Hemond v. Frontier
Communications of America, Inc., 2012 VT
94 (mem.).
To truly under understand why defendants fought against the
action and took the appeal, read this summary, and then read the last line of
the published decision.
Here are the facts, Defendant and its predecessor corporation
owned a number of transmission lines. In
2002, it undertook the reconstruction of a substation in Richford. As part of this work, Defendant redesigned
and installed Switch 14E. At the time,
Plaintiff was employed by Defendant as a lineman, albeit not from Wichita.
In 2004, Defendant sold all of its assets to the Vermont
Electric Cooperative, Inc. This included
the Richford substation and Switch 14E.
As part of the sale, Plaintiff was moved over to VEC and continued to
work for them as a lineman.
In 2006, Plaintiff was ordered to open Switch 14E by VEC as
part of his job. In doing so, he was
electrocuted, suffering severe burns and the loss of two limbs.
Whenever there is a workplace accident, you should always
think worker’s compensation. And that is
exactly what happened here. VEC
immediately compensated Plaintiff for his injuries through its worker’s
compensation policy.
But wherever there is a serious accident, there is always
the possibility that more than one party is responsible for the situation both
factually and from a legal perspective.
For example, a landlord has an obligation to provide a safe
space to tenants and is obligated to repair problems as she becomes aware of
them. But if the tenant is a business
that business also has a duty to provide a safe workplace. So if there is a hole in the middle of the
floor, and an employee falls through and breaks his legs, there are two
entities on the hook. First the employer
will be through worker’s compensation, but then the employee can also go after
the landlord for creating or negligently failing to repair the hole.
It is a potential double recovery, but the law allows this because
it gives both employer and landlord the incentive to repair holes in the floor
(something they are in a good position to do) to the benefit of the employee
and all other members of society.
Going back to today’s case, Defendants looked at the facts
and realized that if they had not sold the substation and switch to VEC, they
would have been the employer and immune from a personal injury suit. Setting aside the legal arguments, Defendants
appear to argue the primal response: Why should a sale suddenly lead to separate
liability?
The problem for Defendants, though, is that it does, and the
SCOV is okay with the concept.
This liability is based on a very important distinction in
duty, which makes all the difference to Plaintiff’s claim.
Plaintiff’s potential cause of action against his employer
(if the workers’ compensation had not been there) would have been for creating
(or allowing) an unsafe work environment.
If that had been Plaintiff’s cause of action against Defendants as well,
the case might have fallen into the worker’s compensation arena. Defendants might have enjoyed the same
protection that other non-employer entities enjoy when they share a duty with
the employer that is at the heart of the employee’s injury. To this end, the SCOV cites a number of cases
that analyze when and where the SCOV has extended workers’ compensation
immunity to third-parties whose liability really comes through the on-going
workplace duties of the employer.
Plaintiff’s cause of action against Defendants, though, is
different. His action is a personal
injury claim based on negligent design and reconstruction work performed in
2002. In other words, his cause of
action has nothing to do with the maintenance or his on-going employment
servicing these lines. It has everything
to do with the one-time event of the Switch’s initial installation and design
back in 2002.
And this is what drives Defendants nuts. If they had kept the substation, Plaintiff
would have been their employee, and workers’ compensation would have covered
them. Why should a sale change
things. As the SCOV notes this is a very
important change. By selling the assets,
Defendants left behind the connection to Plaintiff as an employee and lost that
right of immunity that workers’ compensation allows. This is the difference, and it is
substantial.
So due to the lack of immunity, Defendants are on the hook
to Plaintiff under the personal injury regime.
Since this was an interlocutory appeal, the decision resolves the
immunity issue, and the matter is returned to the trial court where there is
likely to be little dispute about the nature and amount of Plaintiff’s
injuries. Without immunity, Defendants
are likely to be on the hook for a shocking amount of damages.
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