CENTRAL MAINE POWER COMPANY v. DEVEREUX MARINE, INC., et al.
2013 ME 37
Supreme Judicial Court of Maine
March 26, 2013
1262
SAUFLEY, C.J.
Argued: May 9, 2012.
[¶ 38] Because we conclude that Woodard failed to demonstrate that the prosecutorial misconduct affected his substantial rights, we do not address the fourth prong of the obvious error analysis: whether the error seriously affected the fairness and integrity or public reputation of judicial proceedings. See Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032.
E. Jury Instructions
[¶ 39] Woodard argues that the court erred in denying his request to instruct the jury that, to find him guilty, it had to find he had been knowingly deceitful—not ignorant or negligently unaware—when processing the out-of-state containers.
[¶ 40] “We review the denial of a requested jury instruction for prejudicial error, and will vacate a judgment on this basis only when the denied instruction (1) stated the law correctly; (2) was generated by the evidence in the case; (3) was not misleading or confusing; and (4) was not sufficiently covered in the instructions the court gave.” State v. Ouellette, 2012 ME 11, ¶ 7, 37 A.3d 921 (quotation marks omitted).
[¶ 41] Regarding the mens rea for theft by deception, the court stated clearly:
Deception occurs when a person intentionally, that is has the conscious purpose or object to do so, intentionally creates or reinforces an impression which is false and which that person does not believe to be true or fails to correct an impression which is false and which a person does not believe to be true and which that person previously created or reinforced.
Thesе instructions sufficiently explained the state of mind that a person must possess to be convicted of theft by deception. See
The entry is:
Judgment affirmed.
Barry K. Mills, Esq. (orally), Hale & Hamlin, LLC, Ellsworth, for appellees Devereux Marine, Inc., Devereux Family LLC, Andrea Devereux, William Stevenson, and Andrea Devereux, LLC.
Christian T. Chаndler, Esq., James L. Costello, Esq., and Benjamin M. Leoni, Esq., Curtis Thaxter LLC, Portland, for amicus curiae Bangor Hydro Electric Company.
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.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
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,
[¶ 2] CMP appeals from a denial of its motion to attach the property of Devereux and related entities, sought pursuant to
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 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,
[¶ 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 tо 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
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. (quоtation 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 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, ¶ 19, 12 A.3d 1180 (quotation marks omitted). We will loоk 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,
[¶ 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
[¶ 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 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.
[¶ 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.
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 оverhead 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 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 рerson 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 liabili-
[¶ 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
[¶ 17] Faced with difficult economic policy questions, the Legislature enacted statutes that allocate financial rеsponsibility 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 prоximity 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 coverеd equipment and items to acquaint themselves and their employees with the provisions of the Act,
[¶ 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
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
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 plaintiffs damages. However, any defendant has the right through the use of special interrogato-
Id. (emphasis added).
[¶ 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 sustainеd by an employee arising out of and in the course of employment.”
[¶ 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
[¶ 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 thе public from fires or explosions that may be caused by natural gas leaks, the Legislature has done just that. See
§ 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 аnd 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 рroperty is caused by the combined fault of the company and other parties, the liabili-
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.”
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 takе place within ten feet 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 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, 154 Ariz. 350, 742 P.2d 851, 857-58 (Ct.App.1987) (interpreting
[¶ 27] The Texas High Voltage Overhead Lines Act also contains indemnification language that is similar to that of Maine‘s Act. Compare
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.
[¶ 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 oрerator as a result of the contact.”
[¶ 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 WL 5210919, at *8, 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
[¶ 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 рroceedings consistent with this opinion.