Opinion
No. ED88123
May 9, 2007
Appeal From Circuit Court of the City of St. Louis, Hon. Philip D. Heagney.
Thomas Buckley, Adrian Sulser, Edward Kay and Melinda Kollross Counsel for Appellant.
James Virtel and Cynthia Petracek Counsel for Respondent.
REVERSED AND REMANDED FOR A NEW TRIAL. Norton, P.J., and Mooney, J., concur.
Opinion
This is an Overhead Power Line Safety Act (OPLSA) case. The Metropolitan St. Louis Sewer District (MSD) appeals the jury verdict below, which assessed 75% fault to MSD on Ameren/UE's Section 319.085 claim. We reverse and remand for a new trial.
The OPLSA comprises Sections 319.075 to 319.090 (all statutory references are to RSMo (1999)). Only twice has this Act come before the Missouri courts:State ex rel. Safety Roofing Systems, Inc. v. Crawford, 86 S.W.3d 488 (Mo.App.S.D. 2002); and Crow v. Kansas City Power Light Co., 174 S.W.3d 523 (Mo.App.W.D. 2005), both cases which were decided prior to the trial of this case.
OPLSA
Three OPLSA provisions are relevant to this case. First, Section 319.080 prohibits activities within ten feet of power lines unless certain precautions have been made:
Unless danger against contact with high voltage overhead lines has been guarded against as provided by section 319.083, no person, individually or through an agent or employee, shall store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies or materials or any other device that conducts electricity, within ten feet of any high voltage overhead line, or perform or require any other person to perform any function or activity upon any land, building, highway or other premises, if at any time during the performance thereof it could reasonably be expected that the person performing the function or activity could move or be placed within ten feet of any high voltage overhead line.
Second, Section 319.083 creates a duty to inform the public utility of work to be done near power lines, and to pay for required safety precautions:
1. When any person desires to temporarily carry out any function or activity in closer proximity to any high voltage overhead line than is permitted by sections 319.075 to 319.090, the person or persons responsible for the function or activity shall notify the public utility which owns or operates the high voltage overhead line of the function or activity, and shall make appropriate arrangements with the public utility for temporary mechanical barriers, temporary deenergization and grounding of the conductors, temporary rerouting of electric current or temporary relocating of the conductors, before proceeding with any function or activity which would impair the clearances required by sections 319.075 to 319.090.
2. A person requesting a public utility to provide temporary clearances or other safety precautions shall be responsible for payment of those costs incurred by such utility in the temporary rerouting of electric current or the temporary relocating of the conductors. Upon request, a public utility shall provide a written cost estimate for the work needed to provide temporary clearances or other safety precautions. A public utility is not required to provide such clearances or other safety precautions until payment of the estimated amount has been made. Unless otherwise agreed to, a public utility shall commence work on such clearances or other safety precautions within seven working days after payment has been made.
Finally, Section 319.085 gives the public utility a right of contribution against a party that violates the above provisions:
If a violation of any of the provisions of sections 319.075 to 319.090 results in physical or electrical contact with any high voltage overhead line such violation shall be a rebuttable presumption of negligence on the part of the violator in the event such violation shall cause injury, loss or damage, and, notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator. In addition to any penalties provided herein, liability under common law may apply.
FACTS
The incident that brought this case to this Court occurred on 27 December 1999. MSD hired Mulligan Construction (Mulligan) to construct a drainage ditch and replace a sewer line in St. Louis County. Anthony Page (Page), a Mulligan employee, worked on this project as a labor foreman. Page worked in the drainage ditch, releasing concrete from a bucket. The bucket was attached to a crane with a cable. The crane operator, also a Mulligan employee, maneuvered the bucket into the ditch; Page grabbed the bucket and emptied the concrete into the ditch. All of this was done near one of Ameren/UE's 34.5kV overhead power lines. On 27 December 1999, the cable and bucket became energized with electricity from this overhead power line, and Page sustained a severe electric shock. Page's arms and left leg were burned, and later amputated.
