the City was the property or right-of-way owner. (Bonczkowski Dep. at 2, 16.) He is “the designated individual . . . capable of giving testimony about installation, ownership and maintenance and rights of use of the telecommunications cables” in this case. (Id. at 2.) Bonczkowski also testified consistently with Christensen that, if the City needed to dig up the street in an area where MCI had cables, MCI would have to move the cables at its own cost. (Id. at 9.) But Bonczkowski attested that “it is highly unlikely” that Brooks could have installed the Cables without a permit. (Bonczkowski Decl. ¶ 5.)

         II. EXPERT TESTIMONY

         A. MCI's Expert: Ron Peterson

         MCI's proffered Expert, Ron Peterson, gave the following relevant opinions:

4. Maverick was performing excavation activities as defined in Minnesota State Law Chapter 216D. Any point at which the blade moved dirt would constitute excavation under the law. Pictures provided clearly show dirt under the concrete. Because concrete depths vary on sites, there is little doubt that the blade was moving dirt at points during the operation. . . .

6. Maverick should have utilized safe practices to prevent damage to MCI's fiber optic cables. This would include exposing the accurately marked lines by safe and acceptable means prior to crossing the line. This could have easily been accomplished by chipping away the concrete beginning at the edge of the tolerance zone and working toward the marks. This is a commonly used practice to expose utility lines under concrete.

7. Maverick could and should have utilized GPR [Ground Penetrating Radar] to check for obstructions along the proposed path of the saw cut. This is an industry best practice and would have identified the embedment that was the 4" pipe at the base of the concrete. The presence of the marks directly over the location would have been a further indicator that the MCI lines were there. . . .

9. Bolander and Maverick were required to comply with the provisions of the contract between Kraemer and the City as well as the contract between Kraemer and Bolander. These contracts require the contractor and their subcontractors to also follow all laws.

10. Bolander's Project Manager John Caroon, had no understanding of what ASCE 38-02 was and no idea what Quality Level D indicated on the plans and in the contract documents. QL D is the least dependable and least accurate level of subsurface utility depiction on plans. This means that utility locations on plans should not be relied upon and further backs the requirement that utility locations must be verified.

11. Bolander and Maverick either ignored or didn't understand statements on the project plans. In numerous locations, the plans specify that utility depictions are of a quality level D, that the accuracy of the plans was not guaranteed and that the contractor must verify the exact locations of utility lines.

12. Bolander and Maverick also either ignored or didn't understand the same statements regarding quality level D which can be found in the contract documents.

13. Bolander and Maverick should have been alerted by the presence of the Brooks Manhole Cover and the marks extending from it into the dig location. The fact that no utility lines are shown on the plans at this location should have given clear indication that the MCI fiber optic cables were present and caused them to investigate further prior to cutting the pavement directly across the marks.

14. Regardless of any direction provided by Bolander, Maverick had a responsibility to follow safe practices and industry standards ...