Who Caused the Damage: Determining Liability on an Excavation Damage Call
When a utility repair crew responds to a call of damage that appears to be due to a dig in by an excavator, the crew’s first priorities are restoring safety and getting utility service reconnected. The question of who will pay for the damage comes after these initial issues are resolved. However, if the crew understands and is aware that the issue of liability may be disputed at a later date, the repair crew can more readily and effectively assist in the ultimate collection of the damages sustained as a result of the dig in. The following outlines the steps the repair crew should take to assist in the ultimate collection of the damages from the liable party.
If an excavator has followed the notification requirements of state law, the notification service (Ohio Utilities Protection Service in Ohio (“OUPS”) and Pennsylvania One-Call System are examples) will notify the utility to mark its facilities in the identified excavation area. The utility may use its own employees to mark its utilities with flags or paint, or use a contractor. In either case, it is a best practice to document the marks with a videotape taken immediately after the marks are placed. It is also useful if the videotape includes an audio record of the addresses marked and describes the facilities marked. If this is not required under the contract between the utility and the contract locator, it is recommended that a contractual requirement for this documentation be negotiated.
Most utility companies will ask their repair crews to fill out a report listing the apparent cause of the damage and the person(s) or company that appear to have caused the damage, the steps taken to repair the damage and the names of the repair crew that worked on the damage. If feasible, without jeopardizing the first priorities of safety and restoring service, the repair crew should take this report a few steps further, to include more information, as suggested:
> It is important to get the names of all people on site when and where the damage occurred, and each company or employer for whom the person(s) works. If the damage is discussed with the person(s) or company who appear to have caused the damage, documenting this conversation is
critical. It is recommended to obtain a business card from each person, or at a minimum, each person’s full name, position, and employer.
> Ask questions of the people at the scene, specifically, who was digging, which company authorized the work and directed the work, what equipment was involved in the dig, and whether anyone was hand digging to uncover the utilities? It is very useful to get an idea of exactly who was involved and why they think they hit the line. It is easy to assume that everyone agrees on who caused the damage, but months later, away from the scene, this determination will not be so easy. The report created by the repair crew will be scrutinized by an attorney looking for a way to avoid paying the damage bill. Also, memories fade. Suddenly, what once seemed obvious to the repair crew may no longer be so obvious.
> It is important that the utility personnel preparing the damage report be instructed and trained to record observations of the physical facts and identifying information. It is equally important that utility responders refrain from recording judgments as to legal liability or damages. Quite simply, the determination of liability and damages involve factors the repair crews may not consider.
For this reason, it is highly recommended that written opinions of ultimate responsibility be avoided.
> If possible, taking pictures is a great way to illustrate the scene on the day of the damage. Pictures of the damage itself are important to document the extent of the damage. Pictures can also illustrate the cause of the damage. For example, where a water main has broken, and there is a call for a repair to damaged utility lines underground in the same area where the crew is working to repair the water main, the question becomes what actually caused the damage? Was it the force of the water main break, the water from the break undermining the underground lines, or could it have been the crew repairing the water main that nicked the other utility lines in the space? A picture of the damage, how the repair crew found it, and other key evidence will help answer this causation question.
If the utilities in the area have been marked, pictures of the markings, which are visible, are critical. Even if no markings are visible, a picture reflecting that fact may be vital to recovery. Where the issue in the case is whether or not the underground lines were properly marked, good or bad, pictures of the scene at the time the damage was caused will help answer the question of who is liable. In order to document the marks in relation to the “tolerance zone” established by state law, pictures that document the lateral distance of the marks from the damaged facility are extremely helpful. A best practice is to photograph a tape measure or measuring stick with visible indices of feet and inches perpendicular from the “path of marks” to the side of the damaged utility.
The markings leading up to and away from the damage site should be taken in progression. If possible, use landmarks in the pictures, so that someone who is not on site that day can see how the pictures relate to each other spatially. Identifying pictures showing street signs, house numbers and business signage are useful. If your utility company uses a contractor to place its location marking, you should notify the contractor of the damage. Generally the contract between your utility and the contractor will require the utility to notify the contractor of the damage, and the contractor to view the scene, photograph it and prepare a report on the damage. Generally, the area should be remarked after an excavation hit. Again, this will require notification to the contractor used for location marking, if a contractor is used by the utility.
Where there is large scale damage in the tens of thousands of dollars to repair, these issues are more critical than in a small repair job. Where the crew recognizes the potential large repair cost of a certain job, it may be worthwhile to have someone considered an “expert in the industry” view the damage. At trial, if the issue is one of how the damage was caused, the expert will be able to testify to their findings about how the damage was caused and who caused it. While the repair crew might not be prepared to make this determination, or to find an appropriate expert, when educated about the potential need for an expert in a large scale damage situation, a procedure can be set up to notify the claims team before it is too late.
These steps will assist in accurately assessing responsibility, preparing accurate and complete claims and ultimate recovery of the damages sustained as a result of the dig in. When the repair crew is trained to determine who and how the damage was caused, they can easily assist in the recovery without jeopardizing their main priorities.