Henke et al v. Wiltel Communications, L.L.C. et al
Filing
154
OPINION, MEMORANDUM AND ORDER; HEREBY ORDERED that Defendant Wiltel Communications, L.L.C.s Motion for Partial Summary Judgment, [Doc. No. 81 ], is granted. A separate judgment in accordance with this Opinion, Memorandum andOrder will be entered upon the resolution of the remaining claims herein. Signed by District Judge Henry E. Autrey on 03/07/2014. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GLENN A. HENKE and LINDA KLUNER, )
INDIVIDUALLY AND ON BEHALF OF )
ALL OTHERS SIMILARLY SITUATED, )
)
Plaintiffs,
)
)
v.
)
)
ARCO MIDCON, L.L.C., MAGELLAN
)
PIPELINE COMPANY, L.P., and
)
WILTEL COMMUNICATIONS, L.L.C., )
)
Defendants,
)
Case No. 4:10CV00086 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Wiltel Communications,
L.L.C.’s Motion for Partial Summary Judgment, [Doc. No. 81]. Plaintiffs oppose
the motion. For the reasons set forth below, the Motion is granted.
Facts and Background
Don Palmer was designated as WilTel’s corporative representative. Palmer
is the Director of Field Operations of the Kansas City Division for Level 3
Communications. As to WilTel, Plaintiffs limit their definition of the subject
pipeline to only that portion of the pipeline which runs between Mexico, Missouri,
and Wood River, Illinois. Level 3 purchased WilTel Communications in 2005.
Palmer’s area of responsibility includes half of the segment from Mexico,
Missouri to Wood River, Illinois. Palmer has worked for Williams
Communications or WilTel since 1999. Williams Pipeline transferred a segment
of the old Arco Pipeline to Williams Communications, which became WilTel.
Williams Communications recognized that they were going to own that asset as
early as 1999 prior to the actual document which put it into writing in February
2001. Williams Communications, now WilTel, knew that the use of the pipeline
from 1990 through 1994 when it was sold to Williams Pipeline was that it was
dormant and that it had been purged and laid in nitrogen. Being dormant and laid
in nitrogen means that all of the petroleum liquid would have been drained or
evacuated from the pipeline and a pig would have been pushed through it to push
it all out, and then it would have been packed with nitrogen which is essentially
“mothballing” the line to protect it. Plaintiffs urge that there is no document that
confirms there was no petroleum remaining in the line.
WilTel was aware that in 1995 Williams Pipeline had ran another pig
through it to ascertain whether there was draining involving petroleum liquids.
WilTel is aware of documents and representation verifying that the petroleum was
out of the pipeline in 1995. WilTel inquired if there was any knowledge about any
spills before Williams Pipe Line owned the pipeline.
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In 1999 another pig was run through the line to prepare it for fiber optic
cable. Prior to WilTel putting fiber optic line cable into the pipeline, they needed
to acquire an easement from the landowners. An additional easement had to be
acquired because the easement rights in that corridor were for running refined
petroleum products and WilTel needed communication rights in order to install a
communication system. In order to acquire the additional easement, WilTel had to
reach out to approximately 750 landowners to negotiate and pay to add
communication rights to the corridor. The division of the company that went out
and acquired the easements within Williams Communications was the right-ofway group within fiber services. Contact was made with landowners in various
ways, including phone calls, letters, face to face, and town hall meetings.
Eventually a signed document acquiring the rights was garnered from all of the
landowners and fiber optic cable was put into the old Arco Pipeline.
Approximately 750 landowners gave an easement to Williams Communications
for fiber optic cable across the 107-mile span. Neither Williams Communications
nor WilTel ever owned any other portion of the old Arco Pipeline. Palmer
identified Exhibit No. 39 as one of the Right of Way Easement Agreements for
communications rights in which the grantors or landowners gave an easement to
Williams Communications were Margaret Tiemann, Herman Henke, Glenn A.
