AT&T loses "Miss Dig" case against excavator

AT&T sued Kilgour & Company after its boring at a CVS Pharmacy site disrupted AT&T's fiber optic cables.  The trial judge reviewed the facts and determined that AT&T could not prove negligence by Kilgour.  The judge noted that the General Contractor's motion in support of summary disposition documented compliance by the general and Kilgour with the "Miss DIG" statute, leaving them immune from a negligence claim.  AT&T appealed, arguing there were questions of fact and that Kilgour shouldn't have been allowed to "piggyback" on the general's motion for summary disposition.

The Court of Appeals sustained the decision by the lower court.  It noted that Kilgour concurred in the general contractor's motion, giving notice to AT&T and an opportunity to defend the motion as to Kilgour.  The panel of judges also ruled that AT&T created no credibility or fact issues in its defense of the motion, making a summary disposition of the claim appropriate.