• Contractor Liable for Damaging Unmarked Fiber Optic Cable
  • June 26, 2003 | Author: Robert J. Huber
  • Law Firm: Leonard, Street and Deinard, [incorporation phrase format]Professional Association - Minneapolis Office
  • In a recent decision, Minnesota Equal Access Network Services v. Burlington Northern Railroad, the Minnesota Court of Appeals upheld a jury verdict in favor of a utility company finding that a contractor was seventy percent at fault for damaging an underground fiber optic cable that the utility company failed to mark when requested. The contractor had called for a utility locate, as required by Minnesota's One Call Statute, but the utility company did not mark the line. The contractor damaged the line after ignoring a permanent sign indicating the cable's presence and temporary flags from a previous locate. The utility company sued, claiming that surface features (the sign and the flags) should have alerted the contractor to the line's existence and that the contractor should have excavated with that in mind. A jury found the utility company thirty percent at fault for failing to mark the cable and the contractor seventy percent for failing to exercise due care. The contractor was ordered to pay seventy percent of the cost of repairing the line.

    On appeal, the contractor argued that the utility should be barred from suing the contractor when the utility breached its statutory duty to locate the line. The One Call statute requires contractors to reimburse utilities for damages to utilities located in response to a locate request, but "[r]eimbursement is not required if the damage to the underground facility was caused by the sole negligence of the [utility company] or the operator failed to comply with [its obligation to mark its utility once it received the locate ticket]." (Emphasis added.)

    The Court of Appeals rejected the argument, holding that the One Call statute did not affect the principles of comparative fault that apply generally. In other words, a utility company's fault in not marking a line does not excuse a contractor's fault in damaging the line after it is uncovered or should have been discovered. The allocation of fault is a question for the jury. Since the jury in the case found that the contractor was seventy percent at fault, the contractor was liable to the utility company for seventy percent of the cost of repairing the damaged line.

    Some in the construction industry believe that the decision undermines the One Call statute by encouraging utilities to ignore locate requests. This author, however, is cautious but not alarmed. The decision really means nothing more than that a contractor must take care not to damage any unmarked utility after uncovering it or after otherwise becoming aware of its existence and location. In other words, the contractor must take the same care not to damage any utilities of which it is aware or should have been aware, whether the utility is marked or not. Contractors should not be liable for damaging an unmarked utility he did not know was there or had no reason to know was there. A contractor must be at fault and is not responsible simply because he damages an unmarked utility.

    Additionally, under Minnesota's Comparative Fault statute, utility companies will not be able to recover anything from contractors for damaging unmarked utilities unless the contractor is fifty percent or more of the fault. This is because an injured party cannot recover unless the other party's fault exceeds its own. There should not be many cases in which the contractor is more at fault than the utility that did not mark the line that is damaged.

    The real test of the decision will be how the courts will view the issue in the context of pre-bid site investigation requirements. Not what the contractor knew, but what the contractor should have known, particularly in the context of clauses mandating extensive pre-bid investigations for underground utilities. Even then, however, the question should not be that serious. This is because the One Call statute requires owners to request utility locations during design and to provide bidders with the information they receive from the utility companies about the "type, size, and general location" of existing utilities.

    Making the contractor responsible for confirming this information should not protect the owner or the utility company, for a contractor cannot be expected to obtain any more information from the utility companies than the owner already received and showed on the plans. The only other questions would be (1) whether surface features (like utility boxes) should have alerted the contractor to unmarked utilities or (2) if there are utilities that are shown on the plans but are not marked in the field.

    Regardless of the legal ramifications, however, the unfortunate practical result of the decision is that utility companies will more aggressively pursue contractors even when the damaged lines are unmarked.