323 F. Supp. 3d 1362
M.D. Fla.2018Background
- Peoples Gas System (PGS) owns and maintains a natural gas pipeline in Lee County, Florida; Posen Construction was the general contractor on a nearby roadway project.
- During construction, Posen personnel struck and ruptured the pipeline with a mixing machine, causing a gas fire and severe injury to a third party (Santos).
- Santos sued Posen and PGS in state court; PGS separately defended and later settled with Santos. PGS then sued Posen under Florida’s Underground Facility Damage Prevention and Safety Act (the Act), seeking recovery/indemnity for amounts paid to Santos.
- PGS pleaded claims under § 556.106(2)(a) (liability for "total sum of the losses") and alternatively sought statutory indemnity under the Act; Posen moved to dismiss for failure to state a claim.
- The central dispute was whether the Act’s reference to "losses" or "costs" includes a member operator’s payment to settle a third-party bodily injury claim (i.e., a statutory right to indemnification).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "losses"/"costs" under § 556.106(2)(a) include amounts PGS paid to settle a third-party bodily-injury claim | PGS: the statute’s broad language "total sum of the losses" includes the settlement PGS paid to Santos | Posen: the statute contemplates normally-computed costs (e.g., repair, equipment, lost use); it does not create a duty to indemnify for third-party settlements | Court: "losses/costs" do not encompass an indemnity obligation for settlement payments; PGS failed to state a claim |
| Whether the Act creates a statutory right to indemnification for member operators for third-party bodily-injury settlements | PGS: the Act’s liability language supports indemnification for sums it paid | Posen: the Act contains no express or implicit indemnification language; courts may not judicially create such a remedy | Court: no express or implied statutory indemnity; creating one would improperly expand the statute beyond its plain terms |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading plausibility standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility requirement for complaints)
- Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285 (11th Cir. 2001) (federal courts must follow state supreme court decisions on state law)
- A & L Underground, Inc. v. City of Port Richey, 732 So.2d 480 (Fla. 2d DCA 1999) (interpreting the Act to allow recovery for certain economic losses)
- Southland Const., Inc. v. Greater Orlando Aviation, 860 So.2d 1031 (Fla. 5th DCA 2003) (limiting recoverable losses under the Act to personal injury and equipment/out-of-pocket losses)
- Hill v. Davis, 70 So.3d 572 (Fla. 2011) (courts cannot construe an unambiguous statute to extend or modify its terms)
Outcome: Posen’s motion to dismiss granted; PGS’s complaint dismissed with prejudice; judicial-notice requests denied as moot.