dealing with frivolous underground utility claims and collections … · 2019. 3. 4. · detection...

Dealing with Frivolous Underground Utility

Claims and Collections

Calling 811 and having a robust underground utility safety and damage prevention program is essential for those who perform excavation activities.

Know your states 811 (One Call) Law

• Wait Time – How long the law requires you to wait after calling in the ticket before you can start excavation

• Ticket Life – How long a dig ticket is valid for before you must call in a new ticket

• Tolerance Zone – The space, expressed as a width in inches, in which a line or facility is located and in which special care is to be taken

• Know the response procedure – what the law requires you to do if a utility owner/operator does not respond to the locate request

• Positive response – how (and if) a utility is required to inform you of the presence or absence of their facilities. Does this require interaction with the call center? Is there an online ticket management system for contractors? Are responses automated?

• White lining – what the law requires you to do to physically demarcate your dig site to assist the owner/operator/locator to better identify the area of proposed excavation.

In most cases, the 811 process works as designed.

• Call before you dig,

• Owner/Operators respond on time and accurately,

• Excavate safely, as prescribed in your program and state law.

Unfortunately, the process doesn’t always work as planned and incidents - damages or near

damages occur.

This is when you need to be hyper vigilant in keeping a record for future reference.

Have you ever received a claim demanding

payment for a damage you weren’t responsible

for, or you had nothing to do with?

Sometimes these demands are accompanied by references to laws and regulations that aren’t what they seem.

1926.651(b) Underground installations.1926.651(b) (1) The estimated location of utility installations, such as sewer, telephone, fuel, electric, water lines, or any other underground installations that reasonably may be expected to be encountered during excavation work, shall be determined prior to opening an excavation.1926.651(b) (2) Utility companies or owners shall be contacted within established or customary local response times, advised of the proposed work, and asked to establish the location of the utility underground installations prior to the start of actual excavation. When utility companies or owners cannot respond to a request to locate underground utility installations within 24 hours (unless a longer period is required by state or local law), or cannot establish the exact location of these installations, the employer may proceed, provided the employer does so with caution, and provided detection equipment or other acceptable means to locate utility installations are used.1926.651(b) (3) When excavation operations approach the estimated location of underground installations, the exact location of the installations shall be determined by safe and acceptable means.1926.651(b) (4)While the excavation is open, underground installations shall be protected, supported or removed as necessary to safeguard employees.1926.651(c) Access and egress

To prepare for such a situation. It is very importance to memorialize in pictures and video:

• the job site,

• O/Os’ response to the locate request,

• verification of marks before commencing any excavation activities.

• Wait the required time for facility Owner/Operators to respond to the locate request.

• Check positive response system as required.• Check for above ground evidence of unmarked facilities.

Take pictures and video of the entire job site prior to commencing excavation activities.

• Verify the location of all facilities marked where excavation will take place within the

designated tolerance zone.

Again, memorialized confirmation with pictures/videos.

After verifying the location of marked facilities in conflict with excavation activities, review the job site for evidence of unmarked facilities.

Once you have verified the location of all facilities in conflict with excavation excavate

safely and with care.

When an incident does occur:

• Cease excavation activities,

• Ensure the job site and area are safe if a damage has occurred,

• Follow procedures to notify 811 and 911 if necessary.

Once you have ensured the safety of the job site

Record the circumstances surrounding the incident, be it a damage, or near miss and regardless of which party in the process is

apparently responsible for the incident.

Locate Ticket # ________________

Keep a record of the facility owner/operators response to incident:

• Responding O/O(’s),• Personnel – number of, and

names • Equipment,• Actions,• Time on site.

In addition to creating a record of the circumstances surrounding the incident.

Have a representative of your company on site for the entire

time O/O’s personnel are on

site keeping notes on actions and conversations.

Keep an Incident Cost Form to show damages you have incurred due to an O/O’s failure to

respond to a locate request properly.

Keep a ledger of your downtime/damages for each O/O associated with an incident.

Bill them and/or use it against charges O/O’s impose, or attempt to impose on your for incidents.

Keep your incident records on file indefinitely, or until the overriding statute of limitations for

recovering costs of a damage expire.

Down the road, long after you have moved on from a job site where an incident occurred, or where no incident occurred at all, you will be ready to deal with it.

In addition to sometimes falsifying laws and regulations some O/O’s will go fishing to collect on an incident.

If they discover a damage to facility, they may go back and pull all locate tickets for the area of the damage, choose the ticket closest to the damage and send a bill to the person who called in the locate request.

This is why it is so important to keep a record before during and after excavation activities whether an incident occurred, or not

In the event you receive a claim:

• Pull the project file,

• Ask for the “subrogation file” associated with the incident,

• Review the subrogation file,

• Note inaccuracies, inaccurate law/regulation interpretations, narrated circumstances.

Be aware, O/O’s and their agents may seek damages directly from your insurance company, or contact the project owner to put pressure on you.

Having an accurate record of your underground utility safety and damage prevention efforts

on each project will help inoculate you from

such tactics and save money a time

in the long run.

State Enforcement Boards and Commissions

Some states have boards and commissions which adjudicate violations of the law. Some are

complaint driven, some proactive.

Know the mechanisms for enforcing the 811 law in all states you work in.

Questions,

Comments?