Green Mountain Power Corp. v. Sprint Communications

Green Mountain Power Corp. v. Sprint Communications (2000-155); 172 Vt. 416;
779 A.2d 687

[Filed 17-Aug-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 00-155


Green Mountain Power Corporation	         Supreme Court

                                                 On Appeal from
     v.	                                         Public Service Board


Sprint Communications	                         May Term, 2001


Michael H. Dworkin, Chair

David John Mullett, Montpelier, for Appellant.

Harriet Ann King of King & King, Waitsfield, for Appellee.


PRESENT: Amestoy, C.J., Dooley, Morse and Skoglund, JJ., and Cohen, Supr. J., 
         Specially Assigned


       AMESTOY, C.J.  This appeal arises from a determination made by the
  Vermont Public  Service Board pursuant to an assertion of jurisdiction
  under 30 V.S.A. chapter 86, Underground  Utility Damage Prevention System. 
  Respondent Sprint appeals the summary judgment granted by  the Board in
  favor of petitioner Green Mountain Power (GMP), relieving GMP of liability
  for  causing damage to one of its fiber optic cables during an excavation. 
  Because we find that the  Legislature did not intend to confer authority on
  the Board to decide issues of common law  negligence arising from
  excavation activities undertaken pursuant to 30 V.S.A. chapter 86, we 
  reverse.

 

       GMP intended to excavate a site located in White River Junction. Under
  30 V.S.A. § 7004,  GMP was required to notify the utility companies and
  allow them forty-eight hours, weekends and  holidays excluded, to mark the
  presence of underground wiring at the site, if any. (FN)  As required  by
  Public Service Board Rule 3.800, on Thursday, September 5, 1996, GMP
  notified Dig Safe  System, Inc. of the proposed excavation.  By Monday
  morning, September 9, all parties except Sprint  had marked the site as
  required by 30 V.S.A. § 7006. (FN2)  Shortly after 8:00 a.m., the supervisor
  of  the excavation received a phone call that purported to be from a Sprint
  employee, authorizing GMP  to excavate.  Sometime between 8:15 and 8:25
  a.m., the excavator for GMP struck and damaged a  fiber optic cable owned
  by Sprint.  When Saturday and Sunday, September 7 and 8 are excluded, less 
  than 48 hours had elapsed between GMP's notice and the damage to the cable.

       GMP filed a petition with the Board requesting a declaratory ruling
  that it was not liable  under 30 V.S.A. chapter 86 for damage to Sprint's
  fiber optic cable caused by the excavation.  GMP  also requested that the
  Board declare that Sprint was subject to the civil penalty provided in 30 

 

  V.S.A. § 7008(b)-(c) for its failure to mark its underground facilities as
  required by 30 V.S.A.  § 7006. (FN3)

       Sprint and GMP filed cross motions for summary judgment.  The Public
  Service Board  issued its final order on February 23, 2000.  The Board
  denied GMP's motion that it impose a  penalty on Sprint finding that there
  was not an actual failure to fulfill its statutory requirements.  The 
  Board reasoned that since the 48 hours had not yet run, Sprint did not
  violate § 7008(c), regardless of  whether they would have been able to mark
  the site within that period.  The Board also held that  GMP had violated 30
  V.S.A. § 7004 by initiating the excavation before the 48-hour waiting
  period  required by the statute, and therefore imposed a civil penalty of
  $1,000 on GMP, as provided for in  30 V.S.A. § 7008 (a). 

       The Board also found that § 7008(a) did not create an independent
  basis of liability for  damages, nor establish a per se rule of strict
  liability, and held that, under common law negligence,  GMP was not liable
  for the damages.  The Board found that GMP had successfully shown that the 
  accident would have occurred even if the excavator had waited until the
  48-hour period had run out,  and that therefore GMP's failure to wait was
  not the proximate cause of Sprint's injury.  The Board  concluded that even
  if GMP's failure was a proximate cause, Sprint's failure was at least as
  great 

 

  as GMP's, which would preclude recovery by Sprint under Vermont's
  comparative  negligence law.  Sprint appeals the Board's decisions
  regarding GMP's liability.

