June 23, 2018
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Justices say Penobscot boatyard to repay CMP $6 million in damages it paid injured worker

By Judy Harrison, BDN Staff

PORTLAND, Maine — The Maine Supreme Judicial Court’s reversal Tuesday of a lower court’s decision could force a Penobscot boatyard to reimburse Central Maine Power Co. the more than $6 million it paid in damages and interest to a former boatyard employee.

The justices unanimously vacated a ruling of the Business and Consumer Court that said Devereux Marine Inc. was required to contribute to the amount of damages paid out by CMP but did not have to reimburse fully the utility. The state’s high court found that state law requires “full indemnification.”

Barry Mills, the Ellsworth attorney representing the boatyard and its owners, criticized the decision Friday in an email response for comment on the ruling from the Bangor Daily News.

“Under the provisions of this statute as interpreted by our Law Court, small-business owners who have minuscule fault are made liable for injuries caused by a utility company’s overwhelming negligence,” Mills said. “In the previous case the trial court found that CMP had operated for many years in total disregard of public safety laws and regulations and in ignorance of the content of its own safety manuals. As a result, a young man had been terribly and permanently injured.”

John Carroll, spokesman for CMP, which is a subsidiary of Iberdrola USA, called the court’s decision “good news for all employees whose jobs cause them to have to work close to high-voltage power lines.

“Employers have the last and best clear chance to prevent high-voltage electric contact injuries to their employees,” he said. “Maine’s High-Voltage Safety Act and now this decision make it clear that if an employer allows or causes an employee to come close to a high-voltage power line without first contacting CMP to ensure that it can be done safely, then that employer is responsible for all costs that the electric utility incurs, including the costs of paying for the injuries, lost wages and medical expenses incurred by injured employees.”

That statute, passed by the Legislature in 1995 without debate, requires that businesses such as Devereux Marine give the owner of the power line at least 72 hours before “commencing any activity that would bring a person, tool, or other material used by a person within 10 feet of an overhead high-voltage line,” Superior Court Justice Leigh I. Saufley wrote for the court in its 21-page opinion. “Upon notification, the business that intends to conduct the prohibited work or activity and the owner or operator of the line must negotiate ‘promptly and in good faith’ to make precautionary safety arrangements to accommodate the work.”

The boatyard did not contact CMP before work to remove the mast began, Saufley wrote.

“It is not unreasonable for the Legislature to have determined that the financial burden of compensating injured parties should be borne by the entity that causes work or other activities to be undertaken in violation of the proximity and notification provisions of the act rather than a negligent line owner, who cannot be physically present where all lines exist and for whom fiscal responsibility could result in passing costs along to ratepayers,” the chief justice wrote.

The case stemmed from an Oct. 31, 2002, accident at the boatyard that left Bryan Smith, then 18, with permanent injuries. Smith, of Bangor, was injured when the mast he was lowering from a customer’s sailboat came into contact with an overhead 34,500-volt power line owned by CMP, according to previously published reports.

Smith received workers’ compensation benefits through Devereux and sued CMP for negligence in July 2007 in Penobscot County Superior Court. A jury-waived trial was held a year later and in November 2008, Superior Court Justice Michaela Murphy awarded $4.89 million — $3 million in damages for loss of enjoyment of life, pain and suffering, more than $1.1 million in lost earnings, and $783,000 for past and future medical and rehabilitation expenses.

“The accident was caused by the fact that this 35-foot, 4-inch mast, with its butt end held three feet off the ground at an angle of less than 90 degrees, hit a power line that was set at 30 feet, and not at 45.5 feet, as required by law,” the justice concluded.

The Maine Supreme Judicial Court upheld Murphy’s decision Feb. 9, 2010. A week later, CMP paid the judgment, which, including interest, totaled more than $6 million.

A short time later, CMP filed a complaint against Devereux Marine and a motion to attach a lien to real estate owned by the business, according to the supreme court’s ruling. Superior Court Justice Thomas Humphrey denied the motion to attach after a hearing, in part, because he found it unlikely that CMP would be able to recover the full amount it had paid in damages to Smith from Devereux Marine.

CMP appealed Humphrey’s decision to the state supreme court, which heard oral arguments last May.

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