MCI v. Mastec, Inc., No. 01-2059-CIV (8.D. Fla. 2003)(Exhibit B); MCI WorldCom Network
Services, ine. v. Morris Plumbing, No. 00-4250-CIV (S.D. Fla. 2003)(Exhibit C); MCT WorldCom
Network Services Inc. v. OSP Consultants Inc., No, 01-105-A (E.D. Va. 2002)(Exhibit D). In each
of the cited cases, the court applied the law of the state in which it sits. Jd Therefore, the cited
decisions are neither binding nor instructive as to the proper measure of | damages under Illinois law.

Nevertheless, Kramer argues MCI is not entitled to loss of use because it “made no effort to
contact any telecommunications companies to replace the DS-3 capacity lost in the occurrence.”
Motion at 3. Tllinois courts routinely allow loss of use damages even when the plaintiff fails to rent
substitute chattel. See McCabe v. Chicago & Northwestern R.R. Co., 215 Ill. App. 99, 1919 WL
1689 (ist Dist. 1919)(plaintifl' was permitted to recover damages for defendant’s unreasonable del: ay
in shipping a vehicle based on the rcasonable rental value of a similar vehicle even though the
plaintiff did not rent a replacement vehicle); Fairchild v. Keene, 93 Ill. App. 3d 23, 24, 416 N.E.2d
478, 476 (4th Dist. 1981)(reasonable rental expenses of substitute chattel was properly considered
by the jury as an element of plaintiffs damages even though plaintiff did not show rental of
lemporary replacement); Gent v. Collinsville Volkswagen, Inc., 116 IIL. App. 3d 496, 503-04, 451
N.F.2d 1385, 1390 (Sth Dist. 1983)(samc). Therefore, MCI was not required to seek substitute DS-3
capacity to recover loss of usc damages.

Kramer’s reliance on /nternational Harvester Credit Corp. v. Helland, 151 Tl. App. 3d 848,
503 N.E.2d 548 (2d Dist. 1986), does not change this result. In Harvester, the court found the
plaintiff was not entitled to loss of use damages based on reasonable rental value because the
plaintiff was not using and did not intend to use the property at the time of the deprivation. Jd. at
859, 503 N.E.2d at 555, The Harvester court further found that “[a] party should not be entitled to
recover full rental value for the loss of use of certain property when the injured party had other
property in his stock which was not available for rent to the public and which could have performed
the same function.” /d. at 858, 503 N.E.2d at 555. Here, MCI was using the fiber optic cable to
provide service to its customers at the time of severance. More importantly, MCT was unable to

reroute eight systems on its long distance network to alternative sources, including its own

4



reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
I, Choice of Law

A federal court exercising diversity jurisdiction must apply the choice of law rules of the state
in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). In deciding choice
of law questions in tort cases, Illinois courts usc the most significant contacts approach of the
Restatement (Second) of Conflict of Laws. Wreglesworth v, Arctco, Inc., 316 Ill. App. 3d 1023,
1031, 738 N.E.2d 964, 971 (1st Dist. 2000). Specifically, “Illinois courts apply the local law of the
place of the injury unless Illinois has a more significant relationship with the occurrence and with
the parties.” Id, quoting Vockrey v. Caterpillar Tractor Co., 146 Ill, App. 3d 1023, 1025, 497
N.E.2d 814, 816 (4th Dist. 1986). The parties do not dispute that Illinois law applies to MCI’s
claims.

WL Loss of Use Damages

Kramer first argues MC] cannot recover for loss of DS-3 capacity because the ancillary
equipment providing the DS-3 capacity was not damaged. However, Kramer fails to explain how
MCT could use the DS-3s generated by the ancillary equipment without a fully functioning cable.
Indeed, it is undisputed that MCI was unable to use seven 1.8 Gbs async systems with a capacity of
242 DS-3s and one OC-192 Optera system with a capacity of 192 DS-3s because of the severed
cable. Therefore, MCI may recover for the DS-3 loss caused by the severed cable.

Kramer next argues that MCI’s request for loss of use damages based on leasing alternative
DS-3 capacity from Ameritech is unreasonable and speculative. “In Illinois, damages for loss of use
are pencrally allowed where the plaintiff has been deprived of the use of personal property.” Nisbet
v. Yelnick, 124 Ill. App. 3d 466, 471, 464 N.E.2d 781, 784 (1st Dist. 1984). The measure of damages
is the reasonable rental value of similar property for the period of deprivation. /d. Kramer does not
offer any evidence that Ameritech’s rates are unreasonable. Rather, Kramer argues courts in other
states refused to award loss of use damages under similar circumstances. Motion at 3-5, citing MCI

WorldCom Network Services, Inc. v. Lind, No. 00-4407-CIV Jordan (8.D. Fla. 2002)(Exhibit A);

3



restoration system. Asaresult, 16,668 switched calls were blocked due to the interruption in service.
Under Jnternational Harvester, MCT is entitled to recover loss of use damages based on reasonable
rental value for Kramer’s severance of its fiber optic cable.

Finally, MCT was not required to lose revenue or business before secking loss of use
damages. In McCabe, the court held:

we think it clear that the plaintiff was entitled to recover for the wrongful detention

of his car and this, too, even though he sustained no pecuniary loss.