       On appeal, Sprint contends that 30 V.S.A § 7008(a) imposes strict
  liability for money  damages where an excavator does not comply with the
  procedures set out in the statute.  Sprint  argues that GMP's failure to
  comply with the 48-hour waiting period as required by § 7004 resulted  in
  damages to Sprint's fiber optic cable, and therefore GMP is strictly liable
  for those damages.	
				

                                      I


       We begin by observing that both parties and the Board assumed that the
  statutory scheme  pursuant to which GMP's request for a declaratory
  judgment was filed provides the Board with the  jurisdiction to determine
  liability for damages based on common law theories of negligence.  Sprint's 
  motion for summary judgment claimed 30 V.S.A. § 7008 was evidence of "an
  unambiguous  legislative intent to vest all aspects of underground utility
  excavation regulation, including the award  of damages, in the Public
  Service Board and not the courts."  GMP did not contest the Board's 
  jurisdiction to act on Sprint's motion with respect to the issue of
  liability between Sprint and GMP,  but argued that sufficient material
  facts were in dispute to make an award of summary judgment to  Sprint
  inappropriate.  The Board asserted that "[t]he statute that controls here,
  30 V.S.A. § 7008,  clearly vests the Board with jurisdiction to decide this
  matter, including the determination of liability  for the damage to
  Sprint's cable, determination of the amount of damages to be paid by the
  party  found to be liable for that damage, and the imposition of civil
  penalties."  (Emphasis added). 

       Ordinarily, public service boards and commissions do not have the
  authority to rule on claims  for damages alleged to have been caused by
  negligence or breach of contractual obligations on the 

 

  part of corporations subject to their supervision.  See Trybulski v.
  Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 9, 20 A.2d 117, 121 (1941). 
  The Public Service Board "is a body  exercising special and statutory
  powers not according to the course of the common law, as to which  nothing
  will be presumed in favor of its jurisdiction."  Id. at 7, 20 A.2d  at 120. 
  The Board "has only  such powers as are expressly conferred upon it by the
  Legislature, together with such incidental  powers expressly granted or
  necessarily implied as are necessary to the full exercise of those 
  granted."  Id.

       The provision of the Underground Utility Damage Prevention System
  statute most directly  relied upon by the parties and the Board to address
  the claim of negligence is 30 V.S.A. § 7008(a):

    Any person who violates any provisions of sections 7004, 7006a, 
    7006b or 7007 of this title shall be subject to a civil penalty of
    up to  $1,000.00, in addition to any other remedies or penalties
    provided by  law or any liability for actual damages.	

       Both parties agree that § 7008(a) authorizes the Board to impose a
  civil penalty of up to  $1,000.  The conflict in the interpretation of the
  statute arises from the phrase "in addition to any  other remedies or
  penalties provided by law or any liability for actual damages."

       Sprint argues that the phrase sets forth two additional consequences
  which the violator may  face in addition to the civil penalty: 1) any other
  remedies or penalties provided by law; or 2) any  liability for actual
  damages. For Sprint, the use of the word "or" signifies a legislative
  intention to  create a separate category that imposes strict liability
  without regard to civil negligence standards.  Sprint claims that reading
  the statute as merely imposing a civil penalty would render some words 
  superfluous and therefore such reading is contrary to basic rules of
  statutory interpretation. Sprint  contends that, if there is no statutory
  assignment of liability, the phrase "in addition to any other  remedies or
  penalties provided by law" in subsection (a) should be sufficient to
  describe the possible 

 

  additional legal consequences of the accident to which the excavator is
  exposed, rendering  meaningless the words "or any liability for actual
  damages."  In addition, Sprint asserts that this  reading is more
  consistent with the overall preventive goals of the statute, because the
  maximum  penalty of $1,000 is "minuscule" given the nature of the entities
  involved, unless it is accompanied  by some other consequence over and
  above application of general tort law to the violator. 

