Tucson Elec. Power Co. v. Swengel-Robbins Const. Co.

• Decision Date: 21 May 1987
• Docket Number: CA-CV,No. 2,SWENGEL-ROBBINS,2
• Parties: TUCSON ELECTRIC POWER COMPANY, Third-Party Plaintiff/Appellee, v.CONSTRUCTION CO., Third-Party Defendant/Appellant. 6001.
• Court: Arizona Court of Appeals

Page 1385

737 P.2d 1385

153 Ariz. 486

TUCSON ELECTRIC POWER COMPANY, Third-Party Plaintiff/Appellee, v. SWENGEL-ROBBINS CONSTRUCTION CO., Third-Party Defendant/Appellant.

No. 2 CA-CV 6001.

Court of Appeals of Arizona,

Division 2, Department B.

May 21, 1987.

[153 Ariz. 487] Kimble, Gothreau, Nelson & Cannon, P.C. by William Kimble and Stephen Kimble, Tucson, for third-party plaintiff/appellee.

Chandler, Tullar, Udall & Redhair by E. Hardy Smith, Tucson, for third-party defendant/appellant.

OPINION

LACAGNINA, Judge.

Swengel-Robbins Construction Company appeals from summary judgment granted in favor of Tucson Electric Power under the indemnity provisions of A.R.S. § 40-360.44(B), claiming that provision of the statute is unconstitutional because it may require Swengel-Robbins to indemnify TEP for its own negligence and because it violates the exclusive remedy provisions of the workers' compensation statutes. We affirm.

Vicki Lynn Zylks brought a wrongful death action as the surviving wife of Troy Adam Zylks, who was electrocuted while working as an employee of Swengel-Robbins when the boom of a crane operated by a co-employee came into contact with an energized overhead high voltage line while Zylks was in contact with the crane. Vicki brought the action against TEP and Marco Crane & Rigging Co., the manufacturer of the crane. TEP filed a third-party claim for indemnity pursuant to A.R.S. § 40-360.44(B), which provides as follows:

§ 40-360.44. Violation

A. A person or business entity or agent of the person or business entity who violates this article may be subject to a civil penalty in an amount not to exceed one thousand dollars to be imposed by the court in favor of the state to be deposited in the general fund.

B. If a violation of this article results in physical or electrical contact with any high voltage overhead line, the person or business entity violating this article is liable to the public utility operating the high voltage overhead line for all damages to the facilities and all costs and expenses, including damages to third persons, incurred by the public utility as a result of the contact.

It is undisputed that Swengel-Robbins violated both § 40-360.42 ¹ and § 40-360.43(A), the latter provision stating as follows:

§ 40-360.43. Activity in close proximity to lines; clearance arrangements; procedure; payment; notice

A. If any person or business entity desires to temporarily carry on any function, activity, work or operation in closer proximity to any high voltage overhead line than permitted by this article, the person or business entity responsible for performing the work shall promptly notify the public utility operating the high voltage overhead line. The person or business entity may perform the work only after satisfactorily mutual arrangements, including coordination of work and construction schedules, have been made between the public utility operating the lines and the person or business entity responsible for performing the work. Arrangements may include placement of temporary mechanical barriers to separate and prevent contact between material, equipment or persons and the high voltage overhead lines or temporary deenergization and grounding or temporary relocation or raising of the high voltage overhead lines.

Swengel-Robbins never notified TEP of its activity near the power line, and therefore, TEP did not make any arrangements to prevent the injury, such as the placement of temporary barriers, deenergization of the lines or temporary relocation of the lines.

Swengel-Robbins claims that the indemnity provisions of § 40-360.44(B) are unconstitutionally vague and fundamentally unfair to the extent that they may be construed to require Swengel-Robbins to indemnify TEP for TEP's own negligence even though it had no control over TEP's conduct. We note initially that these constitutional claims were raised only cursorily below in Swengel-Robbins' motion for reconsideration. Further, we find no constitutional infirmity in the statutory provision for indemnification where the person or business entity working adjacent to power lines has failed to give the requisite notice, even where the injury results in whole or in part from the utility's independent negligence. The statute represents a determination by the legislature that where work is being performed near power lines, the person or entity performing the work is in the best position to prevent injury--whether caused by its negligence or that of the utility--by giving notice so that appropriate protective measures may be taken. The imposition of liability for what is in effect Swengel-Robbins' own negligence in failing to give notice and thereby enabling TEP to take action to prevent injury is a reasonable legislative choice, and we find no constitutional violation. Swengel-Robbins' argument that the imposition of such liability is fundamentally unfair because it had no control over TEP's conduct misses the mark. Had it given the required notice and had TEP failed to take appropriate protective measures, no liability would have ensued and no obligation to indemnify would have arisen. Conversely, had notice been given and protective measures been taken, no injury would have occurred. Swengel-Robbins was not prevented by the statute from protecting itself. Given the unexcused violation of the statutes, see Monares v. Wilcoxson, 153 Ariz. 359, 736 P.2d 1171 (App.1987), we hold that the statutory language permitting recovery for ...