Board of County Com'rs of Garrett County, Md. v. Bell Atlantic-Maryland, Inc., ATLANTIC-MARYLAN

Decision Date01 September 1996
Docket NumberINC,No. 67,ATLANTIC-MARYLAN,67
Citation695 A.2d 171,346 Md. 160
PartiesBOARD OF COUNTY COMMISSIONERS OF GARRETT COUNTY, MARYLAND v. BELL,
CourtMaryland Court of Appeals

Joseph S. Kaufman (Shulman & Kaufman, L.L.C., on brief), Baltimore, for Petitioner.

Alice Kelley Scanlon (John A. Rego, Anderson & Quinn, on brief), Rockville, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

KARWACKI, Judge.

Maryland Code (1991 Repl.Vol.), Article 78, § 28A, 1 otherwise known as Maryland's "Miss Utility Act," ("Miss Utility" or "the Act") was enacted to protect the property of public service companies and other entities from various traumas in order to safeguard the public safety, health, and welfare. This case requires us to construe that Act.

I.

Sometime in 1967, the Chesapeake and Potomac Telephone Company ("C & P") 2 buried two separate underground telephone cables in the Orendorf and Mosser Road areas of Garrett County, Maryland ("the County"). At the time, no written agreement existed between the County and C & P authorizing the interment. According to the Respondent, Bell Atlantic-Maryland, Inc. ("Bell"), unidentified officials of the County Roads Department granted it oral permission to lay cables along its roads wherever necessary.

a.

In late 1992, the County Roads Department initiated an improvement feasibility study for Orendorf Road, and in January of 1993, planning for a major improvement of that road commenced. The County sought both to realign and widen Orendorf Road. Accordingly, it advised various utilities, including Bell, of its intentions.

Preliminary work on the project began in February 1993 with tree, stump, and brush removal. The undertaking, however, eventually required excavation work--the primary target of Miss Utility.

Inter alia, the statute requires owners of underground facilities, such as telephone cables, to participate in a "one-call system." 3 That system compels owners of such facilities to provide the Public Service Commission ("Commission") with the telephone number of a person in every county of this State to whom calls from those contemplating excavation should be directed. See § 28A(c)(1)-(2)(i)-(ii). Miss Utility concomitantly obliges contractors and other persons, in addition to further duties discussed infra, to use those numbers to inform the contact person on file with the Commission of the intent to excavate at least forty-eight hours before doing so, but not more than ten working days prior to the proposed excavation. See § 28A(e)(1).

Once notified, the facility owner must determine within forty-eight hours whether or not the proposed excavation is within five feet of the horizontal plane of an underground facility or whether area blasting may disturb or damage any such facility. See § 28A(c)(2)(iii). Once that determination is made, the facility owner must then notify the contractor of the potential for harm and then appropriately mark the facility on either side of an eighteen inch horizontal plane, unless the proposed excavation is by blasting, which requires a demarcation of five feet. See § 28A(c)(2)(iv-vi).

In this context and in anticipation of necessary excavation work, Stuart Sommers, an Area Supervisor employed by the County Roads Department, contacted the "one-call" center in March of 1993. Accordingly, Bell began cable location efforts along the affected portion of Orendorf Road.

In an inadvertent worksite meeting with a Bell technician, Sommers allegedly expressed concern over the precise location of the Orendorf Road cable given that the project involved approximately one mile of roadway. According to Sommers, the technician agreed to "drop by and regulate or check on the progress of the work" and make additional "locates" if needed. A second location attempt was made in late May or early June of 1993. Despite these contacts between Bell and the County, not every inch of cable was located along the project route.

As the work progressed, crews encountered a "hump" in the earth on or about June 23, 1993. Aware of the presence of the Bell cable, road engineers restricted excavation to twelve inches, believing the cable to be buried at least twenty-four inches deep. The project crew employed a large earth grader in an attempt to lessen the "hump" within the maximum cut depth established by the engineers. After several passes, the grader severed Bell's cable. No call was made to Miss Utility or any one at Bell to determine if a cable occupied the area under the "hump."

b.