       GMP counters that the contested phrase in § 7008(a) simply makes clear
  that the civil penalty  is not negated by other potential remedies,
  penalties or liabilities. GMP, however, does not take issue  with the
  Board's authority to determine the issue of negligence in assessing the
  respective liabilities  of the parties pursuant to § 7008(a). (FN4)

       Contrary to Sprint's contention, GMP's reading of the statute does not
  render part of it  superfluous.  Since the excavator can be penalized
  regardless of whether an accident takes place, the  sentence can be
  interpreted as imposing a penalty "in addition to any other remedies or
  penalties  provided by law [for violating this statute or some other
  ordinance regulating excavation procedures]  or any liability for actual
  damages [if damages do in fact occur]." The language of the statute is, 
  therefore, ambiguous, and both parties' interpretations of the statute are
  plausible.

       When interpreting a statute, our principal objective is to implement
  the legislative intent.   State v. Read, 165 Vt. 141, 147, 680 A.2d 944,
  948 (1996).  If, as in this case, the language is unclear  and ambiguous,
  legislative history may be used to determine the intent of the Legislature. 
  In re  Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999). We may
  also look at the legislative 

 

  policy that it was designed to implement.  Perry v. Medical Practice Board,
  169 Vt. 399, 406,  737 A.2d 900, 905 (1999).


                                     II

       The Underground Utility Damage Prevention System statute was enacted,
  in part, as a  response to the concern of utility companies regarding the
  increasing number of excavation accidents  in which underground utilities
  were affected.  These incidents were causing major interruptions in 
  services such as gas, electricity, telephone, and cable television; some of
  the accidents posed a  serious danger to excavators and to the public as
  well. 

       The main purpose of the bill (H.28), as introduced, was "to prevent
  damage to underground  utility facilities and to establish a procedure for
  when damage does occur."  H. 28. (1987 Vt., Bien.  Sess.).  At the time the
  bill was introduced, Vermont was one of the few states that did not have an 
  underground utility protection bill in place.  Some of the utility
  companies had joined the "dig safe"  system; however, participation was
  voluntary so neither excavators nor utility companies could rely  on it. 

       The Legislature held several hearings regarding H. 28.  All the major
  utility companies  supported the bill.  See, e.g., Underground Utility
  Damage Prevention System: Hearings on H. 28  Before the House Commerce
  Comm., (January 29, 1987, Vt. Bien. Sess. p. 43) (Statement of  Theresa
  Feeley); see also audio recording: Hearing on H. 28 Before the Senate
  General Affairs  Comm., April 16, 1987.  According to representatives of
  the utilities, the primary benefit expected  from the "dig safe" statute
  was the prevention of accidents, not the imposition of liability on 
  excavators.   Hearing, supra at 51-52 (Statement of Bert Cichetti).  To
  that effect, utilities were ready  to assume the burdens of maintaining the
  "dig safe" system, as long as contractors were required to 

 

  give notice every time they planned to excavate.  Id. at 55. 
  Significantly, several  representatives of utility companies testified that
  the recovery of damages was not the expected  outcome of the statute, from
  the utility companies' point of view, as repair costs are often minimal.  
  See audio recording, supra.  More important was the disruption caused by
  accidents, which can also  result in serious injury or death.  Id.  Their
  primary concern was thus to prevent them in the first  place. Id. 

       Discussions in the record indicate that legislators, utility companies
  lobbyists and contractors  all interpreted § 7008 (a) as imposing a civil
  penalty on the excavator for failure to use the "dig safe"  system,
  regardless of whether an accident actually occurred.  They did not consider
  the statute to  exclude other litigation under the usual rules of
  negligence.  Indeed, the sponsor of the bill explained  that if damage did
  occur, "that would be up to the court system."  Hearing, supra at 11
  (Statement of  Rep. Van Zandt).  Comments on the record also suggest that
  the statute would prevent litigation  through the prevention of accidents. 
  Nothing in the record suggests that the statute was intended to  empower
  the Public Service Board to supplant or supplement resort to the courts
  under traditional  theories of negligence.  See audio recording, supra. 
  Further, some suggestions during the hearings to  enact a simple statute
  imposing liability were rejected, because punishing violators only after an 
  accident occurs would defeat the preventive goals of the statute.  Hearing,
  supra at 67; see also audio  recording, supra.  

