Russell filed suit on its own behalf and as the County’s assignee. At trial, Russell prevailed against FPL under a negligence theory. Russell was awarded $175,000 in direct damages and $59,700 as delay damages.

FPL appealed, arguing that Sections 337.403 and 337.404 of the Florida statutes provide the exclusive remedy of requiring interfering utilities to be relocated or removed prior to awarding damages. FPL argued that because the county failed to pursue the statutory remedy, it should have prevailed. The appeals court disagreed, finding the statutes did not eliminate the common law right to recover damages for FPL’s negligence. In addition, the court analyzed the language of the statutes, including the language of Section 337.404 that provides “Whenever it shall become necessary for the authority to remove or relocate any utility . . .” Since the drainage line was re-routed under the duct bank, it was not “necessary . . . to remove or relocate” the duct bank. As a result, the court found the statutes inapplicable and ruled in favor of Russell.

This case is an example of the minefield of potential claims regarding utility (and subsurface) conditions on construction projects. Here, the contractor’s damages award against the utility was upheld on appeal. However, if the Florida statutes, or the contract, were worded differently, the contractor might have obtained a different result and been precluded from any recovery. As always, it is important to understand the terms and conditions of any contract and its risk allocation mechanisms, especially with respect to potential site utility conflicts and differing site conditions.

Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com