                       REVISED MAY 27, 2011

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                                                FILED
                                No. 09-31226                   May 12, 2011

                                                               Lyle W. Cayce
                                                                    Clerk
MCI COMMUNICATIONS SERVICES, INC.

                                         Plaintiff-Appellant
v.

WAYNE HAGAN and JAMES JOUBERT

                                         Defendants-Appellees



               Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before GARWOOD, ELROD, and SOUTHWICK, Circuit Judges.
GARWOOD, Circuit Judge:
     This case arises from a January 20, 2006 incident in which an
underground cable owned by plaintiff-appellant MCI was allegedly severed.
MCI filed suit against defendants-appellees Wayne Hagan and James
Joubert, alleging that Joubert was negligently excavating on a backhoe in
violation of the Lousiana Damage Prevention Act (Louisiana Underground
Utilities and Facilities Damage Prevention Law), LA. REV. STAT. ANN. §§
40:1749.11 et seq., and that Hagan was vicariously liable because Joubert was
acting as his agent at the time. The underground cable at issue was buried in
part under land owned by Hagan. After a trial in the United States District
Court for the Eastern District of Louisiana, the jury found for Hagan and
Joubert. The district court awarded attorneys’ fees to Hagan and Joubert
under section 1479.14(F) of the Louisiana Damage Prevention Act. MCI
appeals on four separate grounds. First, MCI contends that the district court
erred when it refused to give the jury MCI’s proposed instruction on trespass.
As discussed in part I hereof below, because the Louisiana Supreme Court
has not previously determined what standard of intent is used for trespass to
underground utility cables and this issue is determinative of whether MCI is
entitled to a new trial on its trespass claim, we certify this jury instruction
question to the Louisiana Supreme Court under Louisiana Supreme Court
Rule XII.
      On the other three issues on appeal, we ultimately determine that none
of the three issues present any reversible error requiring a new trial on the
merits, as discussed in parts IIA and B below. These issues are as follows.
MCI argues that the district court erred when it excluded statements made
by Hagan’s attorney to an MCI employee under Federal Rule of Evidence 408,
which excludes statements made as part of settlement negotiations. MCI also
contends that the district court erred by refusing to certify MCI’s witness
Brian Tooley as an expert. Lastly, MCI argues that the district court erred
when it held that the defendants were entitled to attorneys’ fees and costs,
but, as explained in part IIC below, we do not now reach this point, which in
any event does not of itself justify a new trial on the merits.
                   FACTS AND PROCEEDINGS BELOW
      On January 20, 2006, defendant Joubert allegedly severed MCI’s
underground fiber-optic cable while using a backhoe on defendant Hagan’s
property. MCI contended at trial that the backhoe was being used to install a
concrete boat ramp. The defendants contended that in the week prior, the

                                        2
two friends decided to go duck hunting on property owned by Hagan. When
hunting together, the defendants typically launched an airboat from a boat
ramp into a canal on the property. Defendant Joubert alleged that he went to
Hagan’s property on January 20, 2006, to see if Hagan had cleared driftwood
from the canal, which needed to be done before they could launch the airboat.
Joubert contended that he then drove Hagan’s backhoe onto a concrete boat
ramp to clear the driftwood before leaving the property. The defendants
returned the next day to hunt and found MCI contractors on the property
working on repairing the severed cable.
      Hagan acquired the property in 2004 from Illinois Central Gulf
Railroad (ICR). MCI alleges that in 1984, its predecessor entered into an
agreement with ICR to install and operate a telecommunication system on
ICR’s property, and that the property in question was added to the agreement
in 1985. MCI contends that in his purchase agreement with ICR, Hagan
agreed not to interfere with any previously bargained for rights to continue
operating all existing utilities. Hagan does not contend in this court that his
interest in the land is not subject to this provision.
      Verizon Business Global filed the lawsuit against Hagan and Joubert
on January 18, 2007 on theories of trespass and negligence. The district court
later allowed MCI Communications Services, Inc. to be substituted as
plaintiff once that company was determined to be the owner of the cable.
Jurisdiction herein is based entirely on diversity of citizenship. 28 U.S.C. §
1332. As evidence of negligence, MCI cited to the Louisiana Damage
Prevention Act. Hagan asserted a counterclaim against MCI for trespass.
The district court ruled that MCI failed to establish that it had a servitude
over Hagan’s property, but that MCI did have a right to keep its existing
cable on Hagan’s property due to the contents of the Act of Sale between

