HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 001 - Complaint And Jury DemandDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
(970) 494-3500
COURT USE ONLY
Plaintiff: CITY OF FORT COLLINS
v.
Defendants: DIRECTIONAL PLUS, LLC, and
MASTEC NORTH AMERICA, INC.
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80524
Phone & Fax Number: (970) 482-4011
John R. Duval, #10185
Deputy City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, CO 80522
P: 970.221.6652
F: 970.221.6327
jduval@fcgov.com
Case No.:
Division:
COMPLAINT AND JURY DEMAND
COMES NOW, Plaintiff City of Fort Collins, by and through its attorneys, Andrew W.
Callahan of Wick & Trautwein, LLC and John R. Duval of the Fort Collins City Attorney’s Office,
for its Complaint against Defendants Directional Plus, LLC and Mastec North America, Inc., and
states as follows:
DATE FILED: February 17, 2023 4:47 PM
FILING ID: 231C1F9A216F6
CASE NUMBER: 2023CV30130
Parties and Venue
1. Plaintiff City of Fort Collins is a home rule municipality located in Larimer County,
Colorado.
2. Defendant Directional Plus, LLC is a limited liability company formed under the
laws of Colorado with its principal place of business located at 36401 County Road 43, Eaton,
Colorado 80615.
3. Defendant Mastec North America, Inc. is a corporation organized under the laws
of Florida with its principal place of business located at 800 S. Douglas Road, Suite 1200, Coral
Gables, Florida 33134.
4. Venue for the action is proper in the Larimer County District Court because the
wrongful conduct of Defendants and harm incurred by Plaintiff occurred in Larimer County,
Colorado.
5. This lawsuit arises out of an incident on February 23, 2021, in which Defendants
Directional Plus and Mastec negligently drilled into a City owned 36-inch transmission water
main, causing property damage and necessitating significant expenditures to repair.
Factual Background
6. In order to prevent injury to persons and damage to property from accidents
resulting from damage to underground facilities by excavation, the State of Colorado has created
a single statewide excavation notification system administered by the Underground Damage
Prevention Safety Commission, colloquially known as Colorado 811. See C.R.S. §§ 9–1.5–101,
et seq., www.colorado811.org.
7. Any person or company who is excavating anywhere other than on their own
property is required to electronically file a “locate request” through the Colorado 811 website.
8. This locate request puts underground facility owners (including all water, sewer
and electric utilities) on notice of a future excavation, and also triggers a requirement that they
timely respond to the locate request.
9. After receiving a locate request, an underground facility owner must provide a
“positive response” through the Colorado 811, which confirms that utility locates have been done,
or explains that the locate could not be completed due to extraordinary circumstances.
10. In January 2021, Defendant Mastec was excavating a boring hole near 943 Conifer
Street, Fort Collins, Colorado, to lay buried fiber optic cables. In its excavation permit application,
Mastec listed Defendant Directional Plus as a subcontractor.
11. On or about January 28, 2021, Defendant Mastec filed a locate request for the area
in question.
12. A City engineer timely responded to this locate request and marked a City-owned
36-inch underground water main.
13. Shortly after the City made its marks, there was a snow storm which halted
excavation activity and also obscured the markings.
14. On February 11, 2021, Defendant Directional Plus filed a new locate request for
the same area in question, with a response date of February 16, 2021.
15. On February 16, 2021, a City employee went to the site and determined that it was
not possible to remark the utility lines, due to the snow which was still covering the ground. The
City filed a positive response through Colorado 811 indicating that locates could not be done at
this time due to extraordinary circumstances.
16. This positive response was communicated to Directional Plus through the Colorado
811 notification system.
17. Neither Mastec nor Directional Plus filed a new locate request through Colorado
811, nor did they communicate a locate request directly to the City.
18. Despite their failure to properly locate the City utilities, Directional Plus, under the
direction and control of Mastec, began excavating a lateral bore hole underneath Conifer Road.
