A & L UNDERGROUND, INC., APPELLANT,
v.
CITY OF PORT RICHEY, APPELLEE
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The court held that the Underground Facility Damage Prevention and Safety Act allows an excavator to recover purely economic losses resulting from inaccurate utility marking.
A & L Underground was hired to expand a gas system through Port Richey. A & L requested Port Richey to mark its underground utilities, but the marking…
The full statement of facts, procedural history, and disposition for this case are member content.
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WHATLEY, Judge.
A & L Underground, Inc., appeals an order granting summary judgment in favor of the City of Port Richey. The trial court held that A & L could not recover economic losses pursuant to its complaint for violations of the Underground Facility Damage Prevention and Safety Act. See Ch. 556, Fla. Stat. (1995). We reverse.
A & L was hired by the City of Clear-water to expand Clearwater’s underground gas distribution system. That expansion ran through the City of Port Richey. Pri-or to underground excavation in Port Rich-ey, A & L requested Port Richey to locate and mark its underground utilities as required by chapter 556. Port Richey did so, but inaccurately. As a result, A & L damaged underground utilities and incurred delay and repair costs.
A & L sued Port Richey for statutory violations of chapter 556. Port Richey argued, and the trial court ruled, that A & L could only recover damages for personal injuries or property damage under chapter 556. A & L’s claim was purely for economic losses. We conclude that the clear language of section 556.106(3), Florida Statutes (1995), allows recovery for purely economic losses. That statute permits an excavator, such as A & L, to recover “for the total cost of any loss.” See Followell v. Central Illinois Pub. Serv. Co., 278 Ill. App.3d 1103, 215 Ill.Dec. 608, 663 N.E. 2d 1122 (5th Dist.1996). We reject Port Rich-ey’s argument that this language is surplusage.
We do not address the issue of sovereign immunity, as it was not properly raised in the trial court.
Accordingly, we reverse the entry of summary judgment in favor of the City of Port Richey and remand this cause for proceedings consistent with this opinion.
CAMPBELL, A.C.J., and STRINGER, J., Concur.
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Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604 (Fla. 2021)…tion of its underground facilities and it could be the basis for Southland to recover its own damages if the facilities are not correctly marked and a statutorily specified injury or damage results.”); A & L Underground, Inc. v. City of Port Richey, 732 So. 2d 480, 481 (Fla. 2d DCA 1999) (concluding an excavator is entitled to recovery of delay and repair costs in an action for violations of section 556.106(3), Florida Statutes (1995), because the language providing for the recovery of “the total cost of any…
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Southland Constr., Inc. v. Greater Orlando Aviation, 860 So. 2d 1031 (Fla. 5th DCA 2003)…mpose a duty on Peoples Gas to prevent an increase in insurance premiums. In support of its entitlement to recover the insurance premium increase and attorney’s fees under the Act, Southland relies on A & L Underground, Inc. v. City of Port Richey, 732 So. 2d 480 (Fla. 2d DCA 1999) in which the Second District interpreted section 556.106(3) of the Act to allow an excavator to recover purely economic losses, including delay damages, that it suffered as a result of a member operator’s failure to accurately mar…
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Peoples GAS Sys. v. Posen Constr., Inc., 931 F.3d 1337 (11th Cir. 2019)…ponds that the statutory text - with nothing more is perhaps equally susceptible to both possible readings. Florida appellate courts and federal district courts have split on this question. See, e.g., A & L Underground, Inc. v. City of Port Richey, 732 So. 2d 480, 481 (Fla. Dist. Ct. App. 1999) (permitting recovery under the Act in favor of plaintiff- excavator for purely economic losses in the form of delay and repair costs after rupturing lines that defendant-municipality failed to mark); But see Southland…