S.C. Telecomms. Grp. Holdings v. Miller Pipeline LLC

Citation248 N.C.App. 243,788 S.E.2d 634
Decision Date05 July 2016
Docket NumberNo. COA15–969.,COA15–969.
CourtCourt of Appeal of North Carolina (US)
Parties SOUTH CAROLINA TELECOMMUNICATIONS GROUP HOLDINGS, d/b/a spirit communications, Plaintiff, v. MILLER PIPELINE LLC, Defendant.

Matthew E. Cox, LLC, by Matthew E. Cox, for plaintiff-appellant.

McAngus, Goudelock & Courie, P.L.L.C., by Jeffrey D. Keister and Joseph D. Budd, Raleigh, for defendant-appellee.

DAVIS, Judge.

South Carolina Telecommunications Group Holdings, d/b/a Spirit Communications ("Plaintiff") appeals from the trial court's order granting summary judgment in favor of Miller Pipeline LLC ("Defendant"). On appeal, Plaintiff contends that the trial court erred by granting Defendant's motion for summary judgment despite the existence of a genuine issue of material fact. After careful review, we affirm the trial court's order.

Factual Background

Plaintiff provides Internet, data, and voice communication services to consumers in South Carolina, North Carolina, and Georgia. To facilitate this service, Plaintiff relies, in part, upon underground fiber optic cables to transmit data. One such fiber optic cable, designated as "NC–W5 Huntsville to Shelby" ("the Cable"), was buried along Highway 27 outside of Bolger City, North Carolina.

On 26 February 2013, Defendant, a company that installs pipelines, entered into a contract with Monroe Roadways Contractors, Inc. to install "a force main, gravity sewer and pump station" in Lincoln County. The project required excavation in the area where the Cable was buried along Highway 27.

Prior to beginning the excavation, Defendant contacted North Carolina's One–Call system ("the One–Call System") in accordance with the provisions of the Underground Damage Prevention Act ("the Act"), formerly codified as N.C. Gen.Stat. § 87–100 et seq. ,1 to ensure that all entities with underground utility lines in the vicinity would be provided with notice and afforded the opportunity to clearly mark their underground lines with surface paint in order to minimize the likelihood that Defendant's excavation work would damage them. Plaintiff, upon receiving this notice, hired a company called Synergy One to mark the Cable.

After all of the underground lines in the vicinity had been marked but before Defendant began its excavation work, rain washed away a significant portion of the surface paint marking the Cable and various other underground lines. Defendant again contacted the One–Call System, and the underground lines in the vicinity—including the Cable—were once again marked with surface paint.

On 7 March 2013, Defendant's employees began their excavation work. At approximately 9:28 a.m. on that same day, an employee of Defendant struck the Cable, damaging it and rendering it out of service for approximately 16 hours before it could be repaired.

On 26 August 2014, Plaintiff filed a complaint against Defendant in Mecklenburg County Superior Court alleging negligence and trespass in connection with the damage caused to the Cable. On 17 April 2015, Defendant filed a motion to dismiss and, in the alternative, a motion for summary judgment. In support of its motion for summary judgment, Defendant filed the affidavits of Eugene Hamilton ("Hamilton"), the lead driller for Defendant, and Richard Bowles ("Bowles"), Defendant's safety and quality coordinator. Plaintiff responded to Defendant's motion by submitting the affidavit of Michael Baldwin ("Baldwin"), Plaintiff's vice-president of legal affairs.

Defendant's motion was heard before the Honorable Jesse B. Caldwell on 19 May 2015. At the conclusion of the hearing, the trial court granted Defendant's motion for summary judgment. A written order reflecting the trial court's ruling was filed on 2 June 2015. Plaintiff gave timely notice of appeal on 15 June 2015.

I. Negligence Claim

Plaintiff first argues that the trial court erred in granting summary judgment in favor of Defendant on Plaintiff's negligence claim because Baldwin's affidavit raised a genuine issue of material fact that required resolution by a factfinder at trial. We disagree.

"The entry of summary judgment is proper 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 any party is entitled to a judgment as a matter of law. An order granting summary judgment is reviewed de novo on appeal." Martin Marietta Materials, Inc. v. Bondhu, LLC, ––– N.C.App. ––––, ––––, 772 S.E.2d 143, 145 (2015) (internal citation and quotation marks omitted).

