Flowell Electric Ass'n v. Rhodes Pump, LLC

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 87IN THE
SUPREME COURT OF THE STATE OF UTAH
FLOWELL ELECTRIC ASSOCIATION, INC., and
DIXIE ESCALANTE RURAL ELECTRIC ASSOCIATION, INC.,
Appellees,
v.
RHODES PUMP, LLC,
Appellant.
No. 20130834
Filed September 25, 2015
Fourth District, Spanish Fork
The Honorable Donald J. Eyre, Jr.
No. 1210300019
Attorneys:
Susan Black Dunn, Kathleen M. Liuzzi, Salt Lake City,
for appellees
James R. Black, Matthew J. Black, Salt Lake City,
for appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
and JUSTICE DURHAM joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 This case is about a demand for indemnification under
the High Voltage Overhead Lines Act (HVOLA). UTAH CODE
§§ 54-8c-1 to -6. HVOLA prohibits any activity within ten feet of a
high voltage overhead line unless the public utility operating the
line has been notified of the “intended activity” and, together with
the party responsible for the triggering activity, has implemented
“mutually satisfactory” safety precautions. Id. § 54-8c-2(1). If the
party responsible for the activity violates HVOLA and, as a result,
FLOWELL v. RHODES
Opinion of the Court
a person or thing comes into contact with the line, then that party
“is liable to the public utility . . . for all liability incurred by the
public utility as a result of [the] contact.” Id. § 54-8c-4(3).
¶ 2 Based on these provisions, Flowell Electric Association,
Inc. (FEA), and Dixie Escalante Rural Electric Association, Inc.,
(collectively, Flowell) sought indemnification from Rhodes Pump
II, LLC, (Rhodes) for liability to Brian Wade incurred by Flowell.
Mr. Wade, in the course of servicing a well situated under one of
Flowell’s high voltage lines, came into contact with the line, which
resulted in a severe electric shock and, ultimately, the amputation
of both of his legs. Mr. Wade sought and received workers’
compensation benefits from his employer, Rhodes, on whose
behalf he was acting at the time of the accident. He also filed a tort
suit against Flowell, alleging negligence and breach of warranty
and requesting punitive damages. 1 A jury found that Flowell had
acted negligently and awarded Mr. Wade both compensatory and
punitive damages. Flowell then brought this action for HVOLA
indemnification against Rhodes. The district court concluded that
Rhodes had failed to give Flowell adequate notice of its intended
activity and therefore granted Flowell summary judgment.
Rhodes timely appealed.
¶ 3 We first address the legal challenges Rhodes brings to
HVOLA and conclude that HVOLA does apply to Rhodes and is
not unconstitutional. But because we conclude there exists
genuine issues of material fact regarding Rhodes’s notice, we
reverse the grant of summary judgment and remand for further
proceedings.
BACKGROUND
¶ 4 On May 20, 2002, Mr. Wade and Darrin Rhodes went to
service the Sundown Well, which is located in Meadow, Utah. 2 In
1Mr. Wade and his wife first filed the tort suit against FEA.
They added Dixie as a defendant after learning that the utility
employees involved in the accident were leased by Dixie to FEA.
2 In evaluating cross-motions for summary judgment, we recite
the facts in the light most favorable to the losing party. Keith v.
Mountain Resorts Dev., L.L.C., 2014 UT 32, ¶ 16 n.10, 337 P.3d 213.
Here, the parties stipulated to almost all of the facts but agreed to
disagree about one of them—namely, whether Rhodes was to call
(cont.)
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the course of performing their work, they raised the boom on their
well-servicing truck to within three or four feet of Flowell’s high
voltage lines. At that point, Mr. Rhodes contacted Flowell and
informed Flowell’s operations manager and lineman, Steve
Iverson, that he had raised the boom near the high voltage lines.
Mr. Iverson responded that he and another lineman, Neil Stevens,
would come to the Sundown Well within a couple of hours to
assist.
¶ 5 Mr. Iverson and Mr. Stevens arrived at the site and
placed three “cover-ups” on the energized line to cover fifteen feet
of the line, “centering them with the raised boom.” Mr. Iverson
testified that he instructed Mr. Rhodes and Mr. Wade “not to
move the boom from its current position” and to contact him
before lowering the boom so that he could return and “assist” the
men in “safely lowering” it. Mr. Rhodes and Mr. Wade denied
receiving the instruction. Mr. Rhodes and Mr. Wade “completed
their work of installing the pipes and putting the well back
together.” Without moving the boom from its initial location, they
loaded their equipment back onto Mr. Rhodes’s truck. Then,
without notifying anyone, they “began lowering” the boom. At
that point, Mr. Wade noticed that they had forgotten to load
certain equipment—the “well collars.” 3 Mr. Rhodes again raised
the boom into the air near the overhead line. 4 They loaded the
Flowell before lowering the boom. We flag that disputed fact and
ultimately conclude that it is material to the disposition of this
matter. See infra ¶ 31.
