Central Maine Power Company v. Devereux Marine, Inc. , 2013 Me. LEXIS 37 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 37
Docket: BCD-11-375
Argued: May 9, 2012
Decided: March 26, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
CENTRAL MAINE POWER COMPANY
v.
DEVEREUX MARINE, INC., et al.
SAUFLEY, C.J.
[¶1] In this appeal from the denial of a motion to attach, we are asked to
decide whether, pursuant to the Maine Overhead High-voltage Line Safety Act,
35-A M.R.S. §§ 751-761 (2012), Central Maine Power Company, as the owner of
an overhead high-voltage power line, may be entitled to be fully indemnified by
Devereux Marine, Inc., for damages that CMP paid to compensate a severely
injured employee of Devereux Marine for injuries that the employee suffered when
he was electrocuted after a boat mast that he was holding came into contact with
the power line.
[¶2] CMP appeals from a denial of its motion to attach the property of
Devereux and related entities, sought pursuant to M.R. Civ. P. 4A, entered in the
Business and Consumer Docket (Horton, J.). CMP contends that the court erred
2
when it interpreted 35-A M.R.S. § 760 as creating a statutory right of contribution,
rather than a right to full indemnification, from an employer when (1) an employee
is injured after bringing materials into contact with an overhead high-voltage
power line, (2) the employer is determined to have violated the Act, and (3) the
owner of the high-voltage line becomes liable to the employee. We conclude that
full indemnification is required in such circumstances. Accordingly, we vacate the
denial of the motion to attach and remand for further consideration of the motion in
light of our interpretation of the Overhead High-voltage Line Safety Act.
I. BACKGROUND
[¶3] Bryan Smith was an employee of Devereux Marine in 2002. Smith v.
Cent. Me. Power Co., 2010 ME 9, ¶ 5, 988 A.2d 968. While working at Devereux
Marine, Smith was electrocuted when the mast he was lowering from a customer’s
sailboat came into contact with an overhead high-voltage power line owned by
CMP. Id. Smith was severely burned and suffered significant permanent injuries.
Id. This was not the first time that a sailboat had come into contact with the power
line at Devereux Marine. Id. ¶ 4.
[¶4] Smith received workers’ compensation benefits through Devereux and
separately sued CMP for negligence in the Superior Court. Id. ¶¶ 1, 5. After a
bench trial, the court (Penobscot County, Murphy, J.) found that, pursuant to the
Public Utilities Commission’s rules and regulations, CMP’s power line should
3
have had a vertical clearance of 45.5 feet. See id. ¶¶ 6-7. The evidence produced
at trial showed that the height of the power line was in fact only 30 feet. See id.
¶ 8. The court further found that (1) the accident would not have occurred if CMP
had met the 45.5-foot vertical clearance requirement, (2) CMP failed to provide
training on its vertical clearance standards to its employees, and (3) the negligence
of Devereux Marine, as Smith’s employer, was not the sole proximate cause of the
accident.1 Id. ¶¶ 6-7. Based on its findings, the court entered a judgment on
November 14, 2008, awarding Smith $4,890,631 in damages. Id. ¶ 9. CMP
appealed, and we affirmed the judgment. Id. ¶¶ 1, 25. CMP paid the judgment,
including interest, in the amount of $6,012,795.69 on February 16, 2010. This
claim for indemnification brought by CMP against Devereux Marine follows from
that judgment.
1
Devereux Marine was not a party to the original litigation because it had immunity pursuant to the
Workers’ Compensation Act, 39-A M.R.S. § 104 (2012) (stating that an employer who has secured the
payment of compensation in conformity with the Act “is exempt from civil actions . . . at common law . . .
involving personal injuries sustained by an employee arising out of and in the course of employment, or
for death resulting from those injuries”). Whether that immunity has any effect on CMP’s
indemnification claim was not argued in the attachment proceeding or presented to us on appeal. See
Bond Builders, Inc. v. Commercial Union Ins. Co., 670 A.2d 1388, 1390 (Me. 1996) (addressing the
limits of the exclusivity and immunity provisions of the Workers’ Compensation Act); cf. Moreno v.
Entergy Corp., 105 So. 3d 40, 47-51 (La. 2012) (applying Louisiana’s overhead power line safety act,
which expressly eliminated the immunity that an employer would normally enjoy pursuant to that state’s
Workers’ Compensation Act).