The term "high voltage," defined in Section 319.078, provides perspective on this amount of electricity. "High voltage" is "electric potential in excess of six hundred volts measured between conductors or between a conductor and the ground?" Generally, two 120-volt lines provide electricity to a household. Tr. 358-59. An Ameren/UE employee testified that the voltage driving the electricity that shocked Mr. Page comprised 19,900 volts. Tr. 360.
Page and his wife, Donna, who brought a loss of consortium claim, sued the crane manufacturer, Ameren/UE, and MSD. Ameren/UE filed a cross-claim against MSD, and a third-party petition against Mulligan, in which it alleged an OPLSA violation. The Pages then filed an amended petition against MSD and its employees, and Ameren/UE filed an amended cross-claim against MSD and its employees, under OPLSA, and for common law contribution.
The record reflects that the Pages settled with the crane company for $3,000,000; with MSD and its employees for $6,000,000; and with Ameren/UE for $6,000,000. As part of its settlement with the Pages, Ameren/UE agreed to pay the Pages 17% of any recovery obtained from MSD on the amended cross-claim. With regard to Ameren/UE's OPLSA claim against Mulligan, Mulligan settled with Ameren/UE for $1,500,000, which Ameren/UE paid to the Pages.
Ameren/UE sought contribution pursuant to Section 319.085 of the OPLSA, dismissing its common law contribution claim. Ameren/UE's claim was tried to a jury, which returned a verdict assessing 25% fault to Ameren/UE and 75% to MSD. MSD was ordered to pay Ameren/UE $4,500,000. MSD appeals.
POINTS ON APPEAL
MSD raises four points on appeal.
First, MSD argues that the Circuit Court erred when it denied its Motion for Judgment Notwithstanding the Verdict, because it is not a "person" under Section 319.078(4). MSD claims it hired Mulligan, an independent contractor, to perform work near power lines, but did not "perform or contract to perform" this work itself — and is thus not liable for contribution under Section 319.085.
In Section 319.078(4), "person" is defined as: "an individual, firm, joint venture, partnership, corporation, association, municipality, or governmental unit which performs or contracts to perform any function or activity upon any land, building, highway or other premises in proximity to an overhead line?"
Next, MSD argues that the Circuit Court erred when it denied its Motion for Judgment Notwithstanding the Verdict, because Ameren/UE failed to make a submissible case under Section 319.085. MSD claims Ameren/UE's OPLSA claim is subject to the following common law doctrines, which the Circuit Court should have applied, and which defeat Ameren/UE's claim: 1) under the settlor-barred doctrine, Ameren/UE was required to discharge MSD's liability in its settlement with the Pages before seeking contribution from the Pages; 2) Ameren/UE was required to prove that it paid more than its share of a common obligation to the Pages; and 3) under Section 537.060, MSD's settlement with the Pages discharged MSD from contribution liability. MSD claims the Circuit Court erred when it found that the language "notwithstanding any other law to the contrary" in Section 319.085 trumps all other laws that adversely affect Ameren/UE's contribution right — including the above three doctrines. According to MSD, this language overrides laws that negate the right of contribution, but does not override the above doctrines, which merely limit or set parameters for a Section 319.085 claim.
In its next argument, MSD argues that the Circuit Court erred when it refused to reduce the amount of the verdict in accordance with the damages cap set forth in Section 537.610.2. In support of this argument, MSD relies on the above interpretation of the language "notwithstanding any other law to the contrary."
Section 537.610.2 states:
The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed two million dollars for all claims arising out of a single accident or occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo.
Fourth and finally, MSD argues that the Circuit Court erred when it permitted Dr. Douglas Gransberg, a civil engineer, to testify about the meaning of the contract between MSD and Mulligan. MSD asserts that contract construction is a matter of law, and therefore not a proper subject for expert testimony.
