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Filing # 100033820 E-Filed 12/09/2019 05:21:48 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-19-022183
COSTCO WHOLESALE
CORPORATION,
Plaintiff,
ve
COMUTEL SOLUTIONS LLC, and USIC,
LLC,
Defendants.
/
DEFENDANT’S, COMUTEL SOLUTIONS LLC, MOTION TO DISMISS COMPLAINT
COMES NOW, the Defendant, COMUTEL SOLUTIONS LLC, (hereinafter
“Defendant”), by and through its undersigned counsel, and pursuant to Florida Rules of Civil
Procedure 1.140, and hereby files its Motion to Dismiss the Complaint filed by COSTCO
WHOLESALE CORPORATION (hereinafter “Plaintiff”, and states as follows:
1. Plaintiff alleges it sustained damages when this Defendant performed excavation
work on its property and damaged the power lines which ran from a power transformer to its
store location.
2. Plaintiff has brought two counts against this Defendant. Count II alleges a general
negligence claim, and Count III alleges the intentional tort of trespass. A copy of the Complaint
is attached hereto as Exhibit “A.”
3. However, Plaintiff alleges the acts which caused damage to its store occurred in
February 2008. Accordingly, both counts are time-barred by the statute of limitations. See
Compl., 47.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/09/2019 05:21:48 PM.****4. The statute of limitations on both claims is four years from the date of the alleged
injury. See Fla. Stat. § 95.11(3)(a), (g).
5. The law is clear that a party can raise a statute of limitations defense in a motion
to dismiss if that defense appears on the face of the complaint. See Gen. Motors Acceptance
Corp. v. Thornberry, 629 So.2d 292, 293 (Fla. 3d DCA 1993) (““Where, as here, the statute of
limitations defense appears on the face of the complaint, it is permissible to assert the statute of
limitations defense by motion to dismiss.”).
6. Here, the four corners of the complaint indicate the causes of action are time-
barred, and the complaint must be dismissed.
WHEREFORE, Defendant respectfully requests the entry of an Order Granting its
Motion to Dismiss Plaintiff's Complaint, and for any further relief the Court deems just and
proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed using
the Florida Courts E-Filing Portal and furnished by electronic service to David F. Cooney, Esq.
Attorney for Plaintiff, this 9th day of December, 2019, to the parties in the attached service list.
KUBICKI DRAPER
1 East Broward Boulevard
Wells Fargo Tower- Suite 1600
Ft. Lauderdale, Florida 33301
Direct Line: (954) 713-2413
Mjc-kd@kubickidraper.com
BY:|s\ Hitec GF. Caosney
MICHAEL J. CARNEY, ESQ.
Florida Bar No.: 044326SERVICE LIST
David F. Cooney, Esq.
Cooney, Trybus, Kwavnick, Peets
Attorneys for Plaintiff
1600 W. Commercial Blvd., Suite 200
Fort Lauderdale, FL 33309-3006
Tel: (954) 568-6689
Email: reception@ctkplaw.com
tzaccour@ctkplaw.com
Jan P. Kubicz, Esq.
Squire Patton Boggs, LLP
Attorneys for USIC, LLC and d/b/a
USIC Locating Services, LLC
200 S. Biscayne Blvd., Suite 4700
Miami, FL 33131-2303
Tel: (305) 577-7000
Fax: (305) 577-7001
Email: jan.kubicz@squirepb.com
joan.andersondavis@squirepb.com
jason joffe@squirepb.com
fla_dckt@squirepb.comFiling # 97920927 E-Filed 10/26/2019 09:58:47 AM
IN THE CIRCUIF COURT OF THE ITH
JUDICIAL CIRGUIT. [IN ANT FOR
BROWARD COUNTY, FLORIDA
COSTCO WHOLESALE
CORPORATION,
Plaintizé,
CASE NO:
VBL
COMUTEL SOLUTIONS LLC, and
USIC, LLC,
Defendants. 7
COMPLAINT
COSTCO WIIOLESALE CORPORATION hereby files its Initial Complaint against
Defendzes, COMUTE. SOLUTICNS ULE, and USTC, LLC, and states in suppart thereof as
Tellows:
JURIHCTION ANDY VENUE
i, This is an avian for damages exceeding the som of Fifteen Thousand Dollars
(315,001.00), exclusive of interest, costs and atomey's foes and, accordingly this action is within
the jurisdiution uf this Cour.