                                         3
Hagan and ICR. The district court dismissed Hagan’s counterclaim on these
grounds. Hagan does not appeal from that ruling. The case was tried to a
jury, which returned a verdict finding only that neither Joubert nor Hagan
was negligent. No other findings were made, the remaining questions
submitted all being contingent on a finding of negligence on the part of at
least one of those two defendants. The court awarded attorneys’ fees to the
defendants under the provision in the Louisiana Damage Prevention Act that
allows for fees if the “excavators” prevail in a suit to enforce the act. LA. REV.
STAT. ANN. § 40:1479.14(F). MCI timely appealed.
                                 DISCUSSION
                                        I.
       Certification to Louisiana Supreme Court
       As stated below, this case involves an important and determinative
question of Louisiana law as to which there is no controlling Louisiana
Supreme Court precedent. Accordingly, we certify this unresolved question to
the Supreme Court of Louisiana, pursuant to Louisiana Supreme Court Rule
XII.
       During the trial, MCI objected to the district court’s refusal to submit to
the jury plaintiff’s proposed instruction regarding trespass to the cable. The
district court judge responded that he felt “that it’s a part of the negligence
aspect of the case” and that because MCI did not have a servitude, he thought
it was not “an appropriate charge.” MCI’s requested instruction on trespass
reads in relevant part:
       “Trespass is an unlawful invasion of the property or possession of
       another person without consent. Damage to property is a
       trespass regardless of whether the Defendants intended the
       damage to the property or were negligent. A Defendant may be
       held liable for an inadvertent trespass resulting from an


                                        4
      intentional act. Therefore, the basic standard applicable to the
      Defendants is that they must refrain from taking intentional
      action that results in harm to the Plaintiff.”
      The trial evidence is sufficient to support a finding that the MCI cable
was struck and damaged by the movement(s) of the backhoe intentionally
made by Joubert as he operated it with Hagan’s permission and on his behalf,
although neither Joubert nor Hagan intended for the backhoe to strike the
underground cable which neither saw nor knew the precise location of.
      MCI contends that the district court erred when it refused to submit to
the jury its said proposed instruction on trespass. Its view is that Louisiana
law defines trespass as an unlawful physical invasion of property in the
possession of another and the only intent required is the trespasser’s intent to
perform the act which constitutes the trespass. Because the district court
ruled before trial that MCI did not have a servitude, we do not find that MCI
is entitled to recover for a trespass to land. However, MCI may be entitled to
have the jury instructed on the claim of trespass to chattels which is a claim
for damage to personal property of the plaintiff, the personal property in this
case being MCI’s underground cable.
      Neither party has moved this court to certify the question of the
standard of intent for trespass to chattels. However, Louisiana Supreme
Court Rule XII, section 2, provides that certification “may be invoked by . . .
any circuit court of appeal of the United States upon its own motion.” This
court finds that Louisiana courts have not considered the intent standard
applicable to claims of trespass to underground cables. Additionally, there is
no clear consensus either within this circuit or across all jurisdictions as to
whether strict liability in a trespass action is an appropriate standard for
damage to underground utilities by excavators. Therefore, we find it


                                        5
imprudent to ourselves determine whether MCI’s proposed jury instruction
was an accurate statement of Louisiana trespass law as it pertains to damage
to underground utilities. It is clear and undisputed that this question is one
governed by Louisiana substantive law.
      Neither party has cited to any Louisiana court cases that deal
specifically with the intent standard for trespass to chattels. MCI attempts to
rely on Harrison v. Petroleum Surveys, 80 So.2d 153 (La. Ct. App. 1955), in
which an unintentional trespass on land resulted in the death of the
plaintiff’s muskrats. That case is distinguishable, however, because the
defendants trespassed on land owned by the plaintiffs and in so doing caused
damage to personal property. Hagan and Joubert were certainly authorized
to be on the land in question, given that Hagan owned it.
      If MCI’s requested jury instruction was a substantially correct
statement of Louisiana law, then we hold that it was reversible error for the
trial court not to have given that instruction, and MCI is accordingly entitled
to a new trial on the theory of trespass. If the requested jury instruction is
not a substantially correct statement of Louisiana law, then a new trial on
the merits will not be required. Because the standard of intent for trespass to
chattels under Louisiana law will determine whether the district court should
have given MCI’s proposed trespass instruction to the jury and because there
are no clear controlling precedents in the decisions of the Louisiana Supreme
Court, we hereby invoke the certification privilege granted by Louisiana
Supreme Court Rule XII.
      We accordingly hereby certify the following question to the Louisiana
Supreme Court:
      Is the proposed jury instruction in this case, which states that “[a]
      Defendant may be held liable for an inadvertent trespass


                                        6
      resulting from an intentional act,” a correct statement of
      Louisiana law when the trespass at issue is the severing of an
      underground cable located on property owned by one of the
      alleged trespassors, and the property is not subject to a servitude
      by the owners of the underground cable but only to the
      contractual right to keep it, as an existing cable, underneath the
      property?
      If the Louisiana Supreme Court accepts this certificate, the answer
provided will determine whether MCI is entitled to a new trial on its claim of
trespass. This court disclaims any intent that the Louisiana Supreme Court
limit its response to the precise form or scope of the legal question certified.
We retain cognizance of this appeal while it is pending before the Louisiana
Supreme Court and transfer the record and appellate briefs with our
certification to the Supreme Court of Louisiana.
      We now dispose of MCI’s remaining appellate claims of error.
                                        II.
      A. Exclusion of Evidence under Federal Rule of Evidence 408
      MCI contends that on the day after the cable was allegedly severed,
MCI employee Robert Bergeron received a call from Andre Coudrain, an
attorney who had at some point represented defendant Hagan. MCI contends
that Coudrain told Bergeron that Hagan had been installing a boat ramp and
asked what the damage to the cable would cost. MCI attempted to call Robert
Bergeron to testify about this conversation at trial, but the district court
ruled that the conversation was a settlement discussion and excluded it under
Federal Rule of Evidence 408.
      We review a district court’s decision to admit or exclude evidence for
abuse of discretion. United States v. Sosa, 513 F.3d 194, 199 (5th Cir. 2008).
We have previously held that Rule 408 “protects only conduct or statements
made in compromise negotiations regarding a claim that was disputed as to

