On Appeal from Superior Court, Chittenden Unit, Civil Division
Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, and Henry P. Sorett of Brickley, Sears & Sorett, P.A., Boston, Massachusetts, for Defendant-Appellant Frontier Communications of America, Inc.
Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for Defendant-Appellee Turner Electric, LLC
James M. Cooley and William L. Gagnon of Heilmann, Ekman & Associates, Burlington, for Cross-Defendants/Appellees Stantec Consulting, Inc., Stantec Consulting Corporation, Stantec Consulting Services, Inc., f/k/a Dufresne Henry.
Eric S. Miller and Kevin A. Lumpkin of Sheehey Furlong & Behm P.C., Burlington, for Cross-Defendant/Cross-Appellee Graybar Electric Company, Inc.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morse, J. (Ret.), Specially Assigned.
Matthew I. Katz, J. (motions to dismiss and for summary judgment);
Dennis R. Pearson, J. (final judgment)
¶ 1. Defendant Frontier Communications of America, Inc. appeals
decisions denying its cross-claims for indemnity against three codefendants, Stantec Consulting, Inc., Turner Electric Corporation, and Graybar Electric Company.  Frontier asserts that it is entitled to implied indemnification from all three codefendants and express indemnity from Graybar, and the court erred in granting summary judgment because there are disputed questions of fact. We affirm.
¶ 2. This case stems from an electrocution injury suffered by plaintiff Michael Hemond in 2006 while employed as a lineman and operating an electrical switch on equipment owned by Frontier. The switch, known as Switch 14E, was located at an electrical substation in Richford, Vermont. The switch was installed as part of a reconstruction of the Richford substation. The plans for this upgrade included the removal of an oil-break switch and installation of an air-break switch at that location. As explained in Hemond II, 2015 VT 66, ¶ 2 n.2, Switch 14E is a unitized switch, which means it shares a common pole with Switch 14W. The switch is opened and closed using a vertical steel operating pipe. When the pipe is rotated the blades of the switch open. A switch is opened to interrupt the flow of electricity through the line. When the line is carrying a load of electricity, an electrical arc can form as electricity attempts to conduct through the air. The air-break switch is manufactured with optional insulating components, but none were installed at Switch 14E. When Mr. Hemond operated the switch, an electrical arc formed, flashed over the support structure, and electrocuted Mr. Hemond.
¶ 3. Mr. Hemond and his wife filed suit. In addition to Frontier, the suit named several other defendants including: Stantec, a consulting firm that provided services to Frontier in connection with the reconstruction of the Richford substation; Turner, the manufacturer of the switch; and Graybar, the distributor of the switch. The suit alleged, among other things, negligence in the design, manufacture, installation, and construction of the substation, negligent selection and installation of the switch, and defective manufacture, design, and distribution of the switch.
¶ 4. As relevant to this case, Frontier filed cross-claims for implied indemnification against Stantec, Graybar, and Turner, and for express indemnification against Turner. Those codefendants filed for either dismissal or summary judgment on Frontier’s claims for indemnification. The following facts were included in Stantec’s statement of undisputed facts and not disputed by Frontier. The upgrade to the transmission lines and distribution facilities was overseen by Frontier’s employee Andy Letourneau, an electrical engineer. Mr. Letourneau was responsible for development and design as well as oversight of construction and maintenance, and safety. Michael Sullivan, another Frontier employee, assisted Mr. Letourneau. Mr. Letourneau made the decision to remove the oil-break switch at the Richford substation, and to order the Turner air-break switch without an interrupter for use. The decision to incorporate air-break switches without load interrupters were made before Stantec was hired. With respect to the Richford upgrade, Stantec was hired to provide conceptual drawings to be used before the Public Service Board (PSB) showing whether the equipment fit within spatial requirements. Stantec provided conceptual drawings and submitted them to the PSB.
¶ 5. Frontier ordered the Turner switch through its local distributor, Graybar. Mr. Sullivan filled out the switch-specification sheet from Graybar and it was transmitted to Turner. Frontier began construction on the Richford substation in July 2003. Frontier ...