2 At all times material hereto, Costey Wholesale Curporatiin wes a foreign
corporation which was authorized to conduct bysiness in Broward County, Florida and was
conducting business in Browerd County, Flerida.
4 At all times material herety, Carmutel Solutions, LLC (°COMUTZL" was and is a
Plorida Curperation autinrized 10 conduct business in Broward County, Flarida, and conducting
ousiaess in Broward County, Florida.
EXHIBIT "A"4, At all times matsiel beretu, USED LLC (“CSIC was and is a Delaware
Coperation authorized ta conduct business in Brawarc Cruaty. Florida, and conducting business
it Braward County, Florida.
5. Venue is proper in this cireuk becuse this cause of action accewed in Broward
County.
6. All conditions precedent to the filing of this action which may cxist nave either
been satisficel or they Rave been waived by the Wefendazts.
TA
2. In February 2008, BELLSOUTH Telecornmunications, Inc. hired MASTER North,
Asmerica, (ne. ta perform canstreetion work for it, or uz its achalf.
B. MASTEC suaconteacted with COMUTBL 1 perform some uf the work that
BELLSOUTH had kired MASTEC ta befor.
3. The work chat COMFEL was hired to perform included Jigving andor excavition
wark on Custea proge:ty #1 18975 Pines Boulevard, Pembroke Fines, Florida.
2. USIC is in the besiness of locsting luidyrecuure Wility indra-structere, such as
undergrocnd powerlines, and identifying the lacation of the nderground utilities 19 consorection
Crews 50 that the construction crews would nat damage the ¢nderground utilities wher
digzine‘excaveling in the ares.
11. The main focus ef USIC is to ensure clear and camplete marking services for the
excavator to prevent dantaye la underground infte-structure such #5 clectrical Hines.
(2. COMUTEL called USIC's 821 number before beginning on the excavation work
at the Coséza Pembroke Pings lovaticn.
1 In cespanse $a the call from COMUTEL, USIC traveled te Costce’s oropersy end
marked the underground scility that area.
(19-G299/37 7709421]
i1¢. There was 2 Power Translormer st that 3reation with powerlines running from the
transformer to Costcc.
Us. USLC advised COMUTEL thar there were no powerlines leading rem. the Power
‘Transformer at that location Tu Costea's stare.
18. COMUTEL re-coatacted USEC the following day ta duuble-cheek that the ISIC
inackings were correct and that there wee oo powerlines running ta Coste, USIC sssuced
COMITEL. that the markings were correct,
\7 The COMUTED. constructing crow hegan its dipeinpiexcavation work after VSI
had cepeatedty assured it ehat there were no powerlines running fram Che Power Transformer (0
Castes.
18 While the COMUTSL crew wus performing its digging/exeavation work, smoke
started coming fons the Power Transconmes.
19, Despite smoke caming frem thy Prwer Transfermer, the COMUTEL constroction
crew continued its excavation, wark.
20. The excavation work geeforred ay the COMUTEL constructiun crew daznaged the
powerlines which run fiom the transtermer to Casta.
21. Dameging the powerlines that provided electricity t¢ che Costco warehouse at that
Jocation caused Costes to lose povrer.
COUNT 1—Nevligence ay to STC
22. We cealleme and reaver the allegations in Paragcapis i through 21 as it fulcy set
worta herein.
23. USIC had a cuty +9 use reasonable care to locate aad mark ihe power lines whic
ran Enom the Power Transformer to the Costea fecitiny at drat locatian.