MeCabe, 1919 WL 1689 at *3. Absent legal authority to the contrary, MCT is entitled to recover loss
of use damages without showing loss of revenue or business.
CONCLUSION
Kramer fails to establish MCI is not entitled to loss of use damages as a matter of law.

Therefore, Kramer’s summary judgment motion must be denied.

June 19, 2003 ENTER:

B. Cnbonw

s . Conlon
United States District Judge


Mince Order Feri (067)

Xx Sy United States District Court, Northern District of Illinois

jigned Jud, % Sitting Judge if Other
wee Magara Judge Suzanne B. Conlon than Assaned Judge
| CASE NUMBER 02.7150 DATE 6/19/2003
CASE MCI WORLDCOM vs. KRAMER TREE SPECIALISTS
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., pluintiff, defendant, 3rd purty plaintiff, and (b) state briefly the nature.

MOTION; of the motion being presented]

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

Q) Oo Answer brief to motion due_____. Reply to answer briefdue____-

(4) Q Ruling/Hearingon set for at

(3) Qo Status hearing[held/continued to] [set for/re-set for]on set for at

(6) QO Pretrial conference[held/continued to] [set for/re-set for]on__ set for at
(7) Go Trial|sct for/re-set for]on at.

{8) im [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) =O Local Rule 41.1 OOFRCP41(aX1) OO FRCP41(a)(2).

qo) Mi [Other docketentry) Defendant’s motion for summary judgment on the issue of Joss of use damages
[28-1] is denied. Because defendant does not contest liability and no jury demand has been filed, the trial
set on July 2, 2003 is vacated. Plaintiff shall submit its damages prove-up memorandum and supporting
evidence by July 2, 2003; defendants shall file their response and evidence by July 11, 2003. ENTER

MEMORANDUM OPINION AND ORDER.
Mavens) (3 Colon

dl) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required.

umber of otis
Y | Notices mailed by judge's stall
Notified counsel by telephone. JUN 2 0 2003

Docketing to mail notices

Mail AO 450 form. LyNOd LALSIS ‘g

Copy to judge/magistrate judge,
200

dntg mailed nutie

couroom n2@ Ha 61 RAED

cB deputy’s
initials —— 91, 636R4
Dute/time re in

central Clerk’s Office nailing deputy nical



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MCI WORLDCOM NETWORK SERVICES, )
INC. )
) No. 02 € 7150
Plaintiff, ) 00
) Suzame B. Conlon, Judge 4 CKE 7 ED
v ) HUN 9 9
) “8 2003
KRAMER TREE SPECIALISTS )
INCORPORATED, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

In this diversity action, MCI WorldCom Network Services, Inc. (“MCI”) sues Kramer Tree
Specialists Incorporated (“Kramer”) for trespass and negligence in connection with Kramer's
severance of an MCT fiber optic telecommunications cable on September 15,2001. Kramer does not
dispute liability, but moves for summary judgment pursuant to Fed. R. Civ. P. 56 on MCI’s request
for loss of use damages.

BACKGROUND
1. Local Rule 56.1

Local Rule 56.1 requites litigants to follow a detailed procedure in filing and responding to
summary judgment motions. Local Rule 56.1 provides:

If additional material facts are submitted by the opposing party pursuant to section

(b), the moving patty may submit a concise reply in the form prescribed in that

section for a response.

Local Rule 56.1{a). “All material facts set forth in the statement filed pursuant to section (bX3)(B)
will be deemed admitted unless controverted by the statement of the moving party.” /d. Kramer

failed to respond to MCT’s statement of additional facts, Pursuant to Local Rule 56.1(a), MCT’s

additional facts arc deemed admitted.

U|


IL Facts

All facts arc undisputed unless otherwise noted. MCI is a Delaware corporation with its
principal place of business in Mississippi. MCI provides telecommunications serviccs to individual
and commercial customers. Kramer is an Illinois corporation with its principal place of business in
Tilinois.

On September 15, 2001, Kramer severed an MCI fiber optic telecommunications cable, The
ancillary equipment supporting the cable was not damaged. MCT was able to reroute a portion of
the telecommunications traffic carried on the severed cable. However, MCI was unable to rcroute
eight systems on its long distance network. Specifically, MCI was unable to reroute seven 1.8 Gbs
async systems with a capacity of 242 DS-3s! and one OC-192 Optera system with a capacity of 192
DS8-3s, Another 43 DS-3 circuits were interrupted on MCI’s local network. MCI restored service
within 4.85 hours after Kramer severed the cable. In the interim, 16,668 switched calls were blocked
due to the interruption in service.

MCI spent $13,212.00 to repair the cable. In addition, MCI requests $307,847.35 in damages
for loss of use of its long distance network systems.

DISCUSSION
I Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R, Civ.
P. 56(c); Celotex Corp. v, Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its
burden, the non-moving party must go beyond the pleadings and set forth specific facts showing
there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Silky. City of Chicago, 194 V'.3d 788, 798
(7th Cir. 1999). The court considers the record as a whole and draws all reasonable inferences in
the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co.,212 F.3d

969, 972 (7th Cir, 2000). A genuine issue of material fact exists when “the evidence is such that a

1 A DS-3 is a unit measuring capacity equal to 672 individual voice calls or data cquivalent.

2