TITLE 39
Public Utilities and Carriers

CHAPTER 39-2
Duties of Utilities and Carriers

SECTION 39-2-15


§ 39-2-15 Interference with construction – Notice.

(a) No utility shall interfere with, or delay the progress of work under any contract with the state department, agency, division or board, for the construction, reconstruction, or improvements of any highway, street, road, railroad grade crossing, bridge, tunnel, underpass, overpass, or other state contract work, by failing to remove or relocate its poles, wires, cables, conduits, pipes, or any other facilities or structures within the time schedule therefor by an agreement or under the terms of an agreement between the department, agency, division or board and the utility, or, if no time is fixed by an agreement or under the terms of such an agreement, within the time fixed by the department, agency, division, or board, by notice served upon the utility by the state department, agency, division, or board.

(b) If the notice is utilized, it shall describe the public improvement and the geographical location thereof, the date of commencement, and the date of completion, if any, provided for by the contract, the contractor's name and address, the manner in which and the extent to which the facilities and structures of the utility obstruct or prevent the contractor from progressing or performing the work comprehended by the contract, and shall fix the date or time within which the utility is required to remove or relocate its facilities or structures, specifying the same, in order to provide the contractor with the site when required by the contractor for progressing or performing the work pursuant to the state contract. The notice shall be in writing and shall be served upon the utility either personally or by certified mail at its principal office or place of business in the county where the work under the contract is to be performed, or, if there is no principal office or place of business in the county, at the nearest principal office or place of business of the utility, outside of the county.

(c) In the event the utility to whom the notice described in subsection (b) of this section was directed is, for any reason, unable, within the prescribed period, to remove or relocate the facilities or structures specified in the notice, the utility shall immediately advise the department, agency, division, or board and the contractor, in writing, of the inability, and in the same communication so advise the department, agency, division, or board, and the contractor of the approximate date that the removal or relocation of facilities or structures could be effected; and shall further state the basis for the inability of the utility to remove or relocate the facilities or structures within the time specified by the notice served thereon by the department, agency, division, or board. The department, agency, division, or board, after examining and considering the utility's basis for establishing a different schedule for the removal or relocation, shall, if its basis is reasonable, establish and notify the utility of a revised schedule for completing the removal or relocation.

(d) In cases where the utility has been reimbursed for removal, relocation, replacement, or reconstruction, a utility failing to complete the removal or relocation of the structures or facilities within a period of thirty (30) days beyond the time fixed therefor by the latest time schedule established in accordance with this section, shall be liable and responsible to any contractor for any damages, direct or consequential, sustained by any contractor as the result thereof, in an action to be brought by the contractor against the utility in a court of competent jurisdiction within three (3) years from the time fixed for the removal or relocation of the structures or facilities. If an action is commenced against a utility, as heretofore provided, the utility may interpose in its answer in the action any defense available under the provisions of the civil practice law and rules. The unreasonableness of the time schedule imposed by the state department, agency, division, or board shall be an absolute defense by the utility to any action by the contractor. If, in any action, the utility is found to owe nothing to the contractor, or if an offer of settlement is made by the utility which is not accepted by the contractor, and the resulting verdict against the utility is less than the offer of settlement, then in either event, the total cost of the utility of litigation, including reasonable attorney's fees, shall be paid to the utility by the contractor.

History of Section.
(P.L. 1985, ch. 339, § 1; P.L. 1997, ch. 326, § 105.)