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Henke, and Linda J. Kluner, f/k/a Linda Henke. Exhibit 39, “Right of Way and
Easement Agreement” is the same document produced by Plaintiffs in their Initial
Disclosures and attached to their First Amended Class Action Complaint as
Exhibit 100. Linda Kluner and Glenn Henke, the Plaintiffs in the instant lawsuit,
signed Exhibit 39 in December, 1999. Palmer identified the first full paragraph
on page 2 of Exhibit 39 as containing the phrase “Any and all hazardous materials
or conditions encountered during the installation, operation or maintenance of the
underground communications system shall be fully remedied promptly by
grantee.” The “any and all hazardous materials” paragraph was not a standard
paragraph that would be in a typical Williams Communications right of way
easement agreement. WilTel was aware of how that paragraph got into the right of
way easement agreement that the Henkes signed; specifically, a series of 33
landowners jointly used an attorney who wanted that language inserted. Williams
Communications accepted the inclusion of the language in the easement
agreement of the 33 landowners represented by that attorney. WilTel has made a
diligent search of all of the easement and right of way agreements to determine
how many of the agreements have the “any and all hazardous materials” paragraph
in them and of the 750, only 33 contain it. All 33 of those landowners are in St.
Charles County.
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Fiber optic cable is placed in an existing pipeline by opening up a small
section to the pipeline and inserting innerduct, which is a plastic conduit; the
pipeline is opened up periodically to couple the reels of innerduct together; the
installation of a fiber optic cable follows which is installed in three to five mile
segments where the line needs to be opened up to splice the two sections of cable
together. Records are kept during the installation process to determine the places
that require excavation down to the pipeline for it to be opened up to insert the
conduit; these are noted on maps in the form of handholds or splice points.
Records were also kept to show points of excavation down to the pipeline in order
to connect the fiber optic cable sections called splice points. Opening up the
pipeline means that excavation down to the pipeline needs to be done , breaking
open the pipeline in order to have access to it by cutting it in half. Other than
installing innerduct and fiber optic cable, there are no other reasons in the
installation process to do any excavation down to the pipeline. When the conduit
is being installed in the pipeline, the frequency with which excavating down to
and opening up the pipeline is required is approximately every three to five miles.
WilTel performed a search of the 33 landowners that had the “any and all
hazardous materials” paragraph in their easement to determine how many
properties Williams Communications or their contractors actually had to be on and
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do some excavation. Of the 33 people with the “any and all hazardous materials”
paragraph in their easement, Williams Communications or their contractors were
actually on the property of nine of them during installation, with another three that
straddled property lines. Only nine, plus potentially another three, out of the 33
easements which had the “any and all hazardous materials” paragraph were
properties where Williams Communications was actually on the property during
installation.
The actual installation of the fiber optic cable was done both by Williams
Communications personnel and contractors. Williams Communications personnel
supervised contractors doing the work. The closest point to Henke property where
Williams Communications or its contractors were during the installation process
on the west side of the property was approximately two and a half to three miles
away. The closest point to Henke property where Williams Communications or its
contractors were during the installation process on the east side of the property
was at the southeast corner of Highway 94 and Saale Road. The Williams
Communications crews and their contractors did not encounter any hazardous
material or conditions during the installation process of the fiber optic cable. The
Williams Communications crews and their contractors did not encounter any
hazardous material or conditions at any place along the Mexico to Wood River
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line during installation.
There has never been any maintenance work done on the Mexico to Wood
River segment of the pipeline by WilTel. It does not matter to the use of the
pipeline for fiber optic cable whether or not over the years the pipeline develops
holes because the innerduct installed inside the pipeline is protecting the fiber.
There has not been any maintenance on this segment of the pipeline by WilTel
because there has never been a relocation required or a fiber cut where a repair has
been needed. The operation of the fiber optic cable involves operation of the
equipment which puts the light through the fiber optic cable, which is located at
amplifier sites and add/drop sites in Kansas City and St. Louis, Missouri. WilTel
monitors One Call volumes on a daily basis and interacts, with any contractors or
landowners that are conducting any kind of invasive work around WilTel’s
systems. It is critically important to WilTel in the operation of the pipeline that
people do not get into the fiber optic cable and break it, sever it, or damage it.
