Colorado § 9-1.5-104.5 - Civil penalties - applicability.

§ 9-1.5-104.5. Civil penalties - applicability.

(1) (a) Every owner or operator of an underground facility in this state shall join the notification association pursuant to section 9-1.5-105.

(b) Any owner or operator of an underground facility who does not join the notification association in accordance with paragraph (a) of this subsection (1) shall be liable for a civil penalty of two hundred dollars.

(c) (I) If any underground facility located in the service area of an owner or operator is damaged as a result of such owner or operator's failure to comply with paragraph (a) of this subsection (1), the court shall impose upon such owner or operator a civil penalty in the amount of five thousand dollars for the first offense and up to twenty-five thousand dollars for each subsequent offense within a twelve-month period after the first offense. Upon a first offense, the owner or operator shall be required by the court to complete an excavation safety training program with the notification association.

(II) If any owner or operator fails to comply with paragraph (a) of this subsection (1) on more than three separate occasions within a twelve-month period from the date of the first failure to comply with paragraph (a) of this subsection (1), then the civil penalty shall be up to seventy-five thousand dollars.

(d) If any underground facility is damaged as a result of the owner or operator's failure to comply with paragraph (a) of this subsection (1) or failure to use reasonable care in the marking of the damaged underground facility, such owner or operator shall be presumably liable for:

(I) Any cost or damage incurred by the excavator as a result of any delay in the excavation project while the underground facility is restored, repaired, or replaced, together with reasonable costs and expenses of suit, including reasonable attorney fees; and

(II) Any injury or damage to persons or property resulting from the damage to the underground facility. Any such owner or operator shall also indemnify and defend the affected excavator against any and all claims or actions, if any, for personal injury, death, property damage, or service interruption resulting from the damage to the underground facility.

(2) (a) Any person who intends to excavate shall notify the notification association pursuant to section 9-1.5-103 prior to commencing any excavation activity. For purposes of this paragraph (a), excavation shall not include an excavation by a rancher or a farmer, as defined in section 42-20-108.5, C.R.S., occurring on a ranch or farm unless such excavation is for a nonagricultural purpose.

(b) Any person, other than a homeowner, rancher, or farmer, as defined in section 42-20-108.5, C.R.S., working on such homeowner's, rancher's, or farmer's property, who fails to notify the notification association or the affected owner or operator pursuant to paragraph (a) of this subsection (2) shall be liable for a civil penalty in the amount of two hundred dollars.

(c) (I) If any person, other than a homeowner, rancher, or farmer, as defined in section 42-20-108.5, C.R.S., working on such homeowner's, rancher's, or farmer's property, fails to comply with paragraph (a) of this subsection (2) and damages an underground facility during excavation, such person shall be liable for a civil penalty in the amount of five thousand dollars for the first offense and up to twenty-five thousand dollars for each subsequent offense within a twelve-month period after the first offense. Upon a first offense, such person shall be required to complete an excavation safety training program with the notification association.

(II) If any person fails to comply with paragraph (a) of this subsection (2) on more than three separate occasions within a twelve-month period from the date of the first failure to comply with paragraph (a) of this subsection (2), then the civil penalty shall be up to seventy-five thousand dollars.

(d) If any person, other than a homeowner, rancher, or farmer, as defined in section 42-20-108.5, C.R.S., working on such homeowner's, rancher's, or farmer's property, fails to comply with paragraph (a) of this subsection (2) or fails to exercise reasonable care in excavating or performing routine maintenance and damages an underground facility during such excavation or routine maintenance, such person shall be presumably liable for:

(I) Any cost or damage incurred by the owner or operator in restoring, repairing, or replacing its damaged underground facility, together with reasonable costs and expenses of suit, including reasonable attorney fees; and

(II) Any injury or damage to persons or property resulting from the damage to the underground facility. Any such person shall also indemnify and defend the affected owner or operator against any and all claims or actions, if any, for personal injury, death, property damage, or service interruption resulting from the damage to the underground facility.

(e) Paragraph (d) of this subsection (2) shall not apply to a person who commences excavation affecting an underground facility if the owner or operator of the underground facility has failed to comply with paragraph (a) of subsection (1) of this section or has failed to use reasonable care in the marking of the affected underground facility.

(3) (a) An action to recover a civil penalty under this section may be brought by an owner or operator, excavator, aggrieved party, district attorney, or the attorney general. Venue for such an action shall be proper in the district court for the county in which the owner or operator, excavator, or aggrieved party resides or maintains a principal place of business in this state or in the county in which the conduct giving rise to a civil penalty occurred.

(b) Any civil penalty imposed pursuant to this section, including reasonable attorney fees, shall be paid to the prevailing party.

(c) The penalties and remedies provided in this article 1.5 are in addition to any other remedy at law or equity available to an excavator or to the owner or operator of a damaged underground facility, and sections 9-1.5-104.2 and 9-1.5-104.4, regarding the safety commission's enforcement authority, do not limit or restrict any other remedy at law or equity available to an excavator or to the owner or operator of a damaged underground facility.

(d) No civil penalty shall be imposed under this section against an excavator or owner or operator who violates any of the provisions of this section if the violation occurred while the excavator or owner or operator was responding to a service outage or other emergency; except that such penalty shall be imposed if such violation was willful or malicious.

(4) Nothing in this article shall be construed to impose an indemnification obligation on any public entity or to alter the liability of public entities as provided in article 10 of title 24, C.R.S.

(5) In determining the liability for or the amount of any damages or civil penalty pursuant to this article, a court or arbitrator shall consider the nature, circumstances, and gravity of the alleged violation and the alleged violator's degree of culpability, history of prior violations, and level of cooperation with the requirements of this article.

Source: L. 83: Entire section added, p. 440, § 1, effective July 1. L. 93: (1) and (3) amended, p. 502, § 1, effective September 1; (2) amended, p. 502, § 1, effective January 1, 1994. L. 2000: Entire section R&RE, p. 688, § 4, effective May 23. L. 2009: IP(2)(d) amended, (HB 09-1092), ch. 38, p. 152, § 4, effective August 5. L. 2018: (3)(c) amended, (SB 18-167), ch. 256, p. 1574, § 5, effective August 8.

ANNOTATION

Assessment of $5,000 civil penalty under subsection (2)(c)(I) mandatory for first offense. The factors stated in subsection (5) apply only in determining the appropriate penalty for a second or subsequent offense within the specified time period, for which a range of penalties may be considered. Comcast v. Express Concrete, Inc., 196 P.3d 269 (Colo. App. 2007).

However, award of damages not mandatory under this section, nor is award of expenses and attorney fees. Subsection (2)(d)(I) creates a presumption of liability, but the court has discretion to determine liability and the amount of damages, if any, that will be awarded. Comcast v. Express Concrete, Inc., 196 P.3d 269 (Colo. App. 2007).

Principles of comparative negligence apply to award of damages under this section. Comcast v. Express Concrete, Inc., 196 P.3d 269 (Colo. App. 2007).

Trial court not required to make specific determination of damages or percentage of negligence of each party where trial court's award of zero damages was consistent with the view that the trial court found plaintiff's negligence equal to that of defendant. Comcast v. Express Concrete, Inc., 196 P.3d 269 (Colo. App. 2007).