69-2-303. Electric facilities provider -- wildfire -- cause of action -- standard of care -- damages. (1) The purpose of this section is to set statutory criteria governing the civil liability of an electric facilities provider for wildfire-related claims. An electric facilities provider has an obligation to serve the public, and a standard of strict liability may not be applied to an electric facilities provider as follows:

(a) in a cause of action alleging the electric facilities provider's electric facilities or electric transmission and distribution activities caused wildfire-related damages; or

(b) in a cause of action alleging an electric facilities provider's wildfire mitigation activities conducted in accordance with a wildfire mitigation plan caused damages.

(2) An electric facilities provider may be found civilly liable only under the provisions of this section, and may not be found civilly liable under any other statute, theory of recovery, or common law claim, for wildfire-related injury or damages arising from the electric facilities provider's electric facilities or electric transmission and distribution activities or for injury or damages arising from any act or omission of the electric facilities provider associated with implementing a wildfire mitigation plan.

(3) An electric facilities provider may be found civilly liable for:

(a) wildfire-related injury or damages arising from the electric facilities provider's electric facilities or electric transmission and distribution activities; or

(b) injury or damages arising from an act or omission of the electric facilities provider associated with implementing a wildfire mitigation plan only if the party seeking recovery establishes:

(i) the electric facilities provider failed to exercise the degree of care, skill, and learning expected of a reasonable, similarly situated electric facilities provider at the time in the state, acting under the same or similar circumstances; and

(ii) the failure was the proximate cause of the injury to person or property for which recovery is sought.

(4) After an electric facilities provider has commenced implementation of its wildfire mitigation plan, in an action against an electric facilities provider seeking wildfire-related damages arising from the electric facilities provider's electric facilities or electric transmission and distribution activities, there is a rebuttable presumption that the electric facilities provider acted reasonably if, with respect to the place of the wildfire's ignition, the electric facilities provider substantially followed a wildfire mitigation plan that was approved in accordance with 69-2-302, provided that evidence related to the electric facilities provider's actual incremental costs associated with implementing a wildfire mitigation plan may not be considered in determining whether the electric facilities provider substantially followed its wildfire mitigation plan. The presumption in this subsection may be controverted by other evidence.

(5) In an action against an electric facilities provider under this section, if a plaintiff has proved liability, as required:

(a) a plaintiff may recover for real and personal property damage pursuant to 50-63-104;

(b) in the event of a bodily injury or death, a plaintiff may recover:

(i) economic damages, including medical expenses and lost wages; and

(ii) noneconomic damages;

(c) a plaintiff may not recover noneconomic losses unless the plaintiff suffered bodily injury or death;

(d) an electric facilities provider may not be assessed punitive damages unless there is a showing, by clear and convincing evidence, that the electric facilities provider's actions were grossly negligent or intentional. An electric facilities provider's acts or omissions may not be considered grossly negligent if the electric facilities provider substantially followed its wildfire mitigation plan with respect to the place of ignition. The availability of punitive damages is otherwise subject to the provisions of 27-1-220 and 27-1-221.

(e) a person who obtains payment pursuant to a policy of insurance for damages resulting from a wildfire loss is deemed to have been made whole exclusively for purposes of an insurer's right to subrogation under this section.

(6) A civil action against an electric facilities provider under this section must be commenced within 3 years from the date the plaintiff first incurred injury or damages, without regard to when the injury or damages are discovered.

(7) This section does not affect express contractual rights of any person or entity in any way involving communications facilities or the shared use of electric facilities or pole attachments.