Qwest Corporation v. Gonzales Boring & Tunneling Co., Inc. et al, No. 3:2018cv05396 - Document 74 (W.D. Wash. 2019)
Court Description: ORDER denying 54 Plaintiff's Motion for Partial Summary Judgment; signed by Judge Ronald B. Leighton.(DN)
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Qwest Corporation v. Gonzales Boring & Tunneling Co., Inc. et al Doc. 74 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 10 11 12 13 14 15 QWEST CORPORATION DBA CENTURYLINK QC, A COLORADO CORPORATION, V. PLAINTIFF, CASE NO. 3:18-cv-05396-RBL ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT GONZALES BORING & TUNNELING CO. INC., AN OREGON CORPORATION; AND SCARSELLA BROS. INC., A WASHINGTON CORPORATION, Defendant. 16 17 18 19 20 21 22 23 24 THIS MATTER is before the Court on Plaintiff CenturyLink’s Motion for Partial Summary Judgment. The Washington State Department of Transportation hired Defendant Scarsella Bros. to bore under Harrison Avenue in Centralia, as part of a larger highway project. The specific job involved installing a 36” casing for a carrier culvert under Harrison. Scarsella sub-contracted Defendant Gonzales Boring & Tunneling to bore the hole. Gonzalez ultimately damaged CenturyLink’s conduit in the area, and CenturyLink sued. The case and the Motion relate to the requirements of Washington’s “call before you dig” statute, the Underground Utility Damage Prevention Act, Chapter 19.122 RCW. ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Dockets.Justia.com The UUDPA requires excavators to notify a locating service, which in turn notifies those 1 2 with underground utilities in the area, so that those utilities can be located and marked, so that 3 damage to them can be avoided. Markings made in response to such a call are valid for 45 days. 4 RCW 19.122.030(6)(ii)(c). A facility owner can waive the UUDPA’s notification and marking 5 provisions. RCW 19.122.080. 6 On March 5, 2015, Gonzalez called1 the locator service to notify CenturyLink that it 7 planned to bore under Harrison Ave. CenturyLink hired South Bay Excavating to locate and 8 mark CenturyLink’s utilities (conduit containing fiber optic cable) in the area. South Bay 9 “potholed” the conduit2, and its subcontractor, Locating Inc., marked it. Gonzales began 10 excavating on March 26, but WSDOT suspended the work to negotiate a price adjustment to 11 install a smaller, 20-inch casing for a carrier pipe, based in part on the presence of utilities in the 12 area. CenturyLink claims that South Bay’s marking expired on April 23, 2015. Gonzales 13 14 claims it “maintained” the marking during the delay. On May 8, WSDOT informed CenturyLink 15 that Gonzalez’s boring would resume on May 11. CenturyLink sent an internal email 16 acknowledging this fact the same day: 17 Scarsella's subcontractor Gonzales Boring will begin boring and jacking a 20” steel casing starting Monday morning May 11, 2015 for the pipe at the SE corner of Harrison Ave. Interchange next to Papa Pete's Pizza. 18 19 Larkin Decl. Dkt. # 63 at Ex. 10. 20 21 22 23 24 1 Gonzalez claims that Scarsella also called on February 27. 2 “Potholing” refers to the procedure of uncovering and physically locating an underground facility to determine its exact location. It apparently took South Bay two tries to pothole CenturyLink’s conduit near the subject “DR8-12” project. Larkin Dec. Dkt. # 63 at Exs. 4-6. ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 1 South Bay asked CenturyLink whether Gonzalez would be excavating in the same area as 2 another upcoming project, and CenturyLink’s response email demonstrates that it was aware 3 boring was about to resume, and where it would occur: 4 5 [I]t is further west in front of Papa Pete's Pizza. We potholed the conduit/fiber [at Harrison Ave] already. 6 Id. Gonzalez argues that this email demonstrates that CenturyLink believed its facilities 7 had already been physically located and marked, and that it did not require—that it 8 waived its right to—any further notice of the proposed work. 9 Gonzalez resumed its work on May 12. A week later, it bored into and damaged 10 CenturyLink’s conduit, and the fiber optic and copper cables in it, under Harrison Ave. 11 CenturyLink sued, claiming the damages exceed $500,000. It asserts a UUDPA violation claim, 12 and negligence per se and common law negligence claims. It seeks actual and treble damages 13 (under the UUDPA), claiming that Gonzalez’s and Scarsella’s violations were “wanton and 14 malicious.” 15 It now seeks summary judgment on each of its liability theories, leaving for trial the 16 amount of its damages. It argues that because the initial markings expired, Gonzalez and 17 Scarsella are, effectively, strictly liable for the damage as a matter of law. 18 Gonzalez and Scarsella argue that technical noncompliance with the UUDPA is not 19 negligence per se, and that in any event, CenturyLink’s admitted knowledge that its facilities had 20 been recently located and marked, and that the boring work was about to resume, is a waiver of 21 its right to be notified about the work a second time. This argument is based on CenturyLink’s 22 express acknowledgment (in the May email) that the work would resume, and its assurance that 23 its conduit in the area had already been “potholed.” Neither party substantially addresses the 24 ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 1 element of causation, but there is no evidence that CenturyLink would have re-potholed and re- 2 marked its conduit a second time accurately. 3 Summary judgment is proper “if the pleadings, the discovery and disclosure materials on 4 file, and any affidavits show that there is no genuine issue as to any material fact and that the 5 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether 6 an issue of fact exists, the Court must view all evidence in the light most favorable to the 7 nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty 8 Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). 