4
[¶5] After paying Smith as required by the judgment, CMP filed a
complaint against Devereux Marine and others2 in the Superior Court. The
complaint, as subsequently amended, alleged that CMP had a right to
indemnification pursuant to the Act for the amount that it paid to Smith.
Accompanying CMP’s complaint was a motion for ex parte real estate attachment.
The court (Cumberland County, Humphrey, C.J.) denied CMP’s motion for ex
parte attachment and granted the opportunity for a contested hearing on the
attachment issue.
[¶6] Devereux Marine filed an answer to CMP’s complaint and a
memorandum in opposition to CMP’s motion to attach. Shortly thereafter, the case
was transferred to the Business and Consumer Docket. The parties filed additional
memoranda regarding attachment, and the court (Horton, J.) held a hearing on the
issue. The court denied CMP’s motion for attachment, interpreting the Act as
creating a statutory right of contribution, as opposed to a right to indemnification.
See 35-A M.R.S. § 760; see also 14 M.R.S. § 156 (2012). Accordingly, the court
determined that CMP was not likely to recover a judgment “in an amount equal to
2
CMP’s complaint for indemnification named Devereux Marine, Inc., Devereux Family LLC, Andrea
Devereux, William Stevenson, and Andrea Devereux LLC, as defendants. In addition to claiming
indemnification against all named parties, CMP’s complaint included counts for piercing the corporate
veil and fraudulent transfer. Those additional claims are not at issue in this appeal from the denial of
attachment.
5
or greater than the aggregate sum” requested in its motion for attachment. M.R.
Civ. P. 4A(c). CMP filed this appeal.
II. DISCUSSION
A. Standard of Review
[¶7] Orders granting or denying prejudgment attachment are immediately
appealable pursuant to the collateral order exception to the final judgment rule.
See Centrix Bank & Trust v. Kehl, 2012 ME 52, ¶ 13, 40 A.3d 942. We ordinarily
review an order denying attachment for an abuse of discretion and clear error.
Sweeney v. Hope House, Inc., 656 A.2d 1215, 1216 (Me. 1995).
[¶8] In this matter of first impression, however, we are called upon to
interpret the meaning of section 760 of the Overhead High-voltage Line Safety
Act. We review the interpretation of a statute de novo as a question of law.
Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, ¶ 15, 957 A.2d
94. “The primary purpose in statutory interpretation is to give effect to the intent
of the Legislature.” Id. (quotation marks omitted). We “examine the plain
meaning of the statutory language seeking to give effect to the legislative intent,
and we construe the statutory language to avoid absurd, illogical, or inconsistent
results.” Id. (quotation marks omitted). “We also construe the whole statutory
scheme of which the section at issue forms a part so that a harmonious result,
presumably the intent of the Legislature, may be achieved.” Id. (quotation marks
6
omitted.) “All words in a statute are to be given meaning,” and no words are to be
treated as surplusage “if they can be reasonably construed.” Davis Forestry
Prods., Inc. v. DownEast Power Co., 2011 ME 10, ¶ 9, 12 A.3d 1180 (quotation
marks omitted). We will look to legislative history or other extraneous aids in
interpretation of a statute only if the statute is ambiguous. Id.
B. The Overhead High-voltage Line Safety Act
[¶9] The Legislature enacted the Overhead High-voltage Line Safety Act,
35-A M.R.S. §§ 751-761, without debate, in 1995. See P.L. 1995, ch. 348
(effective Sept. 29, 1995). The Act was amended slightly in 1999, but that
amendment has no bearing on this appeal. See P.L. 1999, ch. 398, § A-19
(effective Mar. 1, 2000) (codified at 35-A M.R.S. § 752(2) (2012)).
[¶10] To enhance public safety, the Act prohibits any “person” from
engaging in specific activities around an overhead high-voltage power line until
that person notifies the line owner or operator, here CMP. See 35-A M.R.S.
§§ 754, 757. The Act’s definition of a “person” includes any “natural person, firm,
business association, company, partnership, corporation or other legal entity.” Id.
§ 752(3).
