As an owner of a construction business, you may perform underground excavation work as a common practice. Whether this work involves a backhoe, drill or hand tools, there is a very good chance that beneath the surface lurks numerous substructures owned by various utilities that could be in the path of your dig. If you damage one of these, you risk a claim that could easily exceed six figures. How can you avoid the damage in the first place and how do you defend a claim if damage does occur?
How to Stop a Lawsuit Before It Happens
Let’s face it. You do not want to sever a telecommunications cable, rupture a gas line or otherwise damage one of these hidden structures. Yet, it happens over 50,000 times a year in this country. From a risk management perspective, there are a few simple preparatory steps that should be taken before beginning any excavation job.
- Call your local One Call facility before you dig. This is the most important step because one-third of all accidents occur due to the excavator’s failure to call. One Call centers can be found in regions throughout the country. A One Call center receives information on upcoming digs from excavators and then notifies all owners of underground facilities within that area so that they can mark the location of their substructure. Call 811 if you are unsure as to who to call locally, and you will be routed to the proper facility.
- Make sure your crew has familiarity with the local One Call procedures. Make a copy of the applicable statute, and give it to employees who are onsite. Print out information from the local One Call websites (www.digalert.org and www.call811.com). These websites explain in clearly and with illustrations how the statutes work and what is expected of the excavator.
- Confirm that your crew's delineation marks at the site are accurate. A sloppy outline will almost certainly fail to include all the subsurface installations that could be impacted by the dig.
- Review all information communicated to One Call about the date, time and location of the excavation to confirm its accuracy. A written and audio record is kept of this communication and will be available for all to see as Exhibit “A” if litigation occurs.
- Keep all of the One Call tickets. It is always easier to prove to the offended party that you complied with One Call by having a copy of that ticket.
- Know your terrain. Direct your site managers to be aware of their surroundings. If manholes are present with the name PG&E or SCE on the cover with no corresponding marks, then it is reasonable to assume that a subsurface installation has not been appropriately identified, and One Call should be notified immediately.
- If you have doubts about any of the marks, contact One Call immediately, and request for an emergency re-mark before you begin the dig. Although you may be able to directly contact an operator, it is a much better idea to go through One Call so that a record exists of your request for a re-mark. Otherwise, you will be facing a he said/she said scenario without any concrete proof.
Houston, We Have a Problem
If an accident does occur, it is essential that your employees immediately take digital photographs of the field marks at the scene. If possible, pictures should also be taken of the actual substructure that was damaged once it is uncovered. Often, a utility company will send out its locator after the damage to "re-mark" the area, covering up the previous marks. Your pictures with the “before” view, can be highly persuasive in muting an opponents’ outrage.
In 40 percent of all cases involving damage, the underground operator seeks recovery from the excavator. Whether you receive a claim or a lawsuit, there are a few things you should do when defending the case.
Immediately get all written and recorded communications that were forwarded to the operator by One Call on the date, time and location of the dig. In this way, you can determine whether or not that operator complied with the provisions of One Call. This paper trail will quickly establish the strengths and weaknesses of your opponents’ claim.
You should also request from the operator any substructure maps and microfiche that contain schematics of exactly what that company had under the surface at the time of the excavation. On many occasions, the locator who spray painted the marks had within his possession microfiche and substructure maps that pinpointed the exact location, route and substructure size. These materials are generally never provided to you—the excavator—prior to the job because they are proprietary in nature
Why is this important? Size matters. As an example, a telephone company will often identify the location of its substructure by spray painting a simple line with an arrow and the company’s initials. In fact, what may be underneath the surface is not a simple pipe with a cable but a multiple duct structure one-foot wide and four-feet deep. This is significant because before using any power equipment, an excavator is required to hand dig to determine the exact location of the subsurface installation.
Using the previous example, if the duct is already a foot wide, this would require that your company hand dig to expose the duct to three feet on either side of that simple line. How is an excavator to know the size and depth of a large structure that is underneath the surface by looking at a simple line especially when the operator’s microfiche and substructure maps were never given to your employees?
Operators generally prohibit excavators from even looking into a manhole. Yet, a quick peak inside often provides a fairly clear indication of the size and direction of some of these large duct structures. Such a prohibition by an operator is another obstacle that hinders the operator from knowing what lies under the surface.
While One Call’s online materials recommend that the operator of the substructure provide onsite information on the width and depth of their structures, this additional information is rarely, if ever, provided, and a simple line with initials is almost always all that you can hope to see as you begin your job.
Very often, serious excavation mistakes, such as the one posited at the beginning of this article, could be easily avoided if the utility line operator provided a reasonable amount of information to the excavator. While a simple line with a company's initials may be a technically complying with the statute, it is not enough. The operator's failure to provide even basic dimensions of the underground structures to the excavators caused the accident because it left the crew essentially boring "blind.”
This, taken together with One Call’s online recommendation that more information “should” be provided by the operator to the excavator if known, usually makes a compelling argument in favor of the excavator.
An Underground Whodunnit
The One Call statutes allows claims for damages to proceed or bars them completely based on who caused the damage. If you are an operator of a substructure but failed to provide a proper mark in a timely fashion, you are barred from seeking recovery for any damage. On the other hand, if you are an excavator and failed to provide One Call with the proper location and date of the dig and that caused the damage, you must pay.
In this “blame game,” I generally focus on the sufficiency of the field markings and what was known by the locator as the time he made the marks. Even if your excavation crew did not do their best in fully exposing the substructure before digging, if the operator knew about the size of that structure and only provided you with a skimpy line, then you have a credible argument that your crew’s actions did not cause the damage.
As you are defending the claim in this manner, it is also wise to begin to undertake a forensic analysis of any bills for damages that are provided by the plaintiff operator. These bills are bloated examples of phantom overhead costs and exorbitant hourly wages that have no basis in reality and invariably include materials costs that actually upgrade a system in a way that had not been previously anticipated by the operator.
A Happy Ending
If you follow the steps outlined in the first half of this article before you begin digging, there is a good chance that you can avoid damaging something under the ground that has not been properly marked.
However, if you do get sued, it is possible to fight the claims—and win—even if you are up against a large utility company. I have seen claims for more than $100,000 in damages settle for less than $10,000 or go away completely once the construction company decided to mount an aggressive defense. Use the tools and information provided to mount such a defense, and diminish the claim to a more palatable level for resolution. After all, such a dirty business deserves a clean result.
Construction Business Owner, November 2007
