After a nearly two-month drought, the Supreme Court releases one opinion today in which it answers a certified question from the Fourth Circuit pertaining to Virginia’s Overhead High Voltage Line Safety Act (OHVLSA).
In 2019, Accomack County hired Allstate Towers as general contractor to drill new foundations for the guy wires stabilizing a county communications tower. Allstate subcontracted the drilling to Dietzel Enterprises. A Dietzel employee, Kelvin Finck, walked a steel cable into an A&N Electric Cooperative overhead high voltage line that ran within ten feet of the site. He was electrocuted and died several days later. A&N’s line had no connection to the tower, and no one was working on it.
Finck’s estate sued A&N, Allstate, and Dietzel in Accomack County Circuit Court. Among other things, it alleged violations of the OHVLSA’s notice and safety requirements. Dietzel was dismissed under the Workers’ Compensation Act’s exclusivity provision, and Allstate and A&N settled.
Afterward, A&N’s insurer, as A&N’s subrogee, sued Allstate and Dietzel in the Eastern District of Virginia. It asked for indemnification under Code § 59.1-414(B). That provision requires a “person responsible for the work” who violates the Act to indemnify the line owner. The district court dismissed, holding that the Code § 59.1-413 exemption covered the tower work. A&N appealed, and the Fourth Circuit certified two questions:
- Does the § 59.1-413 exemption provision apply to the conduct alleged?
- Does the § 59.1-414(B) indemnification provision require a finding of liability against the indemnitee?
The Court answered “yes” to Question 1 and therefore found Question 2 to be moot. Here’s why:
Plain language. Code § 59.1-413 exempts the “construction, reconstruction, operation, and maintenance of overhead electrical or communication circuits or conductors and their supporting structures and associated equipment” of four kinds of systems: rail, electrical, communication, and “any other publicly or privately owned system” where the work is done by the owner’s employees or contractors. Relying on Webster’s Third definitions of “communication,” “circuit,” “conductor,” and “system,” the Court reasoned as follows:
- A communications tower is an overhead “communication…conductor.”
- The guy wire foundations are its “supporting structures.”
- The tower belongs to a “communication system,” because it connects devices for the common purpose of communicating.
- The tower also falls within the catch-all category (iv), because it is publicly owned and the defendants were independent contractors working for the County.
The Court also pointed to the Act’s purpose statement in Code § 59.1-406, which protects persons working “in the vicinity of” high voltage lines, as consistent with a broad reading.
Surplusage. A&N argued that reading “communication circuits or conductors” to include towers made “communication systems” redundant. The Court disagreed. In its view, “system” is a limiting qualifier: a standalone tower not connected to a larger network might be a conductor but would not be part of a system.
Whole-act reading. A&N noted that the Act defines “overhead high voltage line” as a kind of “conductor.” The Court found that this cut against A&N for three reasons. First, the other operative sections use the word “line,” and Code § 59.1-413 conspicuously does not. Second, the fact that every line is a conductor does not mean every conductor is a line. Third, the statute’s use of both “circuits” and “conductors” signals separate meanings. The Court therefore declined to apply noscitur a sociis to treat the two terms as equivalent.
Absurdity. A&N argued that the exemption would swallow the rule. The Court responded that a broad exemption does not make the Act inoperable and gave examples of work that remains covered: tree trimming near lines and ordinary construction on an individual building. It said any concern about scope is a policy question for the General Assembly.
Narrow construction of exemptions. A&N also relied on caselaw that suggested that exemptions from a regulatory requirement should be narrowly construed when the legislation serves an objective of the utmost importance. It asserted that the OHVLSA exemption in Code § 59.1-413 should be read narrowly because it serves a public safety goal. The Court rejected that argument because it has never construed an exemption in that way when it contradicts the statute’s plain language. Since the defendants’ tower work plainly fell within Code § 59.1-413, the narrow construction principle could not change the result.
