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Marriott Corporation v. The Chesapeake & Potomac Telephone Company of Maryland, No. 1749, September Term, 1997

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FINALITY OF JUDGMENT Where ruling on summary judgment that plaintiff was customer of defendant and that general regulations tariff therefore applied had effect of precluding plaintiff from recovering damages, summary judgment was final judgment. TELECOMMUNICATIONS -- SUMMARY JUDGMENT Ruling on summary judgment that general plaintiff was customer of defendant and that general regulations tariff therefore applied improper where undisputed evidence indicated only that plaintiff was down-the-line user and parties disputed whether plaintiff paid defendant directly for use of fiber optic cable. GROSS NEGLIGENCE Summary judgment properly granted on gross negligence count where facts regarding defendant's employees improper marking of underground cable failed to establish intentional failure to perform manifest duty in reckless disregard of consequences as affecting life or property of another.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1749

September Term, 1997 ___________________________________

MARRIOTT CORPORATION

v.

THE CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF MARYLAND

___________________________________ Moylan, Kenney, Burnett, Ralph M. (Specially assigned), JJ. ___________________________________ Opinion by Burnett, J. ____________________________________ Filed: December 30, 1998

This appeal involves a multi-million dollar law suit based on four hours of lost long distance telephone service. appellant is the Marriott Corporation ("Marriott"). is the Chesapeake and Potomac Telephone Company The

The appellee of Maryland1

("C&P") which, along with various co-defendants2, was sued by Marriott for negligence and gross negligence in connection with the lost service. Marriott is a well known owner and operator of hotels throughout the world. Reservations for its hotels are processed at

the Frederick Computer Data Center located in Frederick, Maryland. This center provides information as to the status of reservations and room availability at the Marriott hotels to travel agents and customers seeking reservations at Marriott hotels. All long

distance communications with the Frederick Center via telephone and data communication services are provided by the American Telephone and Telegraph Company ("AT&T") under written contract between AT&T Appellee acknowledges that after the complaint was filed it "changed names and is now known as Bell Atlantic - Maryland, Inc." We shall follow the lead of the parties and, despite the name change, shall refer to the appellee as "C&P" throughout this opinion. The co-defendants were: the State of Maryland, Brandenberg Electric, Inc., Miss Utility, Inc., One Call Concepts, Inc., and Byers Engineering Company. Various cross-claims were filed between the co-defendants. Although the parties supply us with no firm explanation of what happened, it appears that the claims against Miss Utility, Inc., One Call Concepts, Inc. and Byers Engineering Company were dismissed or otherwise resolved at some point early in the case. As shall be discussed in more detail infra, Brandenberg Electric, Inc. and the State were dismissed without prejudice just before this appeal was noted. -12 1

and Marriott. services.

AT&T bills Marriott and Marriott pays AT&T for these

The services are provided to Marriott via a fiber optic Marriott is not a party to

cable installed and maintained by C&P. any agreement regarding this cable.

On Friday, April 7, 1989, the fiber optic cable was severed by a Brandenberg Electric, Inc. crew that had been hired

by the State Highway Administration ("SHA") to drill holes for the placement of new road signs along State Highway 874. The result

was a four-hour interruption of long distance telephone service throughout western Maryland. SHA had given notice of the sign

location operation to Miss Utility3, which in turn had given notice to C&P. Thereafter, C&P employee Robert Carwithen had marked the

supposed location of the underground cable with a painted, dashed line. Through its own investigation, C&P determined that the "C&P

locator did not mark the cables correctly," concluding that its own locator, Carwithen, was at fault. Marriott filed a complaint in the Circuit Court for Montgomery negligence.4 County against C&P alleging negligence and gross

Marriott claimed damages stemming from the loss of C&P

service occasioned by the severance of the fiber optic cable.

See Md. Pub. Util. Co. Code Ann.

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