It is well settled that

[o]nce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial. It is also clear that the opposing party is not entitled to have the motion denied on the mere hope that at trial he will be able to discredit movant's evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact. More than allegations are required because anything less would allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.

Van Reypen Assocs., Inc. v. Teeter, 175 N.C.App. 535, 540, 624 S.E.2d 401, 404–05 (internal citations and quotation marks omitted), disc. review improvidently allowed, 361 N.C. 107, 637 S.E.2d 536 (2006).

Rule 56(e) of the North Carolina Rules of Civil Procedure addresses the requirements for affidavits submitted in connection with a motion for summary judgment and provides, in pertinent part, as follows:

(e) Form of affidavits; further testimony; defense required.—Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

N.C.R. Civ. P. 56(e) (emphasis added).

In applying Rule 56(e), our appellate courts have held that

[a]ffidavits supporting a motion for summary judgment must be made on personal knowledge. Although a Rule 56 affidavit need not state specifically it is based on personal knowledge, its content and context must show its material parts are founded on the affiant's personal knowledge. Our courts have held affirmations based on personal awareness, information and belief, and what the affiant thinks, do not comply with the personal knowledge requirement of Rule 56(e). Knowledge obtained from the review of records, qualified under Rule 803(6), constitutes personal knowledge within the meaning of Rule 56(e).

Hylton v. Koontz, 138 N.C.App. 629, 634–35, 532 S.E.2d 252, 256 (2000) (internal citations, quotation marks, and brackets omitted), appeal dismissed and disc. review denied, 353 N.C. 373, 546 S.E.2d 603 (2001).

This Court has previously stated that

[t]he Act addresses logistical problems which arise when excavation is necessary in the vicinity of a utility company's underground cable lines.... For a utility to undertake excavations, it must know the position of other cables or lines in an area. The Act outlines the framework that should be followed prior to excavating in an area where underground utility lines are present. Generally, a person planning to excavate near underground utility lines must provide at least two days' notice to the utility. Once notified, the onus is on the utility company to locate and describe all of its lines to the excavating party. Failure to identify proprietary cable lines, after a proper request by the excavating party, absolves an excavator from liability for damage to the notified utility's line.

Lexington Tel. Co. v. Davidson Water, Inc., 122 N.C.App. 177, 179, 468 S.E.2d 66, 68 (1996) (internal citations omitted and emphasis added).

In the present case, the resolution of Plaintiff's negligence claim hinged on whether the marking procedure contemplated by the Act was followed. In essence, Plaintiff alleges that the Cable was properly marked at the time of the injury, while Defendant has presented evidence to the contrary.

At the summary judgment stage, Defendant submitted the affidavit of Hamilton, its lead driller at the site of the 7 March 2013 excavation, who testified based on his personal knowledge that (1) advance notice was provided by Defendant to the owners of underground utilities in the area; (2) all lines in the area were marked with surface paint applied to the surface of the ground; and (3) "[t]here were no locate markings within 2 ½ feet (plus the width of the underground line) of the point of impact with the underground line as set forth hereinabove. In fact, the nearest marking was at least 6 feet from this particular point of impact."

Defendant also offered the affidavit of Bowles, who stated that he too had personal knowledge of the events of 7 March 2013 and that (1) "[t]here were no lines, paint, marks, locates or other indication anywhere in the vicinity of the point of impact with the fiber optic line to notify [Defendant] or others that the line was buried in that location"; and (2) "[t]here were no locate markings within 2 ½ feet (plus the width of the underground line) of the point of impact with the underground line as set forth hereinabove. In fact, there were no locates at all in the vicinity of this particular point of impact."

The only evidence offered by Plaintiff in response to Defendant's summary judgment motion was the affidavit of Baldwin.2 In his affidavit, Baldwin simply makes the conclusory statement that "[a]ccording to photographs and video, the fiber optic cables were clearly marked and delineated." Nowhere in the affidavit does Baldwin explain the specific "photographs and video" to which he is referring. Nor does the affidavit provide any indication that he actually possessed personal...

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