FORT MYERS — A class-action lawsuit against TECO Peoples Gas System survived a hurdle Monday when a judge denied a request to dismiss a complaint filed by eight restaurants in Collier and Lee counties that lost service after a 2010 gas explosion.
Lee Circuit Judge Sherra Winesett denied Peoples Gas' motion to dismiss breach of contract claims, rejecting arguments that it "tries to provide gas, but doesn't guarantee continued service."
The 2010 lawsuit stems from a Nov. 11, 2010, gas explosion that occurred when a Posen Construction employee hit an 8-inch natural gas line during the widening of Colonial Boulevard in Fort Myers. The outage affected roughly 6,000 residential and 1,200 commercial customers in Lee and Collier counties, forcing businesses to shut down or operate with limited services, which they say cost them thousands of dollars.
Peoples Gas also sued Posen in federal court, alleging it destroyed gas line location markers and continued digging. The federal Occupational Safety and Health Administration fined Posen $70,000, the maximum, for failing to call or take other precautions before digging.
Naples attorneys Michael McDonnell and Gary Green represent Lucarelli Pizza & Deli of North Naples, The Inn on Fifth, McCabe's Irish Pub, The Spa on Fifth, Jaegerhaus restaurant, all in Naples, and three Big Al's City Grills in Lee and Collier counties. They accuse Posen of negligence, but Monday's hearing only involved Peoples Gas' motion to dismiss the suit. The restaurants already dropped a negligence claim.
Monday's hearing boiled down to the utility's contract, which states "People's Gas System will endeavor to provide gas service on a continuous basis, but does not guarantee to do so."
Attorney Stephen Cohen of Tampa argued a breach of contract claim alleges failure to fulfill a promise and "endeavor" means to try or attempt.
"So our obligation is to try, but we don't guarantee the result," Cohen argued, contending there was no proof it didn't make a good-faith effort. " … They didn't say we didn't try. They say we messed up. They can't say we didn't endeavor."
But Green argued Peoples Gas knew it dug a shallow line, that markers were missing and others were destroyed yet digging continued. Green brought five dictionaries and an appellate ruling to argue that "endeavor" also involves the quality of the effort.
"Peoples Gas is saying 'All we have to do is try,' " Green said. " ... Their guarantee does not eliminate their obligation to continue to endeavor to provide continuous gas service. We say when you put in a line at the wrong depth, allow digging without markers and you don't replace markers, that's not trying."
It's uncertain how many plaintiffs there will be until the judge certifies it as a class-action lawsuit.