BellSouth Telecommunications, Inc. v. Johnson Bros. Corp. of Louisiana, 96-30062

Decision Date26 February 1997
Docket NumberNo. 96-30062,96-30062
Citation106 F.3d 119
CourtU.S. Court of Appeals — Fifth Circuit

David F. Bienvenu, Hoffman, Sutterfield, Ensenat & Bankston, New Orleans, LA, for plaintiff-appellee.

Joseph B. Guilbeau, Charles W. Farr, Juge, Napolitano, Leyva & Guilbeau, Metairie, LA, for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DAVIS and DUHE, Circuit Judges, and DOWD, 1 District Judge.


Plaintiff-Appellee filed suit against Defendants-Appellants to recover for damage to two buried telephone cables which occurred during excavations conducted pursuant to a contract with the State of Louisiana Department of Transportation and Development. The district court granted summary judgment on the question of liability and subsequently did not permit submission of the question of comparative fault to the jury. Following a jury trial on the question of damages, a monetary judgment was entered in favor of plaintiff. Defendants appealed.


On August 11, 1994, BellSouth Telecommunications, Inc. ("BellSouth") filed suit against Johnson Brothers Corporation of Louisiana, Ohbayashi Corporation, Johnson Brothers Corporation and Ohbayashi Corporation (A Joint Venture) (hereafter collectively, "Johnson Brothers") for damage to BellSouth's underground conduit and cables. The damage occurred on August 13, 1993, during an excavation which Johnson Brothers was performing pursuant to a contract with the State of Louisiana Department of Transportation and Development ("DOTD") for work on the Greater New Orleans Bridge Project No. 2.

In its Answer filed on October 4, 1994, Johnson Brothers admitted that it had not complied with Louisiana's Underground Utilities and Facilities Damage Prevention Law ("Damage Prevention Law" or "the Act"), La.Rev.Stat.Ann. §§ 40:1749.11, et seq., but disputed that this violation provided the basis for recovery by BellSouth. Johnson Brothers also averred comparative fault on the part of BellSouth for its failure to provide accurate and reliable information with respect to the location of its cables.

Following initial discovery, BellSouth filed a motion for summary judgment contending that Johnson Brothers' failure to comply with the Damage Prevention Law made it liable to BellSouth for the damages incurred. In opposition, Johnson Brothers argued that BellSouth was precluded from recovery by its own negligence in submitting to the DOTD erroneous plats upon which Johnson Brothers relied in performing the excavation. 2

On May 25, 1995, the district court granted summary judgment in favor of BellSouth on the question of liability. BellSouth then filed a motion for reconsideration or, in the alternative, motion in limine seeking clarification Johnson Brothers then filed a motion for reconsideration and/or for leave to present evidence of BellSouth's comparative fault. 3 BellSouth filed a motion for summary judgment on the quantum of damages to which it was entitled. On October 11, 1995, the district court denied BellSouth's motion, concluding that there were genuine issues of material fact which precluded summary judgment on damages. It also denied Johnson Brothers' motion, making clear that it had already found that § 38:2223 could not serve as a basis for comparative fault under the Damage Prevention Law.

of the court's ruling. Specifically, BellSouth sought clarification as to whether Johnson Brothers' defense of comparative negligence remained viable. On June 27, 1995, treating BellSouth's motion as one in limine, the district court granted the motion and clarified that BellSouth's previous provision of erroneous plats to the DOTD under La.Rev.Stat.Ann. § 38:2223 could not form the basis for comparative fault.

Following trial to a jury on the question of damages, a judgment in the amount of $54,092.18 was entered in favor of BellSouth.

Johnson Brothers appealed from the various rulings of the district court and from the final judgment, raising essentially two issues on appeal: (1) whether the district court erred by refusing to allow Johnson Brothers to submit evidence to the jury on the issue of BellSouth's comparative fault; and (2) whether the district court improperly instructed the jury on the issue of damages.

