The Hayfields and Ruffiers are neighbors in Gig Harbor, Washington. Beginning in February 2011, the Hayfields noticed water accumulating in their basement – the basement had not previously leaked in their seven years of ownership. The Hayfields believed that the water was coming from below their washer and dryer, but found no evidence of leaks from those units.
Unbeknownst to the Hayfields, Mr. Ruffier had used a backhoe on his property to remove a two-foot diameter stump. Ruffier completed this work without attempting to identify or locate any utilities on his property and Ruffier did not inform anyone that he was completing this work.
Water continued to accumulate in the Hayfields’ basement to the point that they had to pump it out of a window. The Hayfields contacted plumbers, leak detection contractors and Pierce County officials to investigate the cause of the flooding, but no one could identify where the water was coming from.
In March 2011, the Hayfields discovered that three feet of water had accumulated in their basement, resulting in extensive damage. Eventually a plumber determined that the foundation drain system in the basement was not taking water and the plumber suspected the drain system was obstructed, which was causing a backup into the Hayfields’ basement. The plumber located the foundation drain system and found an obstruction in the same location that Ruffier had removed the stump in February 2011.
Before the Hayfields’ plumber returned, Ruffier used his backhoe to dig out the large hole where he removed the stump and uncovered the Hayfields’ drain pipe. Ruffier removed an obstruction from the drain pipe and the water from the Hayfield’s basement immediately began to fill the hole.
The Hayfields sued the Ruffiers for the damage caused to their basement, alleging that the Ruffiers’ excavation constituted negligence and violated the Undergound Utility Damage Prevention Act, Chapter 19.122 RCW. Following a bench trial, the court concluded that the Ruffiers violated RCW 19.122.040, which requires that an excavator exercise “reasonable care to avoid damaging underground facilities.” The trial court, however, concluded that the Hayfields were not entitled to attorneys’ fees because the underground drain pipe would not have been located had the Ruffiers contacted the Hayfields or “811” prior to completing the excavation work.
The Hayfields appealed, arguing that RCW 19.122.040(4) provided that they were entitled to attorneys’ fees as the prevailing party. RCW 19.122.040(4) provides “In any action brought under this section, the prevailing party is entitled to reasonable attorneys’ fees.” The Hayfields and Ruffiers disagreed on whether the “entitled to” language of the statute required attorneys’ fees, or merely allowed for attorneys’ fees based on the trial courts’ discretion. The trial court agreed with the Ruffiers’ interpretation that attorneys’ fees were permissive and not mandatory.
The Court of Appeals reversed the trial court and directed the trial court to award the Hayfields their attorneys’ fees based on similar statutes which contained the same “entitled to” language which other Washington courts had previously interpreted as mandatory, rather than permissive. The Court held that “[t]he phrase ‘is entitled to’ makes an award of attorney fees to the prevailing party mandatory rather than permissive.” The Hayfields were also awarded their attorneys’ fees on appeal because they were the prevailing party on appeal.
Comment: Homeowners and contractors should always be diligent in locating underground utilities prior to completing any excavation work on their property, especially if there is a risk that a neighbor’s property will be affected. The Court of Appeals’ holding that prevailing party attorneys’ fees are mandatory follows statutory interpretation, but it is understandable that the trial court did not award attorneys’ fees to the Hayfields based on its finding that the underground drain pipe would not have been located even if the Ruffiers contacted the Hayfields and “811” prior to doing the excavation work.