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Court of Appeals Holds That “Call Before You Dig” Creates Strict Liability



As we’ve reported before, Washington strengthened its “Call Before You Dig” laws about five years ago to create a much stricter regime, with significant penalties for property owners, utility providers, and contractors that fail to comply with its requirements. And now we’ve got one of the first published decisions under the new regime, which holds that the new Call Before You Dig law creates strict liability for violations. 

In Titan Earthwork v. City of Federal Way, an excavator struck a power line, the utility sought to hold it liable, and the excavator sued the owner, claiming that the owner had misrepresented the location. The plaintiff excavator had called 811, and did have the utilities located and marked, but claimed that it had relied on Federal Way’s assurances that the power lines had been relocated, and so sought to have Federal Way pay for the damages. The court of appeals agreed that the undisputed evidence showed that the excavator had performed its work within the tolerance zone of the utility locator’s marking (i.e., too close to the surface markings). The excavator argued that under the Call Before You Dig law excavators have only a duty of reasonable care, and that the excavator had exercised reasonable care when it relied on Federal Way’s representation about the utility lines, being relocated, which led the excavator to dig too close to the boundaries marked by the utility locator. 

The court of appeals agreed that excavators always have a duty to exercise reasonable care under RCW ch. 19.122, but held that the statute also sets forth certain actions that excavators “must” take in order to meet that standard of care. As set forth in the statute, an excavator must (1) determine the precise location of underground utilities that have been marked (by a utility locator or the owner), (2) plan the excavation so as to avoid damage or interference with the underground utilities, and (3) provide subjacent and adjacent support for the utilities as may be reasonably necessary. RCW 19.122.040(2). The court of appeals held that “if an excavator damages a marked utility line because of its failure to determine the utility line’s ‘precise location,’ then the excavator has, by definition, failed to act with reasonable care.”

Essentially, the court of appeals says that once the utility corridor is marked on the surface, it is up to the contractor to figure out just where the utilities are and make sure that they don’t get damaged. On the bright side (for the contractor facing strict liability), the court of appeals found that despite Federal Way’s reliance on the Call Before You Dig statute to defend itself (which statute also says an award of attorneys fees to the prevailing party is mandatory), the contractor had sued only for breach of contract, and the contract required each party to pay its own attorney fees in that instance. So the court of appeals vacated Federal Way’s $22,000 judgment for attorney fees against the contractor.   

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