The decision by the United States District Court for the Eastern District of Virginia in Level 3 Communications, LLC v. William T. Cantrell, Inc., No. 3:12-CV-081-HEH (May 4, 2012), affords leverage to telecommunications companies seeking to obtain relief from persons who damage or interfere with their facilities located in Virginia public rights of way (“ROW”).
The plaintiff in the case, a fiber optics-based telecommunications company, had buried its fiber optic cables in a Virginia state highway ROW with permission from the Commonwealth. When it received notice from Miss Utility that the defendant, a contractor, was going to excavate in the area of the cables, the plaintiff marked the road to show the cables’ approximate location. Plaintiff alleged in the complaint that
The decision by the United States District Court for the Eastern District of Virginia in Level 3 Communications, LLC v. William T. Cantrell, Inc., No. 3:12-CV-081-HEH (May 4, 2012), affords leverage to telecommunications companies seeking to obtain relief from persons who damage or interfere with their facilities located in Virginia public rights of way (“ROW”).
The plaintiff in the case, a fiber optics-based telecommunications company, had buried its fiber optic cables in a Virginia state highway ROW with permission from the Commonwealth. When it received notice from Miss Utility that the defendant, a contractor, was going to excavate in the area of the cables, the plaintiff marked the road to show the cables’ approximate location. Plaintiff alleged in the complaint that defendant severed the cables when excavating in the ROW, thereby impairing plaintiff’s right not only to use the cables but also its right to use the ROW. Plaintiff accordingly brought claims seeking compensatory and punitive damages from the contractor for trespass, negligence, and violation of the Virginia Underground Utility Damage Prevention Act.
Defendant unsuccessfully moved to dismiss the trespass and punitive damages claims. Regarding the trespass claim, the court in this decision held that plaintiff had sufficiently alleged a trespass to land claim because – when viewing the allegations of the complaint in a light most favorable to the plaintiff as the court was required to do on a motion to dismiss – one could construe permission from the Commonwealth to bury cables in the ROW as transferring exclusive possession of the land in which the cables were buried to plaintiff. In any case, the court also indicated that, even if the complaint did not state a claim for trespass to land, it stated one for trespass to property other than real estate, i.e., the fiber optic cables.
As to defendant’s attempt to dismiss the punitive damages claim, tlanhe court accepted (as required for purposes of the motion to dismiss) the complaint’s allegations that defendant had substantial excavation experience; had failed to adhere to industry regulations and precautions when excavating near the cables; and that plaintiff had marked the road to show the location of the cables before the excavation. The court reasoned that the complaint contained sufficient allegations necessary to support a claim for punitive damages, namely that defendant had acted intentionally, with gross negligence, or a conscious disregard toward plaintiff’s rights.
This decision is important for its recognition that damage to, or interference with, property on a public ROW may still give rise to a claim for trespass to land. In that regard it provides extra leverage to entities such as facilities-based telecommunications companies if their cable private property located on a ROW is damaged. The decision is also noteworthy for allowing a punitive damages claim to go forward even for what ostensibly could be viewed as a negligent as opposed to an intentional act.