DISCUSSION
The admission or exclusion of evidence, especially expert evidence, is a matter of trial court discretion.Twin Chimneys Homeowners Ass'n v. J.E. Jones Const. Co., 168 S.W.3d 488, 504 (Mo.App.E.D. 2005). We review for a manifest abuse of discretion. Id. A ruling within the trial court's discretion is presumed correct and the appellant bears the burden of showing the trial court abused its discretion and that they have been prejudiced by the abuse. Id. Judicial discretion is abused when the Court's judgment is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice, and indicates a lack of careful consideration. Boyer v. Sinclair Rush, Inc., 67 S.W.3d 627, 634 (Mo.App.E.D. 2002).
At trial, counsel for Ameren/UE repeatedly asked Dr. Douglas Gransberg to interpret the MSD-Mulligan construction contract. Dr. Gransberg is not and never was an employee of MSD, Mulligan, or Ameren/UE, and had no personal involvement with the making or execution of this contract. The transcript contains 29 pages of testimony, wherein Ameren/UE's counsel repeatedly asked Dr. Gransberg his opinion regarding the meaning of numerous contract provisions, and this opinion was given. Dr. Gransberg was permitted to testify not only about what the contract language said, but also about what the contract language meant. This testimony was improper.
When a contract is unambiguous, the parties' intent may be determined from the contract alone, and it is the duty of the Court — not the jury — to state its meaning. Peterson v. Continental Boiler Works, Inc., 783 S.W.2d 896, 901 (Mo. banc 1990) (internal citations omitted). In other words, when the parties' intent is clearly and unambiguously expressed, there is no need for the Court to construe the contract. Id. The Court may only resort to extrinsic evidence when required to resolve an ambiguity in the contract. Id.
The parties did not ask the Circuit Court to find that the Mulligan-MSD contract was ambiguous, and thus we assume they did not believe it to be so — nor did the Circuit Court make any finding of ambiguity. When a contract is unambiguous, we assume a jury will apply common sense to common words? expert" explanation is unnecessary and unwarranted. Dr. Gransberg was permitted to mislead the jury by construing a contract that in the first instance was a matter of law for the Court, and in the second instance was a matter of fact for the jury.
Ameren/UE insists that MSD "opened the door" to this testimony when it questioned witness Dillman on the same issue. However, MSD's attorney only questioned Dillman on cross-examination in response to direct examination by Ameren/UE's counsel, adverse though it was. Dr. Gransberg, however, testified, over objection, to thelegal meaning of the terms of the MSD-Mulligan contract. Ameren/UE's direct examination of this witness was a blatant attempt to mislead the jury. The Circuit Court abused its discretion and invaded the province of the jury when it admitted this testimony into evidence.
We note that Dr. Gransberg's degrees are in civil engineering, and not law.
We are not unmindful of Section 490.065, and State Bd. Of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003).
We find that, due to this gross evidentiary error, this case must be re-tried. Because of an inadequate record, we do not address MSD's remaining points for the purposes of re-trial; the trial court can re-visit these issues. However, we note that, on the facts before us, MSD could be considered a "person" under Section 319.078(4) — if — Ameren/UE proved that MSD had control over Mulligan, and if MSD submitted control to the jury under MAI 13.06. The control relationship is suitably described in Madsen v. Lawrence: "[a] master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service." Madsen v. Lawrence, 366 S.W.2d 413, 415 (Mo. 1963) (internal citations omitted). "A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or subject to the right of control by the master." Id.
1996 (5th ed).
The transcript is replete with testimony — from both sides — to support the existence and non-existence of control over Mulligan's use of method and equipment. In fact, Ameren/UE recognized that control was an essential aspect of this case: it put forth extensive testimony regarding MSD's control over Mulligan. As we said previously, when "control" is an issue — that is, when it is contested whether a party is an agent/servant — MAI 13.06 should be given. Jefferson County Bank Trust Co. v. Dennis, 523 S.W.2d 165, 168 (Mo.App. 1975). Yet, Ameren/UE failed to offer any kind of agency instruction to the jury. This is fundamental error.
