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AT&T Mobility LLC v. Tiptons' Inc.

United States District Court, D. Maryland

September 21, 2017

TIPTONS' INC., Defendant.


          James K. Bredar United States District Judge

         Plaintiff AT&T Mobility LLC, a Georgia company, brings this action against Defendant Tiptons' Inc., a Maryland company, alleging negligence and seeking compensatory damages associated with the collapse of a communications tower and resulting damage to Plaintiff's communications equipment. Before the Court are the parties' cross motions for partial summary judgment. A hearing is not necessary to resolve the matter. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth in this memorandum, Defendant's Motion (ECF No. 33) will be denied by accompanying order. Plaintiff's Motion (ECF No. 35) will be granted in part and denied without prejudice in part by accompanying order, in accordance with the principles set forth below.

         I. Background

         In 2002, Plaintiff AT&T Mobility LLC entered into a contract with the owner of a communications tower (“Tower”) in Frederick County, Maryland, and began using space on the Tower to house and operate telecommunications equipment (“Equipment”). (Pl.'s Mot. Partial Summ. J. Ex. C, Van Riper Dep. 19:22, ECF No. 35-5; Def.'s Mot. Partial Summ. J., Ex. 72, License for Telecommunications Equipment, hereinafter “License, ” ECF No. 33-6.) The contract, titled as a “License, ” did not permit Plaintiff access to or control over most of the Tower, nor did it grant Plaintiff any ownership of the Tower itself. (License ¶ 1.) Instead, the License allowed Plaintiff, for a monthly fee, to place Equipment in a specific place on the Tower and to have access to a “footprint” at the base of the Tower. (Id. ¶¶ 1-2.) Plaintiff is required under the License to notify the Tower owner of conditions on the Tower that would require maintenance or repair (id ¶ 10), but the License provides that Plaintiff may not make any modification to its Equipment without the permission of the Tower owner. (Id. ¶ 7(c).) In the event of a fire or casualty, the License provides that the Tower owner will be responsible for repairing the Tower to its prior condition, but the Tower owner is specifically not liable for any damages stemming from the Plaintiffs inability to use the Tower in the interim, nor is the Tower owner liable for any damage to Plaintiffs own equipment. (Id. ¶ 13(a).) Plaintiff has maintained the License to this day and continues to make monthly payments to the owner. (Van Riper Dep. 41:21-22; 99:14-17.)

         On July 13, 2015, the Tower collapsed. (First Am. Compl. ¶ 6, ECF No. 24; Pl.'s Mot. Partial Summ. J. Ex. E, Tiptons' Answer to AT&T's Interrog. No. 7, ECF No. 35-7.) Plaintiff alleges that the cause of the collapse was the negligence of Defendant Tiptons' Inc., a Maryland company that was engaged in logging operations on the same property where the Tower was situated. (First Am. Compl. ¶¶ 1, 8; Tiptons' Answer to AT&T's Interrog. No. 1.)

         As a result of the Tower's collapse, Plaintiff has suffered a loss. The precise nature of that loss is in part the subject of the cross motions for summary judgment before the Court today, but the basic nature of Plaintiffs loss can be simply described in two parts. First, Plaintiffs Equipment was damaged. (First Am. Compl. ¶ 13.) Second, Plaintiff lost the utility of that Equipment, i.e., Plaintiff lost the telecommunications coverage that the Equipment provided. (See Pl.'s Mot. Partial Summ. J. Supp. Mem. 3, ECF No. 35-1.) In order to compensate for the first loss, Plaintiff purchased new Equipment. (Id. Ex. A, Van Riper Aff. ¶ 6, ECF No. 35-3; Ex. J, AT&T Summary Chart of Damages, ECF No. 35-12.) According to the Plaintiff, it is more economical to purchase new Equipment than to repair damaged Equipment because when it repairs damaged Equipment, it must also test and certify that Equipment, which is costly. (Van Riper Dep. 104:18-105:2.) In order to compensate for the second loss, Plaintiff erected its own temporary tower (the “Temporary Tower”) and installed the new Equipment on the Temporary Tower. (Van Riper Aff. ¶ 6; Van Riper Dep. 109:9-23.) According to the Plaintiff, this is the most economical and the fastest way of restoring service to the affected area. (Van Riper Dep. 109:18-21, 115:5-10.)

         In order to be compensated for all of its loss, Plaintiff has brought the instant action, alleging Defendant was negligent and asking for damages. Specifically, Plaintiff is asking for, at least, the cost (1) of purchasing the new Equipment (“Equipment Costs”), (2) to erect the Temporary Tower, to install the new Equipment on the Temporary Tower, and to get that Equipment into service (“Temporary Tower Costs”), and (3) the cost to move the Equipment back to the original Tower once it has been repaired or replaced (“Relocation Costs”). (See Pl.'s Mot. Partial Summ. J. Supp. Mem. 25.)

