Authority for the County Attorney to Initiate Litigation in the Case of Pinellas County v. Verizon Florida, LLC
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1 TO: FROM: SUBJECT: The Honorable Chairman and Members of the Board of County Commissioners James L. Bennett, County Attorney Authority for the County Attorney to Initiate Litigation in the Case of Pinellas County v. Verizon Florida, LLC DATE: October 26,2010 RECOMMENDATION: I RECOMMElVD THAT THE BOARD OF COUlVTY COMMISSIONERS AUTHORIZE THE COUNTY ATTORNEY TO INITIATE LITIGATION IN THE ABOVE-STYLED CASE. DISCUSSION: This is an action at law to collect for damages sustained by the County as a result of a breach of a 10" sewer force main on Gulf Boulevard, Indian Rocks Beach, FL, that occurred on October 8, Verizon was a permittee pursuant to a Right of Way Utilization Permit granted by the County to conduct underground horizontal boring operations to install FIOS cable to its customers. A sub-contractor of Verizon, during the course of the boring operations, drilled into the 10" sewer force main causing it to rupture. The County incurred approximately $85,000 in costs for the repairs and clean-up. This lawsuit is to compel payment by Verizon of those costs. JLB : JAP Attachment H:\USERS\ATYKB02\WPDOCS\LITIGATION - JAP\Verizon\Board Memo\Board Merno.doc
2 IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION PINELLAS COUNTY, a political subdivision of the State of Florida, Plaintiff, VERIZON FLORIDA, LLC, a Florida Limited Liability Company, Case No.: Defendant. I COMPLAINT COMES NOW, Plaintiff, PINELLAS COUNTY, a political subdivision of the State of Florida, (hereinafter "County"), and files its Complaint against Defendants VERIZON FLORIDA, LLC, (hereinafter "Verizon"), and alleges as follows: GENERAL ALLEGATIONS 1. This is an action against Verizon for damages in excess of $15, County is a political subdivision of the State of Florida. 3. Verizon is a Florida Limited Liability Company, whose principal address is listed as Tampa, Hillsborough County, Florida. 4. On or about August 8,2008, Verizon applied for a Right of Way Utilization Permit with County to install a fiber optic cable underground on Gulf Boulevard, north of Causeway Boulevard, Indian Rocks Beach, Pinellas County, Florida, by way of directional boring. 5. On or about August 13,2008, County granted Verizon's application. A copy of the Right of Way Utilization Permit is attached hereto, made a part hereof, and marked as Exhibit "A"
3 6. Verizon knew, or should have known, that the County had underground facilities, including sewer mains, in the area in which Verizon intended to conduct its boring operations. 7. On or about October 8,2008, at or near 1601 Gulf Boulevard, Indian Rocks Beach, Pinellas County, Florida, in the course of conducting underground boring operations, Verizon struck County's 10" sewer force main, damaging County's underground facilities, rupturing the main, and causing raw sewage to flood the surrounding area. 8. All conditions precedent to this action have occurred or have been waived. COUNT I NEGLIGENCE 9. County repeats and realleges Paragraphs one through eight as if set forth in full. 10. Verizon had a duty to exercise reasonable care during the course of it conducting boring operations in consonance with the Right of Way Utilization Permit. 11. Verizon breached its duty by: a. Failing to properly locate the County's underground facilities, including the 10" sewer force main; b. Failing to properly utilize ground penetrating radar to determine the location of the County's underground facilities, including the 10" sewer force main; c. Failing to properly supervise its employees, agents, and subcontractors during the boring operations so as to avoid damaging the County's underground facilities, including the 10" sewer force main; d. Failing to properly differentiate between the 10" sewer force main and the ground water table when attempting to locate the County's underground facilities, including the 10" sewer force main;
