FOR EDUCATIONAL USE ONLY
698 F.3d 1333, 23 Fla. L. Weekly Fed. C 1617
(Cite as: 698 F.3d 1333)
United States Court of Appeals,
Eleventh Circuit.
MCI COMMUNICATIONS SERVICES, INC.,
d.b.a. Verizon Business, Plaintiff–Appellant,
v.
CMES, INC., Defendant–Appellee.
No. 11–12807.
Oct. 15, 2012.
Background: Telecommunications carrier brought
action against excavator for negligence and trespass
arising when excavator accidentally severed carrier's underground fiber-optic cable. The United
States District Court for the Northern District of
Georgia, No. 1:08-cv-00942-RLV, Robert L. Vining, Jr., J., granted partial summary judgment to excavator. Carrier appealed. The United States Court
of Appeals for the Eleventh Circuit, 669 F.3d 1313,
certified question of state law. The Supreme Court
of Georgia, 291 Ga. 461, 728 S.E.2d 649, answered
question.
Holding: The Court of Appeals then held that carrier could not recover loss-of-use damages when it
had not incurred any monetary loss.
Affirmed.
West Headnotes
Telecommunications 372
842
372 Telecommunications
372III Telephones
372III(E) Construction, Equipment and
Maintenance
372k839 Lines and Equipment, Injury to
or Interference with
372k842 k. Remedies; injunction.
Most Cited Cases
Under Georgia law, telecommunications carrier, whose underground fiber-optic cable was accidentally severed by excavator, was unable to recov-
Page 1
er loss-of-use damages measured by rental value of
substitute cable, when it had not rented such cable
from any other carrier or otherwise incurred any
monetary loss apart from cost of repair; carrier
rerouted remaining traffic using its spare capacity,
and did not issue any customer refunds or credits or
lose any customers or profits.
*1333 Anthony Joseph Jorgenson, Hall Estill Hardwick Gable Golden & Nelson, PC, Oklahoma City,
OK, James J. Proszek, Hall Estill Hardwick Gable
Golden & Nelson, PC, Tulsa, OK, William Drummond Deveney, Brent L. Wilson, Elarbee
Thompson Sapp & Wilson, LLP, Atlanta, GA, for
Plaintiff–Appellant.
Jason King, John E. Hall, Jr., Brian David Trulock,
Hall Booth Smith & Slover, PC, Christina Craddock, Bovis Kyle & Burch, LLC, Atlanta, GA,
Appeal from the United States District Court for the
Northern District of Georgia.
*1334 Before MARTIN, HILL and EBEL,
cuit Judges.
FN*
Cir-
FN* Honorable David M. Ebel, United
States Circuit Judge for the Tenth Circuit,
sitting by designation.
PER CURIAM:
MCI Communications Services, Inc. (“MCI”)
appeals from the district court's grant of summary
judgment defeating its claim for loss-of-use damages. We affirm.
On March 30, 2007, CMES, Inc. was performing excavation work in Stone Mountain, Georgia,
when it severed an underground fiber-optic cable
owned by MCI. The severance caused 568,263
phone calls to be blocked and 242 customer complaints to be filed. The remaining traffic on the
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
FOR EDUCATIONAL USE ONLY
698 F.3d 1333, 23 Fla. L. Weekly Fed. C 1617
(Cite as: 698 F.3d 1333)
cable was rerouted, using MCI's spare capacity. Although the severance did cause phone calls to be
blocked and customers to file complaints, MCI did
not issue any customer refunds or credits, lose any
customers, or lose any profits. MCI also did not
rent substitute capacity from any other carrier. Indeed, there is no market for renting optical carriers
on an hourly basis.
MCI filed suit against CMES, seeking lossof-use damages measured by the theoretical rental
value of substitute equipment for the duration of the
outage (about 9 hours). MCI calculates this amount
to be more than $362,000, in addition to the
roughly $28,000 that MCI spent to repair the cable.
The district court granted summary judgment on
this loss-of-use damages claim, holding that Georgia law does not authorize the recovery of such
damages under the undisputed facts of this case. On
appeal, MCI argues that the district court erred in
this holding. MCI asserts that Georgia law permits
a telecommunications service provider whose cable
is severed to recover loss-of-use damages measured
by the rental value of substitute cable, even when it
has not rented such cable or otherwise incurred any
monetary loss apart from the cost of repair.
Page 2
649, 651–57 (2012). Specifically, the Court held
that “MCI cannot recover loss of use damages
[measured by the hypothetical value of renting substitute equipment] absent some showing of monetary loss apart from the cost of repair.” Id. at 652. In
view of this holding, it is clear that the district court
did not err in granting summary judgment on MCI's
claim for loss-of-use damages. We therefore affirm
its judgment.
We thank the Justices of the Georgia Supreme
Court for their thorough guidance on this question.
AFFIRMED.
C.A.11 (Ga.),2012.
MCI Communications Services, Inc. v. CMES, Inc.
698 F.3d 1333, 23 Fla. L. Weekly Fed. C 1617
END OF DOCUMENT
When we took this case under submission,
there was no Georgia appellate decision that was
squarely on point. MCI Commc'ns Servs., Inc. v.
CMES, Inc., 669 F.3d 1313, 1314 (11th Cir.2012).
This being the case, we certified the following
question of law to the Georgia Supreme Court:
Under Georgia law, may a telecommunications
service provider whose cable is severed recover
loss-of-use damages measured by the rental value
of substitute cable when it has not rented such
cable or otherwise incurred any monetary loss
apart from the cost of repair?
Id.
Recently, the Georgia Supreme Court answered
our question in the negative. See MCI Commc'ns
Servs., Inc. v. CMES, Inc., 291 Ga. 461, 728 S.E.2d
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.