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Hemond v. Frontier Communications of America, Inc.

Supreme Court of Vermont

April 17, 2015

Michael Hemond and Tracey Hemond
Frontier Communications of America, Inc., f/k/a Citizens Communications Company, d/b/a Citizens Energy Services
Navigant Consulting, Inc

Page 1206

On Appeal from Superior Court, Chittenden Unit, Civil Division. Dennis R. Pearson, J.

Robert S. DiPalma of Paul Frank Collins P.C., Burlington, for Cross-Plaintiff/Cross-Defendant/Appellee.

Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, and Henry P. Sorett of Brickley Sears & Sorett, Boston, Massachusetts, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Griffin, Supr. J., Specially Assigned.


Page 1207

Reiber, C.J.

[¶1] This case involves an indemnity dispute between two defendants in a suit arising after plaintiff Michael Hemond suffered a tragic electrocution injury while working on an electrical switch. Defendant Frontier Communications of America, Inc.,[1] who owned the electrical equipment on which the accident took place, claimed implied indemnity from Navigant Consulting Group, Inc., a contractor. Navigant cross-claimed for indemnification from Frontier based on express statements in the parties' contract. The court granted summary judgment to Navigant on both Frontier's claim for implied indemnification and Navigant's claim of express indemnification against Frontier. Frontier appeals, arguing that the court erred in concluding that the undisputed facts demonstrated that Frontier failed to meet the requirements for implied indemnification and that a valid express indemnification agreement existed between the parties. We affirm.

[¶2] The relationship between Frontier and Navigant began in 2001 when Frontier was planning an upgrade for the Richford substation and hired Navigant as a consultant to assist in obtaining a certificate of public good (CPG). Navigant's employee, Eugene Shlatz, provided testimony to the Vermont Public Service Board (PSB) that the upgrade would enable Frontier " to provide more stable and reliable service to

Page 1208

its customers." The upgrade plan, created by Frontier's own electrical engineer, included removing an oil break circuit at that location and installing a new group-operated air break switch, which included switches 14E and 14W.[2] Frontier selected the air break switch.

[¶3] The switch was not completely installed and was not grounded by the time plaintiff Michael Hemond was directed to open it in September 2006 to de-energize a portion of the line and allow work to be performed. When plaintiff Michael Hemond opened Switch 14E, an electrical arc formed across the support structure, and electrocuted plaintiff, causing permanent and painful injuries.[3]

[¶4] Plaintiffs brought suit against several defendants, including Frontier and Navigant. Plaintiffs alleged negligence in the design, manufacture, installation, and construction of the Richford substation, and of the switch in particular.

[¶5] In February 2011, following mediation, plaintiffs entered a settlement with all defendants, except Frontier. Frontier then filed a cross-claim against the other codefendants, including Navigant, claiming that it was entitled to implied indemnification from them. Shortly thereafter, Navigant filed a claim against Frontier, asserting that it was entitled to contractual indemnity from Frontier.

[¶6] Both defendants filed motions for summary judgment. In separate orders, the trial court granted summary judgment to Navigant on Frontier's claim for implied indemnification, and on Navigant's claim for express indemnification.[4] Frontier appeals both summary judgment decisions.

[¶7] Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). On appeal from a summary judgment decision, this Court applies the same standard as the trial court. White v. Quechee Lakes Landowners' Ass'n, Inc., 170 Vt. 25, 28, 742 A.2d 734, 736 (1999). " We regard all allegations made in opposition to summary judgment as true, if supported by affidavits or other evidence." Knisely v. Cent. Vt. Hosp., 171 Vt. 644, 645, 769 A.2d 5, 6 (2000) (mem.).

[¶8] The obligation to indemnify, which is the subject of these summary judgment decisions, can arise in two ways: a party can expressly agree to indemnify another, or the right to indemnity may be implied where " circumstances require the law to imply such an undertaking." City of Burlington v. Arthur J. Gallagher & Co., 173 Vt. ...

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