WilTel has technicians that are responsible for locating their line if anyone is
going to be doing any work in the vicinity of the buried cable.
In the State of Missouri there is a system called the Missouri One Call
system which utilities subscribe to where an individual contractor calls one number
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if they want to do some excavation and utility companies are notified as a result of
the call. The agency then sends a ticket to anybody within the prescribed amount of
distance from the location that is described for the activity. When Williams
Communications or WilTel gets a One Call notice from the Missouri One Call
system, some of those can be cleared without even going out on the property just
based on where the activity is going to be done. Sometimes the activity is close
enough that WilTel would need to go out and monitor the fiber optic cable and the
activity. Specifically if it is close, WilTel would contact the individual and have
further discussions. If warranted, WilTel would go out and locate the
communications systems and either paint the ground or flag it so that the running
line is known. In some circumstances WilTel would even stand there while the
person is conducting their excavation activity. Locating and marking a line does
not require any excavation. Turning soil, excavating, backhoe operations, digging
post holes, installing fence, are the types of activities that would require someone
to call Missouri One Call.
Since Williams Communications has owned the segment to the pipeline
which includes the Henke property, neither Williams nor WilTel is aware of
anyone that called for a One Call on the Henke property. Placing a line marker
post would require Williams Communications to be on the property of landowners
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along the segment. Placing a line marker would not require Williams
Communications or their contractors to do any excavation.
Since Williams Communications has owned the Mexico to Wood River
segment, other than the Green property, there has been no notification to Williams
Communications that any landowner has detected contamination alleged to be on
the pipeline. Since Williams Communications has owned the Mexico to Wood
River segment, other than the Green property, there has been no notification to
WilTel that any landowner has detected contamination alleged to be on the
pipeline. There have never been any occasions after Williams Communications
acquired the pipeline segment from Mexico to Wood River when hazardous
materials or conditions were encountered during the installation, operation or
maintenance of the fiber optic cable. Plaintiffs argue that Williams and WilTel
have documents indicating unremediated contamination.
Plaintiff Glenn Henke is one of the two owners of the property referenced in
the Complaint at the corner of Saale Road and Route 94 together with Linda
Kluner, his sister. Mr. Henke and Ms. Kluner have owned the property since
approximately 1993. Mr. Henke has never lived on the property. The approximate
78 acres are used for farm ground at present. Neither Mr. Henke nor his sister
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personally farms the acres; rather they rent it out to a farmer, Gary Machens. The
farmer has been growing corn and soybeans on the property. There is no written
rental agreement between Mr. Henke and Mr. Machens. Mr. Henke is not aware
of a written rental agreement with the person who farmed the property before the
current farmer either. Mr. Henke is aware that there may be more than one pipeline
running underneath his property. There is an area which Mr. Henke believes the
county took for drainage on Mr. Henke’s property at the corner of 94 and Saale
Road. Mr. Hence believes he was present on his property between 8:00 A.M. and
1:00 P.M. on the day that SCI, a company retained by his attorneys, were present to
conduct testing. Mr. Henke saw and smelled what looked to him like petroleum
when they pulled up the soil samples from below the surface of the ground. Mr.
Henke identified Exhibit 39 as the Right of Way Easement Agreement signed by
him, his sister, his great-aunt, and his father in December of 1999. Mr. Hence
believes he attended a meeting of landowners along the pipeline prior to executing
Exhibit 39. Mr. Henke identified the “any and all hazardous materials” paragraph
on the second page of the Right of Way Easement Agreement that he signed. Mr.
