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AB-930 Subsurface installations: attorney’s fees and costs.(2021-2022)

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Date Published: 03/24/2021 09:00 PM
AB930:v98#DOCUMENT

Amended  IN  Assembly  March 24, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 930


Introduced by Assembly Member Levine

February 17, 2021


An act to amend Section 4216.7 of the Government Code, relating to excavations.


LEGISLATIVE COUNSEL'S DIGEST


AB 930, as amended, Levine. Subsurface installations: attorney’s fees and costs.
Existing law requires every operator of a subsurface installation, except the Department of Transportation, to become a member of, participate in, and share in the costs of, a regional notification center. Existing law requires an excavator planning to conduct an excavation to delineate the area to be excavated before notifying the appropriate regional notification center of the planned excavation, as provided. Existing law requires an operator, before the legal start date and time of the excavation, to locate and field mark, within the area delineated for excavation, its subsurface installations. Existing law establishes a process for an excavator to request and obtain a continual excavation ticket for an area of continual excavation, as defined, that is valid for one year from the date of issuance and eligible for renewal. Existing law requires this process to include onsite meetings to develop a mutually agreed-upon plan. Existing law prescribes liability for failure to comply with these processes.

This bill would require a court to award attorney’s fees and costs, including expert witness fees, to a prevailing party in a civil action or arbitration for specified damages arising from the excavation and arising between an operator of a subsurface installation and an excavator. The bill would apply certain procedures relating to offers to compromise to these civil actions and arbitrations. The bill would also authorize a court or arbitrator to consider offers of settlement exchanged between the parties, as specified, for purposes of determining an attorney’s fees and costs, including expert witness fees, award.

This bill would require a court or arbitrator to award reasonable attorney’s costs and fees, including expert witness fees, to a prevailing excavator if the court or arbitrator determines that the excavator is not liable for damages to a subsurface installation for reasons related to inaccurate field marking, 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 4216.7 of the Government Code is amended to read:

4216.7.
 (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 (d) 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, “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)(1)A court shall award attorney’s fees and costs, including expert witness fees, to a prevailing party in a civil action or arbitration arising from the excavation and resulting in property damage necessitating repair or replacement of all or a portion of the subsurface installation.

(2)(A)In determining the amount of attorney’s fees and costs, including expert witness fees, to be awarded pursuant to this subdivision, the court or arbitrator may consider offers of settlement exchanged between the parties.

(B)Notwithstanding subparagraph (A), Section 998 of the Code of Civil Procedure shall be applicable to a civil action or arbitration arising from this section, as described in this subdivision.

(3)This subdivision is applicable only to civil actions or arbitrations between the operator of a subsurface installation and the excavator. This subdivision shall not be applicable to third-party claims brought against the operator of a subsurface installation or excavator.

(g) A court or arbitrator shall award reasonable attorney’s costs and fees, including expert witness fees, to a prevailing 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.