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.

No comments: