Documenting and Collecting on Damage Claims Involving a Water Main Break

While the country has seen one of the coldest winters in history¹, and temperatures continued into the single digits well into March, the cold will undoubtedly contribute to water main breaks. Aging infrastructure in addition to the cold temperatures sets up a condition ripe for water main breaks which will damage other underground utility lines or mains near the water main, including gas and electric.  How damage claims caused by a water main break differs from other damage claims, and what to look for and document when responding to these damage reports is of great significance.

With all claims, documentation is the key to recovery.  The crew responding to the damage claim should be trained to look for the cause of the damage.  For example, the crew should identify if the area was properly located and if the excavation was within the tolerance zone.  The crew should also try to determine how the damage occurred and who caused it.  The crew on site does not need extensive training in the legal implication of whether the excavation occurred within 18 inches of the locate marks, but should be familiar enough with the root causes for this type of excavation damage to assess how the damage occurred.  Many times, the first responders to a damage report are focused only on the extent of the damage and the necessary repair.  While these are of course the first considerations, making these crews aware of the need to document the cause of the damage and the scope of the damage itself will greatly increase the chance to recover the damage it sustained.  Further, good documentation of the damage can save the cost and embarrassment of attempting to collect on a claim that is ultimately not the excavator's fault. 

There are special considerations for damage claims where the damage has been caused by a water main break.  First and foremost, the crew must determine how the damage occurred.  The ability to recover for claims arising out of a water main break will vary based on the cause, and who caused the damage.  The crew needs to determine if the damage they are seeing to the main or line was caused by a strike by equipment, the pressure of the water from the break itself, or caused by rushing water undermining the support to the main or line.  The crew needs to document their theory of the cause of the damage.  Notating strike marks on the line and whether there is dirt under and around the main or line washed away, are critical steps. Identifying if there was an ongoing project in the area at the time the damage report was received, or if the water utility crews appeared only as a result of the water main break make a difference, as well as noting   how long the water main break existed.   Pictures of the damage are essential to establish the cause of the damage. 

Next, the crew must pay particular attention to who appears to have caused the damage.  This concept is inner connected with how the damage was caused.  If the damage was caused by rushing water from the break, or by the pressure of the water from the break itself, governmental immunity may apply.²  Many water utilities are owned and operated by a governmental department or agency.  The purpose of governmental immunity is to allow a government entity the freedom to allocate its resources in the manner it deems most appropriate.  However, each state's laws apply this concept differently.³  The Water Research Foundation published a research paper titled "Water Utility Legal Protection and Claims Management From Infrastructure Failure"⁴, instructing water utilities on how to prevent future damage from water main failures and how to deal with claims resulting from that failure.  The research paper counsels water utilities to maintain an updated valve map to easily shutoff water to the area to avoid allowing rushing water to cause additional damage to other utilities.  Whether or not this type of damage is from rushing water undermining surrounding utility mains and lines depends on each state’s individual governmental immunity statute. 

If the crew determines that the damage was caused by external causes, i.e. an excavator hitting a line, the crew must determine who was performing the excavation.  There is a significant difference between whether the excavation was being performed by the government owned utility itself, or by a third party contractor hired by the government.  A third party contractor working on behalf of a government entity does not enjoy the protection of the governmental immunity statute.  That contractor may be held to an ordinary theory of negligence, or in most cases, the state's applicable excavation statute. 

Likewise, the private excavator or government entity may claim an "emergency" situation existed which negates the requirements of the applicable excavation statute.  The claim is that the rushing water was causing damage to the surrounding underground utilizes, customer or third parties (a water main break that has flooded nearby homes or businesses).  Like the immunity statute, each state's excavation statutes will deal with an emergency situation, and the crew on site need not know the ins and outs of those statutes.  Instead, it is important to document the "emergency" situation.  For example, where a water utility has been attempting for several days to locate the source of reported water leaks, in a specific intersection or area, but is unsuccessful, the need to dig in this area without first contacting the state's one-call system appears less like a valid emergency.  Many times, a crew leader or others assigned to the area will be aware of an ongoing project by the water utility in the area that this damage arose out of, while the crew onsite sees and hears only of this specific incident. 

At times it will be necessary depending on the nature and size of the damage involved to employ an expert in a lawsuit in order to establish the cause of the damage.  The expert is hired months or years after the incident and is charged with determining the cause of the damage to the main or line, without having been present at the site to see the damage.  Here, documentation is critical.  The expert will need to see photos of the scene, the damage, and analyze any reports generated by the crew.  The more specific information that is provided, the more likely an expert will be able to pinpoint a cause. 

Like general damage claims, when damage is caused by a water main break, the likelihood of the recovery of the damages sustained will turn on the quality of the documentation of the damage performed by the crew.  Unlike a common excavation damage, the crew should be more focused on the cause of the damage as a result of the water main break in order to increase the chance of recovery, or avoid the cost of attempting to litigate a damage claim that from the outset will be protected by governmental immunity. 

¹ https://tinyurl.com/mdv7254
² See various articles on governmental immunity published by Weltman: http://www.weltman.com/publications/articles/?i=595&NH; http://www.weltman.com/publications/articles/?i=771;  
³ http://www.weltman.com/publications/articles/?i=595&NH;
⁴ http://www.waterrf.org/ExecutiveSummaryLibrary/4369_ProjectSummary.pdf)