                    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

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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


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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.




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