19. During the course of this excavation, Directional Plus and Mastec failed to use
reasonable care to locate and excavate around the City water main before commencing with lateral
underground boring.
20. On February 23, 2021, Directional Plus struck and punctured the City water main,
causing significant damage.
21. The City incurred expenses in excess of $274,000.00 to plug and repair the water
main, including expenses paid to third-party contractors and the time and expense of City
employees to repair the damage.
Count I - Claim for Civil Penalties Pursuant to § 9-1.5-104.5
Comes now Plaintiff City of Fort Collins, and for Count I of its Complaint, states as
follows:
22. Plaintiff incorporates the allegations of the foregoing paragraphs as if fully set forth
herein.
23. “Any person who intends to excavate shall notify the notification association
[Colorado 811] pursuant to section 9-1.5-103 prior to commencing any excavation activity.”
C.R.S. § 9-1.5-104.5(2)(a).
24. “If any person […] fails to comply with paragraph (a) of this subsection (2) and
damages an underground facility during excavation, such person shall be liable for a civil penalty
in the amount of five thousand dollars for the first offense and up to twenty-five thousand dollars
for each subsequent offense within a twelve-month period after the first offense.” C.R.S. § 9-1.5-
104.5(2)(c)(I).
25. “If any person […] fails to comply with paragraph (a) of this subsection (2) or fails
to exercise reasonable care in excavating or performing routine maintenance and damages an
underground facility during such excavation or routine maintenance, such person shall be
presumably liable for:
(I) Any cost or damage incurred by the owner or operator in restoring,
repairing, or replacing its damaged underground facility, together with
reasonable costs and expenses of suit, including reasonable attorney fees;
and
(II) Any injury or damage to persons or property resulting from the damage to
the underground facility. Any such person shall also indemnify and defend
the affected owner or operator against any and all claims or actions, if any,
for personal injury, death, property damage, or service interruption resulting
from the damage to the underground facility.
C.R.S. § 9-1.5-104.5(d).
26. As is set forth in the allegations above, Defendants Directional Plus and Mastec
failed to comply with the requirements of C.R.S. § 9-1.5-103 and § 9-1.5-104.5(2)(a) when they
commenced excavation after receiving a positive response from the City stating that locates could
not be performed due to the weather conditions.
27. Defendants Mastec and Directional Plus also failed to use reasonable care in
excavating when they failed to take reasonable steps to identify the actual location of the City
water main before commencing with lateral boring.
28. Specifically, Defendants Mastec and Directional Plus had a duty to use non-
destructive exploratory excavation techniques (commonly known as “potholing”) to identify the
location and depth of all underground utilities before commencing with lateral boring. See C.R.S.
§9-1.5.103.
29. Here, Defendants either did not attempt to locate the City water main or failed to
locate it, and still chose to proceed with the lateral boring.
30. As a direct result of Defendants’ failure to comply with the requirements of C.R.S.
§ 9-1.5-103 and § 9-1.5-104.5(2)(a), and Defendants’ failure to exercise reasonable care in
underground excavating, Defendants drilled into the City water main causing the damages
described above.
Count II - Negligence
Comes now Plaintiff City of Fort Collins, and for Count II of its Complaint, states as
follows:
31. Plaintiff incorporates the allegations of the foregoing paragraphs as if fully set forth
herein.
32. Defendants Mastec and Directional Plus owed a duty to Plaintiff and others to use
reasonable care in the excavation of a later boring line.
33. Defendants breached this duty by failing to use reasonable care to locate the City
water main, which they knew or should have known was in the vicinity of their excavation, before
commencing with lateral drilling.
34. As a direct and proximate result of Defendants’ failure to use reasonable care,
Directional Plus struck and pierced the City water main, causing the damages described above.
