123 A.3d 1176
Vt.2015Background
- In 2006 lineman Michael Hemond was electrocuted operating Switch 14E at Frontier’s Richford substation; the switch was an air-break unit installed without optional insulating components.
- Hemond sued Frontier and codefendants Stantec (consultant), Turner (manufacturer), and Graybar (distributor) asserting negligence and product defects.
- Frontier filed cross-claims seeking implied indemnity from Stantec, Turner, and Graybar, and express indemnity from Turner (via a Turner–Graybar sale agreement).
- Undisputed facts showed Frontier employees selected and ordered the switch, followed Frontier’s standard design, and Frontier retained responsibility for substation design and safety.
- The trial court treated several motions to dismiss as summary-judgment motions, granted summary judgment denying implied indemnity as to Stantec, Turner, and Graybar, and denied express indemnity against Turner; Frontier’s motion to reconsider was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Frontier is entitled to implied indemnity from Stantec, Turner, Graybar | Frontier: any negligence was passive (failure to discover risk) and codefendants were primarily responsible or had duty to warn, so indemnity applies | Codefendants: Frontier actively chose/installed the switch and retained primary responsibility for safety, so no implied indemnity | Denied — Frontier cannot show vicarious liability or that others were primarily responsible for the dangerous condition |
| Whether Frontier is an intended third‑party beneficiary of Turner–Graybar indemnity clause (express indemnity) | Frontier: it was the ultimate purchaser, completed spec forms, and Turner shipped directly to Frontier, so contract parties intended to benefit Frontier | Turner/Graybar: sale form indemnity is limited to contracting parties; no language shows intent to benefit end purchaser | Denied — contract language unambiguous and contains no intent to benefit Frontier |
| Whether conversion of motions to summary judgment prejudiced Frontier | Frontier: court failed to notify conversion and thus lacked chance to present facts on intent and liability | Codefendants: any failure to notify was harmless because key facts were undisputed and contract language controlled | Denied — any procedural error was harmless; Frontier had subsequent opportunity to submit materials on reconsideration |
| Whether factual disputes (e.g., Frontier’s knowledge of danger) precluded summary judgment | Frontier: disputed facts about knowledge and switch safety create material issues | Codefendants: such disputes are irrelevant to indemnity where Frontier retained primary responsibility | Denied — knowledge or whether switch was per se unsafe does not alter that Frontier retained primary responsibility, so no genuine issue on indemnity |
Key Cases Cited
- Hemond v. Frontier Commc’ns of Am., Inc., 199 Vt. 259 (Vt. 2015) (discussing implied indemnity standards and primary fault allocation)
- White v. Quechee Lakes Landowners’ Ass’n, 170 Vt. 25 (Vt. 1999) (conclusory allegations insufficient to sustain indemnity claims)
- Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571 (Vt. 1977) (indemnity where party entrusted duty to third party who created hazard)
- Chapman v. Sparta, 167 Vt. 157 (Vt. 1997) (distinguishing contribution from indemnity between joint tortfeasors)
- Knisely v. Cent. Vt. Hosp., 171 Vt. 644 (Vt. 2000) (indemnity requires indemnitor to be primarily at fault)
- McMurphy v. State, 171 Vt. 9 (Vt. 2000) (third‑party beneficiary status depends on contracting parties’ intent)
- Howell v. Ketchikan Pulp Co., 943 P.2d 1205 (Alaska 1997) (purchase‑order indemnity not read to benefit non‑contracting third parties absent clear intent)