Henke does not recall any conversations or observations that he made that Williams
Communications’ crews were on his property in connection with the installation of
the fiber optic cable in the pipeline. Mr. Henke is not aware of Williams
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Communications’ crews or contractors actually being on his property during the
installation of the fiber optic cable based on his personal observations or
conversations that he had outside of his attorneys. Mr. Henke is not aware of any
facts outside of what attorneys have told him to suggest that Williams
Communications was on his property at the time of the installation of the fiber
optic cable. Mr. Henke cannot recall any facts to suggest that Williams
Communications was on his property. Mr. Henke does not know how fiber optic
cable is installed in existing pipelines. Mr. Henke is not aware of anyone that
owned property along Saale Road that actually had Williams Communications
crews on their property during the installation of the fiber optic cable. Mr. Henke
was aware that the pipeline that runs along Saale Road in front of his property had
been taken out of service and had not had petroleum in it since 1990. Mr. Henke
was aware that the pipeline that runs in front of his house formerly known as the
Arco Pipeline had been taken out of service in the 1990s and had not had any
petroleum introduced in it since 1990 by any company. He reports he smelled and
saw very dark, dark, liquidy soil that had the appearance of oil, what he thinks was
petroleum, when he was present on his property during testing conducted by SCI.
Apart from this time, when he has gone to the property on just two or three
occasions a year, just to look at it or drive by it, he has not seen anything that looks
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like petroleum residue. Other than the time that Mr. Henke was on his property
with the technicians taking samples, he has never on any other occasion either
before or since then smelled anything that smelled like petroleum. Mr. Henke has
never seen anything on his property that looked like petroleum or petroleum
residue. Mr. Henke has never tasted petroleum in any water either on his property
or adjacent to his property. Mr. Henke is aware that there is a monitoring well
placed close to or on his property. Mr. Henke does not know whether this
monitoring well is on his property or not. Mr. Henke believes he has never seen
anyone on his property that he believes were either Williams Communications or
WilTel personnel. Mr. Henke believes he has never seen anyone on his property
from Williams Pipeline Company either. Mr. Henke has never seen anyone out on
his property from Magellan Pipeline Company. Mr. Henke is not aware of anyone
else that had a Right of Way and Easement Agreement like Exhibit 39 with the
“any and all hazardous materials” paragraph in it that actually had Williams
Communications people on their property. Three years ago someone from a
different pipeline company was on Mr. Henke’s property doing some work. Hence
Mr. Henke believes it may be the case that there are active petroleum pipelines
running across his property or along the edges of it. Mr. Henke does not recall
whether anyone from WilTel or Williams Communications, either their employees
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or contractors, ever doing any maintenance work on the pipeline than runs along
Saale Road at any time while he has owned the property. Mr. Henke does not recall
whether any WilTel or Williams Communications employee or any contractor for
them doing any work or operating the fiber optic cable for any reason that involved
were on his property during the time he has owned it. Mr. Henke is not aware of
any WilTel or Williams Communications employee or contractor for either of them
being on his property during the installation of fiber optic cable. There is no
residence on the 78 acre property owned by Mr. Henke and Ms. Kluner.
Ms. Kluner does not know if a representative of Williams Pipeline was ever
on her property at any time. Ms. Kluner does not know of any time any
representative of Williams Communications were ever on her property at any
time.Ms. Kluner does not know if any representative of Magellan Pipeline
Company was ever on her property at any time. Ms. Kluner did not report the
alleged findings of SCI to any state or federal regulatory body. Ms. Kluner did not
report the alleged findings of SCI on her property to owners of the adjoining
property.
Ms. Kluner occasionally drives by the property but typically does not get out and
walk around on the property. The property is mostly flat. Ms. Kluner has never
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seen, smelled, or tasted any petroleum at or on the property. She has never drank
water from any source on her property and therefore cannot determine whether
petroleum could be tasted in the water. Ms. Kluner identified her signature on
Exhibit 39, the Right of Way Easement Agreement with Williams
Communications. Ms. Kluner identified the “any and all hazardous materials”
language in the first full paragraph of the second page of the Right of Way
Easement Agreement. Ms. Kluner is not aware of Williams Communications or
WilTel ever being on her property during the installation of the fiber optic cable.
