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04/09/96 BEN FOLLOWELL v. CENTRAL ILLINOIS PUBLIC

April 9, 1996

BEN FOLLOWELL, D/B/A FOLLOWELL CONSTRUCTION COMPANY, PLAINTIFF-APPELLANT,
v.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Franklin County. No. 92-L-112. Honorable Loren P. Lewis, Judge, presiding.

As Corrected April 10, 1996.

The Honorable Justice Maag delivered the opinion of the court: Chapman, J., and Kuehn, J., concur.

The opinion of the court was delivered by: Maag

The Honorable Justice MAAG delivered the opinion of the court:

The plaintiff appeals from a Franklin County circuit court's entry of summary judgment in favor of the defendant, Central Illinois Public Service Company. The plaintiff contends that the trial court improperly construed section 9 of the Illinois Underground Utility Facilities Damage Prevention Act (220 ILCS 50/9 (West 1994)) to bar its claim.

On July 15, 1990, the plaintiff began working under a contract with the City of West Frankfort, Illinois, to replace certain existing water mains and water meters. Because much of the work would involve excavations, the plaintiff properly notified the utility owners of the location where the work was to be done and requested that the utilities locate and mark the approximate location of their underground facilities pursuant to the Illinois Underground Facilities Damage Prevention Act (Act). 220 ILCS 50/1 et seq. (West 1994).

The defendant was the franchise holder for the distribution of natural gas in the City of West Frankfort. The defendant owned and operated a substantial number of underground facilities near the sites of plaintiff's planned excavations. The plaintiff properly notified the defendant, and it agreed to locate and mark the approximate location of its underground facilities. "Approximate location" is defined as "a strip of land at least 3 feet wide but not wider than the width of the underground facility *** plus 1 1/2 feet on either side ***." 220 ILCS 50/10 (West 1994).

Plaintiff alleges that the defendant negligently mislocated and mismarked many of its underground facilities. According to the plaintiff, the result of the defendant's mismarking was physical damage to the line caused by the plaintiff's trencher or backhoe. For obvious safety reasons, the plaintiff would have to halt all work until the defendant repaired the line. Plaintiff claims that the work stoppage or "downtime" cost it approximately $400 per hour in wages for idled employees, rental fees for idled equipment, lost time, lost superintendent fees, and other administrative charges associated with the management and repair of the line breaks.

The plaintiff sought reimbursement from the defendant for the downtime costs and lost profits incurred as a result of the defendant's alleged negligent mislocation and mismarking. The defendant refused to reimburse the plaintiff. The plaintiff filed this action seeking recovery under section 9 of the Act for the defendant's negligence resulting in "damages to persons, material or equipment." On the defendant's motion for summary judgment, the trial court found that the statute restricts damages to "persons, material, or equipment" and that the plaintiff, a business entity, had not suffered any physical damage and thus it "suffered no damage to persons, materials or equipment." The court also found that the plaintiff could not recover under the Act for damages incurred prior to the effective date of the Act. The trial court entered summary judgment in favor of the defendant. Plaintiff now appeals.

The plaintiff contends that the trial court erred in finding that the plaintiff suffered no damage to "persons, material or equipment". Specifically, the plaintiff takes issue with the court's conclusion that purely economic damages would not support a cause of action. The plaintiff argues that it is a "person" as defined by section 2.1 of the Act (220 ILCS 50/2.1 (West 1994)), and that section 9 of the Act clearly intends a person suffering damage as a result of an owner/operator's negligence to recover "damages" without regard to whether those damages are purely economic or physical.

The defendant conceded in its brief and at oral argument that a business entity like the plaintiff is a "person" as defined by the Act. The defendant argues, however, that the trial court correctly determined that the plaintiff's damages were not recoverable under the Act or under a common law negligence theory because plaintiff's damages are purely economic, and purely economic damages are not recoverable in tort actions.

Purely economic damages are generally not recoverable in tort actions. Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443, 61 Ill. Dec. 746 (1982). The Moorman court determined that the seller of an allegedly defective grain storage tank was not liable to the buyer based on tort theories of negligence, strict liability in tort, or innocent misrepresentation, where the buyer had suffered only economic loss, which in that case was the cost of repairing the tank or the loss of the tank's use. Moorman, 91 Ill. 2d at 81, 435 N.E.2d at 448. The court went on to define economic loss in general as "damage for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits--without any claim of personal injury or damage to the other property." Moorman, 91 Ill. 2d at 82, 435 N.E.2d at 449. Plaintiff's damages for downtime costs and lost profits in the instant case fit squarely within the Moorman court's definition of economic damages.

Moorman articulated three exceptions to the economic damages rule: (1) where the plaintiff has sustained damages as a result of a sudden or dangerous occurrence ( Moorman, 91 Ill. 2d at 86, 435 N.E.2d at 450); (2) where the plaintiff's damages are the result of an intentional false misrepresentation, i.e., fraud ( Moorman, 91 Ill. 2d at 88-89, 435 N.E.2d at 452); and (3) where the defendant is in the business of supplying information for the guidance of others in their business transactions and is negligent in providing the information. Moorman, 91 Ill. 2d at 88-89, 435 N.E.2d at 452. We believe that the plaintiff's cause of action falls within the third exception to the Moorman doctrine.

Section 10 of the Underground Utility Facilities Damage Prevention Act provides in part, "Upon notice by the person engaged in excavation or demolition, the persons owning or operating underground facilities *** shall mark, within 48 hours *** of receipt of notice, the approximate locations of such facilities so as to enable the person excavating or demolishing to establish the location of the underground utility facilities ***." 220 ILCS 50/10 (West 1994). This statute imposes a duty on the defendant as the owner or operator of underground facilities to supply information about the location of the underground facilities to the plaintiff or any other person properly giving notice of an intention to excavate or demolish. The defendant is clearly engaged ...


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