[¶11] In the matter before us, the person prohibited from engaging in the
specified activities near overhead high-voltage lines is Devereux Marine. A
business such as Devereux is generally prohibited from undertaking any work or
7
activity that would bring a person, tool, or other material used by a person within
ten feet of an overhead high-voltage line. See id. § 754(1). If the business intends
to do work in that proximity to the line, the business must notify the owner or
operator of the line at least seventy-two hours prior to commencing the work or
activity. See id. § 757(1).3 Upon notification, the business that intends to conduct
the prohibited work or activity and the owner or operator of the line must negotiate
“promptly and in good faith” to make precautionary safety arrangements to
accommodate the work. Id. § 758(1).4
[¶12] Until the notification requirements are met, the business may not,
either individually or through an agent or employee, perform work that may cause
(A) a person to be placed within ten feet of the overhead high-voltage line, or (B) a
tool or material used by a person to be brought within ten feet of the line. Id.
§ 754(1)(A), (B). Additionally, “A person may not, individually or through an
agent or employee or as an agent or employee,” erect, operate, maintain, transport,
or store any “covered equipment or item” within ten feet of the line. Id. § 754(2).
3
The Act’s notification requirements include an exception for situations that include police, fire, and
rescue emergencies. 35-A M.R.S. § 757(1) (2012).
4
Although in some instances the person intending to do work around the line would be responsible
for the costs associated with making safety modifications, see 35-A M.R.S. § 758(6) (2012), if the line
has not been installed in conformity with the applicable edition of the National Electrical Safety Code, the
line owner or operator is responsible for the costs of bringing the line into compliance, see id.
§ 758(6)(B).
8
The Act’s definition of “covered equipment or items” includes “items such as
ladders, scaffolds, boat masts and outriggers.” Id. § 752(1) (emphasis added).
C. Allocation of Liability in the Act
1. The Indemnification Statute
[¶13] Because of the substantial possibility of personal injury or property
damage arising from violations of the Act, the fiscal consequences for violating the
Act can be severe:
§ 760. Indemnification
A person is liable to the owner or operator of the overhead
high-voltage line and 3rd parties, if any, for all damages to facilities,
injuries to persons and all costs, expenses and liabilities incurred by
the owner or operator of the overhead high-voltage lines and 3rd
parties, if any, as a result of any contact with an overhead
high-voltage line if the person causes, permits or allows any work or
activity in violation of a provision of this chapter and, as a result, a
physical or electrical contact with an overhead high-voltage line
occurs.
Id. § 760 (emphasis added).
[¶14] The unambiguous language of section 760 shifts all fiscal
responsibility for injuries and damages resulting from contact with an overhead
high-voltage power line to the individual or entity that “causes, permits or allows
any work or activity” in violation of the Act. Id. The statute does not create an
exception based on the negligence of the line owner or operator, here, CMP. Nor
does the statute grant an employer that is conducting work near an overhead
9
high-voltage line, such as Devereux, the right to an offset for the line owner or
operator’s negligence, or limit the line owner or operator only to contribution.
Section 760 provides, in plain language, that a person who allows work or activity
in or around a high-voltage power line in violation of the Act’s provisions is liable
to the owner of the line for “all damages to facilities, injuries to persons and all
costs, expenses and liabilities incurred by the owner or operator.” Id. (emphasis
added).
[¶15] Although the statute explicitly anticipates that damages may be paid
by the line owner based on its own civil liability, it specifies that the entity that
“causes, permits or allows any work or activity in violation of a provision of this
chapter” will be liable in full to the line owner for “all” of those damages. Id. The
statute does not purport to apportion liability based on contributory fault, and we
cannot interpret the statute in a way that would render the word “all” mere
surplusage. See Davis Forestry Prods., Inc., 2011 ME 10, ¶ 9, 12 A.3d 1180.
[¶16] The statute is introduced by the heading for section 760, which reads
“Indemnification.” Although abstracts of titles, chapters, and sections are not legal
provisions, see 1 M.R.S. § 71(10) (2012); cf. State v. Shepard, 323 A.2d 587, 588
(Me. 1974) (noting that a statutory heading was consistent with the Legislature’s
intent, as embodied in the statutory text), the language that follows in the statute is
10
consistent with the heading and plainly does not address contribution or
comparative fault.
[¶17] Faced with difficult economic policy questions, the Legislature
enacted statutes that allocate financial responsibility for injuries arising from
contact with overhead high-voltage lines. Section 760 provides that the individual
or entity that is responsible for the activities taking place near an overhead
high-voltage line, and who has the immediate ability to prevent grievous harm by
complying with the Act, bears the financial responsibility for failing to take the
required actions that would avoid that harm. It is not unreasonable for the
Legislature to have determined that the financial burden of compensating injured
parties should be borne by the entity that causes work or other activities to be
undertaken in violation of the proximity and notification provisions of the Act
rather than a negligent line owner, who cannot be physically present where all lines
exist and for whom fiscal responsibility could result in passing costs along to
ratepayers.
