SUSAN P. WATTERS, District Judge.
Pursuant to Fed. R. Civ. 16 and L.R. 16.4, the parties submit this Final Pretrial Order to govern the course of trial.
This action arises out of Defendant, Alan Engelke ("Engelke") striking, breaking and then burying an underground salt water disposal pipe line ("Line") in and about October, 2013. After striking and breaking the Line, Engelke failed to contact the owner of line, Avery Bakken ("Avery") or the One Call Notification Center ("Center"), as required under Montana statutory law relative to his striking and breaking the Line. At the time Engelke struck and broke the Line, it was out of service undergoing repairs. Avery eventually placed the Line back in service in May, 2014, running salt water through its Line. Salt water running through the Line found its way to the area where Engelke struck and broke the Line resulting in a significant amount of salt water releasing from the break in the Line and into the environment.
Avery took affirmative steps to clean up the release in which it incurred considerable expense in doing so. Avery made a claim on his insurance policy issued by Plaintiff, Mid Continent Casualty Company ("Mid-Continent"). Mid-Continent covered and paid out for the costs, expenses and damages arising out the saltwater release. Mid Continent has made Avery whole. Mid Continent now makes a claim of subrogation against the named defendant seeking to be paid for all costs, expenses and damages it paid arising out of the cleanup of the release.
2013 version of Section 69-4-503(6), MCA states in relevant part:
The 2013 version of Section 69-4-505(4), MCA states:
Dry Prairie contracted with Engelke to excavate/dig a trench on real property owned by Joe Picard. Prior to the excavation work being started, Dry Prairie marked the path that Engelke was to perform his digging. While Engelke was performing his excavation along the path established by Dry Prairie, he struck the Line and damaged it. After striking the Line, Engelke failed to contact Avery or the Center for purposes of reporting his striking and damaging the Line. Instead, Engelke simply buried the Line and continued on with his digging. Mid Continent contends that Engelke was negligent in not contacting the owner of the Line or the Center and such negligence caused the release of saltwater into the environment. Mid Continent further contends that any negligence in Avery failing to be registered with the Center is cutoff by Engelke's negligence and Engelke's negligence is the superseding intervening cause of the Release and the costs and expenses Mid-Continent incurred in cleaning up the Release.
This is negligence claim brought by Mid Continent Casualty Company (Mid Continent) against Alan Engelke (Engelke) arising out of excavation work performed by Engelke on behalf of Dry Prairie Rural Water Authority (Dry Prairie), the operator of a water business in northeast Montana, to extend its water lines to provide new services to property owned by Joe Picard (Picard). Engelke, before performing the excavation/trenching work, visually inspected the ground upon which the work was going to be performed, spoke with Picard who told him that any pipelines that he would be probably abandoned and finally, did what was required of him by Montana's Dig Law and that was to contact the one-call notification center, before excavation, to obtain information concerning the possible location of underground facilities (pipes) from every underground facility owner required to be a member of the one-call notification center. As a result, Engelke received a one-call ticket identifying underground facility owners in the area of where his work was going to be performed so that he could comply with any and all duties to contact them concerning the proposed excavation.
Engelke, while performing the excavation work, struck and damaged a pipe that was obviously and clearly not in use. The pipe was one of many pipes that had been abandoned on or near the property at issue and which Picard had previously referred to. Engelke contacted Picard who told him that the pipe, clearly not in use, was abandoned and further explained that another contractor, Franz Construction, had previously dug over 100 holes in the same area and had also damaged abandoned pipe. Picard, the property owner who had been advised by Engelke of the situation, told Engelke that if it was him, he would not fix the pipe but instead cover it up and continue with the excavation work since he was unaware of any active line being in the area where Engelke was performing his work.
There is no dispute that the pipe in question was a saltwater disposal line running from the Anvil Well, some significant distance away, owned at that time by Windy Butte Disposal Facility, LLC (Windy Butte). Contrary to the mandatory requirements of §69-4-502(2)(a), MCA, Windy Butte was not a member of the one-call notification center. After the work was performed by Engelke, Windy Butte was purchased by Jeff Avery (Avery) in November of 2013 who immediately transferred his interest to Avery Bakken Disposals LLC (Avery Bakken). Avery was an owner of Windy Butte and also Avery Bakken. As a consequence, Avery was and is an agent of Windy Butte and Avery Bakken. Pursuant to the Stipulation of the parties (Doc. 40), Avery Bakken and Windy Butte are one and the same entity for all purposes and that the acts, omissions or liabilities of Windy Butte are the acts, omissions or liabilities of Avery Bakken. Consequently, the acts or omissions of Avery Bakken, the insured of Mid Continent, as well as Windy Butte, are also the acts or omissions of Mid Continent. Mid Continent is negligent as a matter of law for the acts and omissions of Avery Bakken and Windy Butte.