[ES29 37 T7099/1 f }74.0 USIC acgdigently Sled np properly Ineate end anark ihe Castes payer lines.
25. USIC negligently informed COMUTEL that there were ao powerlines ronmag
tear. the Power Transtamner ty Costso.
26. As odirect and proximate result of US2C"S nepligence, Casteo’s powerlines were
Cut and Costen wis damaged.
27. Because of the damage to the powerlines, Coston was forced to have the powerlines
la.
repaired at {ts expense end Custes hes incurred other expenses wy
WHEREFORE, Casten Wholesale Comoration sues SIC for damages, costs and interest
and all other relief that mey be appropriate.
COUNT I - Neplipence of COMUTEL
28. We reallege endl reaver whe allegations iz: Paragraphs | Through 21 2s if fully set
forth hetein.
29. Camutel Selutions LLC had a duty to use ressonable care when performing. its
Gasavalion work so as not to dumege Waiderground powerlines.
30. COMUTEL nepligent!y faiied to use reasonable care in perturi (he excevation
work a Costeo's as described abuve.
$l. Asadireet and proximate result af COMUTEL's neg: igenec, Costen’s pawerlinas
werd cul end Coster was da:
aed
WHEREFORE, Custer Wholesale Corporation sues COMUTEL for damages, ctsls and
inlerest aad ell other relief (hat may be appropriate.
sto COMUTEL
32. We ceallege and reaver the tle in Farageephs | thrvagh 21 as if Tuily sex
Fath herein.
LEP-D2993 777094.)
te33.0 COMUTEL's employces entered Castea's pruperty without Costen’s permission
oT COmsent.
34. 0 The presence of COMUTELs employees on Custen’s propeny wag for
COMUTEL's own purposes and their presence execeded the scnpe of ary implied invitation or
implied license to enter the Property.
35.0 The presence of COMUTEL's employees an Costeo’s property without Cusico’s
Permission, coment, invitation, or license conzlilutes 2 trespuss.
36.0 Whilz hespessing, Comutel Sululiong LLC's cipluyees Guz up landscaped
Prpertics belonging wo Costco Whalesalc Coz poratiun.
37. While trespassing on to Costea’s proparty, COMUTEL empioyees cut Costea's
powerline aul damaged Coste.
WHERETORE, Costsa Whalesale Cerporatiun sures COMUTEL far damages, costs,
interest end all other relief which may oe eppopsiate. Costco Waoftesale Corporation reserves the
PP FA
right te seck punitive damapes against COMUTEL [nr its trespuss.
COUNT TV - Trespass. as to URCI
ML We reallege ind reaver the allegations in Paragraphs i ihreugh 21 as i
forth herein.
3¥. USC's enipioyees entered Cestea's Property withaut Costea’s penuission or
eongenl.
40. The presence of USIC*s empluyees on Cusico’s property was for USIC's ewn
Purposes and their presence exceed Ge senpe uf any implied invitation or waplied license te
enter the property.
[L9-C290/377 7094/1] 341.0 The presences af USIC's employees on Costec's propesty without Ceostes’s
permission, consent, invitation or license constitutes a trespass.
42. LSHC's neabigence veeurred primarily while it wes irespassing tm Cosica’s
Prurpecty.
43. The tortious conduct frat oceurrmé white USEC was trespassing on Costen’s
property was a direct and proximate cause of damage io Costco.
WHEREPORE, Casteo Wholesale Corporation sues USIC for damages, casts, interest
asdall otter cele? which may be apprcpriate. Costco Whelesale Corpocucion reserves the right ta
Seck punitive demares against LSIC for its irespayy.
DEMAND FOR TRIAL
44.0 Plaimiff demand a trial] by jury of all issues st triable.
Respectfully submitted this 267 day of October, 2039.
