MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 37

Docket: BCD-11-375

Argued: May 9, 2012

Decided: March 26, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and 

JABAR, JJ.

CENTRAL MAINE POWER COMPANY

v.

DEVEREUX MARINE, INC., et al.

SAUFLEY, C.J.

[¶1] In this appeal from the denial of a motion to attach, we are asked to 

decide whether, pursuant to the Maine Overhead High-voltage Line Safety Act, 

35-A M.R.S. §§ 751-761 (2012), Central Maine Power Company, as the owner of 

an overhead high-voltage power line, may be entitled to be fully indemnified by

Devereux Marine, Inc., for damages that CMP paid to compensate a severely 

injured employee of Devereux Marine for injuries that the employee suffered when 

he was electrocuted after a boat mast that he was holding came into contact with 

the power line.

[¶2] CMP appeals from a denial of its motion to attach the property of 

Devereux and related entities, sought pursuant to M.R. Civ. P. 4A, entered in the 

Business and Consumer Docket (Horton, J.). CMP contends that the court erred 
2

when it interpreted 35-A M.R.S. § 760 as creating a statutory right of contribution, 

rather than a right to full indemnification, from an employer when (1) an employee 

is injured after bringing materials into contact with an overhead high-voltage 

power line, (2) the employer is determined to have violated the Act, and (3) the 

owner of the high-voltage line becomes liable to the employee. We conclude that 

full indemnification is required in such circumstances. Accordingly, we vacate the 

denial of the motion to attach and remand for further consideration of the motion in 

light of our interpretation of the Overhead High-voltage Line Safety Act.

I. BACKGROUND

[¶3] Bryan Smith was an employee of Devereux Marine in 2002. Smith v. 

Cent. Me. Power Co., 2010 ME 9, ¶ 5, 988 A.2d 968. While working at Devereux

Marine, Smith was electrocuted when the mast he was lowering from a customer’s 

sailboat came into contact with an overhead high-voltage power line owned by 

CMP. Id. Smith was severely burned and suffered significant permanent injuries. 

Id. This was not the first time that a sailboat had come into contact with the power 

line at Devereux Marine. Id. ¶ 4.

[¶4] Smith received workers’ compensation benefits through Devereux and 

separately sued CMP for negligence in the Superior Court. Id. ¶¶ 1, 5. After a 

bench trial, the court (Penobscot County, Murphy, J.) found that, pursuant to the 

Public Utilities Commission’s rules and regulations, CMP’s power line should 
3

have had a vertical clearance of 45.5 feet. See id. ¶¶ 6-7. The evidence produced 

at trial showed that the height of the power line was in fact only 30 feet. See id.

¶ 8. The court further found that (1) the accident would not have occurred if CMP 

had met the 45.5-foot vertical clearance requirement, (2) CMP failed to provide 

training on its vertical clearance standards to its employees, and (3) the negligence 

of Devereux Marine, as Smith’s employer, was not the sole proximate cause of the 

accident.1 Id. ¶¶ 6-7. Based on its findings, the court entered a judgment on 

November 14, 2008, awarding Smith $4,890,631 in damages. Id. ¶ 9. CMP 

appealed, and we affirmed the judgment. Id. ¶¶ 1, 25. CMP paid the judgment, 

including interest, in the amount of $6,012,795.69 on February 16, 2010. This 

claim for indemnification brought by CMP against Devereux Marine follows from

that judgment.

 1

 Devereux Marine was not a party to the original litigation because it had immunity pursuant to the 

Workers’ Compensation Act, 39-A M.R.S. § 104 (2012) (stating that an employer who has secured the 

payment of compensation in conformity with the Act “is exempt from civil actions . . . at common law . . . 

involving personal injuries sustained by an employee arising out of and in the course of employment, or 

for death resulting from those injuries”). Whether that immunity has any effect on CMP’s 

indemnification claim was not argued in the attachment proceeding or presented to us on appeal. See 

Bond Builders, Inc. v. Commercial Union Ins. Co., 670 A.2d 1388, 1390 (Me. 1996) (addressing the 

limits of the exclusivity and immunity provisions of the Workers’ Compensation Act); cf. Moreno v. 

Entergy Corp., 105 So. 3d 40, 47-51 (La. 2012) (applying Louisiana’s overhead power line safety act, 

which expressly eliminated the immunity that an employer would normally enjoy pursuant to that state’s 

Workers’ Compensation Act).
4

[¶5] After paying Smith as required by the judgment, CMP filed a 

complaint against Devereux Marine and others2 in the Superior Court. The 

complaint, as subsequently amended, alleged that CMP had a right to 

indemnification pursuant to the Act for the amount that it paid to Smith.

