Freund v. Utah Power & Light
| Decision Date | 25 November 1985 |
| Docket Number | Civ. No. C-82-0747W,C-84-0400W. |
| Citation | 625 F. Supp. 272 |
| Parties | Donald J. FREUND, Plaintiff, v. UTAH POWER & LIGHT, a Utah corporation; and Cablemain, Inc., a Texas corporation; Jones Intercable, Inc., a Colorado corporation; Cable TV Fund VIII-B, a Colorado partnership, and John Doe 1 through John Doe 25, Inclusive, Defendants. UTAH POWER & LIGHT COMPANY, a Utah corporation, and Cablemain, Inc., a Texas corporation, Defendant and Third-Party Plaintiff, v. JONES INTERCABLE, INC., CP National Corporation, Cable TV Fund VIII-B, Konocti TV, Inc., and Alexander and Alexander, Third-Party Defendants. Argonaut Insurance Company, Plaintiff in Intervention. UTAH POWER & LIGHT COMPANY, Plaintiff, v. CP NATIONAL CORP., et al., Defendants. |
| Court | U.S. District Court — District of Utah |
Ralph W. Bastian, Jr., San Francisco, Cal., Jackson Howard, D. David Lambert, Provo, Utah, for Donald J. Freund.
Stephen B. Nebeker, Anthony B. Quinn, Jeffrey D. Eisenberg, Robert Gordon, David A. Westerby, Salt Lake City, Utah, for Utah Power & Light Co.
Scott W. Christensen, Salt Lake City, Utah, for Home Ins. Co.
Allan L. Larson, Salt Lake City, Utah, for Cablemain, Inc.
Glenn C. Hanni, Paul M. Belnap, Gary A. Dodge, Salt Lake City, Utah, for Jones Intercable, Cable Fund and Konocti.
Robert A. Aune, San Francisco, Cal., for Argonaut Ins.
Robert W. Brandt, Robert G. Gilchrist, Salt Lake City, Utah, for CP Nat.
Donald J. Purser, Salt Lake City, Utah, for Fireman's Fund.
Dale J. Lambert, Salt Lake City, Utah, for Alexander & Alexander.
This matter is before the court on opposing motions for summary judgment filed by Utah Power and Light, Jones Intercable, Inc., et al, and by CP National. In addition, a motion to dismiss was filed by defendant Home Insurance Company. Oral argument was made to the court on October 18, 1985. D. David Lambert, Ralph W. Bastian, Jr. and Robert E. Aune were present on behalf of plaintiff Freund. Robert W. Brandt and Michael P. Zaccheo appeared on behalf of defendant C.P. National. Glenn C. Hanni and Mark Taylor were present representing Jones Intercable, Konocti TV, Inc. and Cable TV Fund VIII-B. Stephen B. Nebeker, Anthony B. Quinn, Jeffery Eisenberg and David Westerby appeared on behalf of Utah Power and Light. Allan L. Larson and Jerry D. Fenn appeared on behalf of Cablemain Inc., while Scott W. Christensen appeared on behalf of Home Insurance. Gary Dodge was present representing Jones Intercable and Dale Lambert appeared on behalf of Alexander and Alexander. The court took the motions under advisement and has read carefully the various memoranda filed by the parties as well as pertinent sources cited therein. Being fully advised, the court now renders the following decision and order.
This lawsuit arises out of an accident on October 11, 1981, in which the plaintiff, Donald R. Freund, was injured when he came in contact with an electrical power line. When injured, Freund was splicing amplifiers into cable previously hung by Cablemain on utility poles owned by Utah Power & Light. Freund was working at the time of the accident for Jones and Fund VIII-B in the construction of a cable TV system in Washington City, Utah.
Mr. Freund has brought suit against Cablemain and Utah Power & Light. Utah Power and Light, in turn, has asserted claims against Jones Intercable based upon a written agreement between the parties known as the Facilities Attachment Agreement (hereinafter referred to as "FAA"). The FAA was originally negotiated between the predecessors-in-interest of Utah Power & Light and Jones Intercable, CP National and Summit Communications, respectively. Under the terms of the FAA, the cable TV companies may attach cables to utility poles provided they agree to indemnify the utility company for injuries which result from their activities and obtain liability insurance for the utility's benefit.
The present motions raise a number of issues. Cablemain's motion for summary judgment involves the issue of whether Jones, Fund VIII-B and Konocti were employers of Freund within the meaning of the Utah workmen's compensation laws and whether they may be liable to Cablemain based on the theory of implied common law indemnity. Both Utah Power & Light and CP National in their motions claim that under the terms of the FAA they are entitled to complete indemnity from Jones with respect to Fruend's personal injury claim. Utah Power & Light, in the alternative, claims that if it is found liable, it is entitled to recover an amount up to $500,000 based on Jones' alleged breach of the FAA agreement to provide liability insurance. Jones, in its motion, seeks a determination that it was the employer of Freund and as such is not liable to any party in the suit based on claims arising from either implied or express indemnity provisions. It maintains that workmen's compensation is the exclusive remedy here. After reviewing the record, and listening to the arguments, the court finds that there are no genuine issues of material fact so as to preclude the granting of summary judgment pursuant to Fed.Rule Civ.Pro. 56.
Cablemain contends that the record reveals a factual question regarding Freund's employer at the time of the accident. Cablemain asserts that it is possible that Freund was employed by Konocti as opposed to Jones. The contradictory testimony of Ronald Schmitt in his two depositions provides the basis for Cablemain's argument.
The court after reviewing the record, however, finds the facts regarding Freund's employments are clear. Jones is a Colorado corporation, qualified to do business in Utah. Fund VIII-B is a limited partnership, whose general and managing partner is Jones. Konocti is a California corporation and a subsidiary of Jones. The record shows that Jones, as part of its management style, groups all its employees together in one system under its direct control rather than having its subsidiary or limited partner hire individually. Because of this organizational style, Jones moves its experienced employees from one system to another to perform technical tasks associated with the cable TV business. Cable Fund VIII-B and Konocti have no employees but reimburse Jones for the use of its employees. In the present case, Freund worked at the Konocti location but was transferred by the Jones' management team to St. George to install components along the newly strung Fund VIII-B system cable.
The facts reveal that Freund was employed by and controlled by Jones during the time relevant to this action. That is evidenced among other things by the payroll checks and time sheets.1 It is also clear that Freund was working on the Fund VIII system at the time he was injured. There is no evidence that Konocti was in any way involved in the circumstances giving rise to this law suit. In the alternative, if Konocti was involved, it was as Freund's employer. Utah law recognizes that there may be multiple employers of an employee and all may be entitled to the workmen's compensation defense. Bambrough v. Bethers, 552 P.2d 1286 (Utah 1976). The court finds that Jones, Fund VIII-B and Konocti are statutory employers of Freund and are therefore entitled to claim the exclusive remedy provisions of the workmen's compensation law.
Cablemain urges the court to find that an implied agreement to indemnify exists between Jones and Cablemain. Cablemain contends that Jones or Cable Fund VIII-B directed Cablemain to install the cable and assured Cablemain that various problems relating to the cables' proximity to the powerline would be rectified promptly. Those assurances and directions form the basis for Cablemain's implied indemnity claim.
The Utah Supreme Court has not yet ruled on whether an agreement or promise to indemnify might be implied in certain circumstances thereby avoiding the exclusive remedy provision of the Workmen's Compensation Act. See Shell Oil Company v. Brinkerhoff Signal Drilling Company, 658 P.2d 1187, 1191 n. 3 (Utah 1983). Cablemain argues that the Tenth Circuit Court of Appeals applying Utah law in Barr v. Brezina Construction Co., 464 F.2d 1141 (10th Cir.1972) cert. denied, Brezina Construction Co. v. U.S., 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973), suggested that an implied promise to indemnify could have been found in that case under different facts.
At this point in time, however, the Utah Supreme Court has not concluded that an implied indemnity agreement may exist in spite of the exclusiveness of Workmen's Compensation. Until the State court rules conclusively on this issue, this court will not second guess its conclusion. Cf. Bertoch v. Marriott Corporation, No. C82-6029 (Dist.Ct., Utah, March 13, 1984). Moreover, the Utah court has considered and rejected any constitutional challenge to the exclusive remedy provision. Morrill v. J & M Construction Co., 635 P.2d 88 (Utah 1981). Cablemain's motion for summary judgment on the issue of common law indemnity is therefore denied.
CP National, Utah Power & Light and Cablemain claim Jones, Fund VIII-B, and Konocti breached the terms of the Facilities Attachment Agreement (hereinafter referred to as "FAA"). They premise their claims on the assertion that the Jones companies ("Jones") assumed the FAA obligations of Summit Communications to CP National and its assignee, Utah Power & Light. Jones has asserted that it did not assume the obligations of the FAA when it entered into the Purchase and Sale Agreement with Summit Communications.
For purposes of this motion only and in order to decide the legal significance of various controverted portions of the FAA, the court will ignore the factual issue and will assume that the FAA is enforceable between Utah Power & Light and Jones.
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