Peoples Gas System v. Posen Construction, Inc., 931 F.3d 1337

Peoples Gas System (PGS), a Florida natural gas distributor, alleges Posen Construction negligently damaged an underground gas pipeline during a 2010 road project, causing a rupture, fire, and injury to Posen employee Mark Santos.
Santos sued PGS and Posen in state court (2011); Santos later dismissed Posen and settled with PGS; PGS also litigated repair-cost claims against Posen in federal court and settled.
In 2018 PGS sued Posen under the Florida Underground Facility Damage Prevention and Safety Act (the Act), seeking reimbursement/indemnity for amounts PGS paid Santos in the earlier settlement.
The Act creates a rebuttable presumption of excavator negligence and makes an excavator liable for "the total sum of the losses to all parties involved as those costs are normally computed." Fla. Stat. § 556.106(2)(a)–(b).
The district court dismissed PGS’s complaint, holding the Act did not authorize recovery for such remote third‑party settlement payments or a statutory right to indemnification.
The Eleventh Circuit found Florida law unsettled on whether the Act (1) creates a standalone cause of action to recover payments to third parties and (2) implies a statutory right of indemnification, and therefore certified the question to the Florida Supreme Court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Act gives a member‑operator a cause of action to recover damages paid to a third party for personal injuries caused by an excavator	The Act’s broad language ("total sum of the losses to all parties involved") covers third‑party settlement payments as recoverable losses	The Act was not intended to create a new, expansive cause of action beyond traditional common‑law remedies; prior precedents limit recoverable losses	Eleventh Circuit concluded Florida law is unsettled and certified the question to the Florida Supreme Court; district court had dismissed the claim
Whether the Act creates (or implies) a statutory right to indemnification against the excavator for such payments	Even without the word "indemnify," the Act’s allocation of losses implies a statutory indemnity obligation (analogous to other statutes recognized as creating indemnity)	The statute’s text is ambiguous; a different statute recognized as creating indemnity used clearer language; absent explicit text Florida courts have not recognized a statutory indemnity here	Eleventh Circuit found multiple plausible interpretations and certified the indemnity question to the Florida Supreme Court; district court rejected the indemnity theory

A & L Underground, Inc. v. City of Port Richey, 732 So. 2d 480 (Fla. Dist. Ct. App. 1999) (permitting recovery under the Act for certain economic and repair costs)
Southland Constr., Inc. v. Greater Orlando Aviation, 860 So. 2d 1031 (Fla. Dist. Ct. App. 2003) (questioning A & L’s breadth and refusing recovery for indirect/remote claims)
James D. Hinson Elec. Contracting Co. v. BellSouth Telecomms., Inc., 642 F. Supp. 2d 1318 (M.D. Fla. 2009) (holding routine repair‑related costs not recoverable under the Act beyond common‑law remedies)
Wendt v. La Costa Beach Resort Condo. Ass’n, Inc., 64 So. 3d 1228 (Fla. 2011) (statutes can create indemnification rights where statutory text is sufficiently clear)
Martinez v. Miami‑Dade Cty., 975 F. Supp. 2d 1293 (S.D. Fla. 2013) (reading broad statutory language as imposing an indemnification obligation)
Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285 (11th Cir. 2001) (federal court should follow state intermediate appellate rulings absent persuasive indication the state supreme court would rule otherwise)