9 A genuine issue of material fact exists where there is sufficient evidence for a reasonable 10 factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether 11 the evidence presents a sufficient disagreement to require submission to a jury or whether it is so 12 one-sided that one party must prevail as a matter of law.” Id. at 251-52. 13 The moving party bears the initial burden of showing that there is no evidence which 14 supports an element essential to the non-movant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 15 322 (1986). Once the movant has met this burden, the nonmoving party then must show that 16 there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to 17 establish the existence of a genuine issue of material fact, “the moving party is entitled to 18 judgment as a matter of law.” Celotex, 477 U.S. at 323-24. There is no requirement that the 19 moving party negate elements of the non-movant’s case. Lujan v. National Wildlife Federation, 20 497 U.S. 871 (1990). Once the moving party has met its burden, the non-movant must then 21 produce concrete evidence, without merely relying on allegations in the pleadings, that there 22 remain genuine factual issues. Anderson, 477 U.S. 242, 248 (1986). 23 24 ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 1 Viewed in the light most favorable to the non-moving defendants, the evidence would 2 permit a reasonable jury to find that CenturyLink waived its right to a second notification under 3 the UUDPA. First, it could find that CenturyLink took no further action because it did not want 4 to insist upon receiving the official notification through the locator service, and that its conduct 5 unequivocally signaled an intent to waive the right to be notified via the locator service. 6 CenturyLink does not explain why it would tell its contractor “we potholed the conduit/fiber 7 already” if it did not mean “we don’t need to do it again.” 8 9 Second, despite CenturyLink’s argument to the contrary, it is reasonable to associate “potholing” and “marking.” CenturyLink hired South Bay to both pothole and mark 10 CenturyLink’s facilities. CenturyLink’s representatives often use only the word “potholing” 11 when discussing South Bay’s obligations in other emails. A jury could find CenturyLink’s 12 informing South Bay that it had “potholed the conduit/fiber already” and taking no further action 13 despite the knowledge that boring was about to re-commence, was an acknowledgement that the 14 conduit had been located and marked and there was no need to do it again. Furthermore, 15 CenturyLink’s UUDPA claim implicitly concedes that the “old” markings were incorrect. There 16 is no claim, evidence, or inference that the new markings would have been different or more 17 accurate. 18 And this is true whether or not Defendants understood or believed that CenturyLink had 19 waived its right to notice when they started boring again. A waiver is the intentional 20 relinquishment of a known right. It does not require the other party’s reliance or knowledge to be 21 effective. Whether CenturyLink waived its right is a question of fact. 22 23 Nor is CenturyLink entitled to summary judgment on its UUDPA violation/negligence per se claim. The UUDPA requires excavators to “determine the precise location of marked 24 ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 1 facilities.” RCW 19.122.070(2)(a). This provision applies only to marked facilities. For a facility 2 to be “marked,” the markings must be accurate. See Titan Earthwork, LLC v. City of Federal 3 Way, 200 Wn. App. 746, 754 (2017). The Titan Earthwork Court addressed whether the 4 excavator failed to “determine the precise location” of the facility only after it determined that 5 the damaged facility was accurately marked. Id. 6 If a facility owner does not accurately mark the facility’s location, then that facility is yet 7 to be marked, and the excavator’s UUDPA obligation to determine the location does not apply. 8 Scarsella and Gonzalez argue (and for summary judgment purposes, demonstrate) that South Bay 9 did not accurately mark CenturyLink’s facility, even on the second try. Thus, unlike Titan 10 Earthwork, there remains a question of fact regarding whether CenturyLink’s facility was 11 “marked” at all. 12 13 14 CenturyLink has not shown that Defendants violated the UUDPA as a matter of law, and it is not entitled to summary judgment on those claims that depend on such a showing. Finally, CenturyLink is not entitled to summary judgment because it has not shown that 15 any UUDPA violation was the cause of any damage. Even if a UUDPA violation was negligence 16 per se, proximate cause is still “an issue of fact to be resolved by the trier of the facts unless it is 17 so apparent that the court can rule as a matter of law that reasonable minds could not reasonably 18 differ as to the proximate cause.” Kness v. Truck Trailer Equip. Co., 81 Wash. 2d 251, 258 19 (1972) (citations omitted). 20 CenturyLink argues that because Defendants’ “failure to mark the facilities is a 21 superseding cause,” there are no issues of fact regarding proximate cause. The Court does not 22 agree that a failure to re-notify CenturyLink through the locator service is a superseding cause. 23 CenturyLink already knew that Gonzalez would begin boring again on May 11, and a jury could 24 ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 1 find that it was not inclined to re-pothole and/or re-mark the area based on its May 8 email. It is 2 not at all clear that a new 811 call would have avoided the damage. The proximate cause of the 3 damage is an issue for the trier of fact. 4 CenturyLink’s Motion for Partial Summary Judgment is DENIED. 5 IT IS SO ORDERED. 6 7 Dated this 29th day of July, 2019. 8 9 A 10 Ronald B. Leighton United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING CENTURYLINK’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 7
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