Accompanying CMP’s complaint was a motion for ex parte real estate attachment. 

The court (Cumberland County, Humphrey, C.J.) denied CMP’s motion for ex 

parte attachment and granted the opportunity for a contested hearing on the 

attachment issue.

[¶6] Devereux Marine filed an answer to CMP’s complaint and a 

memorandum in opposition to CMP’s motion to attach. Shortly thereafter, the case 

was transferred to the Business and Consumer Docket. The parties filed additional 

memoranda regarding attachment, and the court (Horton, J.) held a hearing on the 

issue. The court denied CMP’s motion for attachment, interpreting the Act as 

creating a statutory right of contribution, as opposed to a right to indemnification.

See 35-A M.R.S. § 760; see also 14 M.R.S. § 156 (2012). Accordingly, the court 

determined that CMP was not likely to recover a judgment “in an amount equal to 

 2

 CMP’s complaint for indemnification named Devereux Marine, Inc., Devereux Family LLC, Andrea 

Devereux, William Stevenson, and Andrea Devereux LLC, as defendants. In addition to claiming 

indemnification against all named parties, CMP’s complaint included counts for piercing the corporate 

veil and fraudulent transfer. Those additional claims are not at issue in this appeal from the denial of 

attachment.
5

or greater than the aggregate sum” requested in its motion for attachment. M.R. 

Civ. P. 4A(c). CMP filed this appeal.

II. DISCUSSION

A. Standard of Review

[¶7] Orders granting or denying prejudgment attachment are immediately 

appealable pursuant to the collateral order exception to the final judgment rule. 

See Centrix Bank & Trust v. Kehl, 2012 ME 52, ¶ 13, 40 A.3d 942. We ordinarily 

review an order denying attachment for an abuse of discretion and clear error. 

Sweeney v. Hope House, Inc., 656 A.2d 1215, 1216 (Me. 1995).

[¶8] In this matter of first impression, however, we are called upon to 

interpret the meaning of section 760 of the Overhead High-voltage Line Safety 

Act. We review the interpretation of a statute de novo as a question of law. 

Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, ¶ 15, 957 A.2d 

94. “The primary purpose in statutory interpretation is to give effect to the intent 

of the Legislature.” Id. (quotation marks omitted). We “examine the plain 

meaning of the statutory language seeking to give effect to the legislative intent, 

and we construe the statutory language to avoid absurd, illogical, or inconsistent 

results.” Id. (quotation marks omitted). “We also construe the whole statutory 

scheme of which the section at issue forms a part so that a harmonious result, 

presumably the intent of the Legislature, may be achieved.” Id. (quotation marks 
6

omitted.) “All words in a statute are to be given meaning,” and no words are to be 

treated as surplusage “if they can be reasonably construed.” Davis Forestry

Prods., Inc. v. DownEast Power Co., 2011 ME 10, ¶ 9, 12 A.3d 1180 (quotation 

marks omitted). We will look to legislative history or other extraneous aids in 

interpretation of a statute only if the statute is ambiguous. Id.

B. The Overhead High-voltage Line Safety Act

[¶9] The Legislature enacted the Overhead High-voltage Line Safety Act, 

35-A M.R.S. §§ 751-761, without debate, in 1995. See P.L. 1995, ch. 348

(effective Sept. 29, 1995). The Act was amended slightly in 1999, but that 

amendment has no bearing on this appeal. See P.L. 1999, ch. 398, § A-19

(effective Mar. 1, 2000) (codified at 35-A M.R.S. § 752(2) (2012)).

[¶10] To enhance public safety, the Act prohibits any “person” from 

engaging in specific activities around an overhead high-voltage power line until 

that person notifies the line owner or operator, here CMP. See 35-A M.R.S. 

§§ 754, 757. The Act’s definition of a “person” includes any “natural person, firm, 

business association, company, partnership, corporation or other legal entity.” Id.

§ 752(3).

[¶11] In the matter before us, the person prohibited from engaging in the 

specified activities near overhead high-voltage lines is Devereux Marine. A 

business such as Devereux is generally prohibited from undertaking any work or 
7

activity that would bring a person, tool, or other material used by a person within 

ten feet of an overhead high-voltage line. See id. § 754(1). If the business intends 

to do work in that proximity to the line, the business must notify the owner or 

operator of the line at least seventy-two hours prior to commencing the work or 

activity. See id. § 757(1).

3 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. Id. § 758(1).

4

[¶12] Until the notification requirements are met, the business may not,

either individually or through an agent or employee, perform work that may cause 

(A) a person to be placed within ten feet of the overhead high-voltage line, or (B) a 

tool or material used by a person to be brought within ten feet of the line. Id. 

