Mandatory Attorneys’ Fee Award for Actions Brought Under the Underground Utility Damage Prevention Act
- Posted by Lindsay K. Taft
- On August 31, 2016
In Washington, RCW 19.122 (the Underground Utility Damage Prevention Act or “Call Before You Dig” statute) provides for the protection of underground utilities. The statute was recently updated in 2013 and provides that homeowners and contractors must call “811” to schedule a “utility locate” prior to commencing any excavation. Failure to do so can result in steep penalties, as well as a mandatory fee award for the prevailing party.
Specifically, in Hayfield v. Ruffier, 187 Wn. App. 914, 351 P.3d 231 (2015), a landowner in Gig Harbor was using a backhoe on his property to remove a two-foot diameter stump. While using the backhoe, the landowner (Mr. Ruffier) damaged an underground drainage pipe that extended onto his property from his neighbor’s basement. The neighbor’s basement flooded with over three feet of water as a result of the excavation work, and the neighbor sued Mr. Ruffier for the flood damages under the Underground Utility Damage Prevention Act. The neighbor prevailed at trial, but the trial court judge refused to grant the neighbor attorneys’ fees because the judge determined that even though the landowner’s actions “technically violated the terms of RCW 19.122.040, notice to the [neighbor] of the excavation and/or calls to ‘811’ would not have prevented the damage that occurred.”
The neighbor appealed, arguing that the statute provided that he was entitled to attorneys’ fees as the prevailing party (RCW 19.122.040(4) states “In any action brought under this section, the prevailing party is entitled to reasonable attorneys’ fees.”). Despite Mr. Ruffier’s arguments that the phrase “is entitled to” is permissive rather than mandatory, the Court of Appeals reversed the trial court and held that an award to the neighbor—the prevailing party—was mandatory. The neighbor was awarded his fees associated with the appeal, as well.
This ruling is consistent with the statutory language but is a good reminder of the significant penalties for failing to call for the utility locate prior to digging, especially in this case where the trial court found that the call would have been pointless even if it had been made as the underground drain pipe would not have been located. As a further reminder, in addition to attorneys’ fees, other penalties include fines of up to $10,000 for each occurrence (RCW 19.122.055), as well as treble damages if the damage is done “willfully or maliciously” (RCW 19.122.070). Finally, note that utility locates are only good for 45 days, so if work is being performed outside of that time period, a new call needs to be placed. More information can be found at www.washington811.com.