[¶18] Although construing the Act to require full indemnification may seem
harsh, the entirety of the statutory scheme comprising the Act places a particular
burden on employers of individuals who work near overhead high-voltage lines to
comply with the Act’s provisions or face penalties. Specifically, the Act places a
“duty and responsibility” on employers of individuals using covered equipment
11
and items to acquaint themselves and their employees with the provisions of the
Act, 35-A M.R.S. § 753; it requires notification of the line owner and the
placement of warning signs before covered equipment or items may be operated or
stored within ten feet of a power line, id. §§ 754(2), 756, 757, or work may be
performed that may cause a person, tool, or other material used by a person to be
brought within ten feet of a power line, id. §§ 754(1), 756, 757; and it authorizes a
civil penalty for every day that such an employer is in violation of the Act, id.
§ 759.5
[¶19] Because the potential for grave, and even fatal, injury is high when
employees work near power lines, the Legislature’s enactment serves to motivate
employers arranging for on-site work to take every required measure to avoid
injury.6 In this context, it is reasonable that the Legislature would place the fiscal
burden for any injury resulting from violations of these provisions on the violator
5
The Act includes an enforcement provision that allows for the assessment of a civil penalty of up to
$1,000 for each day a person causes, permits, or allows work or any other activity to occur that is in
violation of the Act’s provisions. 35-A M.R.S. § 759 (2012).
6
The Legislature has enacted a similar statute to protect utilities’ underground facilities that requires
notification to a centralized system prior to commencing excavation activities. See 23 M.R.S. § 3360-A
(2012). As an incentive to notify underground facility operators of planned excavation activity, section
3360-A(6-B) provides:
An excavation that is made without the excavator providing any or all of the notices
required by this section that results in any damage to an underground facility or facilities
is prima facie evidence in any civil or administrative proceeding that the damage was
caused by the negligence of the excavator.
12
that is in the best position to ensure safety through compliance with the Act. See
id. § 760.
2. The Inapplicability of the Comparative Fault Statute
[¶20] Notwithstanding the language of section 760, Devereux urges us to
apply principles of comparative fault articulated in 14 M.R.S. § 156. That statute
provides:
When any person suffers death or damage as a result partly of
that person’s own fault and partly of the fault of any other person or
persons, a claim in respect of that death or damage may not be
defeated by reason of the fault of the person suffering the damage, but
the damages recoverable in respect thereof must be reduced to such
extent as the jury thinks just and equitable having regard to the
claimant’s share in the responsibility for the damage.
....
Fault means negligence, breach of statutory duty or other act or
omission that gives rise to a liability in tort or would, apart from this
section, give rise to the defense of contributory negligence.
If such claimant is found by the jury to be equally at fault, the
claimant may not recover.
In a case involving multiparty defendants, each defendant is
jointly and severally liable to the plaintiff for the full amount of the
plaintiff’s damages. However, any defendant has the right through the
use of special interrogatories to request of the jury the percentage of
fault contributed by each defendant.
Id. (emphasis added).
 13
[¶21] This is a circumstance in which Devereux could not have been a
“multiparty defendant” in a suit by Smith. Devereux could not be sued by Smith
because it was “exempt from civil actions . . . at common law . . . involving
personal injuries sustained by an employee arising out of and in the course of
employment.” 39-A M.R.S. § 104 (2012). Therefore, Devereux was never a
co-defendant with CMP, and no opportunity arose for a fact-finder to determine the
percentage of fault as between co-defendants.
[¶22] Devereux must therefore assert that, pursuant to the first paragraph of
section 156, CMP would be considered the “person suffering the damage,” whose
recovery would be “reduced to such extent as [a] jury thinks just and equitable
having regard to the claimant’s [here, CMP’s] share in the responsibility for the
damage.” To interpret section 760 statute to allow for proportioned liability on the
basis of the broadly applicable statute governing comparative fault would,
however, violate the fundamental rule of statutory construction that we favor the
application of a specific statutory provision over the application of a more general
provision when there is any inconsistency. See Fleet Nat’l Bank v. Liberty, 2004
ME 36, ¶ 10, 845 A.2d 1183. The comparative fault statute cannot be interpreted
to nullify the narrowly applicable indemnification provision of section 760, which
explicitly contemplates that the line owner or operator may independently become
liable for damages and nonetheless requires indemnification of the line owner or
14
operator for “all . . . injuries to persons” by a person who violates the Act by
engaging in work that brings a person or materials within ten feet of the overhead
high-voltage line without notifying the line owner or operator, resulting in contact
with the line. See 35-A M.R.S. §§ 754(1), 757(1), 760.
