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Dear Mr. Jerker: [NEW PARAGRAPH] Thank you for bringing this incident to our attention, and for giving us an opportunity to respond to your client's complaint regarding our services. I understand that your client feels that it was damaged in some way due to this loss of service, however based upon a reasonable investigation into the facts, the relationship of the parties at issue, and for reasons that will be explained in the following paragraphs, Utility Locating Company has decided to deny your claim. [NEW PARAGRAPH] First, I have not been determine that any contractual relationship exists between Utility Locating Company and your client, Shady Tree Communications, Inc. If your client has operated under another name and has contracted with us, please let us know so that we may reassess the situation in light of a heretofore unknown contractual relationship between these two parties. Until then, without a contractual relationship, as I am sure you are well aware, your client cannot complain to us as the unnamed beneficiary of a contract between Utility Locating Company and one of its clients. Rather, it seems as though your contractual relationship is with Comcast, and any claim for loss of service should go through them. Our communications with Comcast thus far indicate that Comcast has not found us liable in this incident. [NEW PARAGRAPH] Furthermore, you have not provided me with enough information to determine whether Utility Locating Company was even contracted to mark the lines at this specific location. In any event, your claim would be based upon the negligence of Utility Locating Company in failing to locate the lines, which were not on any prints. Utility Locating Company is not an absolute guarantor that there will not be any lines in areas that it does not mark. Utility Locating Company works by locating utility lines that are on prints, disclosed by the utility companies. If the utility companies fail to disclose these locations, Utility Locating Company cannot be held liable for their negligence, as Utility Locating Company was in no way negligent for failing to locate undisclosed and unprinted utility lines. [NEW PARAGRAPH] Finally, since your client is complaining that its economic damages were the result of Utility Locating Company, with no accompanying physical injury or property damage, Utility Locating Company would claim the defense of the "Economic Loss Doctrine." Again, I'm sure that you understand what this means, but in short, when a plaintiff brings a cause of action based upon negligence, where the sole damages claimed are economic, said cause of action is going to be barred in court. [NEW PARAGRAPH] In closing, again while we appreciate your communication to Utility Locating Company, but based upon the fact that there was no privity of contract between Utility Locating Company and your client, nor was there any negligence on the part of Utility Locating Company, and in any event such a cause of action would be barred under the Economic Loss Doctrine, Utility Locating Company will have to deny your client's claim. We suggest that you seek relief from Comcast, with whom it seems you had a contract for service with. [NEW PARAGRAPH] Sincerely, [YOUR NAME].
Basically the fact that Shady Tree communications leased lines from Comcast means that there's no privity of contract (no contractual relationship between Shady Tree and Utility Locating Company).
So this is important because they can't sue for breach of contract.
There's the possibility of suing based upon third party beneficiary, but for that to work, there has to be an express stated beneficiary, or at least an understanding that a specific party is the beneficiary to the contract.
There's no indication that this is the case.
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