Board-Certified In Construction Law By The Florida Bar

Underground Contractor Not Liable for Damage to Utility After Proceeding Without &one call; Hotline Response


By: Robert S. Tanner, Esq.

In Mastec, Inc. v. Suncoast Underground, Inc., 2010 WL 173611 (Fla. 3d DCA Jan. 20, 2010), Florida Power & Light had a contract with Mastec, which subcontracted underground construction work to Suncoast. The underground construction included excavation.

Under Florida law, certain steps must be taken before proceeding with excavation work. Florida Statutes, Chapter 556, known as the Underground Facility Damage Prevention and Safety Act, requires a contractor to report excavation work to Florida’s “One Call” hotline at least two business days before commencing. The contractor’s report must include the type and location of the excavation and the contractor’s contact information. The One Call system then notifies the relevant utility companies who must within two business days either mark their underground utility lines or notify the reporting party that it was unable to do so. If the utility does not mark the lines, the excavator may proceed but must use reasonable care using detection equipment. If the utility (or its “member operator”, which is defined as “any person who furnishes or transports materials or services by means of an underground facility”) is unable to respond to the system within two days, the contractor must be contacted directly.

In the afternoon of January 4, 2006, Sucoast reported excavation work on the One Call hotline, providing its name, phone number, email address, and the location of the intended work. On January 6, 2006, the City of Cocoa beach, the “member operator”, responded to the One Call system by indicating that it did not have accurate information for marking its lines and requesting that Suncoast contact the City for additional information. That response was posted to the One Call website. However, the One Call system did not send an email to Suncoast until 7:17 a.m., January 9, 2009. Approximately 45 minutes after the One Call’s email was sent, Suncoast began excavating. At 1:45 that afternoon, Suncoast ruptured an unmarked water main. The City disclaimed liability to FPL and blamed Suncoast for not responding to the City’s request. FPL asserted that Mastec was liable. Mastec informed Suncoast that it was holding Suncoast liable and that Mastec was withholding the alleged $72,000.00 in damages from money due to Suncoast on other projects pursuant to a cross-default clause in its subcontract. Suncoast sued Mastec for recovery of monies owed and denied liability for the rupture based on its alleged compliance with Chapter 556.

During the litigation, Suncoast moved for summary judgment on its breach of contract claims against Mastec. Mastec argued that Suncoast had supplied an inaccurate telephone number on the One Call system and therefore was liable. The trial court granted Suncoast’s motion, rejecting Mastec’s defenses and counterclaims with prejudice. Mastec appealed.

The appellate court found that the City had failed to timely communicate with Suncoast as required by the statute and that, even if Suncoast had supplied an inaccurate telephone number, it was undisputed that the email address Suncoast provided was correct. Thus, the appellate court upheld the trial court’s ruling that Suncoast was statutorily permitted to proceed with the excavation. However, the appellate court had insufficient facts to evaluate whether Suncoast had taken reasonable precautions to identify the underground utilities. As a result, the summary judgment in favor of Suncoast was premature and the case was remanded to the trial court for further proceedings.