[¶23] If the Legislature intended to allow or provide for allocated liability
instead of indemnification in section 760, it could have used clear language to
achieve this goal.7 In a similar statute, which was enacted to protect the public
from fires or explosions that may be caused by natural gas leaks, the Legislature
has done just that. See 14 M.R.S. § 165 (2012). The statute provides exceptions to
what would otherwise be strict liability for a natural gas company or a natural gas
7
Some other state Legislatures have explicitly created a right to contribution in their overhead
high-voltage power line statutes. Mississippi’s statute creates
a right of action on behalf of any electric utility which is required to pay any sum for
injury or death of any person resulting from contact with a high voltage overhead line
against any person whose negligence is a proximate contributing cause . . . for that
portion . . . attributable to the negligence of such person, however, the electric utility may
not recover any portion of such sum which is attributable to its own negligence.
Miss. Code Ann. § 45-15-13(2) (Westlaw through 2012 Reg. Sess.) (emphasis added). Missouri’s statute
similarly includes explicit language that “the public utility shall have the right of contribution against any
such violator [of the Overhead Power Line Safety Act].” Mo. Ann. Stat. § 319.085 (Westlaw through
2012 2d Reg. Sess.) (emphasis added).
As another example, Alaska’s high-voltage power line safety act provides that a “violator is liable to
the owner or operator of the high voltage line . . . for all damage to the facilities and for all liability
incurred by the owner or operator as a result of the unlawful activities.” Alaska Stat. Ann. § 18.60.685(b)
(Westlaw through legislation effective Mar. 1, 2013, passed during 2013 1st Reg. Sess.) (emphasis
added). Because of the emphasized language, the Supreme Court of Alaska interpreted this statute as
adopting a comparative causation approach, which would require a person in violation of the statute to
indemnify a utility owner “only for that portion of the total liability caused by the violator’s unlawful
activities and not for that portion caused by the utility’s negligence.” Atwater v. Matanuska Elec. Ass’n,
Inc., 727 P.2d 774, 778 (Alaska 1986). Maine’s indemnification statute contains no such limiting
language.
15
pipeline company that stores, transports, or distributes natural gas when a death or
injury due to explosions or fire results from the actions of a third party:
§ 165. Liability of those who store or distribute natural gas
1. Liability without proof of negligence. A natural gas
company or an intrastate or interstate natural gas pipeline company
that stores, transports or distributes natural gas is liable for all acts
and omissions of its servants and agents that cause death or injury to
persons or damage to property resulting from explosions or fire
caused by natural gas escaping from the natural gas storage,
transportation or distribution system under its control or from
explosions or fire caused by defects in the natural gas storage,
transportation and distribution systems under its control.
....
3. Exceptions. The company is not liable for death or injury to
persons or damage to property caused by:
....
C. Intervening fault of a 3rd party for whose actions the
company is not legally liable. If death or injury to persons or
damage to property is caused by the combined fault of the
company and other parties, the liability of the company is joint
and several with those other parties.
Id. (emphasis added).
[¶24] In contrast to this explicit apportioning of liability,8 the statutes
applicable to overhead high-voltage lines provide for full indemnification of the
line owner or operator by the entity that allowed work to take place within ten feet
8
See also 28-A M.R.S. § 2512 (2012) (apportioning liability by explicitly creating several but not
joint liability between intoxicated individuals and servers of alcoholic beverages).
16
of the overhead high-voltage line without providing notification. Unlike the
natural gas statute, the overhead high-voltage line statute does not provide for
offsets, for joint or several liability, or for the determination of contributory fault.
We must apply that law as written.
3. Persuasive Authority from Other States with Similar Statutes
[¶25] To be sure, the Legislature’s decision to require full indemnification
from the violator of the Act could, because of the extraordinary potential for injury
or death, result in substantial liability for those who allow or permit work or other
activities that may cause materials to come within ten feet of an overhead
high-voltage line without notifying the owner or operator of the line. When we
look to the jurisprudence in other states that have adopted statutes related to
overhead high-voltage line safety,9 as the parties have suggested, we find that the
9
See Alaska Stat. Ann. §§ 18.60.670-.695 (Westlaw through legislation effective Mar. 1, 2013,
passed during 2013 1st Reg. Sess.); Ariz. Rev. Stat. Ann. §§ 40-360.41 to .45 (Westlaw through 2d Reg.
