Water Research Foundation # Water Utility Legal Protection and Claims Management from Infrastructure Failure

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Jesse Harris
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7 Types of Failure Events Spontaneous failures Water main breaks, storage tank collapse Failures caused by third parties Contractors Firefighters

8 Types of Claims Property damage Environmental damage Service disruptions Personal injury and loss of life

9 Project Approach Compile resources and industry practices from: Literature Review Utility Case Studies Stakeholder Interviews Build upon existing programs and practices: Emergency Plan Training Programs Website Resources

10 Participating Utilities Pawtucket Water Supply Board, RI Charleston Water System, SC DC Water Minneapolis Water Works, MN Louisville Water Company, KY EPCOR Water Services, Edmonton, Alberta Water District #1 of Johnson County, KS

11 Industry Technical Committees AWWA Health, Safety and Environment Committee AWWA Water Distribution, Design and Construction Committee AWWA Asset Management Committee APWA Emergency Management Technical Committee

12 Additional Project Stakeholders USEPA Office of Drinking Water USEPA Office of Research and Development Association of Metropolitan Water Companies Massachusetts Inter-Municipal Insurance Association Massachusetts Water Resources Authority Travelers Willis Group AON Risk Solutions Cabot Risk Strategies LLC Williams Pipeline Contractor Inc. Rawson Contractors, Inc. Alessio Pipe & Construction Company

13 Claims Management Strategies Before a Failure Event Be Proactive. Maintain assets in good condition. Develop a written claims strategy. Meet with insurance provider. Establish contracts. Maintain documents and records.

14 Claims Management Strategies During a Failure Event Isolate the main break. Collect forensic evidence. Communicate with customers. Collect utility records to inform investigation and claims processing.

15 Claims Management Strategies After a Failure Event Continue public outreach. Determine the cause of failure. Place work orders. Adjust insurance coverage.

16 Guidance Manual Background information Legal terms and issues Insurance coverage Risk management issues Legal case studies Checklists of recommended practices Examples of damage claims forms Utility case studies

17 The Legal Issues When infrastructure failure events cause damage, water utilities must manage resulting legal and insurance claims. Claims can come from a variety of injured parties: Owners of property damaged due to the infrastructure failure; Water customers harmed by the water service disruptions; and People who sustained physical injuries due to a water main break. Actions of third party: utilities can be claimants, too!

18 Keys to Engaging Claims Collaboration - Operators and legal counsel need to explore liability issues together to understand the law and the exposure. Understanding the utility s duty The legal standard varies from state to state.

19 Where to Find the Law? Water Utility Responsibilities Federal regulations; State and provincial case law, statutes and regulations; and Municipal ordinances and regulations. Third Party Responsibilities State sources Case law

20 General Legal Framework Duty under traditional tort law holds a person or entity (and that includes water utilities) to a defined and certain standard of care. If standard is not met, the person who failed is held liable. But the actual standard of care which water utilities are held to varies from jurisdiction to jurisdiction.

21 Factors to Consider Is it a ministerial or a discretionary activity to operate a public water utility? Does the doctrine of sovereign immunity bar the claim from proceeding? Is the doctrine of inverse condemnation applicable? Does Canadian law take a different view on these issues?

22 Can a Water Utility Be a Claimant? Starting point: whether digging on the public highway or private property, there is a foreseeable risk that digging could lead to the damage to utility lines. Whether by statute or case law, the digger must comply with a duty of due care. The importance of Underground Utility Damage Prevention Acts.

23 Can an Investigation Be Privileged? The cost consequences of an incident can be serious: can a utility s inquiry be protected? Two possible tools: The attorney-client privilege; and The work product privilege.

24 DC Water Case Study Focus on two recent water main breaks Old cast iron, 6 inch and 8 inch Water released from mains overwhelmed combined sewers and caused sewer back-ups into private homes and commercial bldgs.

25 DC Water Case Study

26 DC Water Case Study Lessons Learned: Immediate/Constant Communication and Outreach Timely Utilization of Resources Documentation and Recordkeeping Best Practices

A Decade of Success. DC Water s Rolling Owner-Controlled Insurance Program (ROCIP) Enhances Safety, Cuts Costs. Chubb Special Report

A Decade of Success. DC Water s Rolling Owner-Controlled Insurance Program (ROCIP) Enhances Safety, Cuts Costs. Chubb Special Report A Decade of Success DC Water s Rolling Owner-Controlled Insurance Program (ROCIP) Enhances Safety, Cuts Costs 1 Chubb Special Report The keys for success are collaboration and commitment. Our cross-functional