THIS OPINION HAS BEEN AFFIRMED IN PART, DEPUBLISHED IN PART

This case is of value primarily for its discussion of tariffs, which routinely take plaintiffs’ counsel unaware (though presumably not here since airlines also file them). But at the end it also broadly interperts the Blue Stake law.

U.S. Airways’ operations were knocked out for a few hours when a nearby construction project cut a cable. Underground lines had been mismarked because Qwest’s maps were wrong. U.S. Airways sued Qwest, among others. Qwest won summary judgment because its tariffs limit liability for negligence. U.S. Airways appealed.

The Court of Appeals affirms. The opinion reviews the substantial body of law upholding tariffs that limit liability for negligence. U.S. Airways argued that the tariff didn’t apply to it because it wasn’t Qwest’s customer (the cable cut disrupted its AT&T service). The court cites various cases holding that tariffs apply to the public generally, not just to customers.

U.S. Airways also argued that the tariff (or, more specifically, the state’s approval of the tariff) unconstitutionally abrogates its cause of action. But it couldn’t cite authority that negligence against a utility for economic loss existed at common law. And even if it had, the tariff merely limits Qwests’ liability (although to an amount that is basically de minimis).

Qwest cross-appealed the trial court’s finding that it owed a duty to U.S. Airways under the Blue Stake statute (40-360.22). The statutes provide for liability to “underground facility operators and excavators.” But the court decides that since the statute creates a “duty or obligation” – to mark its lines and to do so “carefully” —  “the legislation was enacted, in part, to protect end users like US Airways.”

(The case also involved the issue of whether the contractor who marked the location of the underground cables for Qwest owed a duty to U.S. Airways. The court affirms that it did not but the reasons are fact-specific; the opinion restates existing law.)

(link to opinion)