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Anatomy of the underground utility damage lawsuit – Part 1

“SAFETY FIRST.” These simple words resonate from the columns of this magazine, the speakers at damage prevention meetings, and “call before you dig” public service announcements that pass through the radio and television airwaves. We figure out quickly that a simple call and paint on the ground leads directly to the avoidance of serious bodily injury and loss of life.

While personal injury is the overwhelming reason to comply with the dig laws, those in the excavation, locate, and utility businesses recognize that a frequent result of failure to comply is damage to property. Of course, the “property” at issue may fall into one of several categories. Take for instance the situation where an excavator through his, the utility owner’s, or the locator’s fault inadvertently damages a gas line with a backhoe. Such a simple action could lead to the loss of property in the form of a home or business, an expensive backhoe, and/or underground gas facilities. The owner of each type of property will expect compensation for the loss of property caused through no fault of his own. In a perfect world, the property owner would submit a damages invoice to the wrongdoer, the wrongdoer would pay the invoice, and the parties would walk away with an expensive lesson learned regarding the importance of the dig laws.

As we all know, “life in the underground” is not perfect, and so while this scenario does occur, it is often clouded and slowed by reasonable disputes over (1) who is at fault, and (2) what are the damages? Where excavators, locators, and utility owners are unable to agree on these issues, the courtroom can be the venue for resolving questions of fault and damages.

Many steps occur between the point of damage to an underground utility and a judgment in court. Through a series of articles in the next several editions of Mississippi 811, we will explore the anatomy and chronology of utility damage litigation and common issues that arise along the way.

For purposes of this series, we will divide litigation into the following categories:

1. Pre-Suit Activities
2. The Lawsuit, Claims and Defenses
3. Damages
4. Discovery Strategies
5. Trial

Each category includes important issues and decisions that may ultimately affect the outcome of the litigation. This is particularly true with respect to pre-suit activities. In our damaged gas line example, we will assume that the excavator called for a locate as required by law, and the utility performed the locate. We will also focus only on the damage to the buried gas facilities and will assume that no bodily injuries occurred.

Once the underground facilities are damaged, one of the excavator’s first tasks should be to stop excavation and immediately notify the owner of the damaged utility facility and Mississippi 811. In situations that involve damage to certain gas facilities, the excavator must also call 911. Specifically, Mississippi law requires the following:

(1) Each person responsible for any excavation that results in damage to an underground utility line or underground facility, immediately upon discovery of such damage, shall notify Mississippi One-Call System, Inc. , and notify all operators of such damaged line or facility of the location of the damage and shall allow the operator reasonable time to accomplish any necessary repairs before completing the excavation in the immediate area of the damage to such line or facility.

(2) Each person responsible for any excavation that results in damage to an underground pipeline or underground facility permitting the escape of any hazardous, flammable, toxic or corrosive gas or liquid that may endanger life or cause serious bodily harm or damage to property shall, immediately upon discovery of such damage, call 911 and then notify or call Mississippi One-Call System, Inc., and the operator and take all other action as may reasonably be necessary to protect persons and property and to minimize the hazards, until arrival of the operator’s personnel and the police or fire departments.

Miss. Code Ann. § 77-13-7(1) and (2) (emphasis added).

Obviously, the notification requirements are essential to reduce the likelihood of bodily injury and further property damage. Notification is also very important for lawsuit purposes, because a damager who knowingly fails to notify the necessary parties may be liable for punitive damages and the other parties’ attorneys’ fees. Mississippi law allows the recovery of punitive damages where the defendant “acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others or committed actual fraud.” Miss. Code Ann. §11-1-65. And where punitive damages are available, attorneys’ fees are also recoverable by the plaintiff. Warren v. Derivaux, 996 So. 2d 729, 739 (Miss. 2008).

The message with respect to notification for lawsuit purposes is clear – stop digging and inform the necessary parties of the damage. Failure to provide notice may transform a simple mistake and reasonable damages into a serious case involving expensive punitive damages and attorneys fees.

Another very important pre-suit task is to gather information and evidence that will eventually be used to support claims, defenses, and damages. The parties should photograph the damage scene; locate marks, and damaged facilities and equipment. The excavator should collect and organize the locate tickets related to the damage area. Where possible, the parties should obtain accounts and statements from workers at the scene. The damaged party should mitigate its damages and calculate the cost of damages with as much specificity as is possible.

Once the excavator notifies the necessary parties, the parties gather and organize the initial evidence and information, service is restored, and it becomes apparent that the parties do not agree as to fault or damages, the damaged party may file a lawsuit to recover damages. As we will explore in subsequent articles in this “Anatomy of the Underground Utility Damage Lawsuit,” these pre-suit tasks are essential to the successful prosecution and defense of underground utility damage litigation.

Editor’s Note: This is the first article of a five-part series. Gordon U. “Sandy” Sanford III is an attorney with the Willoughby Law Group and can be contacted at 601-899-0065.