Order Michigan Supreme Court

Lansing, Michigan 

November 14, 2008 Clifford W. Taylor,

 Chief Justice 

135581 & (72)(76) Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. SBC, Stephen J. Markman, Plaintiff-Appellee/ Justices Cross-Appellant, 

v SC: 135581 

 COA: 275334 

Oakland CC: 2005-067918-NZ 

J. T. CRAWFORD, INC.,

Defendant-Appellant/ 

Cross-Appellee,
 

and 

HENKELS & MCCOY, INC.,

 Defendant.
 

_________________________________________/ 

On order of the Court, the motion for leave to file brief amicus curiae is 

GRANTED. The application for leave to appeal the November 27, 2007 judgment of the 

Court of Appeals is considered, and it is DENIED, because we are not persuaded that the 

questions presented should be reviewed by the Court prior to the completion of the 

proceedings ordered by the Court of Appeals. The application for leave to appeal as 

cross-appellant is therefore moot and is DENIED.

 CORRIGAN, J. (dissenting). 

I respectfully dissent from the order denying defendant’s application for leave to 

appeal. I would grant leave to appeal because I believe that the Court of Appeals erred in 

its interpretation of the protection of underground utilities act, MCL 460.701 et seq. 

(commonly known as the MISS DIG act). 

SBC sued general contractor defendant Henkels & McCoy, Inc. and subcontractor 

defendant J.T. Crawford, Inc., under the MISS DIG act, in this negligence and strict 

liability action. Consumers Energy contracted with an excavator, Henkels, to repair its 

underground gas lines at a site in Oakland County. On September 29, 2003, Henkels 

called the MISS DIG hotline and gave the location of its planned excavation. SBC’s 
 

 

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representative apparently did not understand Henkels’s request to locate SBC’s 

underground utilities. Moreover, SBC’s representative did not contact his supervisor for 

clarification. In any event, SBC’s utility lines were not marked. Every other utility 

company properly marked their underground utilities at the excavation site. 

On October 1, 2003, J.T. Crawford, Inc. quoted a price for pile driving to Henkels 

that specified “excavation” as “work by others.” On October 9, 2003, defendant Henkels 

contracted with Crawford to perform pile driving operations. Crawford was to drive steel 

sheets into the ground to serve as retaining walls for Henkels’s excavations. 

Twenty days after notifying MISS DIG, on October 18, 2003, Henkels 

commenced operations by removing concrete, curbs, and pavement from the excavation 

site. Henkels also dug test holes to locate marked underground facilities. Two days later, 

Henkels placed its equipment on site and prepared for pile driving, which Crawford 

began on October 21, 2003. During its pile driving operations, Crawford transected 

SBC’s unmarked telecommunications cables. On November 19, 2003, Henkels’s 

supervisor e-mailed Crawford and clarified that “[w]e (Henkels & McCoy, Inc.) told J.T. 

Crawford that he did not have to make the one call (Miss Dig in Mi.) because we had 

already made the call.” Henkels’s supervisor concluded, “I certainly am not an attorney, 

but the company that is responsible for the damage to the lines is not J.T. Crawford but 

SBC and WOW.” 

Defendant Henkels settled with SBC. SBC’s case proceeded against Crawford. 

Following discovery, SBC and Crawford filed cross-motions for summary disposition. 

The circuit court granted summary disposition in favor of Crawford. On appeal, the 

Court of Appeals reversed, concluding that the ticket issued by MISS DIG had already 

expired when Crawford began pile driving under MCL 460.7051

 and MCL 460.714.2 

1

 MCL 460.705(1) provides, in relevant part: 

[A] person or public agency responsible for excavating or tunneling operations, 

drilling or boring procedures, or discharge of explosives in a street, highway, other public 

place, a private easement for a public utility, or near the location of utility facilities on a 

customer’s property, or telephone notice to the association as required in [MCL 460.707] 

of intent to excavate, tunnel, discharge explosives, or demolish at least 2 full working 

days, excluding Saturdays, Sundays, and holidays, but not more than 21 calendar days, 

before commencing the excavating, demolishing, discharging of explosives, tunneling 

operations, or drilling and boring procedures. Beginning on October 1, 1990, the notice 

required in this subsection shall be given at least 3 full working days, excluding 

Saturdays, Sundays, and holidays, but not more than 21 calendar days, before 

commencing the excavating, demolishing, discharging of explosives, tunneling 

operations, or drilling or boring procedures. 

2

 MCL 460.714 provides: 
 

 

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The Court of Appeals remanded for further fact finding regarding whether competent 

evidence proved that the damage to SBC’s telecommunications cables resulted from 

Crawford’s pile driving. Crawford now seeks leave to appeal in this Court. 