COONEY, FRYBUS KWAYNICK PEETS
Attorneys [or State Farm Mutua! Automobile.
nssranes Company
2600 YW, Com
Fort Lauderdale, FL 33309
{934} 368-6609
Tnigaca by arte ay
BY
tal Blvd. Suite 200
UNO aaa: Fwiew™
DAVID F, COONEY, ESQ,
Ficnda Bar Wo 250215
[29-0299/5 7770945] 6
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Filing # 100033820 E-Filed 12/09/2019 05:21:48 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-19-022183 COSTCO WHOLESALE CORPORATION, Plaintiff, ve COMUTEL SOLUTIONS LLC, and USIC, LLC, Defendants. / DEFENDANT’S, COMUTEL SOLUTIONS LLC, MOTION TO DISMISS COMPLAINT COMES NOW, the Defendant, COMUTEL SOLUTIONS LLC, (hereinafter “Defendant”), by and through its undersigned counsel, and pursuant to Florida Rules of Civil Procedure 1.140, and hereby files its Motion to Dismiss the Complaint filed by COSTCO WHOLESALE CORPORATION (hereinafter “Plaintiff”, and states as follows: 1. Plaintiff alleges it sustained damages when this Defendant performed excavation work on its property and damaged the power lines which ran from a power transformer to its store location. 2. Plaintiff has brought two counts against this Defendant. Count II alleges a general negligence claim, and Count III alleges the intentional tort of trespass. A copy of the Complaint is attached hereto as Exhibit “A.” 3. However, Plaintiff alleges the acts which caused damage to its store occurred in February 2008. Accordingly, both counts are time-barred by the statute of limitations. See Compl., 47. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/09/2019 05:21:48 PM.****4. The statute of limitations on both claims is four years from the date of the alleged injury. See Fla. Stat. § 95.11(3)(a), (g). 5. The law is clear that a party can raise a statute of limitations defense in a motion to dismiss if that defense appears on the face of the complaint. See Gen. Motors Acceptance Corp. v. Thornberry, 629 So.2d 292, 293 (Fla. 3d DCA 1993) (““Where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.”). 6. Here, the four corners of the complaint indicate the causes of action are time- barred, and the complaint must be dismissed. WHEREFORE, Defendant respectfully requests the entry of an Order Granting its Motion to Dismiss Plaintiff's Complaint, and for any further relief the Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed using the Florida Courts E-Filing Portal and furnished by electronic service to David F. Cooney, Esq. Attorney for Plaintiff, this 9th day of December, 2019, to the parties in the attached service list. KUBICKI DRAPER 1 East Broward Boulevard Wells Fargo Tower- Suite 1600 Ft. Lauderdale, Florida 33301 Direct Line: (954) 713-2413 Mjc-kd@kubickidraper.com BY:|s\ Hitec GF. Caosney MICHAEL J. CARNEY, ESQ. Florida Bar No.: 044326SERVICE LIST David F. Cooney, Esq. Cooney, Trybus, Kwavnick, Peets Attorneys for Plaintiff 1600 W. Commercial Blvd., Suite 200 Fort Lauderdale, FL 33309-3006 Tel: (954) 568-6689 Email: reception@ctkplaw.com tzaccour@ctkplaw.com Jan P. Kubicz, Esq. Squire Patton Boggs, LLP Attorneys for USIC, LLC and d/b/a USIC Locating Services, LLC 200 S. Biscayne Blvd., Suite 4700 Miami, FL 33131-2303 Tel: (305) 577-7000 Fax: (305) 577-7001 Email: jan.kubicz@squirepb.com joan.andersondavis@squirepb.com jason joffe@squirepb.com fla_dckt@squirepb.comFiling # 97920927 E-Filed 10/26/2019 09:58:47 AM IN THE CIRCUIF COURT OF THE ITH JUDICIAL CIRGUIT. [IN ANT FOR BROWARD COUNTY, FLORIDA COSTCO WHOLESALE CORPORATION, Plaintizé, CASE NO: VBL COMUTEL SOLUTIONS LLC, and USIC, LLC, Defendants. 