California Government Code 4216 prescribes the requirements for various excavation activities. Among other things, it outlines an excavator’s obligation to notify the appropriate regional notification center PRIOR to any planned excavation, and the operator’s requirements to participate and share in the costs of such notification centers (excluding the Department of Transportation). Industry professionals commonly refer to this as the “dig alert” requirements and consider them to be common knowledge.
Even still, many claims arise from dig alert issues where contractors fail to properly notify, or where contractors claim to have followed all the requirements but improper flagging by the operators may have led to damaged underground utilities. Thus, a contractor is not 100% guaranteed safety from liability even if they follow all the rules.
Many have claimed to receive claims for damaged underground utilities due to improper marking and flagging by the utility companies. While their lack of liability may eventually surface, defending themselves in court and the road to freedom often comes at a high price. These are serious issues as many contractors cannot afford to defend themselves in litigation against such claims when the defense costs can add up to multiple times the amount of the claim itself.
Steve Murow, the Dirt Expert, at Murow Development Consultants knows how often these cases come up. He states “I have provided expert witness services on cases such as these and can personally attest to their frequency. It never ceases to amaze me the extent to which these dig alert cases come up.”
Last month, on September 16, 2021, the Governor signed AB 930, an act to amend section 4216.7 of the Government Code. “The bill requires a court or arbitrator to award reasonable attorney’s fees and costs (including expert witness fees), to an excavator if the court determines that the excavator is not liable for damages to a subsurface installation for reasons related to inaccurate field markings, as specified, or if the excavator makes an offer to settle the matter that is not accepted, and the plaintiff fails to obtain a more favorable judgment or award.” (AB 930). You can find details on the full bill here ( Bill Text – AB-930 Subsurface installations: attorney’s fees and costs. (ca.gov)).
AB 930 provides a much-needed recourse for contractors who have followed all of the dig alert requirements and yet still have to defend themselves due to another’s mistake or oversight. This bill will ensure that operators/utility companies take appropriate measures to increase the accuracy of their flagging and marking practices. Also, operators will be forced to fully consider whether the pursuit of such claims is appropriate and reasonable. This will hopefully reduce the frequency of these claims. Lastly, the bill also promotes settlement offers as the parties can now potentially be awarded attorney’s fees and costs.
The bill goes into effect on January 1, 2022, so we can expect to see definitive changes in the landscape of these cases very soon.
Blog Written By: Madelyne Pyne, Manager of Expert Witness Services
Comments or Questions? Please feel free to reach out to Mady at [email protected]