In my view, the Court of Appeals erred when it concluded that Crawford could not 

rely on Henkels’s timely notice under the MISS DIG act, but instead that Crawford was 

itself required to notify SBC before it began pile driving. The plain language of MCL 

460.705(1) does not support the Court of Appeals interpretation. “When interpreting 

statutes, our primary goal is to give effect to the intent of the Legislature.” Nastal v 

Henderson & Associates Investigations, Inc, 471 Mich 712, 720 (2005). We review the 

language of the statute itself and give the words used by the Legislature their common 

and ordinary meaning. Id. “If the statutory language is unambiguous, we must presume 

that the Legislature intended the meaning it clearly expressed and further construction is 

neither required nor permitted.” Id. 

MCL 460.705(1) provides that “a person or public agency responsible for 

excavating or tunneling operations” must give notice of its intent to excavate “at least 3 

full working days, excluding Saturdays, Sundays, and holidays, but not more than 21 

calendar days before commencing” with excavation operations. Here, the person 

“responsible for the excavating or tunneling operation” was the excavator and general 

contractor, Henkels. To perform repairs on Consumers Energy’s underground gas lines, 

Henkels oversaw an excavation operation. As one part of its larger excavation operation, 

Henkels subcontracted with Crawford to perform pile driving. 

Under the plain language of MCL 460.705(1), only the responsible party is 

required to furnish notice. As the Court of Appeals interpreted the statute, however, even 

those parties not responsible for the overall operation, including various subcontractors 

like Crawford, also must give notice. This reading injects additional language into the 

statute, namely that “[a] person or public agency responsible for excavating or tunneling 

operations or responsible for any related work therein” must provide notice before 

beginning work to guard against liability. The Legislature clearly expressed that only 

“[a] person or public agency” responsible for the excavation operation, and not that every 

“person or public agency” somewhat responsible for any part of the operation must give 

In a civil action in a court of this state, when it is shown by competent evidence 

that damage to the underground facilities of a public utility resulted from excavating, 

tunneling, drilling or boring procedures, or demolishing operations, or the discharge of 

explosives, as described in [MCL 460.703] and that the person responsible for giving the 

notice of intent to excavate, tunnel, demolish, or discharge explosives failed to give the 

notice, or the person did not employ hand-digging or failed to provide support, the person 

shall be liable for the resulting damage to the underground facilities, but the liability for 

damages shall be reduced in proportion to the negligence of the public utility if it fails to 

comply with [MCL 460.708]. 
4 

notice. The Court of Appeals erred by failing to give effect to the unambiguous statutory 

language as written. 

My view is consistent with a recent case construing the MISS DIG act. United 

States District Court Judge Gordon Quist also concluded that only the responsible party 

must furnish notice under the MISS DIG act. Amoco Pipeline Co v Herman Drainage 

Systems, Inc, 212 F Supp 2d 710, 718 (WD Mich, 2002). “Requiring the person actually 

performing the excavation to notify MISS-DIG thus provides certainty because there can 

be no question among several possible parties about who should give the notice.” Id. 

Judge Quist reasoned, “The fact that one person may provide notice and another person 

may perform the excavating does not persuade this Court that someone other than the 

person (be it an individual, a corporation, etc.) responsible for performing the excavation 

is responsible for giving the notice.” Id. 

The Court of Appeals further erred when it determined that the MISS DIG ticket 

issued to Henkels on September 29, 2003, had expired when Crawford began pile driving 

on October 21, 2003. The Court of Appeals wrongly looked to the time that Crawford 

began pile driving, and not when Henkels began to prepare the excavation site. Giving 

the word “commence” its plain and ordinary meaning, the Court of Appeals noted that 

the ordinary definition of “commence” is “to begin; start.” The American Heritage 

Dictionary (2006). Similarly, the Court of Appeals defined “begin” as “to take the first 

step in performing an action.” On the basis of these definitions, the Court of Appeals 

stated, “we believe the first step in performing the action of pile driving occurs when a 

pile enters the ground.” SBC v J T Crawford, Inc, unpublished opinion per curiam of the 

Court of Appeals, issued November 27, 2007 (Docket No. 275334) p 6. Of course, pile 

driving commences when a pile is driven into the ground. But the Court of Appeals 

misconstrued the statutory language. The true question under the statute is when does the 

excavation operation begin, not when various parts of the operation are undertaken. 

The Court of Appeals reading ignores the pertinent facts. The excavation 

operation was underway when Crawford began pile driving. Giving effect to the plain 

meaning of the word “commence” necessitates that we look back to the actual first step in 

performing the overall excavation. The first step of the excavation operation occurred on 

October 18, 2003, when Henkels began removing curbs and pavement. Because the 

removal of curbs and pavement was the true “commencing” of the excavation, 21 days 

had not elapsed between when the MISS DIG ticket was issued on September 29, 2003, 

and when Henkels commenced the excavation operation on October 18, 2003. 

Because the notice requirements under the MISS DIG act were met, the Court of 

Appeals should not have remanded for further factual determinations regarding whether 

the damage to SBC’s lines resulted from Crawford’s pile driving. Because the trial court 
 _________________________________________ 

 

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properly interpreted the statute, I would grant Crawford’s application for leave to appeal 

and reinstate the trial court’s decision granting summary disposition to Crawford. 

s1110 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

November 14, 2008 

 Clerk