7 COMPLAINT COSTCO WIIOLESALE CORPORATION hereby files its Initial Complaint against Defendzes, COMUTE. SOLUTICNS ULE, and USTC, LLC, and states in suppart thereof as Tellows: JURIHCTION ANDY VENUE i, This is an avian for damages exceeding the som of Fifteen Thousand Dollars (315,001.00), exclusive of interest, costs and atomey's foes and, accordingly this action is within the jurisdiution uf this Cour. 2 At all times material hereto, Costey Wholesale Curporatiin wes a foreign corporation which was authorized to conduct bysiness in Broward County, Florida and was conducting business in Browerd County, Flerida. 4 At all times material herety, Carmutel Solutions, LLC (°COMUTZL" was and is a Plorida Curperation autinrized 10 conduct business in Broward County, Flarida, and conducting ousiaess in Broward County, Florida. EXHIBIT "A"4, At all times matsiel beretu, USED LLC (“CSIC was and is a Delaware Coperation authorized ta conduct business in Brawarc Cruaty. Florida, and conducting business it Braward County, Florida. 5. Venue is proper in this cireuk becuse this cause of action accewed in Broward County. 6. All conditions precedent to the filing of this action which may cxist nave either been satisficel or they Rave been waived by the Wefendazts. TA 2. In February 2008, BELLSOUTH Telecornmunications, Inc. hired MASTER North, Asmerica, (ne. ta perform canstreetion work for it, or uz its achalf. B. MASTEC suaconteacted with COMUTBL 1 perform some uf the work that BELLSOUTH had kired MASTEC ta befor. 3. The work chat COMFEL was hired to perform included Jigving andor excavition wark on Custea proge:ty #1 18975 Pines Boulevard, Pembroke Fines, Florida. 2. USIC is in the besiness of locsting luidyrecuure Wility indra-structere, such as undergrocnd powerlines, and identifying the lacation of the nderground utilities 19 consorection Crews 50 that the construction crews would nat damage the ¢nderground utilities wher digzine‘excaveling in the ares. 11. The main focus ef USIC is to ensure clear and camplete marking services for the excavator to prevent dantaye la underground infte-structure such #5 clectrical Hines. (2. COMUTEL called USIC's 821 number before beginning on the excavation work at the Coséza Pembroke Pings lovaticn. 1 In cespanse $a the call from COMUTEL, USIC traveled te Costce’s oropersy end marked the underground scility that area. (19-G299/37 7709421] i1¢. There was 2 Power Translormer st that 3reation with powerlines running from the transformer to Costcc. Us. USLC advised COMUTEL thar there were no powerlines leading rem. the Power ‘Transformer at that location Tu Costea's stare. 18. COMUTEL re-coatacted USEC the following day ta duuble-cheek that the ISIC inackings were correct and that there wee oo powerlines running ta Coste, USIC sssuced COMITEL. that the markings were correct, \7 The COMUTED. constructing crow hegan its dipeinpiexcavation work after VSI had cepeatedty assured it ehat there were no powerlines running fram Che Power Transformer (0 Castes. 18 While the COMUTSL crew wus performing its digging/exeavation work, smoke started coming fons the Power Transconmes. 19, Despite smoke caming frem thy Prwer Transfermer, the COMUTEL constroction crew continued its excavation, wark. 20. The excavation work geeforred ay the COMUTEL constructiun crew daznaged the powerlines which run fiom the transtermer to Casta. 21. Dameging the powerlines that provided electricity t¢ che Costco warehouse at that Jocation caused Costes to lose povrer. COUNT 1—Nevligence ay to STC 22. We cealleme and reaver the allegations in Paragcapis i through 21 as it fulcy set worta herein. 23. USIC had a cuty +9 use reasonable care to locate aad mark ihe power lines whic ran Enom the Power Transformer to the Costea fecitiny at drat locatian. [ES29 37 T7099/1 f }74.0 USIC acgdigently Sled np properly Ineate end anark ihe Castes payer lines. 