§ 40-15-603. Statute of Limitations – Damages – Limitations on Damages

1. 1. No claim or cause of action against an electric utility or a commercial broadband supplier concerning the electric utility’s or commercial broadband supplier’s exercise of rights under this part 6 or any actions that the electric utility or commercial broadband supplier takes before August 2, 2019, that, if taken after August 2, 2019, would be authorized under section 40-15-602 (1) may be brought by or on behalf of an interest holder more than two years after the latest of:
      1. August 2, 2019;
      2. The date of delivery of notice pursuant to section 40-15-602 (2); or
      3. The date of recording of a memorandum pursuant to section 40-15-602 (2).
   2. Subsection (1)(a) of this section does not apply to a claim or cause of action based on:
      1. Physical damage to property;
      2. Injury to natural persons; or
      3. Breach of the terms and conditions of a written electric easement as the terms and conditions apply in accordance with section 40-15-602 (4).
   3. Nothing in this section extends the statutory limitation period applicable to a claim or revives an expired claim.
2. A claim or cause of action to which subsection (1)(a) of this section applies shall not be brought by or on behalf of an interest holder against a commercial broadband supplier for actions that the commercial broadband supplier has taken under section 40-15-602 (2) on behalf of an electric utility. Nothing in this subsection (2) prohibits an electric utility and a commercial broadband supplier from contracting to allocate liability for actions taken under section 40-15-602 (2).
3. If an interest holder brings a trespass claim, inverse condemnation claim, or any other claim or cause of action to which subsection (1)(a) of this section applies for an electric utility’s or commercial broadband supplier’s exercise of rights or performance of actions described in section 40-15-602 (1)(a) or (1)(b), the following applies to the claim or cause of action:
   1. The measure of damages for all claims or causes of action to which subsection (1)(a) of this section applies, taken together, is the fair market value of the reduction in value of the interest holder’s interest in the real property, as contemplated by section 38-1-121 (1). In determining or providing the fair market value under this subsection (3)(a):
      1. The following shall not be used and are not admissible as evidence in any proceeding:
         1. Profits, fees, or revenue derived from the attached facilities; or
         2. The rental value of the real property interest or the electric easement, including the rental value of any attached facilities or an assembled broadband corridor; and
      2. Consideration must be given to any increase in value to the real property interest resulting from the availability of commercial broadband service to the real property underlying the real property interest that arises from the installation of attached facilities.
   2. The interest holder must make reasonable accommodations for the electric utility or commercial broadband supplier to perform an appraisal or inspection of the real property within ninety days following any written request for an appraisal or inspection. If an interest holder fails to make such accommodations, the electric utility or commercial broadband supplier has no further liability to the interest holder. The electric utility or commercial broadband supplier shall promptly provide to the interest holder a copy of any appraisal performed pursuant to this subsection (3)(b).
   3. Any damages for any claims or causes of action to which subsection (1)(a) of this section applies:
      1. Are limited to those damages that existed at the time that the electric utility or commercial broadband supplier first exercised the rights or performed the actions; and
      2. Shall not be deemed to continue, accrue, or accumulate.
   4. With regard to a claim or cause of action to which subsection (1)(a) of this section applies:
      1. Except for an electric utility’s or commercial broadband supplier’s failure to comply with section 40-15-602 (2), negligence, or willful misconduct, or in accordance with the terms and conditions of a written electric easement as the terms and conditions apply in accordance with section 40-15-602 (4), an interest holder is not entitled to reimbursement from an electric utility or commercial broadband supplier for the cost of any appraisal, attorney fees, or award for special, consequential, indirect, or punitive damages;
      2. For purposes of this subsection (3)(d), any action or failure to act by an electric utility or commercial broadband supplier in furtherance of the electric utility’s or commercial broadband supplier’s exercise of rights set forth in section 40-15-602 (1) shall not be deemed negligence or willful misconduct.
4. By accepting a damage award for any claim or cause of action to which subsection (1)(a) of this section applies, an interest holder shall be deemed to have granted an increase in the scope of the electric easement, equal in duration to the term of the electric easement and subject to section 40-15-602 (4), to the extent of the interest holder’s rights in the real property, for all of the uses of the real property and actions set forth in section 40-15-602 (1).

Source: L. 2019: Entire part added, (SB 19-107), ch. 424, p. 3708, § 1, effective August 2.