State, Dept. of Transp. v. Southern Bell Tel. & Tel. Co., Inc., s. 92-2291
| Decision Date | 18 January 1994 |
| Docket Number | Nos. 92-2291,92-2292,s. 92-2291 |
| Citation | 635 So.2d 74 |
| Court | Florida District Court of Appeals |
| Parties | 19 Fla. L. Weekly D181 STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, INC., a Florida Corporation, Appellee. |
Thornton J. Williams, General Counsel and Thomas F. Capshew, Asst. General Counsel, Florida Dept. of Transp., Tallahassee, for appellant.
Robert Beatty, BellSouth Telecommunications, Inc., Miami, John P. Fons and Emily S. Waugh of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
ON MOTION FOR REHEARING AND/OR CLARIFICATION
The Department of Transportation (DOT) appeals the entry of summary judgment against it on its third-party claims against Southern Bell Telephone and Telegraph Company (Bell) seeking damages for (1) breach of contract, (2) common law indemnity (3) contractual indemnity, and (4) misrepresentation. Because we conclude that genuine issues of material fact exist as to each claim, we reverse and remand for further proceedings.
In 1972, Bell and DOT entered into a contract styled "Utility Relocation Master Agreement," outlining the general terms for the relocation of Bell's utility facilities situated in DOT's right-of-ways during future construction projects. In regard to any anticipated highway project, DOT executes a change order with Bell, including a relocation schedule, enforcing the terms of the master agreement for the particular undertaking.
This appeal involves the construction of an intercoastal waterway bridge and ancillary road in New Smyrna Beach, Florida. Before the letting of bids for construction, DOT approved a relocation schedule on March 2, 1988, allowing Bell 120 days before the contractor's commencement of work thereon and 240 days thereafter in which to complete its relocation. Following the publication of the bids, Misener Marine Construction, Inc. (Misener), was awarded the contract for the construction of the bridge. 1 Shortly after Misener began work in January 1989, a dispute arose between Bell and Misener regarding the relocation of Bell's facilities and Misener's pile-driving plans. Bell informed Misener that pile driving could not be begun in a particular area of construction because its utilities were present in or near the pile-driving site.
Misener ultimately filed an action for damages against DOT, specifically alleging that the untimely relocation of certain undisclosed utility facilities by either Bell or DOT caused Misener to be delayed. (Misener alleged that although it completed construction of the bridge project within the 640 days required under its contract, it failed to complete the first phase of construction within the time specified.) In addition to filing an answer to Misener's complaint, DOT served a four-count, third-party complaint on Bell.
Following extensive discovery, Bell filed a motion for summary judgment on DOT's third-party complaint, and DOT filed a motion for summary judgment as to Misener's complaint. After a hearing on both motions, the trial court entered final summary judgment in favor of Bell against DOT, and an order denying DOT's motion for summary judgment against Misener. This appeal involves only the final summary judgment in favor of Bell, and the remainder of the opinion is divided into four parts, involving a discussion of each of DOT's third-party claims against Bell.
In regard to this theory of relief, DOT alleged in Count I of its third-party complaint that Bell had breached its contract by causing delays to Misener and by failing to defend against Misener's legal claim. DOT relies primarily upon the following provisions of the Utility Relocation Master Agreement to support its claims:
The COMPANY [Bell] further agrees that said adjustment, changes or relocation of facilities will be made by the COMPANY with sufficient promptness so as to cause no delay to the DEPARTMENT or its contractor in the prosecution of such construction or relocation work; provided, however, that the COMPANY shall not be responsible for delay beyond its control; and that such "Relocation Work" will be done under the direction of the DEPARTMENT'S engineer; and the COMPANY further agrees that in the event the changes, adjustments or relocation of such facilities or utilities are done simultaneously with the construction project, that it will be directly responsible for the handling of any legal claims that the contractor may initiate due to delays caused by COMPANY'S negligence; and that the COMPANY will not either proceed with the "Relocation Work" with its own forces or advertise or let a contract for such work until it has received the DEPARTMENT'S written authority to proceed.
(Emphasis added.)
Regarding the question of breach caused by delays arising from Bell's relocation work Bell asserted that it did not breach the contract, as evidenced by the fact that it completed the relocation of its facilities pursuant to the schedule approved by DOT, i.e., 120 days prior to the commencement of construction and 240 days thereafter. Moreover, Bell relied upon the deposition testimony of two of DOT's engineers, Richard Taylor and William Downs, admitting that they were aware of the conflict between Bell's existing utilities and the proposed construction project at the time the relocation schedules were being negotiated in 1988, and during the preconstruction conferences in late 1988. In this regard, we agree that the trial court was correct in finding a lack of genuine issue of material fact regarding whether Bell completed all of its relocation work within the period specified in the relocation schedules.
Nevertheless, Bell had a contractual duty to provide DOT with the location of all its facilities, and both Taylor and Downs testified that Bell never identified a particular fiber optic cable on the relocation plans, although the conduit containing the cable was clearly indicated. Their testimony was corroborated by Timothy Swanson, Misener's project engineer, who stated that the unknown fiber optic cable materially delayed Misener's pile-driving activities. Consequently, although Bell clearly identified the exact position of the conduit on the relocation plans, a genuine issue of material...
To continue reading
Request your trial
-
Dade Cty. Sch. Bd. v. Radio Station WQBA
...Federal Ins. Co. v. Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986); see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship between the parties in order for c......
-
National R.R. Passenger v. Rountree Transport
...argument, however, is that the district court failed to consider Florida cases like Florida Department of Transportation v. Southern Bell Telephone & Telegraph Co., 635 So.2d 74, 78 (Fla.Dist.Ct. App.1994), and J.A. Jones Construction Co. v. Zack Co., 232 So.2d 447, 450 (Fla. Dist.Ct.App. 1......
-
Tank Tech, Inc. v. Valley Tank Testing, L.L.C.
...Federal Ins. Co. v. Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986) ; see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship7 between the parties in order for......
-
Sephora United States, Inc. v. Palmer, Reifler & Assocs., P.A.
...indemnify and hold harmless the indemnitee, and (2) the duty to defend the indemnitee. See [State of Fla. Dep't of Transp. v. S. Bell Tel. & Tel. Co., 635 So. 2d 74, 78 (Fla. Dist. Ct. App. 1994)] (noting that the "duty to defend is entirely separate from [the] right to indemnification"); [......
-
Indemnity actions
...to be imposed. 2. Compare State of Florida, Department of Transportation v. Southern Bell Telephone and Telegraph Company, Inc. , 635 So.2d 74, 77 (Fla. 1st DCA 1994). §6:10.1.1 Elements of Cause of Action — 1st DCA In order to prevail on a common law indemnity claim, the following two-pron......
-
Fraud
...677, 682 (Fla.1st DCA 2000). 4. State of Florida, Department of Transportation v. Southern Bell Telephone and Telegraph Company, Inc. , 635 So.2d 74, 78 (Fla. 1st DCA 1994) (“Moreover, under certain circumstances, concealment or nondisclosure of a material fact may also form a basis for a c......