4 e. Failing to field verify the location of existing facilities, including the 10" sewer force main, prior to conducting boring operations; f. Failing to exercise extreme caution not to disturb the County's existing facilities, including the 10" sewer force main. 12. County has sustained damage to its property, the 10" sewer force main, as a result of Verizon's negligence. County has incurred substantial costs and expenses for the repairs to its property and for the clean up of the flooding of the raw sewage that Verizon's negligence occasioned. WHEREFORE, County demands judgment against Verizon for damages, costs, interests, and for such other relief as is deemed just and proper. COUNT I1 BREACH OF CONTRACT 13. County repeats and realleges Paragraphs one through eight as if set forth in full. 14. County and Verizon entered into a written contract, to wit: the Right of Way Utilization Permit, a copy of which is attached hereto, made a part hereof, and marked as Exhibit "A. 15. County performed all conditions precedent to be performed by the County, or the conditions have occurred. 16. Verizon breached the Right of Way Utilization Permit by: a. Failing to properly locate the County's underground facilities, including the 10" sewer force main;
5 Failing to properly utilize ground penetrating radar to determine the location of the County's underground facilities, including the 10" sewer force main; Failing to properly supervise its employees, agents, and subcontractors during the boring operations so as to avoid damaging the County's underground facilities, including the 10" sewer force main; Failing to properly differentiate between the 10" sewer force main and the ground water table when attempting to locate the County's underground facilities, including the 10" sewer force main; Failing to field verify the location of existing facilities, including the 10" sewer force main, prior to conducting boring operations; Failing to exercise extreme caution not to disturb the County's existing facilities, including the 10" sewer force main; Striking and breaching the 10" sewer force main; Failing and refusing to repair any of said damage to County's underground facilities, including the 10" sewer force main, and the damage resulting there from; Failing and refusing to pay for said damage to County's underground facilities, including the 10" sewer force main, and the damage resulting there from. 17. County has sustained damage to its property, the 10" sewer force main, as a result of Verizon's breach of the Right of Way Utilization Permit.
6 18. County has incurred substantial costs and expenses for the repairs to its property and for the clean up of the flooding of the raw sewage that Verizon's breach occasioned. WHEREFORE, County demands judgment against Verizon for damages, costs, interests, and for such other relief as is deemed just and proper. COUNT 111 INDEMNIFICATION 19. County repeats and realleges Paragraphs one through eight as if set forth in full. 20. County and Verizon entered into a written contract, to wit: the Right of Way Utilization Permit, a copy of which is attached hereto, made a part hereof, and marked as Exhibit "A. 21. County performed all conditions precedent to be performed by the County, or the conditions have occurred. 22. Paragraph 6 of the Right of Way Utilization Permit requires Verizon to "repair any damage or injury to... County property by reason of the exercise of any of the privileges granted in this Permit..." Verizon failed and refused to repair any of the damages to the County's 10" sewer force main, and failed to repair the damage to County's property and for the clean up of the flooding of the raw sewage. 23. Fla. Stat (2) states that "(t)he permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit." 24. Paragraph 5 of the Right of Way Utilization Permit requires Verizon to indemnify the County for such damages and expenses. 25. Verizon failed and refused to pay for said damage to County's underground facilities, including the 10" sewer force main, and the damage resulting there from.
7 26. County performed or paid for the repairs to its damaged property, including the 10" sewer force main, and the damage resulting there from. 27. Verizon owes the County $85,828.56, with interest from October 8,2008 for said damages and costs of repair. WHEREFORE, County demands judgment against Verizon for damages, costs, interests, and for such other relief as is deemed just and proper. County demands trial by jury. DEMAND FOR TRIAL BY JURY John A. Powell, Jr. Senior Assistant County Attorney FBN // SPN Pinellas County Attorney's Office 3 15 Court Street, Sixth Floor Clearwater, Florida Tel: Fax: Attorney for Pinellas County h:\users\atykb02\wpdocs\litigation - jap\verizon\pleadings\dr& complaint version ii doc
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