Michigan Supreme Court 

# Order

Lansing, Michigan

November 14, 2008 Clifford W. Taylor,
Chief Justice
135581 & (72)(76) Michael F. Cavanag h

Elizabeth A. Weave r Marilyn Kell y Maura D. Corriga n Robert P. Young, Jr. SBC, Stephen J. Markman, Plaintiff-Appellee/ J ustices 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 DE NIED, because we are not persuaded that the questions presented should be reviewed by the Court prio r to the completion of the proceedings ordered by the Cour t of Appeals. The application for leave to appeal as cross-appellant is therefore moot and is DENIED.

C ORRIGAN

, J. (dissenting)

.

I respectfully dissent from the order deny ing 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 unde rground utilities act, MCL 460.701 et seq

. (commonly known as the MISS DIG act).

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

defendant J.T. Crawford , Inc., under the MISS DIG act, in this negligen ce and strict liability action. Consumers Ener gy contracted with an excavat or, Henkels, to repair its underground gas lines at a site in Oaklan d County. On September 29, 2003, Henkels

called the MISS DIG hotline an d gave the location of its planned excava tion. SBC’s2

representative apparently did not understand Henkels’s request to locate SBC’s underground utilities. Moreove r, SBC’s representative did not contact his supervisor for clarification. In any even t, SBC’s utility lines were not marked. Every other utility company properly marked their underg round utilities at the excavation site.

On October 1, 2003, J.T. Crawford, Inc. qu oted a price for pile driving to Henkels that specified “excavation” as “work by others.” On Octobe r 9, 2003, defendant Henkels contracted with Crawford to pe rform 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 p ile driving operations, Crawford transected

SBC’s unmarked telecommunications cables. On November 19, 2003, Henkels’s supervisor e-mailed Crawford and clarified th at “[w]e (Henkels & Mc Coy, Inc.) told J.T.

Crawford that he did not have to make th e one call (Miss Dig in Mi.) because we had already made the call.” Henkels’s supervisor concluded, “I certainl y am not an attorney, but the company that is responsible for the da mage to the lines is not J.T. Crawford but

SBC and WOW.”

Defendant Henkels settled with SBC. SBC’s ca se proceeded against Crawford. Following discovery, SBC and Crawford file d 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 460.705 1 and MCL 460.714. 2

1 MCL 460.705(1) provid es, in relevant part:

[A] person or public agency responsibl e for excavating or tunneling operations, drilling or boring proc edures, or discharge of explosives in a street, highwa y, 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 th e association as required in [MCL 460.707] of intent to excavate, tunnel, discharge e xplosives, or demolish at least 2 full working days, excluding Saturdays, Sundays, and holid ays, but not more th an 21 calendar days, before commencing the excavating, demolishi ng, discharging of e xplosives, tunneling operations, or drilling and boring procedures. Begi nning on October 1, 1990, the notice required in this subsection shall be give n at least 3 full work ing 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:3

The Court of Appeals remanded for further fact finding regarding whether competent evidence proved that the dama ge 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 wh en 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 be fore it began pile driving. The plain language of MCL 460.705(1) does not support the Court of Ap peals 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 (2 005). 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 cl early expressed and further construction is neither required nor permitted.” Id

.

MCL 460.705(1) provides that “a pers on 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, Sunda ys, and holidays, but not more than 21 calendar days before commencing” with excavation operations. Here, the person “responsible for the excavating or tunnelin g operation” was the excavator and general contractor, Henkels. To perform repairs on Consumers Energy’s underground gas lines, Henkels oversaw an excavation op eration. As one part of its larger excavation operation,

Henkels subcontracted with Crawfo rd to perform pile driving.

Under the plain language of MCL 460.70 5(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 overa ll operation, including various subcontractors like Crawford, also must give notice. This reading injects additional language into the statute, namely that “[a] person or public ag ency responsible for ex cavating or tunneling operations or responsible for any related work therein” must provide notice before beginning work to guard agai nst 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” some what responsible for any part of the operation must give

In a civil action in a court of this stat e, when it is shown by competent evidence that damage to the undergro und facilities of a public u tility resulted from excavating, tunneling, drilling or boring procedures, or demolishing operations, or the discharge of explosives, as described in [M CL 460.703] and that the pers on responsible for giving the notice of intent to excavate, tunnel, demolish , or discharge explosiv es 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 resulti ng damage to the underground facilities, but the liability for damages shall be reduced in pr oportion to the negligence of the public utility if it fails to comply with [M CL 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 excavati on to notify MISS-DIG thus provid es certainty because there can be no question among several possible partie s 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, et c.) 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 Septembe r 29, 2003, had expired when Crawford began pile driving on October 21, 2003. The Court of Appeals wrongly looked to th e time that Crawford began pile driving, and not when Henkels be gan to prepare the excavation site. Giving the word “commence” its plain and ordinary me aning, the Court of Appeals noted that the ordinary definition of “comme nce” is “to begin; start.” The American Heritage Dictionary (2006). Similarly, the Co urt of Appeals defined “beg in” as “to take the first step in performing an action.” On the basi s of these definitions, the Court of Appeals stated, “we believe the first step in performin g the action of pile dr iving occurs when a pile enters the ground.” SBC v J T Crawford, Inc , unpublished opinion per curiam of the Court of Appeals, issued N ovember 27, 2007 (Docket No. 275 334) p 6. Of course, pile driving commences when a pile is driven in to the ground. But the Court of Appeals misconstrued the statutory langua ge. The true question under the statute is when does the excavation operation begin, not when vari ous parts of the operation are undertaken.

The Court of Appeals read ing ignores the pertinent facts. The excavation operation was underway when Crawford began p ile driving. Giving effect to the plain meaning of the word “co mmence” necessitates that we look back to the actual first step in performing the overall excavation. The first step of the excavatio n operation occurred on October 18, 2003, when Henkels began rem oving 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 operati on 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_______________________________________ __ 5

properly interpreted the statute, I would gran t Crawford’s applicati on for leave to appeal

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

s1110 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

November 14, 2008

Clerk