Ms. Kluner is not aware of any fact that suggests that Williams Communications or
WilTel was on her property at any time during the operation of the fiber optic
cable. Ms. Kluner is not aware of any fact that would suggest that Williams
Communications or WilTel have done any maintenance or had to be on her
property in the maintenance of the fiber optic cable. Ms. Kluner does not know
how fiber optic cable is put into former petroleum pipelines. Ms. Kluner was
aware that no petroleum has been transported in the pipeline since 1990. Ms.
Kluner believes it could be that Williams Pipeline did not purchase the pipeline
until it was already out of service. Ms. Kluner is aware that no one has put
petroleum into the pipeline since 1990. Ms. Kluner believes that Williams
Communications and WilTel’s use of the pipeline was not used for a petroleum
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pipeline. Ms. Kluner might have heard that there was monitoring of the well near
the northwest corner of her property. Ms. Kluner is not sure where the exact
location of the well is including whether or not it is on her property. Ms. Kluner
determines where the western edge of her property is by looking at where the
farmer has planted his crops. Ms. Kluner has no information that anybody from
Williams Communications or WilTel has been on her property. Ms. Kluner is not
aware of anyone who had property along the pipeline that runs in front of her
property that have a document like Exhibit 39 including the “any and all hazardous
materials” paragraph that actually had Williams Communications or WilTel
personnel on their property. There are no homes, residences, barns, buildings of
any nature, or any confined spaces on Ms. Kluner’s property at all. Plaintiffs
disclosed three persons as expert witnesses: 1) Royce Don Deaver, P.E. 2) Patrick
Agostino, Ph.D., P.G., and 3) Jeff Langston, R.G. Deaver was identified by
Plaintiffs as an expert witness who may testify as to industry standards within the
pipeline industry; prevention and cleanup of pipeline leaks and spills; regulatory
standards and compliance requirements applicable to the pipeline industry; and
liability of Defendants. Deaver has never worked in the telecommunication
industry. Deaver does not hold himself out as a telecommunication expert. Deaver
is not familiar with all the local, state and federal regulations that dictate how
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telecommunication companies operate their business. Deaver agreed that he is not
offering any opinions in this case regarding WilTel and the current company that
owns them, Level 3. Deaver understood that the only segment of the pipeline that
is the subject of this litigation which has fiber optic cable in it is the segment from
Mexico, Missouri to Wood River, Illinois. Deaver knew that the Mexico to Wood
River segment did not have any products in it when it was purchased and had
nitrogen in it and had been idle for a period of time. Deaver testified that there is
no state or federal regulation that requires a telecommunication company to
continue to have cathodic protection on a pipeline that is only being used as a
conduit for fiber optic cable. Deaver agreed that the NFPA standard referenced in
his report, specifically NFPA 329 concerning handling underground releases of
flammable and combustible liquids, has no application whatsoever to fiber optic
cable. Deaver agreed that the standards referenced by him in his report from the
American Petroleum Institute have no application at all to either fiber optic cable or
telecommunication deals. Deaver specifically refers to a 1972 American Petroleum
Institute report titled the Migration of Petroleum Products in Soil and Groundwater.
Deaver agreed that the API report Migration of Petroleum Products in Soil and
Groundwater in Principles and Countermeasures would have no application to a
conduit for fiber optic cable, if it were assumed that there has not been any
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petroleum in the pipeline or easement since at least 1994. Deaver testified that
industry standards regarding petroleum pipelines and compliance with these
industry standards by subsequent purchasers of the pipeline would not apply to
WilTel. Deaver agreed that WilTel would have no duty to follow 49 CFR 195,
DOT regulations concerning interstate petroleum pipelines and agreed that they do
not apply to telecommunication companies. Deaver testified that WilTel would
have no duty to maintain certain records required to be maintained by operators of
petroleum pipelines.
