Peoples Gas System concerns the interpretation and application of the Florida Underground Facility Damage Prevention and Safety Act (the “Act”). The Act creates a system to provide member-operators (including, for example, utilities like Peoples Gas System (“PGS”)) with advance notice of excavation activity in areas where such work could impact underground facilities. Posen Construction’s employee excavated an area that was not properly marked as required under the Act, rupturing PGS’s natural gas pipeline. Posen’s employee filed a personal injury action related to the injuries he sustained, and PGS sought to recover the money it paid to settle that matter as “losses” recoverable under the Act. A federal district court dismissed PGS’s action, and PGS appealed to the U.S. Court of Appeals for the Eleventh Circuit, which in turn certified the following question to the Florida Supreme Court: Does a member-operator have a cause of action under the Act 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?
The Institute submitted an amicus brief in support of PGS to the Florida Supreme Court, as the plain and unambiguous terms of the Act permit recovery of damages or indemnification against excavators whose violations of the Act result in losses. The Institute argued that denying a plaintiff member-operator, such as PGS, its statutory right to recover the losses it suffered because of an excavation accident caused by the excavator would improperly render provisions of the Act meaningless.
On June 10, 2021, the Court issued an opinion in which it disagreed with the Institute and PGS, ultimately ruling that the statute creates a standalone cause of action sounding in negligence (and not a statutory indemnification action along the lines advocated by PGS and the Institute). The Court also outlined a framework for considering and resolving the claim, but left it to the federal court to apply that framework.
In a dissent joined by Justice Labarga, Justice Polston stated that he would have answered the narrow certification question in the affirmative, based on the plain language and meaning of the Act.
The Institute was represented by William W. Large and Frank A. Shepherd of GrayRobinson, P.A.