         Before the Court today are the parties' cross-motions for summary judgment. Defendant moves the Court for judgment on the following issues of law: that Plaintiff is not entitled to “loss of use” damages stemming from Plaintiff's inability to use the Tower, that Plaintiff cannot recover damages in an amount beyond what it could recover from the Tower owner under the License, and that Plaintiff cannot recover both the cost of moving the Equipment to the Temporary Tower and the Relocation Costs because this would constitute a “double recovery.” (Def.'s Mot. Partial Summ. J.) Plaintiff has responded to Defendant's Motion and Plaintiff also moves the Court for judgment on the following issues of law: that, “if [Plaintiff] prevails on liability . . . upon sufficient evidence of damages, [Plaintiff] is entitled to recover (in an amount to be determined by the jury)” the Equipment Costs, Temporary Tower Costs, and Relocation Costs, and that Plaintiff is not contributorily negligent “as alleged by [Defendant].” (Pl.'s Mot. Partial Summ. J.; Def.'s Answer to Pl.'s First Am. Compl. ¶ 18.a, ECF No. 32 (alleging Plaintiff's contributory negligence).)

         II. Standard of Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere existence of a scintilla of evidence in support of the [opposing party's] position” is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1).

         III. Analysis

         The competing claims surrounding the propriety of damages in this case are reminiscent of a torts hypothetical in a first year law school class. And, just as in an introductory torts class, it is helpful to start with some of the basic premises of the law of damages before moving onto the parties' specific claims. The Plaintiff is asking for compensatory damages, and “[c]ompensatory damages awards attempt to make the plaintiff whole again by monetary compensation.” Exxon Mobil Corp. v. Albright, 71 A.3d 30, 97 (Md. 2013) (quotations omitted). Such damage awards aim to place a plaintiff in the same position he would have been in without the defendant's negligent conduct. See Restatement (Second) of Torts § 903, cmt. a. (1979). For a case involving damage to a tangible thing, i.e., a “chattel, ” the measure of such damages is generally simple: the fair market value of the chattel prior to the damage, or the cost of repair, whichever is cheaper. See Taylor v. King, 213 A.2d 504, 507 (Md. 1965) (referring to compensation for injury to a motor vehicle); Maryland Law Encyclopedia, 8 M.L.E. Damages § 68. This is because chattels are generally easily replaceable - if a car is damaged in an accident, then its owner can be “made whole” by having the car fixed, or if the car is “totaled, ” i.e., repairs will cost more than what the car is worth, the owner can be made whole by buying the same (or equivalent) car.

         Another consequence of the fact that chattels are often easily replaceable is that damages for “loss of use” of the chattel would often make a plaintiff better off than before the negligent conduct occurred. If a plaintiff can have his car replaced, the plaintiff does not also suffer from his inability to use that car. This is part of the reason why, generally, “when [a chattel] is totally destroyed, and there is recovery for its full value, there can be no recovery for loss of use.” Weishaar v. Canestrale, 217 A.2d 525, 534 (Md. 1966) (citing Barnes v. United Rys. & Elec. Co., 116 A. 855 (Md. 1922)). Another reason loss of use damages are the exception and not the rule is that damages, whether for “loss of use” or any other deprivation, may not be unduly speculative. See Albright, 71 A.3d at 97 (citing McCalister v. Carl, 197 A.2d 140, 145 (Md. 1964)). If a plaintiff's family heirloom is destroyed by an act of negligence, the plaintiff may suffer some “loss” tied to his inability to “use” that chattel, but putting a dollar figure on such a loss is nearly impossible.

         Loss of use damages are not, however, universally disfavored or categorically banned. See Weishaar, 241 A.2d at 530-31. Weishaar v. Canestrale, a case cited favorably by both parties here, is a good example of when a plaintiff may properly recover for loss of use without recovering a windfall. In Weishaar, a commercial driver had parked his truck on the shoulder of a highway when another vehicle hit and seriously damaged his truck. Id. at 527. The truck driver immediately “ordered a replacement for the truck, ” but because it was not a common vehicle, “the body had to be specially fabricated for his use [and] delivery was not accomplished until five weeks later.” Id. at 530. In order to keep up his deliveries, which he had already contracted to perform, he “was obliged to hire a truck.” Id. After a finding in his favor on liability, the truck driver was allowed to recover damages not only for the value of the repairs to his truck, but also for the rental costs associated with hiring the alternative truck for five weeks. Id. The defendant appealed, arguing that the basic law of damages applied - that when “there is a recovery for . . . [the] full value [of a chattel], there can be no recovery for loss of use.” Id. (citing Barnes v. United Rys. & Electric Co., 116 A. 855 (Md. 1922)). The Court of Appeals of Maryland affirmed the award, noting that the above stated rule is a “convenient rule of thumb, ” but one that must give way to the “general principle” that “[d]amages are supposed to compensate the injured person for the wrong which has ...

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