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FILED

U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 19, 2004
THOM AS K. KAHN
CLERK
Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit, sitting by
*
designation.
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 03-13022
________________________
D. C. Docket No. 01-02059-CV-ASG
MCI WORLDCOM NETWORK SERVICES, INC.,

Plaintiff-Appellant,

versus

MASTEC, INC.,

Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 19, 2004)
Before TJOFLAT, BARKETT and SILER , Circuit Judges.
*
BARKETT, Circuit Judge:
Certification from the United States Court of Appeals for the Eleventh Fla. Stat. § 25.031 states:
1
The Supreme Court of this state may, by rule of court, provide that, when it shall
appear to . . . any circuit court of appeals of the United States . . . that there are
involved in any proceeding before it questions or propositions of the laws of this
state, which are determinative of the said cause, and there are no clear controlling
precedents in the decisions of the Supreme Court of this state, such federal
appellate court may certify such questions or propositions of the laws of this state
to the Supreme Court of this state for instructions concerning such questions or
propositions of state law, which certificate the Supreme Court of this state, by
written opinion, may answer.
Fla. R. App. P. 9.150(a) provides:
2
On either its own motion or that of a party . . . a United States court of appeals
may certify a question of law to the Supreme Court of Florida if the answer is
determinative of the cause and there is no controlling precedent of the Supreme
Court of Florida.
2
Circuit to the Supreme Court of Florida, pursuant to Fla. Stat. § 25.031 and Fla. R.
1
App. P. 9.150(a).
2
In this diversity action, MCI Worldcom Network Services, Inc. (MCI)
appeals the district courts summary judgment denying it loss of use damages in a
negligence and trespass suit against Mastec, Inc., for the severance of an
underground fiber-optic cable. If loss of use damages are available, the parties also
dispute what the proper measure of such damages should be. Because we find that
these are unsettled questions of distinct importance to the development of Florida
tort law and dispositive of the case at hand, we certify the issues to the Florida
Supreme Court.
BACKGROUND 3
While excavating in downtown Miami, Mastec severed one of MCIs
underground fiber-optic cables. The severed cable ran between two MCI terminals
or nodes located about twelve miles apart. Both of these terminals are connected
to a third terminal in downtown Miami, thus creating a continous link between all
three terminals and, from them, to the rest of MCIs telecommunications network.
The severed cable remained damaged for 97 hours, during which time MCI was
able to redirect the telecommunications signals that would have traveled through
the damaged cable in the opposite direction along the continuous link. MCI
thereby maintained continuous transmission of its signals and avoided any
interruption of phone service or loss of profits. The parties do not dispute these
facts on appeal.
In addition to compensatory damages consisting of $23,000 for repairing the
damaged cable, MCI claimed loss of use damages of about $868,000, the amount
that MCI claims it could have paid (but did not) to rent the use of an equivalent
substitute cable from another telecommunications company for the time reasonably
necessary to make repairs. MCI also claimed punitive damages.
Upon consideration of summary judgment motions by both parties, the
district court determined that MCI was not entitled to any damages for loss of use.
DISCUSSION 4
Under Florida law, loss of use damages are available for an individual or
entity whose chattel has been damaged by another party. Meakin v. Dreier, 209
So.2d 252, 254 (Fla. 2d Dist. Ct. App. 1968). This rule is pursuant to Floridas
adoption of the Restatement (Second) of Torts, which provides that [w]hen one is
entitled to a judgment for harm to chattels not amounting to a total destruction in
value, the damages include compensation for . . . loss of use. Meakin, 209 So.2d
at 254 (quoting the Restatement (Second) of Torts § 928(b)). The parties first
disagree as to whether the proper characterization of the damaged property is the
single severed fiber-optic cable or the ring system of cables of which it is a part.
MCI argues that its severed cable is a separate and distinct part of the MCI
network and entitles MCI to loss of use damages because both parties agree that
MCI was completely deprived of the cables use during the 97 hours it took to
repair the damage. MCI argues that denying loss of use damages in this case is the
equivalent of penalizing the company for having the foresight to install a spare
or protect cable. The spare cable was installed precisely to ward off the
possibility of an interruption in service due to the negligence or recklessness of
third parties. MCI argues that it spent in excess of $9 million engineering and
installing the spare cable so that its network would be protected in such emergency
situations. This investment, MCI asserts, should not serve to immunize Mastec 5
from responsibility for the consequences of its actions.
MCI argues that loss of use damages in Florida do not require actual
damages or the rental of a substitute in order for a plaintiff to receive loss of use
damages. For this proposition it relies primarily on Meakin, as well as the
comment on clause (a) of the Restatement (Second) of Torts § 931 (which
comment states that [t]he owner . . . is entitled to recover as damages for the loss
of the value of the use . . . even though the owner in fact has suffered no harm
through the deprivation, as when he was not using the subject matter at the time or
had a substitute that he used without additional expense to him.) Citing A.
Mortellaro & Co. v. Atl. Coast Line R. Co., 107 So. 528, 528-29 (Fla. 1926), MCI
says it is enough for the plaintiff merely to demonstrate that he lost the use of his
property and that a replacement chattel was available for rental.
Finally, MCI insists that Florida common law does not distinguish between
pleasure property, such as the personal automobiles at issue in the
Mortellaro/Meakin line of cases, and commercial property of the sort at issue here.
Loss of use damages are available in either case. MCI cites U.S. Supreme Court
holdings in the maritime cases of The Cayuga, 81 U.S. 270 (1871), and Brooklyn
Eastern District Terminal v. United States, 287 U.S. 170 (1932), for the proposition
that where a business owner keeps the equivalent of a dedicated spare boat 6
available for emergency purposes, it is entitled to loss of use damages. Per MCI,
the severed cable in this case is just such a spare equivalent.
On the other hand, Mastec argues that the proper characterization of the
damaged property is the ring system of which the cable is a part. By this logic,
MCI may not recover loss of use damages because MCI was able to assure that the
rest of the ring continued functioning during the repair period and, thus, suffered
no loss of service or profits. Florida law, according to Mastec, requires that a
plaintiff be completely deprived of his property for loss of use damages to apply.
Mastec compares MCI in this case to the homeowner in Schryburt v. Olesen, 475
So.2d 715 (Fla. 2d Dist. Ct. App. 1985), whose house remained largely available
for occupancy even though its roof had been damaged by a third party. Schryburt
denied the homeowner any loss of use damages.
Without the ring, Mastec argues, the severed cable would have no functional
purpose or value for MCI. It is only insofar as the cable serves to transmit
telecommunications signals that it has any practical meaning for MCI. This court,
says Mastec, must look to the context and character of MCIs use of the damaged
property in order to determine whether loss of use has occurred. Given that there
was no interruption in the functional use of the severed cable all
telecommunications signals were successfully rerouted it would be exorbitant to 7
award MCI any loss of use damages. Mastec argues that Meakin relies heavily on
a concurring opinion in Cook v. Packard Motor Car Co., 92 A. 413 (Conn. 1914),
which noted that a court consider the character of a propertys intended use in
determining whether loss of use damages are available. Id. at 415. In support,
Mastec also cites the comment on clause (a) of the Restatement (Second) of Torts §
931: The use to which the chattel or land is commonly put and the time of year in
which the detention or deprivation occurs are . . . to be taken into consideration as
far as these factors bear upon the value of the use to the owner or the rental value.
Moreover, Mastec argues, even assuming that the relevant unit of property is
the severed cable, a