Sprint Communications Company LP v. FNF Construction Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Sprint Communications Company LP, No. CV-18-00274-TUC- BGM 10 Plaintiff, 11 v. ORDER 12 FNF Construction, Inc., [13] Defendant. [14] 15 Currently pending before the Court is Defendant FNF Construction Inc.’s Motion 16 in Limine (Doc. 68) regarding references, evidence, testimony, or instructions concerning 17 liability created under the Arizona Underground Facilities Act (“AUFA”). Plaintiff has 18 filed its response in opposition (Doc. 69). 19 Plaintiff’s Complaint (Doc. 1) alleged causes of action for strict liability, 20 negligence, and trespass. Defendant moved to dismiss the statutory causes of action as 21 well as any liability under the Arizona Underground Facilities Act (“AUFA”) because they 22 were time-barred. Def.’s Mot. to Dismiss 3d Claim for Relief (Doc. 33). Pursuant to 23 stipulation by the Parties, the Court dismissed Plaintiff’s ThirdClaim for Relief for Strict 24 Liability. Order 10/19/2018 (Doc. 39). Defendant now seeks to preclude Plaintiff from 25 “presenting evidence, testifying, implying, or presenting argument regarding purported 26 liability by FNF for allegedly violating the AUFA because liability under the AUFA is 27 time-barred.” Def.’s Mot. in limine (Doc. 68) at 2. 28 The AUFA provides: 1 A person shall not make or begin any excavation in any public street, alley, right-of-way dedicated to the public use or public utility easement or in [2] any express or implied private property utility easement or in any 3 apartment community or mobile home park without first determining whether underground facilities will be encountered, and if so where they [4] are located from each and every underground facilities operator and taking 5 measures for control of the facilities in a careful and prudent manner. For all excavations in an apartment community or mobile home park, the [6] excavator shall inform the landlord as promptly as practical that the 7 excavator intends to submit an inquiry to the landlord that will trigger the landlord's obligations provided by subsection B of this section and the [8] inquiry itself shall be made by certified mail to the landlord, using a form 9 prepared by a one-call notification center. The inquiry to a landlord may be made by a one-call notification center for a reasonable fee to the 10 excavator. [11] A.R.S. § 40-360.22(A). The Act further provides: [12] If any underground facility is damaged by any person in violation of this 13 article as a result of failing to obtain information as to its location, failing to take measures for protection of the facilities or failing to excavate in a careful [14] and prudent manner, the person is liable to the owner of the underground 15 facility for the total cost of the repair of the facility. 16 A.R.S. § 40-360.26(A). Arizona law sets a one (1) year statute of limitations for all 17 actions “[u]pon a liability created by statute[.]” A.R.S. § 12-541(5). Defendant asserts 18 that “Arizona courts have held that duties of care arising out of statute do, indeed, 19 constitute ‘liability created by statute.’” Def.’s Mot. in limine (Doc. 68) at 3 (citing 20 Jackson v. Pima County, 767 P.2d 54 , 55–56 (Ariz. Ct. App. 1988)). In Jackson, 21 however, “[t]he duty to approve plans and issue permits was created by the ordinance and 22 not common law.” Jackson, 767 P.2d at 56 . Here, Plaintiff’s negligence claim arises 23 from common law. 24 In the context of the Arizona Damages Protection Act (“ADPA”), another District 25 of Arizona court has observed that “[a]lthough Arizona courts originally construed the 26 phrase ‘liability created by statute’ narrowly, . . . more recent cases have held that ‘[w]hen 27 either a common law or statutory cause of action may be maintained, and the elements of 28 the common law cause of action are different than the elements of the statutory cause of 1 action different limitations statutes apply to each.’” MCI Comm. Svcs. v. Contractors West 2 Inc., 2016 WL 795861 , *2 (D. Ariz. March 1, 2016) (quoting Alaface v. Nat’l Inv. Co., 181 3 Ariz. 586 , 598, 892 P.2d 1375, 1387 (Ariz. Ct. App. 1994)) (alterations in original). The 4 MCI Communications court concluded that “[t]he ADPA dispenses with elements of its 5 common law precursors: in contrast to a negligence claim, an ADPA claim need not allege 6 fault, and in contrast to a trespass claim, an ADPA claim need not establish that the 7 excavator’s interference with the damaged infrastructure was knowing and intentional.” [8] Id. at 3 (citing A.R.S. § 40-360.26(A); then citing A.R.S. § 40-360.28(B)). 