morning your honors please the court counsel my name is true or galanter and i do represent a t n t your honor this morning on this matter involving fiberoptic cables and i would like to reserve for rebuttal three minutes if you would  please as i think you your owners know this is a case where jackson utilities was excavating and caused damage to eighteen ts underground fiber optic facilities in montana the district court found that eighteen t s actions contributed to the event and applied a contributory negligence scheme to assess thirty five percent responsibility to a t n t and sixty five percent responsibility to jackson utilities and so really here on two points the first is that the court should reverse the district court's decisions applying the contributory negligence scheme and render judgment in favor of eighteen t for the quote entire cost of the repair at issue because that is what many montana law clearly an awning big us lee requires and then with that done the court should reverse the district court's decision to deny the award of pre judgement interest since the court's decision was based solely on the premise that prejudgment interest is not available where contributory negligence applies as for the first issue the montana digg law clearly and unambiguously states that an excavator that violates section sixty nine dash for dash five o three is liable is quote liable to the owner of the underground facility for the entire cost of the repair of the facility close quote jackson utilities in this case was those entire costs are two hundred thirty seven thousand four hundred seventy one dollars but because of course the award of thirty five percent contributory negligence that leaves the difference of about eighty three thousand dollars that's really in dispute here on that issue jackson utilities successfully argued that should be applied here and indeed in the case this record montana determined that the principles of contributory negligence may be applied only in the quote absence of an express statutory provision to the contrary so jackson till he successfully argued that the quote entire cost of repair language that's in the statute is not directly contrary to the application the principles of contributory negligence but the legislature of course could have said many things other than entire cost the legislature could have said proportionate responsibility instead the legislature specifically chose to use the words entire cost the court in john breaux although it says and in the absence of any express statutory provision of the contrary it never says exactly what that language has to be it never says that the legislature specifically has to say whether contributory negligence applies just any language will do the trick and in this case clearly the legislature mandating that the entire cost repair is directly contrary to the concept that it should be forced in the months various parties counsel is there any difference between an excavator who makes no attempt to obtain the information and an excavator who does make an attempt to obtain the information but then for various and sundry reasons misreads the markings or goes forward in a manner that was negligent but they did attempt to obtain the information and apply the information i think the direct answer would be whether it is contained within sixty nine four five zero three because that's the statute the statute says if you violate that specific statute then you have to pay the entire cost there could be many other ways the next to better could be negligent was the think what you're getting to that you would not be in violation of that statute but the legislature says if you  information then you're going to be informed right but if you go in and you obtain information are your duties discharged so to speak your requirement to know that folding back in th know sixty nine for five or three creates continuing obligations not simply appending information so directly answering the first part of that question you have tain information by a couple of things one you call in a one call ticket or a dig ticket so you call that in and then of course jackson utility they absolutely did your honor there is a dick ticket that was if it's in this case and then there's other ways that you can obtain information by obviously just using your eyes looking around in this case eighteen t had permanent markers that were in the area that the court found obviously was part of the evidence that there were facilities that were buried there in addition to the temporary markers that the court found evidence that existed out there at the time that damaged by an excavator who has failed to obtain information as to its location as provided in sixty nine four five zero three then the then excavator is liable to the owner right so that's that's saying you have to you have to do what's thing you know the court specifically found there's no dispute the course specifically found they did not obtain the information that they were supposed to tain in connection with five of three they did they violated that statute so they're called to it was your point then is the call and then getting it specifically marked it but then of course sixty nine for five or three has continuing obligations that you have to maintain those mortgages so they called in the information they called in and said this is where we're going to be digging right correct ok hundred he came out for some reason or other didn't understand the call that right and they pay for its findings and they place well you know we have to live with what the court as a result they place the new markers that are different location is that right now my understanding that the court found the place new markers in a different location and in this location before the damage was done but i'm talking about in response to this call in right that right but not within twenty four hours or forty eight hours i'm sorry well that's the that's the issue was the court found that they didn't do it within forty eight hours but it didn't do what within forty eight hours marking that specific area within forty eight hours of eight thousand feet eight hundred eighty correct so eight hundred he had forty eight hours within which to do the marking right of that specific area in the digging was within that forty eight hours you know that the digging was until like two weeks later and the end the jackson people definitely messed up they didn't follow the markings the way they should have but that's what the court found great but that means they were negligent does that mean they violated this statute when you're saying that obtain information is an ongoing responsibility that requires them to not miss what's more the court specifically found they violated the statute and nobody's appealed that that is not an issue for the court that's accelerating which statute sixty nine four five zero three three so but but the court also was saying there's contributory negligence her and i'm not going to follow the entire costs portion of it so wasn't the court sort of trying to come to some resolution here that established you know this isn't the classic case of an excavator not doing anything right and