Sess. 2012); Ark. Code Ann. §§ 11-5-301 to -309 (Westlaw through 2012 Fisc. Sess. & emerg. acts of
2013 Reg. Sess.); Colo. Rev. Stat. Ann. §§ 9-2.5-101 to -106 (Westlaw through chs. 1-4, 6 of 1st Reg.
Sess. 2013); Del. Code Ann. tit. 16, §§ 7401B-7408B (Westlaw through 79 Laws 2013, chs. 1-4);
Ga. Code Ann. §§ 46-3-30 to -40 (Westlaw through 2012 Reg. Sess.); Idaho Code Ann. §§ 55-2401 to -
2405 (Westlaw through 2013 Sess., chs. 1, 2, 4, 17, 20, 22 effective on or before July 1, 2013); Kan. Stat.
Ann. §§ 66-1709 to -1716 (Westlaw through 2012 Reg. Sess.); La. Rev. Stat. Ann. §§ 45:141-:146
(Westlaw through 2012 Reg. Sess.); Mass. Ann. Laws ch. 166, §§ 21A-21G (LexisNexis 2002); Miss.
Code Ann. §§ 45-15-1 to -15 (Westlaw through 2012 Reg. Sess.); Mo. Ann. Stat. §§ 319.075-.090
(Westlaw through 2012 2d Reg. Sess.); Nev. Rev. Stat. Ann. §§ 455.200-.250 (Westlaw through 2011
76th Reg. Sess.); N.C. Gen. Stat. Ann. §§ 95-229.5 to .13 (Westlaw through S.L. 2013-7, excluding ch. 6
of 2013 Reg. Sess.); Okla. Stat. Ann. tit. 63, §§ 981-987 (Westlaw through 2d Reg. Sess. 2012); Or. Rev.
Stat. Ann. § 757.800-.805 (Westlaw through 2012 1st Spec. Sess.); S.D. Codified Laws §§ 49-32-1 to -20
(Westlaw through 2012 Reg. Sess.); Tenn. Code Ann. §§ 50-3-1001 to -1008 (Westlaw through 2012 2d
Reg. Sess.); Tex. Health & Safety Code Ann. §§ 752.001 to .008 (Westlaw through 2011 Reg. Sess. & 1st
Called Sess. of 82d Legis.); Utah Code Ann. §§ 54-8c-1 to -6 (Westlaw through 2012 4th Spec. Sess.);
17
states with Acts most similar to ours have interpreted those statutes as we do, based
on their plain meaning, to require full indemnification notwithstanding the heavy
burden on those conducting work near overhead high-voltage lines.
[¶26] Interpreting statutory language similar to Maine’s, the Court of
Appeals of Arizona held that Arizona’s statute transfers all responsibility for a
worker’s personal injuries from the negligent owner of the power line to the
employer who allowed work to occur near the line in violation of statute. Ariz.
Pub. Serv. Co. v. Shea, 742 P.2d 851, 857-58 (Ariz. Ct. App. 1987) (interpreting
Ariz. Rev. Stat. Ann. § 40-360.44(B) (Westlaw through 2d Reg. Sess. 2012)).
Pursuant to Ariz. Rev. Stat. Ann. § 40-360.44(B), which has not been amended
since the Arizona Court of Appeals decision, “the person or business entity
violating this article is liable to the public utility operating the high voltage
overhead line for all damages to the facilities and all costs and expenses, including
damages to third persons, incurred by the public utility as a result of the contact.”
(Emphasis added.)
[¶27] The Texas High Voltage Overhead Lines Act also contains
indemnification language that is similar to that of Maine’s Act. Compare Tex.
Va. Code. Ann. §§ 59.1-406 to -414 (Westlaw through 2012 Reg. Sess., 2012 Spec. Sess. I, and 2013
Reg. Sess. cc. 2-3); Wyo. Stat. Ann. §§ 37-3-301 to -306 (Westlaw through 2012 Budget Sess.).