3 We note that the record in this case is sparse and that the
parties have not provided us with background information on the
nature of the well, the details of the work Rhodes was doing there,
or the nature of the equipment that was used. We have taken
what facts we do have almost entirely from the parties’ list of
undisputed facts.
4 The undisputed facts do not explicitly provide that the boom
was raised to within ten feet of the overhead line the second time,
only that it was raised into the air and then came in contact with
the line while being lowered. We assume from the contact that the
boom came within ten feet of the line at some point the second
time it was raised. Another basis for this assumption is that the
parties present no argument about proximity to the overhead line
even though the district court’s finding of a violation of HVOLA
(cont.)
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FLOWELL v. RHODES
Opinion of the Court
well collars and began to lower the boom a second time. As they
were lowering it, the boom came in contact with the power line,
resulting in Mr. Wade’s injury. 5
¶ 6 Mr. Wade and his wife filed the tort suit against Flowell
in April 2006. The case went to trial in 2010. The jury found in
favor of Mr. Wade and awarded him $9,841,627.03 in
compensatory damages and $10,000 in punitive damages.
¶ 7 The following year, Flowell filed this action against
Rhodes for indemnification under HVOLA. The parties filed
cross-motions for summary judgment. On July 31, 2013, the
district court entered summary judgment in favor of Flowell.
Rhodes timely appealed. We have jurisdiction under Utah Code
section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶ 8 We review a district court’s grant of summary judgment
for correctness, giving no deference to its conclusions of law. Keith
v. Mountain Resorts Dev., L.L.C., 2014 UT 32, ¶ 16, 337 P.3d 213.
Summary judgment is appropriate when there is “no genuine
issue as to any material fact” and “the moving party is entitled to
a judgment as a matter of law.” UTAH R. CIV. P. 56(c). When
evaluating the propriety of summary judgment on cross-motions
for summary judgment, we view the facts and any reasonable
inferences to be drawn therefrom in the light most favorable to the
losing party. Keith, 2014 UT 32, ¶ 16 n.10.
ANALYSIS
¶ 9 Rhodes contends that the district court erred in granting
summary judgment in favor of Flowell for a variety of reasons.
We first address Rhodes’s claim that the indemnification action
was not timely filed under the statute of limitations. Second, we
address Rhodes’s claim that the exclusive remedy provision of the
Workers’ Compensation Act (WCA) precludes Flowell from
bringing an HVOLA indemnification action against Rhodes.
Third, we address Rhodes’s argument that, as applied, HVOLA
violates the principles of due process and equal protection
was based on the alleged lack of notice the second time the boom
was raised.
5It is unclear from the record how or why the boom came into
contact with the power line.
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guaranteed under the United States and Utah Constitutions.
Fourth and finally, we analyze Rhodes’s argument that summary
judgment was improperly granted. Rhodes’s argument on this
issue is twofold. It contends: (1) Rhodes did not violate HVOLA
and therefore cannot be required to indemnify Flowell; and (2) in
a separate tort case against Flowell, a jury found that Flowell had
caused Mr. Wade’s injuries through gross negligence and thus
Rhodes should not be required to indemnify Flowell for public
policy reasons. We reject Rhodes’s statute of limitations, WCA
exclusive remedy, and constitutional arguments. We also hold
that a public utility’s gross negligence does not preclude
indemnification under HVOLA. But because we conclude that
there are unresolved genuine issues of material fact regarding
whether Rhodes violated HVOLA, we reverse the grant of
summary judgment and remand for further proceedings.
I. FLOWELL TIMELY FILED ITS HVOLA
INDEMNIFICATION ACTION
¶ 10 HVOLA grants public utilities a right of action for
indemnification when a “responsible party” fails to follow
HVOLA’s requirements. UTAH CODE § 54-8c-4. The parties
suggest the period of limitations applicable to an HVOLA
indemnification action can be found at Utah Code section 78B-2-
307(1)(a), which provides that an action based on a “liability not
founded upon an instrument in writing” must be brought within
four years. They are mistaken. The relevant statute of limitations
for an HVOLA action is found at Utah Code section 78B-2-305(4),
which states that “[a]n action may be brought within three years
. . . for a liability created by the statutes of this state.” Although
section 78B-2-307(1)(a) might appear to apply because the liability
here is not based upon a written instrument, section 78B-2-305(4)
specifically applies to liabilities created by statutes. And “[w]ell-
established principles of statutory construction” tell us that the
“more specific statute governs.” Pan Energy v. Martin, 813 P.2d
1142, 1145 (Utah 1991). Here, the cause of action and associated
liability are created wholly by a statute—HVOLA. See UTAH CODE
§ 54-8c-4. Thus, the relevant statute of limitations is three years. Id.
§ 78B-2-305(4).
¶ 11 The parties’ error does not influence the outcome of this
case, nor would their arguments have changed absent that error.
Rhodes argues that Flowell’s cause of action for indemnification
under HVOLA accrued on the day of the accident, more than four
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FLOWELL v. RHODES
Opinion of the Court
years before Flowell attempted to include Rhodes in the tort case.