Mid Continent's negligence in failing to register with the one-call notification center is the sole cause of Mid Continent's alleged damages. Engelke acted, under the circumstances of this case, in a careful and prudent manner. Engelke had not been provided the identity of the owner of the saltwater disposal line since Mid Continent had failed, as required by law, to register with the one-call notification center and Engelke acted in a careful and prudent manner in not only conducting the excavation work but upon striking the pipe conducting further investigation by confirming with the property owner, the person most knowledgeable concerning the lines under his property, as to the status of the pipe. The pipe was clearly not in use and there was no indication that it would be placed in use but appeared to be consistent with other pipes in the area that had also been abandoned. Had Engelke contacted the one-call notification center, their records would not have revealed the owner of this pipe since the owner, Mid Continent, had failed to register with the one-call notification center. The sole or majority cause of the damages claimed by Mid Continent is as a result of Mid Continent's negligence thus barring Mid Continent from any recovery against Engelke in this matter.
The Court has jurisdiction over the Plaintiffs claims against Engelke. Mid Continent is organized under the law of a state other than Montana. Therefore, the Court has diversity jurisdiction over this action pursuant to 28 U.S.C. S 1332 and venue is proper because the Defendant reside in the Montana Federal District Court, Billings Division, where this action is filed. The amount in controversy will exceed $75,000 exclusive of interest and costs.
This action shall be tried before a six person jury, with one alternate.
The following facts are agreed upon and require no proof:
2013 version of Section 69-4-503(6), MCA states in relevant part:
The 2013 version of Section 69-4-505(4), MCA states:
While Engelke was performing his excavation, he struck and broke the Line. After striking the Line, Engelke had a duty under Section 69-4-503(6), MCA to contact Avery or the Center to report that he struck and broke the Line.
Engelke's negligence caused damages to Avery Bakken and in turn to Mid Continent that paid for the damages to be proven at the time of trial.
Windy Butte and Avery Bakken acted negligently when failing to comply with the mandatory requirements of §69-4-502(2)(a), MCA by not being members of the one-call notification center. Mid Continent is liable for the acts, omissions and liabilities of Windy Butte and Avery Bakken. Therefore, Mid Continent has acted negligently as a result of its violation of §69-4-502(2)(a), MCA.
Mid Continent's negligence was the sole or primary cause of Mid Continent's alleged damages. Engelke, prior to conducting the excavation work, complied with Montana's Dig Law by contacting the one-call notification center and obtaining a one-call ticket pursuant to §69-4-502(1)(a), MCA. The one-call ticket was dated September 29, 2013 and identified the owners of the underground facilities in the area of where Engelke's excavation work was to be performed. Engelke relied on the one-call notification ticket. In addition, Engelke confirmed with the property owner that any lines discovered during the excavation process were not active lines and had been abandoned. After striking the line, Engelke further inquired of the property owner Picard who clearly stated that the line was abandoned. The line was not in use and appeared to be abandoned. Had Engelke contacted the one-call notification center at that time, no new information would have been supplied to him as Mid Continent was not a member of the one-call notification center. Engelke acted as a careful prudent excavator would have acted under the same circumstances. There was no indication that this line was owned by Mid Continent or its subrogors. Furthermore, there was no indication that the line was anything other than an abandoned line consistent with other abandoned lines in the same area. Engelke did not act negligently and any negligence determined by the Court was not a cause of any damages claimed by Mid Continent. Any damages claimed by Mid Continent were caused as a result of Mid Continent's negligence.
The negligence law and comparative negligence law of the State of Montana applies to this case. As a result, the negligence of Mid Continent bars Mid Continent from any recovery in this matter.
The relief sought against Engelke is for all damages, costs and expenses relative in any form to the clean up of the release caused by Engelke's negligence. Computation of damages total $148,715.80 broken down with reference to Plaintiffs Will Offer Exhibits as follows:
None to be decided at trial.
Former defendants State Farm Fire and Casualty Company and Dry Prairie Rural Water Authority have been dismissed by way of their motions for summary judgment.
None.
Attached to this pretrial order are the following separate witness lists of the parties:
Plaintiffs' Inclusive Witness List is attached hereto.
Engelke's Inclusive Witness List is attached hereto.
Attached to this order are the exhibit lists of the parties. Objections not showing on the exhibit lists, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, are waived unless good cause is shown.
Not including voir dire, opening statements and closing statements, the parties estimate that Mid Continent will require two days of trial to complete its case in chief. Engelke estimates, assuming that most witnesses have been called in Mid Continent's case in chief that he will require one half of a day to trial to complete his case in chief.
This Order supersedes the pleadings in this matter.
