Indiana Utility Law—Failure to Supply Accurate Location of Underground Facilities Bars Negligence Suit

In January, 2014 the Indiana Court of Appeals found that failure to supply an accurate map of underground facilities may bar negligence suits against contractors who properly file an intent to excavate with the Indiana Underground Plant Protection Service in compliance with the Indiana Damage to Underground Facilities Act (DUFA). City of Fort Wayne v. Northern Indiana Public Service Company, 2 N.E.3d 60 (Ind. Ct. App. 2014). If the contractor files the intent to excavate and obtains defective “locates” from the operator of the underground facility, then the contractor has a defense to damages claims under Indiana Code § 8-1-26-22(c).

The court further held that there is no good faith exception to the obligation of the operator of underground facilities to specify the location of the facilities within a four foot strip not wider than the width of the facility plus two feet on either side of the outer limits of the physical plant. Id. (citing Ind. Code § 8-1-26-2). In NIPSCO, Fort Wayne did supply the best information it had, but the location of the damaged drain was actually not within the statutory limits for an approximate location. NIPSCO could not be held liable for damage that resulted from work performed in reliance on inaccurate drain maps supplied by Fort Wayne.

Finally, the court found that DUFA abrogates all former common-law actions that may have existed for underground facility damage. Historically, Fort Wayne could have filed a negligence claim for the damage caused by NIPSCO. The court found DUFA was intended to occupy the entire field for causes of action relating to underground facility damages. Therefore, if there is no cause of action available under DUFA, then there is no cause of action at all.

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.