Flowell argues that the statute of limitations could not have begun
to run until Flowell had actually “incurred” liability, which was
when the jury returned its verdict in the tort case against Flowell.
We agree with Flowell.
¶ 12 A cause of action accrues when it “becomes remediable
in the courts”—or, in other words, when “all of the elements that
must be proved at trial under the statute allegedly creating
liability on the part of the defendant are existing and may be
established.” State v. Huntington-Cleveland Irrigation Co., 2002 UT
75, ¶ 24, 52 P.3d 1257 (citation omitted). Here, Flowell could not
satisfy all the elements of its indemnification claim against Rhodes
until Flowell was held liable for the injuries to Mr. Wade. Because
Flowell had not actually “incurred” any liability “as a result of”
Mr. Wade’s injurious contact with the high voltage overhead line
until the jury rendered its verdict, the statute of limitations did
not begin to run until then. UTAH CODE § 54-8c-4(3). The jury in
the tort case issued a verdict against Flowell on January 3, 2011.
Flowell filed its indemnification action five months later, in June
2011. Because Flowell filed its HVOLA action within five months
of the jury verdict, the indemnification action was timely filed.
II. THE WORKERS’ COMPENSATION ACT’S
EXCLUSIVE REMEDY PROVISION DOES NOT
PRECLUDE LIABILITY UNDER HVOLA
¶ 13 Rhodes argues that the WCA’s exclusive remedy
provision shields it from a civil suit brought under HVOLA. UTAH
CODE § 34A-2-105(1). Because we conclude that the WCA does not
apply here, we disagree.
¶ 14 Rhodes argues that because the action stems from an
injury suffered by its employee, any liability Rhodes would
otherwise have incurred through HVOLA is subsumed by the
WCA. The “exclusive remedy” provision of the WCA provides
that “[t]he right to recover compensation pursuant to [the WCA]
for injuries sustained by an employee” is the “exclusive remedy
against the employer and is the exclusive remedy against any
officer, agent, or employee of the employer.” UTAH CODE § 34A-2-
105(1). On the other hand, HVOLA provides that “[a] responsible
party is liable to the public utility . . . for all liability incurred by
the public utility” stemming from the responsible party’s
violation of the provisions of HVOLA. UTAH CODE § 54-8c-4(3).
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Here, the “responsible party” is Rhodes, and we are asked to
determine whether Rhodes can be held liable under HVOLA even
though Rhodes’s employee’s injury underlies the liability incurred
by the public utility. 6 We hold that Rhodes can be held liable
under HVOLA.
¶ 15 An independent statutory or contractual cause of action
between a third party and an employer is not barred by the WCA
where that action is not brought “on account of” or “based upon”
the accident, injury, or death of the employee. Snyder v. PacifiCorp,
316 F. Supp. 2d 1247, 1252–53 (D. Utah 2004) (internal quotation
marks omitted). This curb on the scope of the WCA’s exclusive
remedy provision scope is grounded in the language of the
statute. To be sure, the WCA provides that the legal responsibility
of the employer is “in place of any and all other civil liability
whatsoever.” UTAH CODE § 34A-2-105(1). The WCA goes on to
specify that “an action at law may not be maintained against an
employer . . . based upon any accident, injury, or death of an
employee.” Id. (emphasis added). But this preclusive language is
limited to liability that arises “on account of any accident or injury
or death . . . incurred by the employee in the course of or because
of or arising out of the employee’s employment.” Id. (emphasis
added). As we clarified in Shell Oil Co. v. Brinkerhoff-Signal Drilling
Co., “[t]he exclusive remedy provision in the Workmen’s
Compensation Act does not govern all relationships between a
third party and . . . the employer.” 658 P.2d 1187, 1191 (Utah
1983). Consequently, we held that a third-party’s indemnification
claim against an employer was not barred by the exclusive
remedy provision of the WCA where there was an express
indemnification provision in the parties’ contract. Id. We allowed
the third-party contractual indemnification action on the basis
that such an action is “not ‘on account of’ an employee’s injury,
nor is it an action ‘based upon’ an employee’s injury”; “[r]ather,”
we explained, “it is an action for reimbursement based upon an
6 Rhodes has not argued that it is not the “responsible party”
under HVOLA, UTAH CODE § 54-8c-4(3), nor does it appear it
could, as the statute defines the responsible party as “any person
who contracts to perform, is responsible for the performance of, or
has control over, any function or activity at any location.” UTAH
CODE § 54-8c-1(6).
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Opinion of the Court
express contractual obligation between the employer and the
third-party plaintiff.” Id. at 1190–91 (emphasis added). The third-
party claim did not implicate the WCA’s exclusive remedy clause
because a “contractual obligation is independent of any statutory
duty the employer may owe his employee” under the WCA. Id. at
1191.
¶ 16 The reasoning in Shell Oil is highly instructive here.
