California § 4216.7 - If a subsurface installation is damaged by an excavator as a result of failing to

§ 4216.7. If a subsurface installation is damaged by an excavator as a result of failing to

(a) If a subsurface installation is damaged by an excavator as a result of failing to comply with Section 4216.2, 4216.4, or 4216.10 or subdivision (b) of Section 4216.3, or as a result of failing to comply with the operator’s requests to protect the subsurface installation as specified by the operator before the start of excavation, the excavator shall be liable to the operator of the subsurface installation for resulting damages, costs, and expenses to the extent the damages, costs, and expenses were proximately caused by the excavator’s failure to comply. (b) If an operator has failed to become a member of, participate in, or share in the costs of, a regional notification center, that operator shall forfeit the operator’s claim for damages to the operator’s subsurface installation arising from an excavation against an excavator who has complied with this article to the extent damages were proximately caused by the operator’s failure to comply with this article. (c) If an operator of a subsurface installation without a reasonable basis, as determined by a court of competent jurisdiction, has failed to comply with the provisions of Section 4216.3, including, but not limited to, the requirement to field mark the appropriate location of subsurface installations within two working days of notification, as defined by subdivision (v) of Section 4216 and subdivision (b) of Section 4216.2, has failed to comply with subdivision (c) of Section 4216.2, or has failed to comply with subdivision (b) of Section 4216.4, the operator shall be liable for damages to the excavator who has complied with Section 4216.2, subdivisions (b) and (e) of Section 4216.3, and Section 4216.4, including liquidated damages, liability, losses, costs, and expenses, actually incurred by the excavator, resulting from the operator’s failure to comply with these specified requirements to the extent the damages, costs, and expenses were proximately caused by the operator’s failure to comply. (d) (1) An excavator who damages a subsurface installation due to an inaccurate field mark by an operator, or by a third party under contract to perform field marking for the operator, shall not be liable for damages, replacement costs, or other expenses arising from damages to the subsurface installation if the excavator complied with Section 4216.10 or Sections 4216.2 and 4216.4. (2) This section is not intended to create any presumption or to affect the burden of proof in any action for personal injuries or property damage, other than damage to the subsurface installation, nor is this section intended to affect, create, or eliminate any remedy for personal injury or property damage, other than damage to the subsurface installation. (e) For the purposes of this section: (1) “Approximate location” means a strip of land not more than 24 inches on either side of the exterior surface of the subsurface installation. It does not mean depth. (2) “Inaccurate field mark” means a mark, or set of markings, made pursuant to Section 4216.3 or 4216.10, that did not correctly indicate the approximate location of a subsurface installation affected by an excavation and includes the actual physical location of a subsurface installation affected by an excavation that should have been marked pursuant to Section 4216.3 but was not. (f) Nothing in this section shall be construed to do any of the following: (1) Affect claims, including, but not limited to, third-party claims brought against the excavator or operator by other parties for damages arising from the excavation. (2) Exempt the excavator or operator from the excavator’s or the operator’s duty to mitigate any damages as required by common or other applicable law. (3) Exempt the excavator or operator from liability to each other or third parties based on equitable indemnity or comparative or contributory negligence. (g) A court or arbitrator shall award reasonable attorney’s costs and fees, including expert witness fees, to an excavator if either of the following apply: (1) The court or arbitrator determines that an excavator is not liable for damages to a subsurface installation for a reason described in subdivision (d). (2) 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.