Premier Parks, Inc. v. Baltimore Gas & Elec. Co.
| Decision Date | 18 February 1999 |
| Docket Number | Civil No. AMD 97-740. |
| Citation | 37 F.Supp.2d 732 |
| Parties | PREMIER PARKS, INC., Plaintiff, v. BALTIMORE GAS & ELECTRIC CO., et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Adam Jason Sevel, Baltimore, Steven L. Smith, Cozen & O'Connor, Philadelphia, PA, for plaintiff.
Baltimore Gas & Electric Company, Laurie R. Bortz, Baltimore, Driggs Corporation, Ileen M. Ticer, Ticer & Associates, Hunt Valley, Driggs Corporation, Gerard J. Emig, Gleason, Flynn & Emig, Rockville, MD, for defendants.
This is a negligence action arising under Maryland law, which is here based on diversity of citizenship jurisdiction. Plaintiff Premier Parks, Inc. ("Premier") is an Oklahoma corporation that operates an amusement park in Maryland. The defendants are Baltimore Gas & Electric Co. ("BGE"), a public utility, the Driggs Corporation ("Driggs"), a Virginia construction company, and John W. McDonald, Jr., an individual who operates a trucking company as a sole proprietorship. Pending before the court are motions for summary judgment filed by BGE and Driggs in respect to Premier's second amended complaint and BGE's motion for summary judgment as to Driggs' cross claim for indemnity/contribution. No hearing is necessary. For the reasons set forth below, BGE's motions shall be granted and Driggs' motion shall be denied.
Premier operates Adventure World amusement park in Prince George's County. Allegedly as a result of the occurrence described below, the amusement park lost electric power and had to cease operations for a significant portion of the day on August 12, 1995.
Driggs was conducting a road-widening project near the park for the State of Maryland. In connection with the work, much of it performed at night, Driggs used concrete barriers to redirect traffic and to close off portions of the road where it was working. The barriers were kept at a nearby storage facility until they were needed. Driggs hired equipment rental companies to transport the barriers to and from the work site. Drivers from the J.W. McDonald Company (using McDonald Co. trucks) were transporting barriers on the night of the occurrence.
The truck drivers were instructed by Driggs personnel to pick up the barriers at the storage facility and then to deliver them to the work site. At the work site, Driggs set up an unloading area. As a McDonald driver was departing the unloading area to return to the storage facility to retrieve additional barriers, the truck struck and severed a guy wire connected to a BGE utility pole. The guy wire recoiled and contacted live overhead electrical wires, causing a power outage in the area.
The nighttime accident caused a power outage at Premier's facility, and allegedly also caused damage to the park's electrical equipment. Although BGE workers restored power promptly on the night of the outage, a second outage occurred at the park on the afternoon of the next day. As a result of the second outage and its duration (about four hours), during which some patrons were trapped on amusement rides, the entire park had to be closed. Premier alleges that it suffered economic losses in excess of $300,000 in consequence of the second power outage.
Premier has sued in four counts. Count I alleges common law negligence against Driggs and McDonald for their acts and omissions in causing the original disruption and the consequential damages (including the subsequent outage) allegedly arising therefrom. Count II alleges common law negligence against BGE in a number of particulars, including but not limited to the placement and maintenance of equipment; negligent inspection and repairs and related theories. Count III alleges breach of contract/breach of warranty against BGE. Count IV purports to allege an equal protection claim against BGE. The theory seems to be that BGE's state law immunity for its mere negligence in failing to provide service (as described infra) deprives Premier of substantially equal treatment (in terms of its ability to recover against a public utility for ordinary negligence) accorded similarly situated consumers of utility services in other areas of the state, and that such deprivation occurs "under color of law."
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).
While denying that it breached any duty of care in any respect, BGE posits that as to either a tort or contract/warranty theory, Premier's evidence amounts at most to a showing of simple negligence. Thus, it seeks summary judgment on the ground that its Electric Service Tariff ("Tariff") immunizes it from liability under the facts of this case. Section 2.5 of the Tariff, as approved by the Maryland Public Service Commission ("PSC"), states as follows:
[BGE] is not liable for any loss, cost, damage or expense to any Customer occasioned by any failure to supply electricity according to the terms of the contract or by any interruption or reversal of the supply of electricity, if such failure, interruption or reversal is due to storm, lightning, fire, flood, drought, strike, or any cause beyond the control of [BGE], or any cause except willful default or neglect on its part.(emphasis added).
The Tariff is a part of every contract for electric service entered into with BGE. Such provisions commonly appear in the tariffs of utility companies nationwide. The instant Tariff provision has been consistently approved by the PSC. See Singer Co., Link Simulation Systems Div. v. Baltimore Gas and Electric Co., 79 Md.App. 461, 477-80, 558 A.2d 419 (1989); In Re Liability of Electric Power Companies for Injury or Damages Resulting from Problems in the Delivery of Electric Power, 82 Md. P.S.C. 92 (1991).
Premier argues that the phrase "willful default or neglect" is ambiguous as a matter of law, and therefore the question of its meaning and proper application must be submitted to the fact finder as would any ambiguous contractual term. BGE contends, however, that the proper interpretation of the disputed Tariff provision has already been resolved as a matter of Maryland law. BGE is correct.
The Maryland Court of Special Appeals construed the disputed phrase in Singer Co., applying settled rules of statutory construction. 79 Md.App. at 477-80, 558 A.2d 419. The court recognized the inherent ambiguity in having the adjective "willful" precede the words "default or neglect." Id. at 478, 558 A.2d 419. The court examined the intent and purpose of the Tariff. Id. The court recognized that the purpose of the Tariff was to further the public policy goal of maintaining reasonable utility rates. Thus, an interpretation of the phrase as urged by Premier here — that the word "willful" modified only the word "default" and not the word "neglect" — would result in BGE being held liable for power interruptions resulting from its ordinary negligence. The court rejected this interpretation because it would undermine the goal of maintaining utility rates at reasonable levels and was thus contrary to common sense. Id. at 479, 558 A.2d 419, citing, inter alia, Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 417, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959); Western Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 571, 41 S.Ct. 584, 65 L.Ed. 1094 (1921).
Thus, the court held as follows, as to claims based on both negligence and breach of contract theories: "[W]e construe Section 2.5 as limiting BGE's liability to those instances where it is sufficiently established that a power interruption was due to the utility company's `willful default' or `willful neglect.'" 79 Md.App. at 479, 558 A.2d 419. Based upon the ordinary meaning of the words employed, the court held that the phrase "willful default" means an "intentional omission or failure to perform a legal or contractual duty." Id. Similarly, the court interpreted the term "willful neglect" to mean an "intentional, conscious, or known...
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