United States District Court, D. Minnesota
MCI COMMUNICATIONS, INC. and MCIMETRO ACCESS TRANSMISSION SERVICES LLC, Plaintiffs,
v.
MAVERICK CUTTING AND BREAKING LLC, Defendant.
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
(“1st 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. (1st Beauchamp Aff. ¶
4, Ex. B (“Quanbeck Aff.”) ¶¶ 1, 3.)
Kraemer
North America, LLC, (“Kraemer”) was the general
contractor on the Project. (1st 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. (1st
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
(“1st 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. (1st 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 1st
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.
(1st 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. (1stBeauchamp 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;
1st 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;
1stBeauchamp Aff. ¶ 7, Ex. E
(“Bonczkowski Dep.”) at 9.)
1.
Cable Repairs
The
Cables were repaired over approximately eight and a half
hours. (1st 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. . . .” (1st 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. (1st 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. (1st 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
1st 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 ...