2005 Idaho Code - 55-2209 — VIOLATION -- CIVIL PENALTY -- TREBLE DAMAGES -- OTHER REMEDIES UNIMPAIRED

                                  TITLE  55
                             PROPERTY IN GENERAL
                                  CHAPTER 22
                   UNDERGROUND FACILITIES DAMAGE PREVENTION
    55-2209.  VIOLATION -- CIVIL PENALTY -- TREBLE DAMAGES -- OTHER REMEDIES
UNIMPAIRED. (1) Any person who violates any provision of this chapter, other
than the failure to provide notice pursuant to section 55-2203(1)(c), Idaho
Code, and which violation results in damage to underground facilities, is
subject to a civil penalty of not more than one thousand dollars ($1,000) for
each violation. All penalties recovered in such actions shall be deposited in
the state general account.
    (2)  If an underground facility is damaged as a result of an excavator's
failure to provide notice pursuant to section 55-2203(1)(c), Idaho Code,
unless otherwise exempt, the excavator shall receive a written warning from
the underground facility owner and shall be liable for actual costs of
repairing the facility if it is the excavator's first failure to provide the
notice required pursuant to section 55-2203(1)(c), Idaho Code, during any
consecutive period of twelve (12) months.
    (a)  If the court finds, by a preponderance of the evidence, that the
    excavator has, on more than one (1) occasion during any consecutive period
    of twelve (12) months, failed to provide the notice required pursuant to
    section 55-2203(1)(c), Idaho Code, and that such failure has been a
    proximate cause of damage to an underground facility, the court may
    increase the civil penalty in an amount up to five thousand dollars
    ($5,000).
    (b)  If the court finds, by a preponderance of the evidence, that the
    excavator has, on three (3) or more occasions during any consecutive
    period of twelve (12) months, failed to provide the notice required
    pursuant to section 55-2203(1)(c), Idaho Code, and that such failure has
    been a proximate cause of damage to an underground facility, the court may
    increase the civil penalty in an amount up to ten  thousand dollars
    ($10,000) for the third occurrence taking place during the twelve (12)
    month period.
    (3)  (a) An action to recover a civil penalty under this section may be
    brought by a prosecuting attorney. If the prosecuting attorney does not
    file an action for such civil penalty within sixty (60) days from the date
    of a request for such action by the owner of an underground facility, the
    underground facility owner may file such action. Venue for such an action
    shall be proper in the judicial district for the county in which the
    damaged underground facility is located or the county in which the
    excavator resides or maintains a principal place of business in this
    state. The prevailing party in such action shall be entitled to recover
    its costs and reasonable attorney's fees incurred in such action.
    (b)  The penalties provided in this section are in addition to any other
    remedy at law or equity available to an excavator or to the owner or
    operator of a damaged underground facility.
    (c)  The court shall consider, as a mitigating factor in determining the
    amount of civil penalty to be imposed, evidence showing by a preponderance
    of the evidence that the violation occurred solely as a proximate result
    of the excavator or underground facility owner's reasonable response to an
    emergency beyond the control of the offending party.
    (d)  Any civil penalty imposed pursuant to this section shall be deposited
    in the state general fund. Attorney's fees shall be paid solely to the
    party successfully bringing the action.
    (4)  Any excavator who damages an underground facility on a third or
subsequent violation pursuant to subsection (2) of this section may be liable
for treble the costs incurred in repairing or relocating the facility.
    (5)  Unless expressly provided herein, nothing in this chapter eliminates,
alters or otherwise impairs common law, statutory or other preexisting rights
and duties of persons affected by the provisions of this chapter; nor does
anything in this chapter, unless expressly so provided, eliminate, alter or
otherwise impair other remedies, state or federal, including those at common
law, of an underground facility owner whose facility is damaged; nor do the
provisions of this chapter affect any civil remedies for personal injury or
property damage except as expressly provided for herein.