Count III – Breach of Contract
Comes now Plaintiff City of Fort Collins, and for Count II of its Complaint, states as
follows:
35. Plaintiff incorporates the allegations of the foregoing paragraphs as if fully set forth
herein.
36. In order to excavate under a City right of way, any company is required to file an
application for a Permit for Excavation on Public Property in the Right-of-Way.
37. On December 17, 2020, Defendant Mastec submitted an application for an
excavation permit to the City for the project at issue in this lawsuit.
38. The application states: “Applicant has read this permit and agrees to abide by the
City of Fort Collins Standard Plans and Specifications and to any ordinances, special conditions,
restrictions, and regulations that may be imposed by the Department of Engineerin g.”
39. This application was signed by Mark Baca, as representative and agent for
Defendant Mastec.
40. The City issued Excavation Permit #EX200581 to Mastec on December 30, 2020
for the project in question. This Permit contains the following terms:
a. Contractor will be responsible to restore any disturbed area(s) to original or
better condition per City code (including all disturbed landscaping and
grass/sod areas).
b. By performing work in the COFC ROW [City of Fort Collins Right-of-Way]
the contractor understands and agrees to all of the above conditions and required
standards.
c. The Applicant agrees to comply with all the requirements and comments
contained herein, and City ordinances, and State law associated with such work.
41. City of Fort Collins Municipal Code, Chapter 23, Article II, Sec. 23-22 states as
follows: “Every permit holder acting under a permit issued pursuant to this Article shall be
responsible to anyone for any injury to person or property by reason of the work done under the
permit and shall indemnify and hold the City harmless from any expenses, costs, claims or other
charges or fees arising out of such work.”
42. City of Fort Collins Municipal Code, Chapter 23, Article II, Sec. 23-20 states as
follows: “(c) If the permit holder or any agent o r representative thereof causes damage to any
public infrastructure, …such damage shall be promptly repaired using the same kind, quality,
color, serviceability and material composition aspects as the infrastructure damaged, unless
otherwise expressly agreed to by the City in writing.”
43. Under the plain terms of the Permit Application and Excavation Permit, Defendant
Mastec had a contractual obligation to indemnify the City for all expenses, costs and claims arising
out of the excavation project at issue in this case, including damage to City property.
44. Under the plain terms of the Permit Application and Excavation Permit, Defendant
Mastec had a contractual obligation to restore any disturbed areas arising out of the project at issue
“to original or better condition.”
45. Under the plain terms of the Permit Application and Excavation Permit, Defendant
Mastec had a contractual obligation to promptly repair the damage “using the same kind, quality,
color, serviceability and material composition aspects as the infrastructure damaged, unless
otherwise expressly agreed to by the City in writing.”
46. At all times relevant herein, Defendant Directional Plus was acting as an agent of
Defendant Mastec and under the direction and control of Defendant Mastec.
47. As is set forth more fully above, Defendant Directional Plus drilled into the City
water main causing the damages described above.
48. Defendant Mastec has a contractual obligation to indemnify the City for the losses
and damages caused by Defendant Directional Plus.
49. Defendant Mastec failed to repair the damage, return the premises to as good or
better condition and to indemnify the City for costs incurred in doing the same.
50. As such, Defendant Mastec is in breach of the contract and liable for the damages
recoverable thereunder.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff City of Fort Collins respectfully requests this Court enter
judgment against Defendants Mastec North America, Inc. and Directional Plus, LLC in an amount
to fairly and reasonably compensate Plaintiff for the damages sustained, for statutory penalties
pursuant to C.R.S. § 9-1.5-104.5, for costs and attorney’s fees incurred herein, and for such other
relief as is just and reasonable.
JURY DEMAND
Plaintiffs hereby demands a trial to a jury of six on all issues herein. The statutory jury fee
has been paid.
DATED this __ day of February, 2023.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421, and
John R. Duval, #10185
Attorneys for Plaintiff City of Fort Collins
Address of Plaintiff:
City of Fort Collins
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522