Much like an indemnity clause in a contract between the
employer and a third party, HVOLA provides an independent
obligation that is distinct from the WCA’s exclusive remedy
provision. In other words, by enacting HVOLA, “the legislature
has mandated a relationship between public utilities and
responsible parties,” and, “in effect,” has “written the contract
between responsible parties and the public utility.” Snyder, 316
F. Supp. 2d at 1252. Accordingly, the WCA does not preclude an
entity’s liability under HVOLA.
¶ 17 Rhodes acknowledges that the United States District
Court for the District of Utah addressed a nearly identical
question in Snyder, 316 F. Supp. 2d at 1248–49. There, an employee
was burned during the course of his employment when a crane
boom came in contact with an overhead power line. Id. at 1248.
There too, the employer argued that PacifiCorp (the public utility
that owned the power line) could not bring a statutory claim of
indemnity under HVOLA due to the WCA’s exclusive remedy
provision. Id. at 1249. The Snyder court reasoned that Shell Oil
presented a good analogy, noting that “the statutory duty to
indemnify would create no more of a conflict than the contractual
right to indemnity allowed in Shell [Oil].” Id. at 1253. The Snyder
court also pointed out that “[e]very court that has addressed this
specific issue has held that the exclusive remedy provision of the
workers’ compensation statute does not bar an action for
indemnity based upon statutes comparable to the HVOLA.” Id. at
1252. Thus, the district court concluded that the exclusive remedy
provision did not preclude an electric company from pursuing an
employer for indemnification under HVOLA. Id. at 1254.
¶ 18 Rhodes acknowledges that Snyder and the “line of cases”
it cites “appears on the surface to present an argument from
multiple other jurisdictions contrary to application of WCA
immunity to HVOLA” claims. But it attempts to distinguish these
cases by pointing out that in this case, a jury found that Flowell
had been negligent. We fail to see how the jury’s finding of
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negligence bears on the statutory question of whether the WCA’s
exclusive remedy provision bars this HVOLA action. And Rhodes
has not provided this court with any factually similar case where
an HVOLA-type statute was found to be barred by a workers’
compensation act, nor have we been able to find one. Moreover,
we find the reasoning in Shell Oil and Snyder persuasive. As in
Shell Oil, Flowell’s indemnification action is for reimbursement—
not compensation—pursuant to an independent, “express”
statutory “obligation” between the parties. Shell Oil Co., 658 P.2d
at 1190–91. Accordingly, the action n is neither brought “on
account of” nor “based upon” Mr. Wade’s injuries—and the WCA
is not implicated. UTAH CODE § 34A-2-105(1); see also Snyder, 316
F. Supp. 2d at 1252. We therefore hold that the WCA does not bar
an indemnification action under HVOLA. 7
III. HVOLA DOES NOT VIOLATE DUE PROCESS OR
EQUAL PROTECTION AS APPLIED TO RHODES
A. Due Process
¶ 19 Rhodes argues that HVOLA, as applied, deprives it of a
property right—the exclusive remedy provision of the WCA—
without due process of law. The Fourteenth Amendment provides
that no state shall “deprive any person of life, liberty, or property,
without due process of law.” 8 The first step in showing a violation
7 Because we hold that the WCA and HVOLA are not in
conflict, we need not address the parties’ public policy and other
arguments concerning which statute should control. We also need
not address Rhodes’s arguments concerning the Liability Reform
Act (LRA). See UTAH CODE § 78B-5-818(4)(b) (stating that a person
immune from suit cannot be held liable even if fault is allocated to
that person in a given tort action). As explained, Rhodes is not
immune from suit under HVOLA despite being immune from a
tort or other suit under the WCA, and thus, in this context, the
LRA does not apply.
8 Rhodes characterizes its due process claim as arising from
both the United States and Utah Constitutions. Though the text of
the two provisions is essentially identical, see UTAH CONST. art. I,
§ 7 (“No person shall be deprived of life, liberty or property,
without due process of law.”), “we do not presume that federal
court interpretations of federal Constitutional provisions control
the meaning of identical provisions in the Utah Constitution.”
(cont.)
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FLOWELL v. RHODES
Opinion of the Court
of the Due Process Clause is to show that there has been a
deprivation of life, liberty, or property. Rhodes fails to make this
showing and its claim accordingly fails.
¶ 20 “[A] cause of action is a species of property protected by
the Fourteenth Amendment’s Due Process Clause.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982). But HVOLA
deprives Rhodes of neither a cause of action nor its rights under
the WCA. The exclusive remedy provision and HVOLA are
distinct statutory provisions that coexist without conflict. As
explained, an action under HVOLA is not “based upon” or “on
account of” the employee’s injury: it stems from an independent
source—the liability the legislature has imposed on individuals
through HVOLA. See UTAH CODE § 54-8c-4(3) (“A responsible
party is liable to the public utility . . . if . . . the responsible party
causes . . . an activity in violation of any provision of this chapter
. . . .”). 9 Here, the Utah Legislature chose to impose an obligation
State v. Briggs, 2008 UT 83, ¶ 24, 199 P.3d 935. That said, “cursory
references to the state constitution within arguments otherwise
dedicated to a federal constitutional claim are inadequate.” State
v. Worwood, 2007 UT 47, ¶ 18, 164 P.3d 397. We will “refrain[] from
engaging in state constitutional law analysis unless an argument
for different analyses under the state and federal constitutions is
briefed.” Id. ¶ 16 (internal quotation marks omitted). Because
Rhodes frames its constitutional analysis in terms of the United
States Constitution, we will do the same.
