Double M Construction, Inc. v. State Corp. Commission, 288 Kan. 268

Summary

The Kansas Supreme Court affirmed a Kansas Corporation Commission penalty against Double M Construction for excavating near an underground gas pipeline without independently notifying Kansas One Call. The court held that Double M was an “excavator” under the Kansas Underground Utility Damage Prevention Act and could not contractually delegate its statutory notification duty. The court also rejected Double M’s fairness, freedom-of-contract, and vagueness challenges.

Holdings

1. A corporation that directly engages in excavation activities in Kansas qualifies as an excavator under K.S.A. 66-1802(d) and is independently required to notify underground-facility operators before excavating.
2. Unless a statute expressly or implicitly permits delegation, statutory duties imposed on a party generally may not be delegated by contract; the Underground Utility Damage Prevention Act contains no delegation provision.
3. Equitable considerations, contractual allocation of responsibility, and common-law negligence principles do not excuse a violation of a directly applicable statutory duty.
4. The legislature may use its police power to impose a public-safety duty that private parties cannot contractually waive or transfer to another party.
5. The statutory definition of excavator is not unconstitutionally vague because an ordinary person exercising common sense can understand that a party operating excavation equipment directly engages in excavation and must comply with the notification requirement.

Questions Presented

1. Whether Double M was an excavator subject to the notification duties and penalties of the Kansas Underground Utility Damage Prevention Act despite its contractual allocation of utility-location responsibilities to Double J Pipeline.
2. Whether the statutory duties imposed on Double M could be delegated or avoided through contract or equitable considerations.
3. Whether imposing the statutory duty and penalty on Double M violated freedom-of-contract principles.
4. Whether the statutory definition of excavator was unconstitutionally vague.
5. Whether Double J Pipeline's notice to Kansas One Call satisfied Double M's separate statutory notification obligation.

Disposition

affirmed