A. The District Court's Ruling on Summary Judgment, as Clarified by Subsequent Rulings

We review grants of summary judgment de novo, guided by the standards of Federal Rule of Civil Procedure 56, which provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

In this case, the material facts are undisputed: (1) Johnson Brothers damaged BellSouth's cables; (2) BellSouth's Utility Plat No. F2 purporting to show the location of the cables was erroneous; (3) Johnson Brothers relied on Utility Plat No. F2 as it proceeded with the excavation on August 13, 1993; and (4) Johnson Brothers did not comply with Louisiana's Damage Prevention Law.

The question which the district court had to resolve was a question of law, specifically: whether Johnson Brothers' violation of the Damage Prevention Law precluded introduction of evidence of comparative fault on the part of BellSouth.

"It is well-established that this court reviews de novo questions of law raised in summary judgment appeals. See Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1303 (5th Cir.1995). More specifically, we review a district court's interpretation of a state statute de novo. See Transcontinental Gas Pipe Line Corp. v. Transportation Ins. Co., 953 F.2d 985, 987 (5th Cir.1992)." Occidental Chemical v. Elliott Turbomachinery Co., 84 F.3d 172, 175 (5th Cir.1996).

Thus, on review, this court must determine whether the district court correctly construed the Damage Prevention Law to preclude Johnson Brothers' comparative negligence claim. Louisiana's Damage Prevention Law provides, in pertinent part:

A. ... [N]o person shall excavate or demolish ... near the location of an underground B. (1) Except as provided in R.S. 40:1749.15 [emergency excavation], prior to any excavation or demolition, each excavator ... shall serve telephonic notice of the intent to excavate or demolish to the regional notification center serving the area in which the proposed excavation or demolition is to take place. Such notice shall be given to the notification center at least forty-eight hours, but not more than one hundred twenty hours, excluding weekends and holidays, in advance of the excavation or demolition activity....

facility or utility, ... without having first ascertained in the manner prescribed in Subsection B of this Section, the approximate location of all underground facilities or utilities in the area which would be affected by the proposed excavation or demolition.

La.Rev.Stat.Ann. § 40:1749.13 (West Supp.1997) (emphases added). Following the statutory notice, the regional notification center notifies "all member operators having underground facilities in or near the site of the proposed excavation." § 40:1749.14(B). The operator then must provide the excavator with the approximate location and type of underground facilities and may visit the site and mark the location and type of utilities involved. § 40:1749.14(C). Violators of these provisions may be fined as much as $250 for a first violation and as much as $1,000 for subsequent violations. § 40:1749.20.

Johnson Brothers does not dispute that it failed to notify BellSouth in violation of the Damage Prevention Law. It contends, however, that the lower court erred in finding that BellSouth's alleged violation of § 38:2223 could not support a comparative fault defense. Section 38:2223, which governs the commencement of work under public contracts, provided at the time of the accident:

A. Whenever any public entity enters into a contract for the construction, alteration or repair of any public works, the public entity through its official representatives shall, before the issuance of any work order and before the commencement of any work, give notice of such contract, in writing, to all utility, communication and public service companies and all public agencies and boards who furnish any utility, gas, water, electrical, communication, sewerage or drainage services which may have underground pipes, cables or any other underground installation which may be within the right-of-way where the public work is to be constructed, altered or repaired....

Said written notice shall require that the person, partnership, corporation, board or agency so notified shall furnish to the public entity ... a diagram or plat showing the location of such underground installations within the right-of-way, a copy of which shall be furnished by the public entity to the contractor before commencement of the work under the contract. If such diagram or plat is not furnished within the time specified or any extension thereof granted by the public entity, the work order may be issued and the work commenced.

Should the diagram or plat not be furnished or the location of the underground cables, pipes or other underground installations be inaccurately shown thereon, the public entity and the contractor shall be released from any responsibility in connection with their damage unless such damage is caused by the negligence of the public entity or contractor.

La.Rev.Stat.Ann. § 38:2223 (West 1989) (emphases added). 4 Apparently, BellSouth provided plats to the DOTD, as required by this statute, in the early 1980s when Louisiana began the Greater New Orleans Bridge...

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