25. USIC negligently informed COMUTEL that there were ao powerlines ronmag tear. the Power Transtamner ty Costso. 26. As odirect and proximate result of US2C"S nepligence, Casteo’s powerlines were Cut and Costen wis damaged. 27. Because of the damage to the powerlines, Coston was forced to have the powerlines la. repaired at {ts expense end Custes hes incurred other expenses wy WHEREFORE, Casten Wholesale Comoration sues SIC for damages, costs and interest and all other relief that mey be appropriate. COUNT I - Neplipence of COMUTEL 28. We reallege endl reaver whe allegations iz: Paragraphs | Through 21 2s if fully set forth hetein. 29. Camutel Selutions LLC had a duty to use ressonable care when performing. its Gasavalion work so as not to dumege Waiderground powerlines. 30. COMUTEL nepligent!y faiied to use reasonable care in perturi (he excevation work a Costeo's as described abuve. $l. Asadireet and proximate result af COMUTEL's neg: igenec, Costen’s pawerlinas werd cul end Coster was da: aed WHEREFORE, Custer Wholesale Corporation sues COMUTEL for damages, ctsls and inlerest aad ell other relief (hat may be appropriate. sto COMUTEL 32. We ceallege and reaver the tle in Farageephs | thrvagh 21 as if Tuily sex Fath herein. LEP-D2993 777094.) te33.0 COMUTEL's employces entered Castea's pruperty without Costen’s permission oT COmsent. 34. 0 The presence of COMUTELs employees on Custen’s propeny wag for COMUTEL's own purposes and their presence execeded the scnpe of ary implied invitation or implied license to enter the Property. 35.0 The presence of COMUTEL's employees an Costeo’s property without Cusico’s Permission, coment, invitation, or license conzlilutes 2 trespuss. 36.0 Whilz hespessing, Comutel Sululiong LLC's cipluyees Guz up landscaped Prpertics belonging wo Costco Whalesalc Coz poratiun. 37. While trespassing on to Costea’s proparty, COMUTEL empioyees cut Costea's powerline aul damaged Coste. WHERETORE, Costsa Whalesale Cerporatiun sures COMUTEL far damages, costs, interest end all other relief which may oe eppopsiate. Costco Waoftesale Corporation reserves the PP FA right te seck punitive damapes against COMUTEL [nr its trespuss. COUNT TV - Trespass. as to URCI ML We reallege ind reaver the allegations in Paragraphs i ihreugh 21 as i forth herein. 3¥. USC's enipioyees entered Cestea's Property withaut Costea’s penuission or eongenl. 40. The presence of USIC*s empluyees on Cusico’s property was for USIC's ewn Purposes and their presence exceed Ge senpe uf any implied invitation or waplied license te enter the property. [L9-C290/377 7094/1] 341.0 The presences af USIC's employees on Costec's propesty without Ceostes’s permission, consent, invitation or license constitutes a trespass. 42. LSHC's neabigence veeurred primarily while it wes irespassing tm Cosica’s Prurpecty. 43. The tortious conduct frat oceurrmé white USEC was trespassing on Costen’s property was a direct and proximate cause of damage io Costco. WHEREPORE, Casteo Wholesale Corporation sues USIC for damages, casts, interest asdall otter cele? which may be apprcpriate. Costco Whelesale Corpocucion reserves the right ta Seck punitive demares against LSIC for its irespayy. DEMAND FOR TRIAL 44.0 Plaimiff demand a trial] by jury of all issues st triable. Respectfully submitted this 267 day of October, 2039. COONEY, FRYBUS KWAYNICK PEETS Attorneys [or State Farm Mutua! Automobile. nssranes Company 2600 YW, Com Fort Lauderdale, FL 33309 {934} 368-6609 Tnigaca by arte ay BY tal Blvd. Suite 200 UNO aaa: Fwiew™ DAVID F, COONEY, ESQ, Ficnda Bar Wo 250215 [29-0299/5 7770945] 6