It is important to note that, under the above interpretation of the definition of "person," homeowners and business owners would not be unnecessarily implicated — these parties would only be subject to liability under the OPLSA if an agency relationship could be shown — that is, if the homeowner or business owner "controlled or had the right to control the physical conduct" of the worker. MAI 13.06. In many cases, the homeowner or business owner hires a party to perform work, but does not have the specialized knowledge and experience to "control" this work — hence the need to hire another party to perform this work.
We additionally note that the verdict director submitted by Ameren/UE failed to comply in any respect to the dictates of the OPLSA. In State ex rel. Safety Roofing Systems, Inc. v. Crawford, the Court instructed us that Section 319.083 creates two duties — to notify, and to pay if the electric current is rerouted or conductors are relocated. Crawford, 86 S.W.3d 488, 493, n. 3 (Mo.App.S.D. 2002). There was conflicting evidence at trial on whether notification was given. Ameren/UE employees testified that they ". . .couldn't find anything?, while Mulligan employees testified that they called Ameren/UE and were told Ameren/UE "wasn't going to do anything."
Crawford phrased this duty, under Section 319.083, as a duty "to notify [the public utility] and make safety arrangements before putting Employee to work in closer proximity than ten feet to the high voltage line." Id. at 493, n. 3.
Even though the duty to notify and the duty to pay are clear in Section 319.085, and are set out distinctly inCrawford, Ameren/UE did not submit and the Court did not instruct the jury on either duty. This is fundamental error in and of itself.
Ameren/UE submitted the following verdict director:
Your verdict must be for plaintiff Union Electric Company d/b/a AmerenUE if you believe:
First, there was a crane transporting concrete whose operation could bring the crane's boom within 10 feet of high voltage overhead lines, and
Second, defendant Metropolitan St. Louis Sewer District knew or could have known of this operation, and
Third, defendant Metropolitan St. Louis Sewer District failed to use ordinary care to stop the crane's operation, and
Fourth, the crane's boom came into contact with a high voltage overhead line and Anthony Page was injured, and
Fifth, AmerenUE's settlement of the claims of Anthony and Donna Page was reasonable.
The above verdict director failed to instruct the jury on MSD's duty, and instructed the jury on irrelevant matters. The verdict director instructed the jury to find for Ameren/UE if, inter alia, ". . .[MSD] failed to use ordinary care to stop the crane's operation?" There is no such duty under OPLSA.
We believe that the instructions in conformity to OPLSA should be as is set out in MAI 32.05, with the verdict director as to verdict A in substantially the following form:
Your verdict must be for Plaintiff if you believe:
First, (a submission or series of submissions of fact constituting responsibility of Defendant for control of the function or activity under Section 319.083.1), and
See MAI 37.05(1).
Second, Defendant could have reasonably expected crane operations to move within 10 feet of a high voltage overhead line, and
Third, Defendant failed to notify Plaintiff of such operation, and
Fourth, Defendant failed to make appropriate arrangements for safety precautions by Plaintiff during such operation, and
Fifth, Defendant was thereby negligent, and
Sixth, such negligence either directly caused or directly contributed to cause damage to (underlying plaintiff).
Finally, we note that by Instruction No. 9 (MAI 4.14), Ameren/UE submitted its loss subject to contribution as $6,000,000. The record reflects that Ameren/UE paid $6,000,000 to the Pages, and received $1,500,000 from Mulligan. Ameren/UE thus has a loss subject to contribution of $4,500,000. If this case is submitted on re-trial pursuant to the OPLSA, this latter amount should be submitted. The OPLSA only grants contribution; it does not provide for profit.
Missouri Pac. R. Co. v. Whitehead Kales Co., 566 S.W.2d 466 (Mo. banc 1978).
The Judgment is reversed and remanded for trial consistent with this opinion.