9 We also reject Rhodes’s open courts argument. See UTAH
CONST. art. I, § 11; see generally Berry ex rel. Berry v. Beech Aircraft
Corp., 717 P.2d 670, 680 (Utah 1985). Rhodes argues that HVOLA
violates Utah’s open courts protections by abrogating the WCA
exclusive remedy defense without providing a reasonable
alternative defense and asks us to apply the Berry test. Berry, 717
P.2d at 680 (“First, section 11 [of the Declaration of Rights] is
satisfied if the law provides an injured person an effective and
reasonable alternative remedy ‘by due course of law’ for
vindication of his constitutional interest. . . . Second, if there is no
substitute or alternative remedy provided, abrogation of the
remedy or cause of action may be justified only if there is a clear
social or economic evil to be eliminated and the elimination of an
existing legal remedy is not an arbitrary or unreasonable means
for achieving the objective.”). As Rhodes acknowledges, the first
question one must ask before applying the Berry test is whether
(cont.)
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to indemnify public utilities upon anyone—including an
employer—who violates the provisions of HVOLA. UTAH CODE
§ 54-8c-4. We cannot say that the statute thereby deprives Rhodes
of due process of law. 10
B. Equal Protection
¶ 21 The Equal Protection Clause of the Fourteenth
Amendment provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” Similarly,
article I, section 24, of the Utah Constitution states that “[a]ll laws
of a general nature shall have uniform operation.” See Malan v.
Lewis, 693 P.2d 661, 669 (Utah 1984) (“Although their language is
dissimilar, these provisions embody the same general principle
. . . .”). As with its due process argument, Rhodes raises its equal
protection and uniform operation of laws claim under both the
United States and Utah Constitutions but confines its analysis to
the United States Constitution. We are not required to follow U.S.
constitutional law when we interpret the Utah Constitution, but
because Rhodes has raised but not briefed a separate Utah
constitutional claim, we will evaluate the issue solely under the
Equal Protection Clause of the Fourteenth Amendment. See State
v. Worwood, 2007 UT 47, ¶ 16, 164 P.3d 397.
¶ 22 The most fundamental principle of equal protection is
that those who are “similarly situated should be treated similarly”
and those who are “in different circumstances should not be
treated as if their circumstances were the same.” Malan, 693 P.2d
at 669. “General rules that apply evenhandedly to all persons
the legislation abrogates a cause of action. Laney v. Fairview City,
2002 UT 79, ¶ 49, 57 P.3d 1007. But HVOLA does not abrogate a
cause of action—it grants a cause of action to public utilities that
incur liability as a result of a violation of HVOLA. As explained
herein, HVOLA and WCA are independent. Accordingly,
Rhodes’s open courts argument fails.
10 Additionally, Rhodes has not been denied due process in the
legal proceedings. Rhodes has had the opportunity to contest
every issue raised in this matter, including whether it violated
HVOLA, whether the injury was caused by such a violation,
whether the WCA’s exclusive remedy provision forecloses an
action against Rhodes, etc. At no point in the proceedings has
Rhodes been denied any of the process due to it.
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Opinion of the Court
within the jurisdiction unquestionably comply with [the] principle
[of equal protection of the laws].” N.Y.C. Transit Auth. v. Beazer,
440 U.S. 568, 587 (1979). In order to determine whether there is an
equal protection problem, we must first decide whether the law
applies evenhandedly or whether it makes a classification. Id. at
587–88 (“Only when a governmental unit adopts a rule that has a
special impact on less than all the persons subject to its
jurisdiction does the question whether this principle [of equal
protection] is violated arise.”). Rhodes claims that HVOLA creates
two classes: employers who benefit from the WCA’s exclusive
remedy provision and employers who do not because they may
be sued under HVOLA. In essence, Rhodes asks us to read
HVOLA in combination with the WCA and find that, together,
they create an impermissible classification between groups of
employers. This we cannot do.
¶ 23 In federal equal protection claims, “courts exercise strict
scrutiny of legislative classifications when fundamental
constitutional rights are affected or suspect classifications are
created.” Malan, 693 P.2d at 674 n.17. Benefitting from WCA’s
exclusive remedy provision is not a fundamental constitutional
right, and the purported classes are not based on suspect
classifications. Therefore, the classification created through
HVOLA is subject to rational basis review. See State v. Canton,
2013 UT 44, ¶ 36, 308 P.3d 517 (“[M]ost classifications are
presumptively permissible, and thus subject only to ‘rational basis
review.’ . . . [O]ther classifications [such as discrimination on the
basis of a suspect class] are so generally problematic . . . that they
trigger heightened scrutiny.” (citation omitted)). The classification
easily passes rational basis review because imposing restrictions
upon those who bring objects near dangerous high voltage power
lines is an eminently reasonable way for the legislature to pursue
the goal of increasing safety and accountability around such lines.
