Southwest. Bell Tel. Co. v. Beachner Const.
| Decision Date | 11 December 2009 |
| Docket Number | No. 101,153.,101,153. |
| Parties | SOUTHWESTERN BELL TELEPHONE CO. d/b/a AT & T Kansas, Appellee, v. BEACHNER CONSTRUCTION COMPANY, INC., Appellant. |
| Court | Kansas Supreme Court |
Richard L. Hines, of Hines & Ahlquist, P.A., of Erie, argued the cause and was on the briefs for the appellant.
Mimi B. MacDonald, argued the cause, and James T. Lorenzetti, of Robert A. Kumin, P.C., of Mission, was on the brief for the appellee.
Molly Aspan, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., of Tulsa, Oklahoma, was on the brief for amicus curiae MCI Communications Services, Inc.
William A. Larson, of Larson & Blumreich, Chartered, of Topeka, was on the brief for amicus curiae Kansas Contractors Association.
This is a property damage case arising out of a public improvements project in Frontenac, Kansas. Southwestern Bell Telephone Company d/b/a AT & T Kansas (SBT) obtained judgment against Beachner Construction Company, Inc. (Beachner) for damages negligently caused to an SBT underground telephone cable which SBT had relocated at the city's request to accommodate Beachner's project construction. We transferred Beachner's appeal to this court pursuant to K.S.A. 20-3018(c).
The issue on appeal, and this court's holding, is as follows:
Did the district court err in holding that SBT's only duty was to relocate the cable "to avoid any conflicts" with Beachner's completed construction? Yes.
Accordingly, we reverse the district court and remand.
The Kansas Department of Transportation (KDOT) submitted to interested contractors the specifications for a project involving McKay Street in Frontenac, Kansas. Defendant Beachner Construction Company, Inc. (Beachner) submitted a bid price in reliance upon the plans and specifications and was awarded the contract. The project required Beachner to tear out and widen McKay Street, to install a storm sewer, new curb, gutter, and inlets, and then to repave the street. KDOT and Beachner ultimately signed a contract for the project.
The KDOT construction plans required the storm sewer to be installed at specified underground locations at a depth of 4 feet 11 inches sloping downward to 5 feet 1 inch for drainage. According to Beachner, the construction plans required the actual depth of the sewer to deviate no more than 2 inches from the depth provided in the plans.
SBT had an underground telephone cable located in the same public right-of-way where the sewer was to be trenched and laid. Prior to construction, KDOT notified SBT of the upcoming project and instructed SBT to move the cable in accordance with the project plans and specifications. SBT was provided a copy of the plans.
David Ghram was in charge of the cable relocation for SBT. He testified on cross-examination about his understanding of the relocation standards:
Ghram testified that he was able to point out the location of the proposed sewer line on the plans drawn up by SBT's engineers for the cable relocation. He further testified that based upon KDOT specifications and SBT's resultant engineering plan, the SBT cable was to be relocated at a minimum depth of 36 inches, unless otherwise noted. SBT's engineers and its contractor, Radell Construction Company, relocated the cable outside of the public right-of-way and the area where the sewer line was to be built, except for two locations.
First, the cable remained within the public right-of-way at the eastern location but was lowered to a depth of 10 feet in accordance with SBT's engineering plans. This depth was approximately 5 to 6 feet below Beachner's subsequent trench and was not damaged by Beachner during construction. When Ghram was effectively asked whether SBT engineers could only avoid the storm sewer at this eastern location by drafting plans to bury the cable at 10 feet, he replied, "That sounds correct."
Second, at the western location, SBT abandoned an older portion of cable and instead installed new cable. While SBT was able to place the majority of the new cable outside the right-of-way, a 30-foot "jog" of cable was simply relocated within the right-of-way, at a depth of 3 feet, to avoid conflict with an adjacent private landowner's circle drive. A portion of this jog was the part damaged during construction by Beachner.
KDOT held a preconstruction conference between state and city officials involved in the project, and utility companies were invited to attend. The purpose of the conference was to discuss issues involved with the project, including traffic concerns and utility conflicts. When Radell Construction Company attended the preconstruction conference on SBT's behalf, its cable relocation for SBT was already complete.
Before Beachner began construction, it called the Kansas One Call notification center pursuant to K.S.A. 66-1801 et seq. SBT was notified of the call. Both parties agree that SBT then accurately marked with orange paint the "tolerance zone" of its cable at the east and west locations where Beachner would be operating. The tolerance zone is a lateral marking of a 24-inch area in all directions from where the cable is located underground. K.S.A. 66-1802(p). The marking does not provide information regarding the depth of the cable.
Ron Vyhlidal (Vyhlidal), Beachner's construction foreman on the project, saw the SBT tolerance zone markings at the east and west locations. He testified he knew that Beachner would be digging within both zones during construction, i.e., according to the plans, the cable was in the area where the sewer trench was to be dug and the line was to be laid. Prior to any digging, Vyhlidal asked SBT's Ghram about the depth of SBT's cable at the east location. Ghram replied that the cable at the east location was 9 or 10 feet deep. Vyhlidal did not ask Ghram about the depth of SBT's cable at the west end of the project. After receiving this information, Beachner began sewer line construction at the east end of the project and progressed west. Beachner excavated 7 feet deep in SBT's eastern tolerance zone and did not encounter the cable.
When Beachner reached the west end tolerance zone, Vyhlidal knew that the SBT cable was underneath the paint marking and that the construction project would cross the cable. Vyhlidal testified that when the depth of a utility is unknown, the standard procedure is to use a backhoe to excavate 18 inches and then dig by hand to expose the cable. However, he knew that SBT was to have received the construction plans which provided that utility companies were scheduled to relocate their utilities prior to the construction to avoid any conflicts. He therefore assumed that the west end of the cable was located at the same depth, 9 to 10 feet, as the east end because "that's the way it jogged out into our excavation." Accordingly, Beachner used a backhoe to trench 6 feet deep. The backhoe, which had a 30-inch-wide bucket, "just nicked" the side of SBT's 3 to 3 1/2-foot-deep cable on the extreme southern boundary of the trench. Vyhlidal estimated that the alternative of hand digging to this depth would have taken 1 hour.
SBT filed suit to recover the cable repair cost. After a bench trial, the district court determined the duty and fault of each party. The court determined that Beachner breached the statutorily imposed duty to exercise reasonable care by failing to ascertain the depth of SBT's cable prior to excavation with a backhoe. See K.S.A. 66-1809(a) (). It also determined that SBT breached no duty. It found Beachner 100% at fault and awarded full damages of $4,365.13 to SBT.
Issue: The district court erred in holding that SBT's duty in relocating its cable was solely to avoid any conflicts after completion of construction.
The district court decision
The district court determined that SBT was required only "to relocate its cable `to avoid any conflicts' because of K.S.A. 17-1902(l)." The court further determined that this phrase, which came solely from the KDOT plans, only required SBT to avoid any conflicts with the city's sewer line after completion of its construction.
The district court began by quoting the KDOT construction plans, which do not appear in the record on appeal:
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