       Additional evidence that the Legislature intended the phrase "in
  addition to any other  remedies or penalties provided by law or any
  liability for actual damages" in § 7008(a) to be  construed to refer to the
  availability of existing remedies or penalties rather than to authorize the 
  Board jurisdiction to determine issues of negligence may be found in the
  record of the hearings.  The  record demonstrates that where the
  Legislature intended to impose strict liability under § 7008, it 

 

  chose different language.  Thus, an additional incentive to encourage
  excavators to rely on  the "dig safe" system, § 7008(c) provides that where
  a company has not marked its underground  facilities pursuant to the
  requirements of the statute, the company, in addition to its liability for
  a  civil penalty, "shall be liable for any damages incurred by the
  excavator as a result of the company's  failure to mark the facilities." 
  The companies were ready to assume this liability based on their  belief
  that freeing excavators from liability under § 7008(c) would promote the
  excavators' use of  the system.  Hearing, supra at 55; see also audio
  recording, supra.

       Although the bill underwent substantial changes between its original
  introduction and its  enactment, the section regarding penalties remained
  unchanged.  In addition, it is significant that two  of the sections
  providing for more serious legal consequences if the excavator did not
  comply with  the "dig safe" requirements were completely eliminated from
  the final version of the statute.  One  such section provided that lack of
  compliance with the statute "shall be prima facie evidence in any  court or
  administrative proceeding that the damage was caused by negligence of the
  excavator."  H.  28, § 7011 (1987 Vt., Bien. Sess.).  The other section
  gave jurisdiction to the Board to issue  injunctions or temporary
  restraining orders to prevent unsafe excavations.  Id. § 7013.  Their 
  elimination from the final bill suggests certain restraint regarding the
  extent of legal consequences  for violations as well as the scope of
  jurisdiction granted to the Board.

       The language of 30 V.S.A. § 7008(a) does not expressly confer upon the
  Vermont Public  Service Board the authority to determine liability for
  actual damages caused by a person in violation  of the applicable
  provisions of the Underground Utility Damage Prevention System.  Moreover,
  in  light of the extensive legislative history evincing a legislative
  intent not to grant such authority, the  Board's exercise of jurisdiction
  can be neither presumed nor implied. 

 

  The Board's Order of February 23, 2000 is reversed, except as to the
  imposition of a $1,000  penalty on Green Mountain Power Corporation for
  failure to give the requisite 48-hours notice  before commencing
  excavation.

       Reversed.




                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The statute reads:

    (a) No person or company shall engage in excavation activities, 
    except in an emergency, without first giving notice as required by 
    this section.
    (b) At least 48 hours, excluding Saturdays, Sundays and legal 
    holidays, but not more than 30 days before commencing excavation 
    activities, each person required to give notice of excavation 
    activities shall notify the system referred to in section 7002 of
    this  title.

  30 V.S.A. § 7004 (a)-(b).

FN2.  In pertinent part, 30 V.S.A. § 7006 requires that a company notified
  of excavation  activities "shall within 48 hours, exclusive of Saturdays,
  Sundays and legal holidays, of the receipt  of the notice, mark the
  approximate location of its underground utility facilities in the area of
  the  proposed excavation activities."
  

FN3.  Section 7008(c) reads:

    (c) If underground facilities are damaged because a company has
    not  marked them as required by section 7006 or 7006a, the company 
    shall be subject to a civil penalty as provided in subsection (b)
    of  this section and, in addition, shall be liable for any damages 
    incurred by the excavator as a result of the company's failure to 
    mark the facilities.

  30 V.S.A. § 7008(c).  The civil penalty in subsection (b) is $1000.  Id. §
  7008(b).
  
FN4.  Presumably, GMP's reluctance at oral argument to address questions
  relating to  ambiguity within § 7008(a) stemmed from its interest in
  protecting a Board determination  favorable to GMP on the issue of
  negligence.