See Malan at 671 (“If the relationship of the classification to the
statutory objectives is unreasonable or fanciful, the discrimination
is unreasonable.”). Thus, the Equal Protection Clause is not
violated.
IV. DISPUTED AND UNKNOWN FACTS
PRECLUDE SUMMARY JUDGMENT
¶ 24 Summary judgment is appropriate when “there is no
genuine issue as to any material fact” and “the moving party is
entitled to a judgment as a matter of law.” UTAH R. CIV. P. 56(c).
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Despite the parties’ stipulations, there are material facts in this
case that are either disputed or have not yet been determined.
Under HVOLA, a responsible party is “liable to the public utility”
for “all liability incurred” if the responsible party “causes,
permits, or allows a function or an activity in violation of”
HVOLA and “as a result,” contact with the overhead line occurs.
UTAH CODE § 54-8c-4(3). A party is liable under HVOLA when
four elements are satisfied: (1) The responsible party must have
“cause[d], permit[ted], or allow[ed] a function or an activity” that
(2) was “in violation of any provision of [HVOLA],” and (3) “as a
result,” (4) “a physical or electrical contact with a high voltage
overhead line occur[red].” Id. Factual disputes exist regarding the
second element, whether Rhodes violated HVOLA, and the third
element, whether the alleged violation by Rhodes “result[ed]” in
the contact. Id.
¶ 25 The question of whether Rhodes violated HVOLA
requires two factual determinations. First, whether Rhodes gave
adequate notice of the intended activity under Utah Code section
54-8c-2(1)(a), and second, whether Rhodes complied with and
“completed” the “mutually satisfactory precautions for the
activity” under section 54-8c-2(1)(b). Finally, we flag a third area
of factual dispute: causation. Namely, there remain undetermined
facts concerning what (or who) caused Mr. Wade to come in
contact with the overhead power line. These unresolved factual
issues preclude the entry of summary judgment. We therefore
reverse the grant of summary judgment and remand for further
proceedings.
A. Notice of Intended Activity
¶ 26 It is undisputed that Rhodes notified Flowell that it was
doing work within ten feet of the power lines near the Sundown
Well, and it is undisputed that Flowell implemented safety
precautions in response to that information. However, the district
court found that Rhodes violated the notice provision of HVOLA
when it failed to notify Flowell that it was raising the boom a
second time. In essence, the court held that each individual time
Rhodes moved the boom and brought it within ten feet of the
power line, a separate notice was required under Utah Code
section 54-8c-2(1)(a). While this may ultimately turn out to be the
case, we cannot reach this conclusion as a matter of summary
judgment on the basis of the undisputed facts. Under the statute, a
party need only notify the public utility of its “intended activity.”
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FLOWELL v. RHODES
Opinion of the Court
UTAH CODE § 54-8c-2(1)(a). Unfortunately, it is not at all clear from
the record what Rhodes told Flowell it intended to do.
¶ 27 Utah Code section 54-8c-2(1)(a) states that no person or
thing may be brought within ten feet of a high voltage overhead
line unless the responsible party first “notifie[s] the public utility
operating the high voltage overhead line of the intended activity.”
The statute also specifies that “[t]he notification required in
Subsection (1)(a) . . . shall include the location and duration of the
proposed activity.” Id. § 54-8c-2(2). The district court held that
Rhodes violated this requirement when it failed to notify Flowell
before it raised the boom a second time. The court reasoned that
additional notice was required because there was “no way to
guarantee that the location of the second raising was in the same
place as the first.” But we do not believe that Rhodes was
necessarily required to give additional notification in order to
raise the boom a second time. It is undisputed that Rhodes’s
“intended activity” required raising the boom near the overhead
line. The question is whether the second raising of the boom was
communicated to Flowell as part of Rhodes’s intended activity
and was thus within the scope of the notice.11 If Rhodes expressed
to Flowell that its intended activity involved raising the boom
more than once, then there was no violation of the notice
requirement of Utah Code section 54-8c-2(1)(a).
¶ 28 Whether a given notification covers the responsible
party’s activities near high voltage lines is a fact-intensive
question that hinges on the relationship between the notice given
and the responsible party’s actual activities at the site. See id.
§ 54-8c-2. 12 If a responsible party has notified the public utility of
11 By requiring “communication” of the intended activity, we
do not mean to foreclose the possibility that accepted trade
language or knowledge may come into play. For example, if a
responsible party gave the public utility notice that it would be
trimming trees near a high voltage line, it is possible that the
utility company would then know that the intended activity
necessarily involves such activities as moving a cherry picker
around frequently, using long-handled tools, etc. But this inquiry
would be highly fact dependent.