In 1991, farmland adjoining Mosser Road in Garrett County was under residential community development. The entrance to this new development was located within twenty-five to thirty feet of a drop-inlet--a concrete box designed to intercept water runoff from the uphill side of Mosser Road. Due to increased traffic and the proximity of the drop inlet to the new development, the County Roads Department deemed it a safety hazard. 4 Accordingly, the County decided to raise a traffic-bearing grate traversing the drop inlet by raising the drop inlet itself. This necessarily required the removal of a small amount of earth. During that excavation, County workers damaged a Bell-Atlantic telephone cable with a backhoe. No call to Miss Utility or any one else preceded the excavation.

c.

As a result of the damage to its cables, Bell filed two separate complaints against the Garrett County Roads Department in the District Court of Maryland sitting in Garrett County. 5 Both complaints sounded in negligence and alleged that the "Garrett County Roads Department ... failed to take reasonable precautions to prevent damage" to Bell's cables, proximately causing their harm. Following the presentation of evidence by both Bell and the County, the District Court entered judgment in favor of Bell in both actions in the amounts of $1447.66 and $1846.37, respectively.

The County appealed those judgments to the Circuit Court for Garrett County. Following a trial de novo, the circuit court issued a Memorandum and Order, concluding that "[the County] was in violation of [Miss Utility] in each case" and that "no persuasive evidence of contributory negligence on the part of [Bell]" was presented, and the defense, therefore, not established. However, the court ordered reargument on the issue of whether Bell fit the definition of "owner" as contemplated by § 28A(b)(4)(i)-(ii) of the Act. Subsequent to reargument, the court agreed that Bell fit that definition and entered judgment in its favor in both actions. Upon the County's Petition, we issued a Writ of Certiorari to review those judgments.

II.

The Miss Utility Act was enacted by Chapter 863 of the Acts of 1974, and originally codified as Md.Code (1969 Repl.Vol., 1974 Cum.Supp.), Art. 78, § 28A. The Act was captioned "Public Service Commission Law UNDERGROUND FACILITIES." It aspired to:

"protect underground facilities of public service companies from destruction, damage or dislocation in order to prevent:

(1) Death or injury to persons.

(2) Property damage to private and public property.

(3) Loss of services of public service companies to the general public ."

Although § 28A has undergone various modifications since its enactment, its primary objectives have not. See § 28A(a)(1)-(3).

Miss Utility discourages would-be excavators from noncompliance upon peril of liability for damages and civil penalties. Section 28A(h) provides:

"If any underground facility is damaged by any person or contractor who has failed to comply with any provision of this section, that person or contractor shall be deemed negligent and shall be liable to the owner of the underground facility for the total cost of the repair."

Similarly, § 28A(h)(i) provides in relevant part:

"Any person or contractor who excavates without first giving the notice required in subsection (e) of this section, and who damages, dislocates or disturbs an underground facility, shall be deemed negligent and shall be subject to a civil penalty up to $1,000 for the first offense and $1,000 for each subsequent offense, or ten times the cost of repairing the damage to the underground facility."

As indicated, supra, owners of underground facilities are obliged to participate in the "one-call" notification system established by Miss Utility. 6 The Act defines an "owner" as

"a public utility, telecommunications or cable television corporation, political subdivision, municipality, authority, or other person that:

(i) Owns or operates an underground facility; and (ii) Has the right to bury an underground facility."

§ 28A(b)(4)(i)-(ii).

III.

The County seizes upon this language and asserts that Bell is not an "owner" within the contemplation of Miss Utility because it did not possess the "right" to inter its cables at either the Orendorf or Mosser Road locations. In the County's view, Bell failed to establish this right because it produced insufficient evidence of a conveyance from the County to Bell granting the latter a right-of-way, i.e., an easement. The County posits that any such conveyance would necessarily be subject to the statute of frauds contained in Md.Code (1988 Repl.Vol., 1993 Supp.) § 5-104 of the Real Property Article. Thus, the argument goes, because Bell was not an "owner" as envisioned by Miss Utility, its property was not entitled to the Act's protection.

For its part, Bell argues that the history and wording of Miss Utility reveals a legislative intent to identify all public utilities, including Bell, as "owner[s]" of underground facilities within the meaning of § 28A(b)(4)(i)-(ii), free of any concomitant obligation to establish a "right to bury an underground facility." Although we disagree with Bell's reading of § 28A(b)(4)(i)-(ii), we nonetheless conclude that the General Assembly granted Bell a franchise to place its cables in the Orendorf and Mosser Road areas of Garrett County, thereby bringing...

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