it's not the classic case of the utility complying with their requirements to i think this is a very classic case in that utility or excavators often do something but there still ends up being damage and the legislature has very specific reasons why it needs to make sure that the ex greater who's the entity that's out there and who's the only one that's in control at the time that it decides to move forward in violation of the statute is responsible these these utilities ultimately i mean we're talking about gas we're talking about sewer public electricity you know individuals that are working out there get killed when excavator doesn't do things that they're supposed to do people that rely on these utilities are out of service when the excavators don't do what they're supposed to do  and the government if the digging had happened within two days and eighteen t had not complied with their version of the what their responsibility was under the statute the exact same thing could have happened where they can't dig within two days they'd be in violation of statute there as well they have to wait until that time period passes and then even if they wait and they see that there's no markings out there for a temporary basis the statute says if you see the permanent markers that are out there that the court found they found that you can't just keep blowing through and doing excavation because these these utilities which are often owned ultimately by municipalities as well and or they're they're owned by entities that are controlled by the public utility commission that sets rates to protect the rate payers those are all the interest that the legislature has taken into consideration and deciding we are we are mandating that entire cost be followed the court obviously said i'm not going to follow about law a minute i'm going to change it i'm going to i'm going to apply contributory negligence and that's obviously not the role of the court the court is supposed to follow what the legislature decided my name is patrick sullivan i represent jackson utilities l l c in this case few general comments i'd like to make at the outset the montana diggle imposes very important obligations on both the active escovedo and the facility owner and it's not difficult to understand that in order to adequately safeguard underground facilities is necessary for both the vater and the facility order to meet their statutory obligations for instance the excavator has to rely on the facility owner in a lease to respects number one the facility owner must meet the statutory obligation to timely mark the facility as required in the statute the reason for that so that the excavator can plan the work and know where to go and be aware of what is out there to avoid number two it's very important of course if the facility owner al q atlee mark their facilities and assessor requires it markings must be made within eighteen inches of the lateral dimensions of the system or the underground facility so in this case after a five day trial lot of evidence transcripts the court really has virtually hardly has any evidence in front of it but the trial court came to a decision i don't think either party was entirely happy with that both parties argued that the other side was primarily at fault here  well the court should not have applied contributory negligence principles relying on this basically basically one word in the stanch if this entire cost language mr gl the correct rule of law that in montana contributory negligence applies in any negligence percey claim unless the statute expressly declares to the contr and the district court of course rolled on a motion to amend that eighteen thousand filed suddenly rejecting the arguments that we've heard here today it a short and concise order basically stating obviously the order speaks for itself but the court said there is nothing in the dig law that states a contributory negligence is not a defense that applies any claim under the declaw statutes which suggests that you wouldn't have a sharing arrangement do you that your view you have to take that somehow the montana general negligence decisions he's a former supreme court justice clearly the olson case which they have cited in their brief they claim that the the court trial court failed to follow olson even though judge morris was the author of that decision has participated in some of these other decisions dealing with the impact of contributory negligence but the cases are clear stating that in montana contributory negligence it unless there are very unusual circumstances that do not do not apply here you know i could use other examples too i mean let's just say for instance that a statute aggrieved party is entitle recover all damages resulting from another parties breach of a duty of care all damages does that mean that the contributory negligence defense does not apply certainly not i don't see much of a difference between saying all damages or entire damages are entire cause the there's certainly nothing in the case law in montana that would accept that strange interpretation of any kind of a damage provision like this so i think it would be really unfair and nonsensical they could be a better word to have a role where in this type of scenario the facility owner has no legal responsibility so in other words if you got the excavator going out and you got the facility owner going on they were cannon hand i mean in real world it's not like they don't know each other they're dealing with each other on a daily basis on a regular basis in most occasions and to say that well if the if the excavator makes a mistake fine to give him one hundred percent of the damages but if the facility owner makes a mistake it doesn't matter how did their mistake affect what your client did how did how did their mistake not doing it when he you know will try to summarize that because it off what was confusing here is that there were some prior markings from a prior job that was done before this particular job and i keep in mind this is not the only ticket there was called into this job there were many many many tickets called in by various people including jackson utilities so there were some flakes in this area but not the jackson utilities flakes and campania the problem is  other utility owner century link they eat receive the ticket and they've marked their route which is went along pretty much the same in the same  went on then they stopped marking to kick in kind of a strange coincidence but there's a section between refer to it anderson road in highland road as you move north there's damage some issues about whether he t n t went out and move the remarks after the fact you know that nothing that but that is on a on appeal here but it wasn't what it turns out to be is that when you're an excavator is is excavating a route of like four thousand feet you know that's a pretty long distance ok it's not unusual to be excavating in close proximity to an existing route where the underground facility is they can be with within two feet and that's very conical parallel plowing so you might be going up a highway they have to rely on these flags show in the underground facility and if they're off in the obviously