                                        7
validity or amount.” Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d
284, 295 (5th Cir. 2010) (internal quotation marks and citations omitted).
This rule “is designed to encourage settlements by fostering free and full
discussion of the issues.” Ramada Dev. Co. v. Rauch, 644 F.2d 1097, 1106
(5th Cir. 1981). “[T]he question under the rule is whether the statements or
conduct were intended to be part of the negotiations toward compromise.” Id.
(internal quotation marks omitted). Litigation does not need to have
commenced for Rule 408 to apply, but there must be “an actual dispute or a
difference of opinion.” Lyondell, 608 F.3d at 295, n. 38 (internal quotation
marks omitted).
      Defendant Hagan claims that after he arrived at the incident site on
the day following Joubert’s use of the backhoe, an employee of a contractor
enlisted by MCI to conduct the repairs informed Hagan that the down time on
the cable was costing $20,000 a minute. Hagan then called Coudrain, who
then telephoned Bergeron and allegedly made the statement at issue.
      We find that it was likely error for the district court to exclude
Bergeron’s testimony under Rule 408. At the point in time the call was
placed, there was not yet an actual dispute or a difference of opinion about
who caused the damage to MCI’s cable and how much the damage was costing
MCI. Coudrain may have intended the call to begin the process of settlement
discussions, but because there was not yet an actual dispute his statement
likely cannot qualify as a negotiation toward compromise.
      Even so, this court “may not disturb the district court’s exclusion of the
evidence . . . if that ruling can be upheld on other grounds.” Brazos River
Auth. v. GE Ionics, Inc., 469 F.3d 416, 423 (5th Cir. 2006) (internal quotation
marks omitted). Coudrain’s statement as introduced by Bergeron is an out of
court statement offered for the truth of the matter. At the time he called

                                        8
Bergeron, Coudrain was operating as Hagan’s agent, so under Federal Rule of
Evidence 801(d)(2)(D), the statement is not hearsay. However, there is no
evidence that Coudrain was Joubert’s agent and thus Bergeron’s testimony
would have been inadmissible against Joubert. Because the two defendants
were tried together, we find that the district court did not abuse its discretion
in excluding Bergeron’s testimony. The testimony could have been excluded
on other grounds given that it was inadmissible hearsay against Joubert, and
thus we decline to remand for a new trial on this ground.
      B. Refusal to Qualify Witness as Expert
      MCI alleges on appeal that the district court erred when it refused to
certify Brian Tooley as an expert. Tooley was offered as an expert on
standards within the telecommunications industry. At trial, defendant
Joubert’s counsel objected to Tooley’s testimony on the grounds that he had
not been qualified as an expert. In response to Joubert’s challenge, Tooley
testified that the majority of his experience in the field of underground
utilities was as an MCI employee. The district court ruled that Tooley was
not an expert and could testify as to MCI’s practice, but not as to the practices
of the industry in general.
      We review a district court’s decision to admit or exclude expert evidence
for abuse of discretion. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.
2002). MCI made no proffer of what evidence this expert would have testified
to either at trial or in its brief on appeal. “On appeal, ‘[e]rror may not be
predicated upon a ruling which . . . excludes evidence unless . . . the
substance of the evidence was made known to the [trial] court by offer . . . .’”
Petty v. Ideco, Div. of Dresser Indus., Inc., 761 F.2d 1146, 1151 (5th Cir. 1985)
(quoting FED. R. EVID. 103(a)(2)). We find that MCI did not proffer the
substance of Tooley’s excluded testimony to either the district court or this

                                        9
court and thus conclude that no reversible error is shown in this respect.
      C. Attorneys’ Fees
      The district court awarded Hagan and Joubert their attorney’s fees on
the basis of La. Rev. Stat. Ann. § 40:1749.14(F), construing that statute as
providing that “the prevailing party is entitled to attorney’s fees” (and
overruling MCI’s objection that there was no finding by the jury or the court,
and no evidence conclusively establishing, that either Hagan or Joubert was,
or was not, an “excavator or demolisher”under that statute). The correctness
of this ruling will become moot if the Louisiana Supreme Court answers the
certified question in the affirmative, as a full new trial will then be required
and the attorney’s fees award will have to be set aside in any event, even if
the district court correctly construed section 40:1749.14(F) in this respect.
Consequently, we defer addressing the attorney’s fees issue pending the
Louisiana Supreme Court’s decision whether to accept this certification, and
if it does, its answer to the certified question.
                                 CONCLUSION
      We hereby certify the above stated issue to the Supreme Court of
Louisiana.




                                         10