9 Defendant FNF acknowledges that Plaintiff’s negligence claim is not time-barred; 10 however, asserts that Plaintiff is still “seeking to impose statutory liability onto FNF but is 11 styling it as negligence.” Def.’s Mot. in limine (Doc. 68) at 3. Defendant FNF further 12 asserts that Plaintiff “has made several arguments and elicited testimony concerning what 13 is excavation under the AUFA, what damages it is entitled to, and FNF’s liability.” Id. at 14 5. Plaintiff counters that reference to “careful and prudent” or “carefully” as required in 15 the statute are the negligence standard. Pl.’s Response (Doc. 70) at 4–5. “In the ordinary 16 [Arizona] negligence action, the standard imposed is that of the conduct of a reasonably 17 prudent man under the circumstances.” Bell v. Maricopa Med. Ctr., 157 Ariz. 192, 194 , [18] 755 P.2d 1180, 1182 (Ct. App. 1988) (citations omitted). On summary judgment in another 19 case involving the severance of a fiber optic cable, the court considered the appropriate 20 common law negligence standard of care as follows: 21 At common law, excavators have a duty to inform themselves of the location of underground facilities and to take precautions necessary to [22] avoid those facilities. Mountain States Tel. & Tel. Co. v. Kelton, 79 Ariz. 23 126 , 285 P.2d 168 (1955) (citing Illinois Bell Tel. Co. v. Chas. Ind. Co., 3 Ill.App.2d 258 , 121 N.E.2d 600 (1954); GTE north, Inc. v. Carr, 84 Ohio 24 App.3d 776, 618 N.E.2d 249, 252 (1993); South Central Bell Tel. Co. v. 25 Sewage & Water Bd., 652 So.2d 1090, 1093 (La.App.1995)). 26 * * * Similarly, “industry standards can be helpful in establishing the [27] appropriate standard of care.” Nikolov v. Associated Envtl. Servs., 52 28 Fed.Appx. 975 , 977 (9th Cir.2002); see also Southwest Auto Painting and 1 Body Repair, Inc. v. Binsfeld, 183 Ariz. 444 , 904 P.2d 1268, 1272 (Ariz.App.1995) (holding “when a person holds himself out to the public [2] as possessing special knowledge, skill, or expertise, he must perform 3 according to the standard of his profession.”). The Telecommunications Industry Association's “Standard for Physical Location and Protection of [4] Below–Ground Fiber–Optic Cable Plant” provides that an excavator 5 should “Provide notice of excavation to all utility owners or to the One– Call notification center” prior to the beginning of any excavation and [6] “[p]rotect and preserve the temporary marking or staking placed by the 7 owner to indicate the location of underground facilities until such markings are no longer needed for safe excavation near the underground [8] facility.” CNA Insurance Company's Minimum Damage Prevention 9 Guidelines state that excavators should “[i]nspect the area of proposed excavation to ensure that all utilities have been marked” and “[i]f there are 10 no locates, or if the locates are incomplete, or if exposing indicates the 11 locate marks are not accurate, [the excavator should] not dig, but rather contact the facility owner or the One–Call center.” See CNA Standards at 12 pp. 1–5, Plaintiff's Exhibit 25. Similarly, U.S. Department of 13 Transportation's Best Practice for avoiding damage to underground facilities during excavation includes: “Prior to excavating, verify that all 14 utilities have been marked and inspect the area for indications of any unmarked facilities.” [15] Accordingly, the standard of care for excavating in the area of [16] utilities includes: making affirmative efforts to discover the location of all 17 underground facilities in advance; notifying the utility owner and/or the One–Call Center (here Blue Stake) of the excavation in advance; ensuring [18] that locate marks are present and preserving them as needed, and; using 19 non-invasive means such as excavation by hand in the vicinity of the facility. [20] Sprint Commc'ns Co., L.P. v. W. Innovations, Inc., 618 F. Supp. 2d 1101 , 1111–12 (D. [21] Ariz.), on reconsideration in part, No. CV-06-2064-PHX-ROS, 2009 WL 1458467 (D. [22] Ariz. May 21, 2009), and supplemented sub nom. Sprint Commc'ns Co. v. W. Innovations, [23] Inc., 618 F.Supp.2d 1124 (D. Ariz. 2009). Defendant “FNF asserts the appropriate [24] common law standard of care was explained in Sprint Commcn’s, L.P.” Joint Pretrial Order [25] (Doc. 69) at 7. The Parties agree that Defendant FNF “was moving dirt near the damage [26] location when it struck the fiber underground optic cable.” Id. at 6 ¶ 6. [27] The Court finds citation to the AUFA is inappropriate. The Court further finds that [28] 1 || the standard of care as delineated by the Sprint Communications court is appropriate for 2|| use in this matter. “Accordingly, the standard of care for excavating in the area of utilities || includes: making affirmative efforts to discover the location of all underground facilities 4|| in advance; notifying the utility owner and/or the One—Call Center (here Blue Stake) of the 5 || excavation in advance; ensuring that locate marks are present and preserving them as 6 || needed[;] and[] using non-invasive means such as excavation by hand in the vicinity of the 7\| facility.” Sprint Commc'ns Co., L.P. v. W. Innovations, Inc., 618 F.Supp.2d at 1112. 8 IT IS HEREBY ORDERED that Defendant’s Motion in limine (Doc. 68) 1s 9|| GRANTED. 10 Dated this 26th day of November, 2019. 12 Honorable Bruce G. Macdonald 13 United States Magistrate Judge