12 HVOLA’s requirements are interrelated. The statute
explicitly ties the provisions regarding notice and the intended
(cont.)
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certain intended activity within ten feet of a power line and then
wants to take actions outside of the scope of that intended
activity, then that party would be required to renotify the utility.
For example, if Rhodes told Flowell that it was going to service
the well by raising a boom over the well, it would unquestionably
be outside of the scope of that notice for Rhodes to drive ten miles
down the road and raise a boom next to the power lines there.
¶ 29 The district court erred when it concluded that on the
record facts here Flowell violated the notice provision as a matter
of law simply by reraising the boom. On remand the court must
determine the nature of the notice Rhodes gave to Flowell. 13 If
Rhodes’s act of bringing the boom within ten feet of the power
lines a second time was outside of the scope of the intended
activity it initially communicated to Flowell, then Rhodes violated
section 54-8c-2(1)(a) of HVOLA by failing to notify Flowell of its
intended activity.
¶ 30 Because a factual issue remains regarding whether
Rhodes adequately notified Flowell of its “intended activity,” we
reverse the grant of summary judgment on this issue.
activity together, stating that the party must notify the utility of
the “intended activity” and then both the party and the utility
must “have completed mutually satisfactory precautions for the
activity,” before a person or thing may be brought within ten feet
of the high voltage line. UTAH CODE § 54-8c-2(1) (emphasis
added). Thus, the notice given is directly related to the nature of
the “mutually satisfactory precautions” that the party and the
utility must complete. Id. And the burden is on the responsible
party to communicate its “intended activity” to the utility so that
proper safety precautions can be undertaken. Id. § 54-8c-2(1)(a).
13 The record indicates that Mr. Rhodes informed Mr. Iverson
that he had raised the boom near the overhead line and that
Mr. Iverson placed three covers over the energized line that
covered about fifteen feet of the line and were centered above the
boom’s location at that time. What we do not know is whether
Mr. Iverson understood that Rhodes’s work would require raising
and lowering the boom multiple times or whether Flowell knew
there was a possibility that the boom would change positions
relative to the power lines and covers.
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FLOWELL v. RHODES
Opinion of the Court
B. Completion of Mutually Satisfactory Precautions
¶ 31 An issue of fact also exists as to whether Rhodes was to
contact Flowell before lowering the boom. Mr. Iverson testified at
trial that he instructed Mr. Rhodes and Mr. Wade to contact him
before lowering the boom. Flowell contends this contact “was part
of the ‘mutually satisfactory precautions’ required by HVOLA.”
Rhodes disputes this claim, stating that Mr. Iverson gave no such
instruction. We agree with Flowell that if the parties had decided
that Rhodes would contact Flowell before lowering the boom, that
arrangement formed a part of the agreed-upon safety precautions.
But because there is a dispute between the parties as to what, if
anything, was supposed to happen before Rhodes lowered the
boom, there remains a disputed issue as to whether Rhodes
violated safety precautions. 14
C. Causation
¶ 32 Under Utah Code section 54-8c-4(3), a responsible party
is only liable to the public utility if the party’s HVOLA violation
“result[s]” in a “physical or electrical contact with a high voltage
overhead line.” Rhodes argues that it should not be subject to
HVOLA indemnification where the jury in the tort case
determined that Flowell was grossly negligent and “the sole
cause” of Mr. Wade’s injuries. Rhodes’s arguments are built on
unsteady ground. First, the factual question of whether Rhodes’s
alleged violation of HVOLA caused the contact with the power
line has not been litigated. There was a separate tort case, but
Rhodes has not argued that those determinations control. On this
point, Rhodes’s arguments are not well developed and the court
has been left to guess at the legal basis for the significance that
Rhodes attributes to the jury finding in the tort case. At best,
14 Rhodes further argues that even if this instruction were
given and understood, it is not material for the purposes of
HVOLA indemnification, and therefore not a material fact,
because a violation of the safety plan would not constitute a
violation of HVOLA. Flowell did not respond to this argument,
thus risking that we would be persuaded by Rhodes’s argument
on this particular issue. However, we have elected to exercise our
discretion and pass on the issue in light of our determination that
a number of material issues of fact remain that preclude summary
judgment.
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Rhodes suggested—but failed to argue—that principles of
collateral estoppel absolve Rhodes of liability under HVOLA. This
court cannot allow itself to be turned into a “depository” where
the appellant may “dump the burden of argument and research.”
Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (citation omitted).
Therefore, we assume without deciding that collateral estoppel
does not apply in this case, and therefore we give no weight to the
facts and determinations reached in the tort case.
