Case: 11-12807 Date Filed: 10/15/2012 Page: 1 of 4
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12807
________________________
D.C. Docket No. 1:08-cv-00942-RLV
MCI COMMUNICATIONS SERVICES, INC.,
d.b.a. Verizon Business,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
CMES, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 15, 2012)
Before MARTIN, HILL and EBEL,* Circuit Judges.
PER CURIAM:
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
Case: 11-12807 Date Filed: 10/15/2012 Page: 2 of 4
MCI Communications Services, Inc. (“MCI”) appeals from the district
court’s grant of summary judgment defeating its claim for loss-of-use damages.
We affirm.
On March 30, 2007, CMES, Inc. was performing excavation work in Stone
Mountain, Georgia, when it severed an underground fiber-optic cable owned by
MCI. The severance caused 568,263 phone calls to be blocked and 242 customer
complaints to be filed. The remaining traffic on the cable was rerouted, using
MCI’s spare capacity. Although the severance did cause phone calls to be blocked
and customers to file complaints, MCI did not issue any customer refunds or
credits, lose any customers, or lose any profits. MCI also did not rent substitute
capacity from any other carrier. Indeed, there is no market for renting optical
carriers on an hourly basis.
MCI filed suit against CMES, seeking loss-of-use damages measured by the
theoretical rental value of substitute equipment for the duration of the outage
(about 9 hours). MCI calculates this amount to be more than $362,000, in addition
to the roughly $28,000 that MCI spent to repair the cable. The district court
granted summary judgment on this loss-of-use damages claim, holding that
Georgia law does not authorize the recovery of such damages under the
undisputed facts of this case. On appeal, MCI argues that the district court erred
2
Case: 11-12807 Date Filed: 10/15/2012 Page: 3 of 4
in this holding. MCI asserts that Georgia law permits a telecommunications
service provider whose cable is severed to recover loss-of-use damages measured
by the rental value of substitute cable, even when it has not rented such cable or
otherwise incurred any monetary loss apart from the cost of repair.
When we took this case under submission, there was no Georgia appellate
decision that was squarely on point. MCI Commc’ns Servs., Inc. v. CMES, Inc.,
669 F.3d 1313, 1314 (11th Cir. 2012). This being the case, we certified the
following question of law to the Georgia Supreme Court:
Under Georgia law, may a telecommunications service provider whose
cable is severed recover loss-of-use damages measured by the rental
value of substitute cable when it has not rented such cable or otherwise
incurred any monetary loss apart from the cost of repair?
Id.
Recently, the Georgia Supreme Court answered our question in the
negative. See MCI Commc’ns Servs., Inc. v. CMES, Inc., ___ S.E.2d ___, ___,
No. S12Q0941, 2012 WL 2219563, at *3–9 (Ga. June 18, 2012). Specifically, the
Court held that “MCI cannot recover loss of use damages [measured by the
hypothetical value of renting substitute equipment] absent some showing of
monetary loss apart from the cost of repair.” Id. at *3. In view of this holding, it
is clear that the district court did not err in granting summary judgment on MCI’s
3
Case: 11-12807 Date Filed: 10/15/2012 Page: 4 of 4
claim for loss-of-use damages. We therefore affirm its judgment.
We thank the Justices of the Georgia Supreme Court for their thorough
guidance on this question.
AFFIRMED.
4