Thursday, November 29, 2007

MISS DIG Act Clarified by Michigan Court of Appeals

The Michigan Court of Appeals recently clarified several aspects of the Protection of Underground Facilities Act (MCL 460.701) (the MISS DIG Act).

In SBC v J T Crawford, Inc, ___ Mich App ___ (Mich Ct App, Nov 27, 2007), a case of first impression, the Court held --
  • that pile driving is a construction activity subject to the MISS DIG Act,
  • that the excavation contractor, but not the pile driving subcontractor, was required to contact MISS DIG, but
  • the pile driving subcontractor could not rely upon the excavating contractor's locate request to MISS DIG, which had expired by the time the work actually began.
"[MISS DIG] requires that written or telephone notice of intent to excavate be given to the association at least three working days, but not more than 21 calendar days, 'before commencing the excavating . . . procedures.'"

And while the the Act does not define "commence," the Court of Appeals concluded that "excavation work (including pile driving) 'commences' under the statute when machinery or equipment intended for such work breaks the ground."

In this case, since Defendant Crawford (the pile driving subcontractor) did not commence pile driving until 22 days after the MISS DIG request, the ticket had expired. The Court of Appeals rejected Crawford’s argument that because (some) notice was given, it was not subject to strict liability under the Act. The statute specifically states "the" notice, not merely "notice."

"To interpret the necessary notice as Crawford would urge us to do would allow contractors to escape liability so long as they provided notice at any time prior to commencing excavation, even if it were a year. This interpretation is not consistent with [MISS DIG] . . . and would render the 21-day period in the act meaningless."

The Court of Appeals reversed and remanded the matter to the trial court for an explicit finding of whether competent evidence showed the damages were caused by Crawford’s pile driving activities, whether SBC complied with § 8, and a determination of the amount of damages, if any, for which Crawford is liable.

Link to full text of this opinion. For more information about MISS DIG, see their website.

UPDATE: On November 14, 2008, the Michigan Supreme Court denied Defendant's application for leave to appeal. SBC v JT Crawford, Inc, __ Mich __ ; __ NW2d __ (2008).

Peter J. Cavanaugh is a Shareholder with Keranen & Associates, P.C. Mr. Cavanaugh's practice is concentrated on business and construction law matters, including litigation, arbitration, and mediation of contract and property disputes, construction lien and surety bond claims, and disputes involving owners, contractors, subcontractors, and suppliers.

Mr. Cavanaugh also represents clients who specialize in water and wastewater construction.

For more information, you can contact Peter Cavanaugh at Keranen & Associates, P.C., 6895 Telegraph Road, Bloomfield Hills, Michigan 48301, Tel: (248) 647-9653.

Wednesday, November 21, 2007

Peter Cavanaugh to Speak at Michigan Construction Industry Professional Development Day on January 24, 2008

Attorney Peter Cavanaugh will speak about "Legal Issues in Managing the Construction Project" at the 5th Annual Michigan Construction Industry Professional Development Day program.

Professional Development Day is being held this year on January 24, 2008 at the Ann Arbor Marriott in Ypsilanti, and is sponsored by AGC of Michigan.

A registration form for Professional Development Day is available here.

Update: A copy of this presentation can be downloaded from the AGC of Michigan's website here.

Wednesday, November 07, 2007

U. S. Supreme Court Considers Tucker Act Challenge by Michigan Company

The Associated Press reports --

"The Bush administration, in a case involving a Michigan company, urged the Supreme Court on Tuesday [November 6, 2007] to maintain years of previous court rulings that have upheld a six-year statute of limitations in certain disputes filed against the government. The court is considering a narrowly tailored case involving the timeliness of a lawsuit filed by [John R. Sand & Gravel Co.] a Michigan gravel company - based in Lapeer County's Metamora Township - against the U.S. Environmental Protection Agency. At issue is the statute of limitations under the Tucker Act, an 1887 law which waives the government's sovereign immunity in cases involving contracts and constitutional claims against the government," reports the Associated Press.

Click here to read the full article.

For more information on the legal aspects of this case, check out the SCOTUS Blog entry on this case or the SCOTUS Wiki entry of this case here.

Thursday, November 01, 2007

Morris Pumps Decision Stands, Michigan Supreme Court Denies General Contractor's Application for Review

The Michigan Supreme Court decided yesterday (October 31, 2007) to DENY the general contractor's Application for Leave to Appeal the Michigan Court of Appeals decision in Morris Pumps v Centerline Piping, et al., which had ruled in favor of Morris Pumps and two other suppliers. The matter will be returned to the trial court, which still must conduct a trial on damages.

See, Morris Pumps v Centerline Piping, Inc., et al., 273 Mich App 187; 729 NW2d 898 (2006), lv app denied, 480 Mich 928; 740 NW2d 299 (2007).

UPDATE: The AGC of Michigan's Midweek Briefing for December 12, 2007 includes a story about the Supreme Court's decision not to review the Morris Pumps case.