The second person disclosed by Plaintiffs is Patrick Agostino, Ph.D., P.G.,
who Plaintiffs identified as an expert who may testify as to risks posed by pipeline
leaks and spills; the movement of petroleum products in subsurface soil and
groundwater; industry standards within the pipeline industry; testing, cleanup and
remediation methods following pipeline leaks and spills; and liability of
Defendants. Agostino has never worked in the telecommunication industry.
Agostino does not hold himself out as a telecommunications expert. Agostino is
not familiar with any of the local, state or federal regulations dealing with
telecommunication companies. Agostino agreed he was not offering an opinion
regarding WilTel's conformance with telecommunication rules or regulations. He
also agreed that he is not giving an opinion that the federal regulations which
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dictate how petroleum pipeline companies must operate pipelines have any
application to fiber optic telecommunication companies.
The third and final person disclosed by Plaintiffs as an expert is Jeff
Langston, R.G. Plaintiffs specifically indicated that his testimony will be limited to
the methods used and results obtained in subsurface testing on Plaintiffs’ property
located in West Alton, Missouri, in June 2010 and that he will be offering no other
opinions in this case. Langston is not an expert in the telecommunications field.
Langston has never worked in the telecommunications field. Langston has offered
no opinions in the telecommunications field.
Robert M. Rohlfs, CPG, is an expert witness engaged by Defendants
Magellan and WilTel in this matter. Mr. Rohlfs holds a bachelor’s and a master’s
degree in Geology. His experience includes managing multiple portfolios of sites
with soil and ground-water impacts from released fuels and/or other chemicals. Mr.
Rohlfs is familiar with the Henke property which is the subject of this litigation.
Mr. Rohlfs reviewed the SCI Engineering, Inc., Subsurface Investigation of the
Henke Tract Report dated July 2010 prepared by Jeffery Langston; the November
15, 2011, Transcript of the Testimony of Jeffery Langston; associated defendant’s
exhibits from the testimony of Langston; and the February 1, 2012, Transcript of
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the Testimony of WilTel Communications, LLC, through its designated
representative, Donald Richard Palmer. Mr. Rohlfs opinion is that all samples
collected for laboratory analyses by SCI were from below grade, and that the
location of petroleum compounds allegedly identified by SCI on the Henke tract
was at least 2,000 feet away from the southeast corner of the intersection of Saale
Road and MO Hwy 94. Given the distance, fiber optic installation crews working at
the southeast corner of the intersection of Saale Road and MO Hwy 94 would not
have encountered any petroleum compounds from the locations allegedly identified
by SCI. No one walking the fiber optic line on the Henke property in the location
of petroleum compounds allegedly identified by SCI on the Henke tract during the
installation process or thereafter would have been able to detect such compounds
below grade by sight, smell, or observation.
Discussion
Summary Judgment Standard
The standards for summary judgment are well settled. In determining
whether summary judgment should issue, the Court must view the facts and
inferences from the facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
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Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The moving
party has the burden to establish both the absence of a genuine dispute of material
fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Enter. Bank, 92 F.3d at 747. Once the moving
party has met this burden, the nonmoving party may not rest on the allegations in
his pleadings but by affidavit or other evidence must set forth specific facts
showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson
477 U.S. at 256; Krenik v. Le Sueur 47 F.3d 953, 957 (8th Cir. 1995). “‘Only
disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.’ Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).” Hitt v. Harsco Corp., 356 F.3d 920, 923
(8th Cir. 2004). An issue of fact is genuine when “a reasonable jury could return a
verdict for the nonmoving party” on the question. Anderson, 477 U.S. at 248;
Woods v. DaimlerChrysler Corp., 409 F.3d at 990. To survive a motion for
summary judgment, the “nonmoving party must ‘substantiate his allegations with
sufficient probative evidence [that] would permit a finding in [his] favor based on
more than mere speculation, conjecture, or fantasy.’ Wilson v. Int’l Bus. Maces.
Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation omitted).” Putman v. Unity
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Health System, 348 F.3d 732, 733-34 (8th Cir. 2003). “[A] complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 323. The Court will
review the facts in this case with the stated standards in mind.
WilTel moves for partial summary judgment on Counts VI (breach of
contract) and Count III (negligence). WilTel argues that because it did not
encounter any hazardous materials or conditions during the installation, operation,
or maintenance of its underground communication system, Plaintiffs cannot
establish a breach of contract. With regard to the negligence claim, WilTel argues
that Plaintiffs cannot establish that WilTel owed them any duty and therefore, are
unable to prove their negligence claim. Plaintiffs argue that considering WilTel’s
motion for partial summary judgment is premature, and further that there are
disputed facts which preclude entry of partial summary judgment.
There is no dispute that under Missouri law, the essential elements of a
breach of contract action are: a contract between the plaintiff and the defendant;
rights of the plaintiff and obligations of the defendant under the contract; breach of
the contract by the defendant; and damages suffered by the plaintiff because of the
defendant’s breach. Teets v. American Family Mut. Ins. Co., 272 S.W.3d 455, 461
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(Mo.App. E.D. 2008).
Plaintiffs argue that this motion is premature since it was filed before the
Court ruled on the Motion for Class Certification. The Court agrees with
Defendant that whether or not this matter has been certified as a class action is
immaterial and irrelevant to the instant motion. While Plaintiffs are correct that the
discovery in this matter has been separated with regard to class action issues and
non-class action discovery, nothing precludes any of the parties from filing
dispositive motions at any time. Indeed, the Court’s Case Management Order
recognizes that this may occur by denoting response times in the event motions are
filed before the deadlines contained in the CMO.
With respect to the merits of the motion, Plaintiffs rely on the Right of Way
and Easement Agreement with WilTel’s predecessor, Williams Communications,
Inc. Specifically, Plaintiffs’ claim for breach of contract is premised on the
paragraph which designates the Grantee (Williams) as the sole party to remedy
hazardous materials or conditions encountered on the property during the
installation, operation or maintenance of the underground communication system.
This paragraph provides:
Any and all hazardous materials or conditions encountered during he
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installation, operation, or maintenance of the underground
communications system shall be fully remedied promptly by the
Grantee.
Exh. 39, at para. 113. WilTel’s corporate representative, Don Palmer, explained
that the process for the installation of the fiber optic underground communications
system that is the subject of the contract requires excavation down to the pipeline
every three to five miles. Detailed records of these locations were kept. Of the 33
landowners with the above quoted provision in their easement, WilTel was on the
property of at most, twelve during installation. WilTel did not encounter any
hazardous material or conditions during the installation along the Mexico to Wood
River line, the line in which WilTel placed its optic underground communications
system, in spite of its vigilance in being observant for such conditions.
The undisputed facts establish that WilTel did not encounter any hazardous
materials or conditions during the operation of the underground communications
system. The operation involves operation of the equipment which puts the light
through the fiber optic cable, which is located at amplifier sites and add/drop sites
in Kansas City and St. Louis, Missouri.
Likewise, WilTel did not encounter any hazardous materials or conditions
during the maintenance of the underground communication system. The
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undisputed facts establish that there has never been any maintenance work done on
the Mexico to Wood River segment of the pipeline by WilTel.
Plaintiffs argue that WilTel did in fact “encounter” hazardous materials and
conditions because Williams Communications, now WilTel, received documents
from Williams Pipe Line Company that were related to the pipeline in 2001. These
documents included evidence of prior leaks of petroleum products. From this,
Plaintiffs argue that WilTel knew of the previous leaks and therefore encountered
hazardous materials. Plaintiffs’ strained reading of “encounter” in the contract is
misplaced. As detailed in the Easements, “encounter” is the verb in the sentence
dealing with the remedies. The Easement did not provide that WilTel would be
responsible for remedying hazardous materials if it had any knowledge of or read
about hazardous materials or conditions, rather, an affirmative action had to be
experienced by WilTel in order for it to be responsible for the clean up. The verb,
encounter, has the meaning of: “to have or experience (problems, difficulties, etc):
to meet. . . without expecting or intending to.” Merriam-Webster Online
Dictionary; “a meeting, especially one that is unplanned, unexpected, or brief.”