¶ 33 Because the findings in the tort case do not control, and
because there have been no findings on causation in this case, our
inquiry might end here, with a remand for further factual
development. However, we write further in order to address the
nuances of Rhodes’s argument concerning the effect of what it
terms Flowell’s “gross negligence.” Rhodes argues that, as a
matter of public policy, indemnification under HVOLA should be
per se barred where the public utility acted in gross negligence. It
contends that the issue of Flowell’s gross negligence was settled in
the tort case, but as explained, Rhodes has not made a valid
argument that those findings control in the instant action. Thus, a
key premise underlying Rhodes’s argument is gone. We
nevertheless note that a public utility’s negligent actions will not
per se preclude a responsible party’s obligation to indemnify the
public utility under HVOLA. See UTAH CODE § 54-8c-4(3). This is
because the statute imposes liability on a party that violates
HVOLA and as a result causes the public utility to suffer
damages, but it does not contain an exception for the public
utility’s negligence. Liability under Utah Code section 54-8c-4(3)
requires only that the party (1) violated HVOLA, (2) the violation
resulted in a physical or electric contact with a high voltage
overhead line, and (3) the public utility incurred damages as a
result of the contact.
¶ 34 Because we will not alter the meaning of a statute by
judicial fiat, we must try to interpret it in accordance with the
legislature’s intent. See Heaps v. Nuriche, LLC, 2015 UT 26, ¶ 13, 345
P.3d 655. The best indication of legislative intent is the statute’s
plain language. Id. In evaluating the language of a statute, we
have long held that “omissions in statutory language should be
taken note of and given effect.” Biddle v. Wash. Terrace City, 1999
UT 110, ¶ 14, 993 P.2d 875 (internal quotation marks omitted); see
also Riggs v. Georgia-Pacific LLC, 2015 UT 17, ¶ 10, 345 P.3d 1219(“[W]e seek to give effect to omissions in statutory language by
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FLOWELL v. RHODES
Opinion of the Court
presuming [them] purposeful.” (internal quotation marks
omitted)). The HVOLA indemnification provision reads:
A responsible party is liable to the public utility
operating the high voltage overhead line for all
damages to the facilities and for all liability incurred
by the public utility as a result of any contact if:
(a) the responsible party causes, permits, or allows a
function or an activity in violation of any provision
of this chapter; and (b) as a result, a physical or
electrical contact with a high voltage overhead line
occurs.
UTAH CODE § 54-8c-4(3). This language is not ambiguous, and it
does not contain an exception for situations where the public
utility has acted negligently—grossly or otherwise. We presume
the legislature’s omission of any exception to mean that the
legislature did not intend to provide one.
¶ 35 For authority, Rhodes cites our well-established rule that
indemnification agreements are enforceable only so long as the
agreement is clear and unambiguous and does not violate public
policy. See Rothstein v. Snowbird Corp., 2007 UT 96, ¶ 6, 175 P.3d
560. However, this rule applies to contracts, not statutes. In this
specific context, this is an important distinction. For although
historically we have been willing to intervene in private contracts
in very limited ways through exercise of our common law
authority, we are not similarly free to “supplant the interests” of
the legislature in pursuit of judicial notions of public policy. Id.
¶ 8. When it comes to statutes, our role is to “interpret[] and
implement[] the policies enacted into law by the legislature.”
McArthur v. State Farm Mut. Auto. Ins. Co., 2012 UT 22, ¶ 12, 274
P.3d 981. And since Utah Code section 54-8c-4 provides no
exception to the indemnification provision based on a public
utility’s negligence, we do not consider such negligence in our
analysis of causation under section 54-8c-4(3)(b).
¶ 36 Finally, in addressing the gross negligence issue, it has
become apparent to the court that the question of causation is a
crucial one that was not litigated below. Rhodes’s arguments,
though incomplete, suggest that it believes that the causation
requirement of Utah Code section 54-8c-4(3)(b)—that the contact
with the high voltage line occurred as a result of the HVOLA
violation—has not been satisfied. We agree that the undisputed
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facts do not establish whether an HVOLA violation caused the
contact. And because the question of causation is unresolved, we
conclude that the causation issue is an additional reason to
reverse the grant of summary judgment and identify it for the
district court to address on remand. In so doing, we note that the
exact cause of Mr. Wade’s contact with the power line is not in the
record. Flowell argues that Rhodes “must have done something”
to the safety configuration placed on the overhead lines that
caused them to shift in relation to the boom’s position. Rhodes
argues that circumstances outside of Rhodes’s control could have
led to a shift in the configuration, 15 or, alternatively, that Flowell
did something to cause the contact—perhaps by negligently
implementing the safety measures. Rhodes counters that it is
Flowell’s duty, as the public utility, to continue the protective
measures until the project is complete and that therefore Flowell
violated HVOLA—not Rhodes. See UTAH CODE § 54-8c-2(6)(b). In
short, the cause of the contact with the overhead line is an
essential but unresolved factual issues rendering summary
judgment inappropriate.
CONCLUSION
¶ 37 Rhodes’s arguments that HVOLA does not or should not
apply to Rhodes fail. But because there are unresolved factual
issues that bear on the key statutory questions of (1) whether
Rhodes actually violated HVOLA and (2) whether Rhodes’s
violation, if any, caused the accident, we reverse the grant of
summary judgment and remand for further proceedings
consistent with this opinion.
15 For example, there was evidence in the tort case suggesting
that it was a very windy day.
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