Expert: James Abron, P.E., P.L.S. - 3/14/2011

Question
I am a landlord.  I needed sewer repair on a property in an old subdivision.  Excavator assumed sewer main was to rear of property based upon sewer line initially heading in that direction and a man hole off property to the rear.  There were also manholes in street in front of property (this is where sewer lines are typically located).  Because the line seemed to head toward the back of property the excavator just proceeded to dig in that direction.  Excavator did not attempt to get location from the city and dismissed doing it when I asked if maybe he should.  He was sure the line was running to the rear of the property.

After spending several hours digging in that direction, the sewer line went straight down and as we found out later did a 180 and headed in the opposite direction - toward the street to the front of the property.  Before finding that out, the excavator fumbled around a few more hours trying to locate the line.  At the end of the day I met with the excavator and after again asking him if it might be helpful to consult with the city (he disagreed), I suggested that he dig parallel and close to the street at the front of the property to find the line and then trace it back.
 
On the morning of the second day I went to the city and they were very helpful in locating the main line and gave me the depth and suggested exactly what I had told the excavator. Back at the site I gave the info to the excavator, he found the line and finished the job on the morning of the third day.

I maintain that the whole first day was wasted.  I also believe that if the excavator had simply consulted with the city the whole project would have been easily finished in a day and a half.  This was also the estimated time that he had given me before he started.  Now I don't want to pay for the first day.  They maintain that I should pay the bill.  Am I being reasonable?

Answer
Hello Pete:

Every state has a "No Dig" law that requires excavators to call an agency to report the plan to excavate at least 48 hours before hand.  The utilities and City is required to come out and mark the location of their underground lines with spray paint.  Every utility used a different color paint - blue for water lines,etc.  It sounds like your contractor did not do this.  Did he take out an excavation permit?   These are bargaining points.

To answer your question - YES.  It is reasonable to not pay him for what some would describe as  negligence.  Based on the facts as you describe them, he did not perform the work at the standard of care for the industry.  

This is a case that can be mediated.  If you have a contract, go to arbitration.