MCI Communications Services, Inc. v. Maverick Cutting and Breaking LLC

Background

MCI Communications Services, Inc. and MCImetro Access Transmission Services LLC, collectively referred to in the opinion as MCI, sued Maverick Cutting and Breaking LLC after Maverick severed two MCI fiber-optic telecommunications cables while performing concrete saw cutting at an intersection in St. Paul, Minnesota. MCI asserted trespass, negligence, and statutory liability as an excavator, and sought repair costs and loss-of-use damages.

The cables were inside a four-inch pipe, with the top of the pipe seven inches below the surface of 13-inch concrete pavement. Maverick had been hired by Bolander & Sons to perform saw cutting, and Bolander told Maverick where and how deeply to cut. Maverick did not receive the project plans or as-built drawings and did not independently determine the cables’ location. MCI’s locator marked the approximate horizontal locations of the cables but did not provide depth information.

The cables took approximately eight and a half hours to repair. MCI sought $52,024.68 for repair costs and $859,326.59 in loss-of-use damages. During the repair, MCI rerouted traffic to spare capacity on its own network rather than paying third parties to provide substitute capacity.

Summary Judgment Rulings

Summary judgment is appropriate when there is no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment under the law. The court does not decide disputed facts or weigh witness credibility at this stage.

Loss-of-use damages. The court granted Maverick’s motion for summary judgment on loss-of-use damages. Under Minnesota law, a plaintiff must mitigate damages. MCI used spare capacity on its own cables, did not rent third-party capacity, and did not install separate cables maintained only for emergencies. The court concluded that MCI did not suffer a compensable loss of use under these circumstances. It also concluded that calculating damages based on third-party cable capacity would be speculative because no rental market for that capacity exists.

Trespass. The court granted Maverick’s motion for summary judgment on MCI’s trespass claims. For trespass to real property, MCI had to show rightful possession of the land containing the cables. The court found MCI’s evidence of possession speculative and noted that the City retained authority to conduct construction and require MCI to move its cables. For trespass to chattels, an intentional tort involving deliberate interference with personal property, MCI had to show that Maverick intended the harm or knew it was substantially certain to occur. The court found no evidence that Maverick knew the cables were present or knew that cutting would sever them.

Negligence. The court granted summary judgment to Maverick on negligence based on contractual duties because the cited contracts did not impose duties on Maverick that could support a negligence claim. The court also granted summary judgment to Maverick on negligence based on a saw-cutter industry standard of care. MCI’s expert evidence described best practices and the expert’s own views but did not establish an industry standard of care applicable to saw cutters.

The court denied summary judgment on negligence based on an excavator industry standard of care. It declined to decide as a matter of law that Maverick was not an excavator. If the jury finds that Maverick’s work constituted excavation, it may consider whether Maverick violated the applicable excavator standard of care.

Statutory liability. Minnesota law defines excavation as an activity that moves, removes, or otherwise disturbs soil using powered tools or machinery, subject to specified exceptions. An excavator who damages an underground facility may be liable for necessary repair costs. The court denied Maverick’s motion for summary judgment on MCI’s statutory-liability claim because the evidence could support either conclusion about whether Maverick’s saw cutting disturbed the soil beneath the concrete. The jury must decide that factual question.

Motions in Limine

A motion in limine asks the court to decide before trial whether particular evidence may be presented. Expert testimony must be relevant, offered by a qualified witness, and sufficiently reliable to assist the factfinder.

Maverick’s motion. The court granted in part and denied in part Maverick’s motion to exclude evidence. Ron Peterson could not testify about contract interpretation, Maverick’s contractual duties, what Brooks did when it installed the cables, whether Brooks complied with a permit, or saw-cutter industry standards of care. Peterson could testify about matters including standard practices, what Maverick should have done according to applicable industry practices, the possible use of excavation standards, and whether encasing cables in a steel pipe surrounded by concrete was a commonly used industry practice.

The court also excluded all testimony from MCI’s expert Peter Tooley and evidence concerning the rental value of substitute cables because that evidence was irrelevant after the court ruled that MCI could not recover loss-of-use damages. The court allowed Peterson to state factual assumptions underlying his opinions but not to testify that disputed facts occurred or that a witness was truthful.

MCI’s motion. The court granted in part and denied in part MCI’s motion to exclude Steven Hamilton’s testimony. Hamilton could testify about underground utilities, utility location and relocation, cable depth, low-bid and best-value contracts, and the difference between industry standards and best practices. The court precluded him from testifying about saw-cutter industry standards of care because he lacked experience in that area and those opinions were irrelevant after the negligence ruling. Any weaknesses in his other opinions generally affected their weight rather than their admissibility and could be explored through cross-examination.

Disposition

The court’s order states that Maverick’s motion for summary judgment was granted in part and denied in part. The court granted judgment on loss-of-use damages, trespass, negligence based on contractual duties, and negligence based on a saw-cutter industry standard of care. It denied judgment on statutory liability and left open negligence based on an excavator industry standard of care, subject to the jury’s determination that Maverick engaged in excavation.

The court also states that MCI’s motion to exclude Hamilton’s expert testimony was granted in part and denied in part, and Maverick’s motion to exclude Peterson’s testimony, Tooley’s testimony, and rental-cost documentation was granted in part and denied in part. Judge John R. Tunheim signed the order on March 12, 2019.