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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

USIC LOCATING SERVICES, LLC,

Plaintiff,

v.

FLORIDA POWER & LIGHT COMPANY,

Defendant.

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CASE NO. 

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff USIC Locating Services, LLC (“USIC”), for its Complaint against Defendant 

Florida Power & Light Company (“FPL”), states and alleges as follows.

PARTIES, JURISDICTION, AND VENUE

1. USIC is a limited liability company organized under the laws of Delaware. Its sole 

member is USIC, LLC, a limited liability company organized under the laws of Delaware. USIC, 

LLC’s sole member is USIC Holdings, Inc., a Delaware corporation with its principal place of 

business in Indianapolis, Indiana. USIC is a citizen of Delaware and Indiana for purposes of 

diversity jurisdiction.

2. FPL is a Florida corporation with its principal place of business in Juno Beach, 

Florida. FPL is a citizen of Florida for purposes of diversity jurisdiction.

3. Effective January 1, 2017, USIC and FPL entered into a contract labeled Purchase 

Order No. 2400001323 (“Agreement”), in which USIC agreed, among other things, to provide 

underground utility locating services to FPL for the period January 1, 2017, until December 31, 

2021. A true and correct copy of the Agreement is attached as Exhibit 1.

4. The Agreement is governed by Florida law.

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5. The Agreement purports to incorporate and include FPL’s “Cable Locations 

Specifications” (Revised 1/30/17) and “Purchaser Standard Terms and Conditions for Services.” 

See Ex. 1.

6. Section 34.0 of the Purchaser Standard Terms and Conditions for Services in the 

Agreement provides, “Any disputes resulting in litigation between the parties shall be conducted 

in the state or federal courts of the State of Florida.” That section designates both the Circuit Court 

for Palm Beach County, Florida, and the United States District Court for the Southern District of 

Florida as appropriate venues for such litigation, among others, and states that the parties waive 

“any objection to the laying of venue based on the grounds of forum non conveniens and any 

objection based on the grounds of lack of in personam jurisdiction.”

7. Based on FPL’s enforceable consent to jurisdiction contained within the 

Agreement, as well as its systematic and continuous contacts with the State of Florida, this Court 

has personal jurisdiction over FPL.

8. Subject-matter jurisdiction exists over this matter pursuant to 28 U.S.C. § 1332 

because USIC and FPL are citizens of different states and the amount in controversy exceeds 

$75,000, exclusive of interest and costs. 

9. Venue is proper in this Court based on the parties’ forum-selection clause and the 

fact that FPL resides in this judicial district.

FACTUAL ALLEGATIONS

10. FPL owns and operates a network of underground electrical power lines throughout 

various parts of the State of Florida.

11. USIC has performed underground utility locating services for FPL under the 

Agreement from January 2017 to the present.

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12. In connection with that work, USIC responds to locate requests (or “tickets”) 

submitted by excavators to Sunshine811 (the statewide utility notification center created under 

Chapter 556, Florida Statutes), seeking to have FPL’s underground facilities marked in areas where 

excavation is planned.

13. Pursuant to its contractual arrangement, USIC handled over seven hundred

thousand locate requests per year just for FPL in Florida in the years 2018 and 2019.

14. FPL and USIC understand that excavation poses risks of damage to underground 

utility facilities, and both parties work together to avoid such damage to the greatest extent 

possible.

15. Damage to underground facilities can arise from any number of sources, which 

include but are not limited to errors in identifying and marking underground facilities, errors and 

omissions in FPL’s prints and maps relating to its underground facilities, acts or omissions by an 

excavator or other third party, and failures of communication or coordination between the various 

individuals or entities involved in a planned excavation.

16. The Agreement contains provisions that establish certain procedures when one of 

FPL’s underground facilities is damaged.

17. Among other provisions, the paragraph of the Agreement titled “Liquidated 

Damages,” within the Cable Locations Specifications, provides: 

The contract locator shall be liable for any and all costs incurred from Sunshine811 

due to past due locate requests as well as any other jurisdictional penalties. In 

addition, the contract locator is responsible to complete all valid locate requests in 

compliance with Florida Statute 556 and FPL Specifications. Failure to do so will 

result in nonpayment for each non-complying locate request. Contract locator will 

be allowed to delay, with proper excavator notification, equal to 15% of the total 

ticket volume sent to the contract locator without penalty which are due for any 

given month. If a non-complying locate request results in damage to FPL facilities, 

it will be investigated, and liability determined, by the FPL Company Claims 

Department. If the contract locator is found to be responsible for the damage, the 

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contract locator will be liable for all associated costs with those damages and any 

statutory fines imposed.

18. Recently, FPL has communicated to USIC that FPL interprets the Liquidated 

Damages provision of the Agreement to allow FPL to unilaterally determine not only the nature 

of liability related to a damaged FPL facility, but also the amount of damages for which USIC may 

be responsible.

