                                                                                   [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                    ________________________  ELEVENTH CIRCUIT
                                                                        FEBRUARY 10, 2012
                                            No. 11-12807                   JOHN LEY
                                      ________________________              CLERK

                                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
                                 ________________________

                                           (February 10, 2012)

Before MARTIN, HILL and EBEL,* Circuit Judges.

PER CURIAM:


         *
          Honorable David M. Ebel, Senior United States Circuit Judge for the Tenth Circuit,
sitting by designation.
      MCI Communications Services, Inc. (“MCI”) appeals from the district

court’s grant of summary judgment defeating its claim for loss-of-use damages.

Because this case involves an unsettled question of Georgia law, we find it

prudent to certify it to the Supreme Court of Georgia.

      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, out of which arose

242 customer complaints. 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

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undisputed facts of this case. On appeal, MCI argues that the district court erred

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.

      To support this argument, MCI relies primarily on three decisions of the

Georgia Court of Appeals. None of these cases, however, involve the severance of

a telecommunications cable. See S. Crate & Veneer Co. v. McDowell, 293 S.E.2d

541, 542 (Ga. Ct. App. 1982) (pulpwood truck); Apostle v. Prince, 279 S.E.2d

304, 305 (Ga. Ct. App. 1981) (personal car); Appling Motors, Inc. v. Todd, 239

S.E.2d 537, 538 (Ga. Ct. App. 1977) (corn combine). Beyond that, insofar as

these cases suggest that an owner of personal property need not rent substitute

equipment in order to recover loss-of-use damages, there appears to be contrary

authority from the Georgia Court of Appeals. See, e.g., Hightower v. Gen. Motors

Corp., 332 S.E. 2d 336, 339 (Ga. Ct. App. 1985) (indicating that the use of spare

equipment precludes the recovery of loss-of-use damages), overruled on other

grounds by Pender v. Witcher, 397 S.E.2d 193, 193–94 (Ga. Ct. App. 1990).

      In MCI WorldCom Network Services, Inc. v. Mastec, Inc., 370 F.3d 1074

(11th Cir. 2004), we were faced with a case that also involved the severance of a

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telecommunications cable, but that arose under Florida law. Id. at 1075–76.

Because Florida law was unsettled at the time, we found it appropriate to seek

guidance from the Florida Supreme Court. Id. at 1078–79. Here, given that there

is no Georgia appellate decision that squarely controls this case, and given the

seemingly conflicting currents in Georgia jurisprudence, we find that certification

is appropriate as well. See Royal Capital Dev., LLC v. Md. Cas. Co., 659 F.3d

1050, 1054 (11th Cir. 2011) (noting that certification prevents the need for this

Court to make “unnecessary Erie guesses” (quotation marks omitted)).

       Therefore, pursuant to Rules 46 and 47 of the Georgia Supreme Court, we

respectfully certify 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?

As always, we do not intend our statement of the question to limit the Georgia

Supreme Court’s consideration of this case. Id. Of course, the Georgia Supreme

Court is free to rephrase the question in any manner it deems appropriate. Mastec,

Inc., 370 F.3d at 1079. To assist the Court, we hereby order that the entire record

in this case, as well as the briefs of the parties, be transmitted with this

certification.


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QUESTION CERTIFIED.




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