The Free Online Dictionary. In order for WilTel to “encounter” hazardous material
or conditions, it must have had some sort of experience, meeting, chance “running
across.” The undisputed facts establish that WilTel did not have “encounters” with
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hazardous materials or conditions, in the ordinary meaning of the word, in the
installation, operation, or maintenance of the fiber optic cable in the pipeline
section from Mexico to Wood River. As such, Plaintiffs cannot establish an
essential element of their breach of contract claim. Summary Judgment on Count
VI in favor of WilTel is therefore appropriate.
Plaintiffs also argue that WilTel was negligent in its operation of the fiber
optic cable through the pipeline by failing to remedy the leaks of petroleum into the
surrounding land.
Under Missouri law, a negligence claim consists of three elements: (1)
a legal duty owed to the plaintiff by the defendant; (2) a breach of that
duty; and (3) an actual injury to the plaintiff resulting from the
defendant's breach. Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d
151, 155 (Mo.2000) (en banc). “Whether a duty exists is purely a
question of law [,]” suitable for determination on summary judgment.
Id.
Aragon v. Wal-Mart Stores East, LP 735 F.3d 807, 809 (8th Cir. 2013).
To determine whether Plaintiffs’ negligence claim can survive summary
judgment, the Court first must determine whether WilTel owed a duty to Plaintiffs.
Defendant argues that because Plaintiffs did not designate an expert with regard to
the specific type of relationship between Plaintiffs and WilTel, a telecommunications company, they cannot establish the existence of a duty between
Plaintiffs and WilTel. The Court agrees. In order for a determination of whether a
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duty exists, the Court, in this instance, looks at circumstances surrounding the
parties’ relationship.
“A duty to exercise care can be imposed by a controlling statute or
ordinance, assumed by contract, or imposed by common law under the
circumstances of a given case.” Bowan v. Express Med. Transporters,
Inc., 135 S.W.3d 452, 457 (Mo.Ct.App.2004). In determining whether
a duty exists in a particular case, Missouri courts consider several
policy factors, including the foreseeability of the harm. Id. Whether a
duty exists is a question of law. Id.
Bluehaven Funding, LLC v. First American Title Ins., 594 F.3d 1055, 1060 (8th
Cir. 2010). Plaintiffs contend that WilTel was negligent in allowing the continued
leakage of petroleum products onto their land, however, it cannot be ascertained
from these allegations alone whether WilTel should be responsible for any
petroleum leakage based on the fact it ran fiber optic cable through the pipeline,
and did not encounter any hazardous material or conditions. Plaintiff’s allegations
of a duty alone are insufficient to convince the Court that a duty exists. Without
some evidence that WilTel should be held accountable for the leakage based on its
operations and its relationship to Plaintiffs, the Court cannot find that a duty to
Plaintiffs existed. Plaintiffs have presented nothing to establish such a duty, and
therefore, as a matter of law, the Court finds WilTel owed no legal duty to
Plaintiffs. Summary Judgment in favor of Defendant as to Count III is appropriate.
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Conclusion
Based on the foregoing analysis, summary judgment is proper in favor of
Defendant WilTel and against Plaintiffs on Counts III and VI of Plaintiffs’
Accordingly,
IT IS HEREBY ORDERED that Defendant Wiltel Communications,
L.L.C.’s Motion for Partial Summary Judgment, [Doc. No. 81], is granted.
A separate judgment in accordance with this Opinion, Memorandum and
Order will be entered upon the resolution of the remaining claims herein.
Dated this 7th day of March, 2014.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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