Indemnity denied where contractor did not assume responsibility for workers’ safety and did not create the dangerous condition.

Hemond v. Frontier Communications of America, Inc. 2015 VT 66 (Hemond II)

REIBER, C.J. This case involves an indemnity dispute between two defendants in a suit arising after plaintiff suffered a tragic electrocution injury while working on an electrical switch. Defendant Frontier Communications of America, Inc., who owned the electrical equipment on which the accident took place, claimed implied indemnity from Navigant Consulting Group, Inc., a contractor. Navigant cross-claimed for indemnification from Frontier based on express statements in the parties' contract. The court granted summary judgment to Navigant on Frontier's claim for implied indemnification. Frontier appeals, arguing that the court erred in concluding that the undisputed facts demonstrated that Frontier failed to meet the requirements for implied indemnification.. We affirm.

Usually an obligation too indemnity arises only when the party seeking indemnity is vicariously or secondarily liable to the third person because of a legal relationship with the third person or because of the party's failure to discover a dangerous condition caused by the indemnifying party, "who is primarily responsible for the condition.” Frontier alleged that it was entitled to implied indemnification because it claimed that Navigant was responsible for advising on the suitability of the electrical system and its negligence in failing to advise against use of Switch 14E caused the dangerous condition. Even if Frontier's version of these facts is accepted, no obligation to indemnify arises here because Frontier has failed to show that its liability to plaintiffs was simply vicarious or secondary, or that it was not primarily responsible for the condition which caused the accident.

Frontier would have to show that as between Navigant and Frontier, it was Navigant's duty to keep the work environment safe or that Navigant's misconduct created the dangerous condition. The undisputed facts support neither scenario. Frontier had a nondelegable duty to design a safe environment for foreseeable workers in the substation. See Knisely, 171 Vt. at 647, 769 A.2d at 9 (concluding hospital not entitled to indemnification from contractor where it had a nondelegable duty to provide safe work environment and violation of duty was not primary fault of contractor). Frontier submitted no facts to demonstrate that Navigant assumed this responsibility. Navigant was a consultant to assist in obtaining a certificate of public good (CPG).The scope of the parties' contract was limited to the reliability of the system for purposes of obtaining a CPG; it did not mention safety.

Nor has Frontier shown that Navigant was primarily responsible for creating the dangerous condition. Even if as part of its contracted work to assist in obtaining a CPG Navigant was negligent in its reliability assessment, its negligence did not create the dangerous condition that caused the injury. Any failure on Navigant's part to identify that Switch 14E threatened system reliability did not primarily create the condition that caused plaintiffs' injury.

Frontier further argues that there exists a question of fact to determine if it had an "active part" in causing plaintiffs' injury. According to Frontier, indemnity is precluded when the indemnitee knows of a hazardous condition and fails to address it, but not when an indemnitee should have known of the hazard but fails to discover it. Frontier misses the point. Frontier failed to demonstrate that its liability was for a dangerous condition created by Navigant's acts. It was Frontier's own independent acts that created the dangerous condition. The parties agree in their statement of facts that Frontier chose the switch, and installed the switches. Navigant's negligence, if any, was in failing to advise that the reliability of the system was reduced by use of Switch 14E. The undisputed facts fail to show that it was primarily Navigant's acts which created the dangerous condition.