you know there can be some real problems here but what a t t in t was doing they didn't like the fact that they had to mark four thousand feet of this so they just made a determination as to where they thought the jackson utilities excavation route was going to be so they only went out mark perceived conflict points which is not proper and it's not the way that the other utility d it's not the way that other utilities do it the way that they should have done it they should just gone out every five or ten feet and put a flag down showing their entire route not just saying well we don't think you're going to be plowing there so don't worry about it ok that that's one thing so then the reason that's important is that when jackson utilities gets up to this area they don't see any of their flags and they say well that's not unusual because they only marked areas of perceived conflicts so you might go fifty or one hundred feet before seeing any flake and so in their market when they're plowing in an area they have to assume that the facility owner adequately marked the location of the facility but in this case it didn't happen there there is testimony from the engineer who was just an observer  who said that he was there an eyewitness didn't have any idea that there was a utility that was struck this is a non jackson utility's employee is employed by the project engineer who's found that your client violated five o three you don't agree with that but he did find it and which means that he found that your client failed to obtain the necessary information correct well  lackadaisical as a matter of law because if they find out that the car excavator has done something wrong it would allow them to just sit back and watch the whole story play out and say aha i've there's no they filed a reply brief of course are trying to get a response too and they go into all kinds of these factual arguments factual issues there's really no evidence in the record they've provided nothing it with their probably provided a few documents selective documents that they've attached to their supplemental excerpts but they talk about placing of white fla and who did this again we're talking about factual issues we went a whole week at trial dealing with all of this we haven't had an opportunity to respond to what they're saying we think their allegations are relevant but what the obligation that they had is to go out and mark the area based on the information in the ticket and what they're saying is that while there was no white flags and that they say that the engineer didn't stake in till later on well the engineer was not putting in white flags engineer was putting in the stakes the engineer is the party that identifies the route the excavator only does the excavation work excavators or not engine ears are not scien the contract the general contractors you know they're kind of on the low level of the scale out there and they're just doing what they're told to be done they have to call in the ticket the ticket identifies the area eighteen to get said they have a legal obligation to take that ticket and locate in response to that ticket and if they don't know or don't understand it's incumbent upon them to contact the excavator to to  a sort out any discrepancies that there that there may be so they made a lot of mistakes they didn't even read the ticket right ok so they understood the ticket to be meaning that it  it only played to a different area and the judge rejected trial judge rejected that argument as well they say that well you know jackson utilities are the only people on judge made his conclusions of law you're correct that he did find that he did hold that you violated five o three but in the performance in the way that work with perform that i understood him to find in paragraph fourteen of its conclusions of law that you had properly notified did satisfy the notification obligation under five o three and that right yeah yeah he i think the judge the judge says hey you did everything right jackson utilities you you you know you've submitted the ticket you did all that right what their way he criticized jackson utilities is because there were some confusing get legs out i know that's right ok and that's ok at this point we're not appealing that i mean certainly i guess really just seeing addressing justifies his last comment and question that language in the statute failed to information as to its location that's not calling it a ticket that's that's finding out where the cable exist so you don't damage it when you read five zero three it doesn't just say you call in a ticket it says you have to there's a lot of things that you have to do to find out where the actual location of the cable is so you do not hit it and then just as you just have to go to the the district court's finding conclusion j you called in a valid ticket the ticket to the one call notification center in july seventeen this ticket complied with the requirements of montana code sixty nine for dash five zero three you know that it described the location of work and provided notice to facility owners of the impending work right but he does not say he does not find that they found that they complied with the statute to find the location of the facility they only complied to the extent they called in the ticket if you read five o three they have continuing obligations that he goes on to talk about that they violated which ultimately led them to not finding the quote location as provided in sixty nine four five zero three that's that's what the statute says that they did not do well i understood in his later conclusions is that both of you were negligen no doubt about that he found that we were contributory negligence but he does not find that they found the location because obviously if they had found the location of the cable they wouldn't hit it we all know they didn't find the location of the cable and he found that they didn't find it by by in violation of five o three he only found that they think that they called in a ticket which is not finding the location of the cable the the other one of the first points that he made was that a ladies there's burdens and duties on both sides and there absolutely are but you have to look at how it's laid out in the statute it's first verducci an obligation to call in the ticket then it's due to an obligation to respond and then regardless of whether they respond accurately there's still ongoing duties and obligations of jackson utilities again saying with five o five because we're looking at five a five one a five zero five one a clearly says if you violate that five o three then you're liable for provides it recognizes that eight hundred he has duties and it recognizes then that basically provides the excavator a get out of jail free card as long as they're not negligent but the court did in fact find that they were negligent so that get a free card doesn't apply here so then you're still left with where you start off in the very first sentence of the statute that they will have zero for the entire cost nothing changes that because that that section of the provision doesn't apply in even further it's caused by their negligence and of course in  today thank you