At times the subject of contractor jokes, Dig Safe laws and regulations are not to be trifled with; a Massachusetts contractor learned this lesson the hard way. Although the contractor notified Dig Safe ahead of time, and the gas utility marked some locations, there were still some issues. First, the contractor failed to provide an accurate description of the work area. Second, in the vicinity of gas lines, the contractor failed to use “non-mechanical” means of excavation. Which is to say the contractor used a backhoe when a shovel would have been more appropriate. Third, the contractor argued that it had conversations in the field with a utility rep, but the Dept. of Public Utilities noted that the regulations required notice to the call center and accurate markings in the field.
The good thing about this incident is that no one was injured when a house was destroyed by a gas explosion. The bad thing is that a house was destroyed (and nearby houses were also damaged) from a gas explosion.
The contractor was assessed fines totaling $31,000, and appealed, arguing that the utility had failed to properly mark all gas lines after the initial Dig Safe notification. But upon a close review, the DPU determined that the contractor had failed to provide a complete description of the work area, omitting entirely one intersection and the address of the house that was destroyed. Thus the contractor did not “accurately” describe the work area as required by the Dig Safe laws. So even though the utility had not properly marked lines in some areas, the contractor was working at least 65’ beyond the areas described to the utility. And in an area where the DPU found that the contractor should have known gas lines could be present (from its work on adjacent properties), its worker was using a backhoe when a 1” gas line was struck; turns out the contractor was using a jackhammer in another area proximate to gas lines, as well. The DPU also found that oral requests in the field would not take the place of accurate notice to the call center and accurate markings in the field.
The real impact of the Dig Safe violation is that the contractor’s failure to comply with the regulations is prima facie evidence of negligence. Meaning that the contractor’s insurance carrier has no argument against writing checks to cover the damage. The case is DeFelice Corporation v. Dept. of Public Utilities, Mass. App. Ct. 14-P-1056 (Oct. 19, 2015), available here.
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