July 1, 2002
By Gregory T. Spalj
On July 9th, the Minnesota Court of Appeals issued a decision construing Minnesota’s One-Call Excavation Notice System (“One-Call”) in a manner inconsistent with what many believe is the general idea behind the system in the first place.
In MEANS v. Burlington Northern, et al., the Court of Appeals held that even if the owner of underground facilities does not respond to a properly issued One-Call ticket, the excavator is still liable for damages caused when facilities are struck during excavation if the excavator was negligent.
There are approximately 20 million miles of underground facilities in the United States, including buried pipelines and cables. Every state except Hawaii and the District of Columbia has a damage prevention law designed to regulate excavation activities around buried facilities. Each state approaches the problem of safe underground excavation differently.
A 1995 Office of Pipeline Safety (“OPS”) study found that there were “significant variations among state statutes, among excavators, and among facility operators in the way that excavation around underground facilities is done.” Thirty states have mandatory One-Call participation programs, but 41 states allow exceptions for certain organizations and operations, including State transportation departments, railroads, mining operations, city/state and federal projects, cemeteries, water utilities, military bases, and native American lands.
In 1998, the federal government enacted the Transportation Equity Act. The purposes of this law were to reduce damage to underground facilities during excavation and reduce the risks to the public and to the environment that are associated with excavation activities. The federal government has not yet exercised jurisdiction over One-Call operations within states, and cannot require the states to pass any legislation. Nevertheless, the Transportation Equity Act does encourage states to establish or improve their existing One-Call notification systems.
Disputes frequently arise between owners and contractors when the underground structures are incorrectly marked, shown, or omitted, or are located incorrectly. Contractors may inadvertently cause interference with utility lines, communication cables, tanks, and old foundations due to misinformation or lack of information. Several utility owners, architects, engineers, and contractors may have installed facilities and buried obstacles in the area over a number of years and “as built” records may have become scattered, to the extent they exist at all! Accurate location of underground facilities to avoid digging near them is key to preventing strikes. Prevention methods include the use of expanding technology, compliance with the One-Call System and sound and safe excavation practices.
One-Call notification centers provide one telephone number for notification of excavating, tunneling, demolition or similar work. The systems generally require excavation contractors to notify the One-Call center of any intended digging or construction activity. The One-Call center then notifies the owners of underground facilities that digging or construction will occur at a given location. The facility owners or their contract locator then are to proceed to the excavation site and mark the location of any underground facilities in the area.
In Minnesota, for example, Gopher State One-Call works along these lines. The One-Call notification center issues a locate ticket to the owners of facilities in and around any proposed excavations.
Minnesota’s One-Call Statute is set forth in Minn. Stat. § 216D.01-09, and provides that if an excavator damages an underground facility, it must reimburse the owner for the cost of the repairs and any product being carried in any pipeline unless the damage to the underground facility was caused by the sole negligence of the owner of the facility or if the owner of the facility failed to comply with its obligation to mark its utility once it received the locate ticket.
Most people read the latter exception to mean that if the owner of the facility did not mark its underground facility and the excavator hit it, the responsibility therefor would be on the owner of the facility for not marking the facility. Not so, says the Minnesota Court of Appeals.
The Minnesota Court of Appeals reasoned that this One-Call Statute is merely one of many remedies available to owners of facilities that are damaged through excavation. The Court held that even though the One-Call Statute does not “require” reimbursement of the owner of the facility who does not mark its utilities, the common law of negligence still applies and provides a remedy to the facility’s owner. Thus, if the excavator was negligent in its construction activities, then it will be liable for the damages caused not only to repair the facility, but also for loss of use.
What this means to an excavator is that you cannot use: (1) your compliance with the One-Call Statute, and (2) the owner of a utility’s failure to comply with the One-Call Statute, as a shield or bar to claims against you when the underground facilities are struck because they were not marked. The excavator must excavate using reasonable, prudent techniques so as to be free from negligence.
So what is a reasonably prudent contractor to do? I will guarantee you that if any excavator strikes an unmarked facility, the facility owner will claim that a reasonably prudent contractor should have made further inquiries to determine whether there were underground facilities in the area. For example, were there signs a mile up the road and a mile down the road indicating a buried facility? Did the contractor contact all of the likely owners of underground facilities in the area to make sure that there were no buried facilities in the area? Did the contractor employ its own locator to verify that there were no underground facilities in the area? All of the same questions, in my opinion, whose answers were supposed to have been made irrelevant by the One-Call Statute, will now be raised in order to pin liability on the contractor when an owner of a buried facility fails to mark its own facility.
Recall that the owner of that underground facility created an invisible hazard. Only that owner knows, in advance, that there are underground facilities in the locations in which it has them installed. The owner should be absolutely responsible for the safety and protection of its own facility, and if it does not mark the facility, it ought to have complete and exclusive liability for the damage caused as a result. But, unless the MEANS case is reversed by the Minnesota Supreme Court, at least in Minnesota, the contractor has little protection when the owner fails to mark its facilities. Perhaps a legislative change is in order.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © FWH&T