injured the Posen employee performing the excavation . The employee brought suit against PGS alleging that it had failed to mark its underground facilities within the time prescribed by the Act .
PGS settled with the employee and sued Posen for indemnification to recover the amount of the settlement payment . That case reached the Eleventh Circuit , which certified the following question to the Supreme Court of Florida :
“ Whether the Act provides a standalone cause of action , or whether it simply clarifies the legal analysis in a negligence claim .”
The Court ’ s short answer to this questions is yes , the Act implicitly creates a standalone cause of action that sounds in negligence . The Court explained that the Act “ imposes specific duties on member operators and on excavators , and it expressly links violations of those duties to potential civil liabilities .” Thus , to prevail on a cause of action under this statute , a plaintiff must show ( 1 ) that the defendant breached a duty imposed by the Act ; and ( 2 ) that defendant ’ s acts or omissions causing such breach were the direct and proximate cause of the resulting damage .
Breach of Duty Imposed by the Act
The Act imposes a duty on excavators to provide advance notice of planned excavations through the notification system . Then , member operators must locate underground utilities within two days of receiving such notice . Finally , even where an excavator complies with the notice provisions , it must perform the excavation “ in a careful and prudent manner , based on accepted engineering and construction practices .” The Court states that this
“ overarching standard of care for excavators echoes a common law negligence standard .”
Proximate Causation
Because the statutory cause of action sounds in negligence , “ a defendant cannot be ‘ found liable ’ unless the defendant ’ s negligence is a proximate cause of the plaintiff ’ s injury and there is no defense to the plaintiff ’ s claim .” Further , a plaintiff cannot recover if its negligence was the sole cause of its injury . Here , PGS ’ s claimed damages consist of its settlement payment to the injured Posen employee . The Eleventh Circuit considered these damages as too remote for PGS to recover , and the Florida Supreme Court punted on the question , noting “ it is not our role to decide the merits of this case .”
Comparative Fault
The Court rejected PGS ’ s argument that the Act allows for full recovery without regard to PGS ’ s own negligence . Rather , claims brought under the Act are governed by principles of comparative fault under section 768.81 , Florida Statutes .
Recovery of “ Losses ”
The Act uses the term “ losses ” as a synonym for “ damages ” and does not limit the type of recoverable damages or categorically exclude any particular type of loss . Thus , a plaintiff may recover economic damages that are independent of personal injury or property damage . The Court notes that recoverable damages are limited by other features of the Act , including the proximate causation requirement , applicable defenses like comparative fault , and the limited class of potential plaintiffs .
Peoples Gas Sys . v . Posen Constr ., Inc ., No . SC19- 1305 , 2021 WL 2371262 ( Fla . June 10 , 2021 ).
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