19. According to FPL, this purported right under the Agreement includes the unilateral 

discretion to decide whether to repair a damaged facility or replace it altogether (at much higher 

cost).

20. Given the extremely high volume of locate requests handled by USIC for FPL each 

year and the risks related to excavation, USIC has been involved in a number of locate requests 

for excavation that ultimately resulted in an FPL facility being damaged, whether or not due to any 

fault of USIC.

21. Counsel for FPL has represented to USIC that FPL intends to file approximately 50 

legal actions against USIC in Florida in the near future, all of which will rest on FPL’s one-sided 

legal determination that it has the authority under the Agreement to determine not only USIC’s 

liability but the amount of damages for which USIC will allegedly be responsible.

22. The present aggregate total amount of damages to be claimed by FPL in those legal 

actions is over one million dollars. At least one such claim, individually, exceeds $75,000.

Damages are ongoing and will continue to accrue into the future.

23. USIC rejects FPL’s interpretation of the Agreement relating to liability and 

damages. FPL’s interpretation contradicts the plain language of the Agreement and the intention 

of the parties in executing the Agreement.

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24. The Agreement is intended to help prevent damage to FPL’s underground facilities; 

thus, excluding any intervening third-party acts or omissions, performance by USIC results in 

FPL’s facilities maintaining their present condition, value, and state of repair at the time of 

performance.

25. FPL does not have an expectation interest or entitlement under the Agreement to 

brand-new or improved underground facilities relative to the condition at the time of performance.

Damages in accordance with such a standard would result in an unreasonable windfall to FPL and 

create economic waste, by allowing FPL to expend—and seek to recover from USIC—costs 

involved in putting FPL in a better position than it would have been in absent any alleged breach.

26. FPL’s interpretation also contravenes FPL’s implied covenant of good faith and fair 

dealing, as it would allow FPL to recover more than the fair amount of damage proximately caused 

by any liability of USIC, and more than the amount to which FPL would otherwise be entitled 

under law.

27. USIC has attempted to confer with FPL to avoid the unnecessary legal expenses 

connected with FPL’s threatened actions, but FPL has not changed its intended course of action.

28. Even the threat of such legal actions poses an undue economic burden on USIC and 

interferes with USIC’s ability to properly forecast and plan its economic and business affairs.

COUNT I – DECLARATORY JUDGMENT

29. USIC incorporates by reference all preceding and succeeding allegations as though 

fully set forth herein.

30. The Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., authorizes this Court to 

enter a judgment declaring the rights and obligations of the parties under the Agreement and to 

grant further relief if necessary.

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31. An actual and present dispute exists between USIC and FPL regarding their 

respective rights and obligations under the Agreement. FPL maintains that it has the unilateral 

right under the Agreement to determine not only the fact of liability against USIC but also the 

amount of damages. FPL further maintains that the Agreement entitles FPL to damages exceeding 

the expectation value of USIC’s full performance under the Agreement, including the costs of 

replacement of damaged underground facilities where such replacement costs exceed the 

reasonable cost of repair or diminution in value of the damaged facility at issue, or would result in 

economic waste. USIC denies that the Agreement gives FPL such rights.

32. Because USIC’s and FPL’s future courses of action may be directly governed by 

the Court’s interpretation of the Agreement, the parties are faced with uncertainty as to their rights 

and legal obligations. USIC has no complete and adequate remedy at law or otherwise except by 

this request for judgment. The parties need guidance from this Court in the form of a declaration 

of their rights, obligations, and duties to guide their future conduct.

33. The declaratory judgment sought in this Complaint will provide enormous 

efficiencies of time, expense, and judicial resources.

WHEREFORE, USIC respectfully prays for judgment in its favor declaring the following: 

(1) Damages under the Agreement must be calculated in good faith in accordance with 

Florida law;

(2) Florida law, as applied to the Agreement, entitles FPL to “expectation” damages, that 

is, in the event of a breach of the Agreement, to be put in as good a position as it would 

have been had USIC fully performed under the Agreement;

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(3) Florida law, as applied to the Agreement, does not entitle FPL to costs associated with 

improving the condition of its damaged facilities, relative to their condition at the time 

of performance; and

(4) Florida’s doctrine of economic waste bars FPL from recovering the cost of replacement 

of its damaged facilities where such costs exceed the cost of reasonable repair or 

diminution in value of the facility at issue.

USIC further prays for an award of its costs and attorney’s fees, and for such other relief 

as this Court deems just and proper.

Dated: June 10, 2020 Respectfully submitted,

JONES FOSTER P.A.

/s/: Steven J. Rothman

Steven J. Rothman, B.C.S.

Florida Bar No. 501591

JONES FOSTER P.A.

505 South Flagler Drive, Suite 1100

West Palm Beach, FL 33401

(561) 650-0404

(561) 650-5300 fax

srothman@jonesfoster.com

Attorney for USIC Locating Services, LLC

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