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Level 3 Communications, LLC v. Michael R. Floyd D/B/A Floyd & ) Floyd Contractors

February 7, 2011


The opinion of the court was delivered by: Judge Trauger


Pending before the court is the defendant's Motion for Summary Judgment (Docket No. 27), to which the plaintiff has responded (Docket No. 35), and the defendant has filed a reply in support (Docket No. 38). The plaintiff has also filed a Motion in Limine to exclude evidence and testimony from the defendant's causation expert, Richard Haglund (Docket No. 33), to which the defendant has responded (Docket No. 37). For the reasons discussed herein, both of these motions will be denied.


In August 2007, employees of the defendant, Michael R. Floyd d/b/a Floyd & Floyd Contractors ("Floyd"), were installing storm drains and water lines at a new subdivision known as "Arden Village" along Highway 31 in Columbia, Tennessee (the "job site").*fn1 The plaintiff,

Level 3 Communications, is a telecommunications services provider that owns a right-of-way along Highway 31 where its fiber-optic cable (the "Cable"), used for providing voice and data services to clients, was buried. Also buried was the conduit (or piping) in which the Cable was contained and protected, along with eleven unused conduits. The Cable, in turn, contained 8 bundles of "buffer tubes," which each contain 12 glass fibers. Data is transmitted along the glass fibers. At the time of the accident discussed below, 36 of the 96 fibers were actively transmitting data.

On August 14, 2007, the plaintiff's employees, Allen Hannah and his supervisor Jeff North, went to the job site to discuss how the defendant's excavation work might impact the Cable. There, they met with, among others, Anthony Howell, a Floyd supervisor. The parties agreed that the installation of the storm drain could pose a risk to the Cable, given that the storm drain was to be installed at the same depth as the Cable. The plaintiff maintains that, before North and Hannah left the site on the 14th, all parties agreed that the defendant would not conduct excavating work that could jeopardize the Cable without notifying Level 3. Notification would allow a Level 3 representative to return to the site to monitor the excavation and ensure the security of the Cable.

On the morning of August 15, 2007, without informing Level 3, Howell and other Floyd employees resumed digging in the same area and "snagged" several of the conduits with a trackhoe, including the one carrying the Cable. (Docket No. 39 at 8.) Hannah, who happened to be driving by the job site on the way to another appointment, saw the ongoing digging and, dismayed, stopped. When Hannah came on to the job site, he was informed by Howell that several of the conduits had been damaged, or, as Hannah described it, "badly kinked."*fn2 (Id..)

After discovering the damage, Hannah contacted Dennis Wuest, at the plaintiff's "gateway" facility in Nashville, Tennessee, to determine if the plaintiff's systems were reporting a network outage. Wuest informed Hannah that the plaintiff's systems, which report service outages and line damage through alarms and warning lights on a grid, were not reporting any outages. Hannah then used a pocket knife to slit the top of the conduit that contained the Cable to visually inspect the Cable and the fibers therein. According to Hannah, the Cable did not appear to have been damaged, and, therefore, he left the job site. As he left, he again informed Howell that no digging was to be conducted in the area around the Cable until the plaintiff could send out repair crews. No relevant service outages were reported for the remainder of the day on August 15, 2007.

The defendant maintains that, at this point, its employees "proceeded to work at another location, approximately 800 feet away from the plaintiff's cable" and performed no work in the "subject area until after the plaintiff completed all [] repairs." (Id. at 14.) The plaintiff maintains that the defendant returned to the same site and continued working. At his deposition, Hannah testified that, when he left the site on the morning of the 15th, the Cable was supported by rock and earth but, when he returned in the late afternoon on the 16th, the Cable was unsupported and was "hanging in mid-air," suggesting, but not conclusively showing, that further excavation around the Cable had been done. (Docket No. 36 Ex. 3 at 104-106.)

At 12:24 p.m. Central Daylight Time on August 16, 2007, the "alarms" at the plaintiff's gateway facility began going off, indicating that telecommunications traffic along the plaintiff's network was being adversely impacted. Level 3 maintains that, at this point, Wuest informed Hannah of the alarms, and Hannah went to Level 3's Rockdale, Tennessee site to "verify the alarms and run a trace on the line to pinpoint the source of the outage." (Docket No. 39 at 19.) Level 3 maintains that it "traced the source of the alarms to the location where Floyd damaged the Cable" the day before and that, at this point, "neither Level 3 nor its contractors had returned to Floyd's Job Site nor had they initiated any repair work."*fn3 (Id.. at 11, 19.)

Level 3 began to restore customer traffic by "rolling traffic from damaged buffer tubes in the Cable to spare, unused fibers on the same Cable which Level 3 reserves for use in an emergency." (Docket No. 39 at 19-20.) However, Level 3 realized that service to certain customers (known as "dark fiber" customers) could not be restored without a physical repair at the site. Level 3 maintains that its repair crew arrived at the job site at approximately 4 p.m. CDT on August 16th and initiated repairs to the Cable. It was at this point that Hannah observed that the Cable had been moved to its "hanging" position.

In order to fully restore traffic, Level 3 and its contractors removed and replaced approximately 70 feet of Cable, which the plaintiff alleges cost $45,483.07. The plaintiff filed this lawsuit on November 23, 2009, asserting claims for trespass and negligence. (Docket No. 1.) As discussed below, the plaintiff also seeks $300,423.76 in "loss-of-use" damages, represented by the reasonable rental cost of "comparable capacity on another carrier's cable sufficient to replace the capacity of only those transport systems that were active and impacted" for the 2.9 hours that the plaintiff lost use of the Cable -- that is, the 2.9 hours that it took for the plaintiff to "roll its traffic" from damaged fibers on the Cable to non-damaged ones on the same Cable. (Docket No. 39 at 22-24.)


I. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) requires the court to grant a motion for summary judgment if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "In evaluating the evidence, the court must draw all inferences in the light most favorable to the [plaintiff]." Moldowan, 578 F.3d at 374.

"'[T]he judge's function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient," and the plaintiff's proof must be more than "merely colorable." Anderson, 477 U.S. at 249, 252. An issue of fact is "genuine" only if a reasonable jury could find ...

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