18
Health & Safety Code Ann. § 752.008 (Westlaw through 2011 Reg. Sess. & 1st
Called Sess. of 82d Legis.) with 35-A M.R.S. § 760. The Texas statute provides:
If a violation of this chapter results in physical or electrical
contact with a high voltage overhead line, the person, firm,
corporation, or association that committed the violation is liable to the
owner or operator of the line for all damages to the facilities and for
all liability that the owner or operator incurs as a result of the
contact.
Tex. Health & Safety Code Ann. § 752.008 (emphasis added). In applying this
statute’s indemnification clause in a situation similar to the instant case, where the
utility’s power lines were hanging below the minimum height required by Texas
law, the Texas Court of Appeals held that, because the statute allows for
indemnification “for all liability” incurred by the utility, the provision applies even
in “circumstances in which the utility’s own actions contributed to the damage
caused by contact with one of its lines.” AEP Tex. N. Co. v. SPA Pipe, Inc.,
2008 Tex. App. LEXIS 9269, at *27 (Tex. App. Dec. 12, 2008).
[¶28] Also comparable to Maine’s statute, Louisiana’s Overhead Power
Line Safety Act provides that, if a violation of the act results in contact with a
power line, the violator “shall be liable to the owner or operator of the high voltage
overhead line for all damages, costs, or expenses incurred by the owner or operator
as a result of the contact.” La. Rev. Stat. Ann. § 45:144(A) (Westlaw through
2012 Reg. Sess.) (emphasis added). The statute specifies that it shall not “be
19
construed to alter, amend, restrict, or limit the liability of an owner or operator of
the high voltage line under current law,” La. Rev. Stat. Ann. § 45:144(B) (Westlaw
through 2012 Reg. Sess.), which the Supreme Court of Louisiana recently
interpreted to mean that the owner of the line may recover from a violator “even
for the utility company’s own negligence,” Moreno v. Entergy Corp., 105 So. 3d
40, 50 (La. 2012).
[¶29] The statutory basis for indemnification in each of these states is
similar to Maine’s. Given such statutory language, anything short of full
indemnification “would directly contravene the clear legislative directive requiring
employers to contact utilities and enter into safety agreements before requiring
their employees to engage in work on or near active power lines and would
encourage rather than discourage the initiation of hazardous work near power
lines.” AEP Tex. N. Co., 2008 Tex. App. LEXIS 9269, at *33.
III. CONCLUSION
[¶30] If it is determined that Devereux Marine required or allowed its
employee, Smith, to lower the boat’s mast in close proximity to CMP’s power line
without first complying with the Act’s requirements, see generally 35-A M.R.S.
§§ 754-758, Devereux Marine could be found to have “cause[d], permit[ted] or
allow[ed] any work or activity in violation of” the Act, id. § 760. Pursuant to the
plain language of the statute, Devereux Marine would then be responsible for
20
indemnifying CMP for “all damages to facilities, injuries to persons and all costs,
expenses and liabilities incurred by” CMP due to Smith’s contact with the line. Id.
(emphasis added).
[¶31] Because the plain language of the statute does provide for full
indemnification by an entity that causes, permits, or allows work in violation of the
Act, even in cases where the owner or operator of an overhead high-voltage line
may have been negligent, we vacate the court’s judgment denying the motion for
attachment and remand for further proceedings consistent with this opinion.
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
On the briefs:
John B. Lucy, Esq., Richardson, Whitman, Large & Badger, Bangor, and
Henry Sorett, Esq., Brickley, Sears & Sorett, Boston, Massachusetts, for
appellant Central Maine Power Company
Barry K. Mills, Esq., Hale & Hamlin, LLC, Ellsworth, for appellees
Devereux Marine, Inc., Devereux Family LLC, Andrea Devereux, William
Stevenson, and Andrea Devereux, LLC
Christian T. Chandler, Esq., James L. Costello, Esq., and Benjamin M.
Leoni, Esq., Curtis Thaxter LLC, Portland, for amicus curiae Bangor Hydro
Electric Company
21
Christian T. Chandler, Esq., Curtis Thaxter LLC, Portland, and Kenneth P.
Carter, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans,
Louisiana, for amicus curiae Edison Electric Institute
At oral argument:
Henry Sorett, Esq., for appellant Central Maine Power Company
Barry Mills, Esq., for appellees Devereux Marine, Inc., Devereux Family
LLC, Andrea Devereux, William Stevenson, and Andrea Devereux, LLC
Business and Consumer Docket docket number CV-2011-13
FOR CLERK REFERENCE ONLY