Case Law Update :
Florida ’ s Underground Facility Damage Prevention and Safety Act
By Jacob C . Duval
In a recent opinion , the Supreme Court of Florida discussed several features of Florida ’ s Underground Facility Damage Prevention and Safety Act (“ Act ”) that had yet to arise before a Florida appellate court . In short , the Court clarified that the Act creates a standalone cause of action for persons and entities whose underground facilities ( i . e ., utility lines , pipes , etc .) are damaged to recover from the person or entity who caused the damage . The cause of action sounds in negligence , requires proof of proximate causation , and is subject to the defense of comparative fault . Notably , recoverable “ losses ” under the Act can include purely economic damages , independent of personal injury or property damage .
Before discussing the facts , the Court laid out the general framework of the Act . The Act created a “ one-call notification system ” designed to prevent injury to persons or property from excavation accidents by providing “ member operators ” ( owners ) of “ underground facilities ” ( buried pipes , cables , etc .) an opportunity to identify and locate their facilities prior to a planned excavation . The Act requires an excavator to use the system to provide two days ’ advance notice to member operators before beginning an excavation .
A member operator whose underground facility could be affected by the excavation must “ locate ” the underground facilities by marking the area with flags , paint , and / or stakes . If excavating within 24-inches of a marked underground facility ( the “ tolerance zone ”), the excavator must use increased caution , supervise the use of mechanized equipment , and perform the excavation in a careful and prudent manner . “ If any excavator fails to discharge a duty imposed by [ the Act ], the excavator , if found liable , is liable for the total sum of the losses to all parties involved as those costs are normally computed .”
With that framework in mind , the Court turned to the facts . Peoples Gas System (“ PGS ”) is a natural gas distributor whose pipeline was ruptured by an employee of Posen Construction , Inc . (“ Posen ”) during an excavation in November 2010 . The incident caused an explosion that severely
16 DITCHMEN • SEPTEMBER 2021