§ 754(1)(A), (B). Additionally, “A person may not, individually or through an 

agent or employee or as an agent or employee,” erect, operate, maintain, transport, 

or store any “covered equipment or item” within ten feet of the line. Id. § 754(2). 

 3

 The Act’s notification requirements include an exception for situations that include police, fire, and 

rescue emergencies. 35-A M.R.S. § 757(1) (2012).

4

 Although in some instances the person intending to do work around the line would be responsible 

for the costs associated with making safety modifications, see 35-A M.R.S. § 758(6) (2012), if the line 

has not been installed in conformity with the applicable edition of the National Electrical Safety Code, the 

line owner or operator is responsible for the costs of bringing the line into compliance, see id. 

§ 758(6)(B).
8

The Act’s definition of “covered equipment or items” includes “items such as 

ladders, scaffolds, boat masts and outriggers.” Id. § 752(1) (emphasis added).

C. Allocation of Liability in the Act

1. The Indemnification Statute

[¶13] Because of the substantial possibility of personal injury or property 

damage arising from violations of the Act, the fiscal consequences for violating the 

Act can be severe: 

§ 760. Indemnification

A person is liable to the owner or operator of the overhead 

high-voltage line and 3rd parties, if any, for all damages to facilities, 

injuries to persons and all costs, expenses and liabilities incurred by 

the owner or operator of the overhead high-voltage lines and 3rd 

parties, if any, as a result of any contact with an overhead 

high-voltage line if the person causes, permits or allows any work or 

activity in violation of a provision of this chapter and, as a result, a 

physical or electrical contact with an overhead high-voltage line 

occurs.

Id. § 760 (emphasis added).

[¶14] The unambiguous language of section 760 shifts all fiscal 

responsibility for injuries and damages resulting from contact with an overhead

high-voltage power line to the individual or entity that “causes, permits or allows 

any work or activity” in violation of the Act. Id. The statute does not create an 

exception based on the negligence of the line owner or operator, here, CMP. Nor 

does the statute grant an employer that is conducting work near an overhead 
9

high-voltage line, such as Devereux, the right to an offset for the line owner or 

operator’s negligence, or limit the line owner or operator only to contribution.

Section 760 provides, in plain language, that a person who allows work or activity 

in or around a high-voltage power line in violation of the Act’s provisions is liable 

to the owner of the line for “all damages to facilities, injuries to persons and all 

costs, expenses and liabilities incurred by the owner or operator.” Id. (emphasis 

added).

[¶15] Although the statute explicitly anticipates that damages may be paid 

by the line owner based on its own civil liability, it specifies that the entity that 

“causes, permits or allows any work or activity in violation of a provision of this 

chapter” will be liable in full to the line owner for “all” of those damages. Id. The

statute does not purport to apportion liability based on contributory fault, and we 

cannot interpret the statute in a way that would render the word “all” mere 

surplusage. See Davis Forestry Prods., Inc., 2011 ME 10, ¶ 9, 12 A.3d 1180.

[¶16] The statute is introduced by the heading for section 760, which reads 

“Indemnification.” Although abstracts of titles, chapters, and sections are not legal 

provisions, see 1 M.R.S. § 71(10) (2012); cf. State v. Shepard, 323 A.2d 587, 588 

(Me. 1974) (noting that a statutory heading was consistent with the Legislature’s 

intent, as embodied in the statutory text), the language that follows in the statute is 
10

consistent with the heading and plainly does not address contribution or 

comparative fault.

[¶17] Faced with difficult economic policy questions, the Legislature 

enacted statutes that allocate financial responsibility for injuries arising from 

contact with overhead high-voltage lines. Section 760 provides that the individual 

or entity that is responsible for the activities taking place near an overhead 

high-voltage line, and who has the immediate ability to prevent grievous harm by 

complying with the Act, bears the financial responsibility for failing to take the 

required actions that would avoid that harm. 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.

[¶18] Although construing the Act to require full indemnification may seem 

harsh, the entirety of the statutory scheme comprising the Act places a particular 

burden on employers of individuals who work near overhead high-voltage lines to 

comply with the Act’s provisions or face penalties. Specifically, the Act places a 

“duty and responsibility” on employers of individuals using covered equipment 
11

and items to acquaint themselves and their employees with the provisions of the 

Act, 35-A M.R.S. § 753; it requires notification of the line owner and the 

placement of warning signs before covered equipment or items may be operated or 

stored within ten feet of a power line, id. §§ 754(2), 756, 757, or work may be 

performed that may cause a person, tool, or other material used by a person to be 

brought within ten feet of a power line, id. §§ 754(1), 756, 757; and it authorizes a 

civil penalty for every day that such an employer is in violation of the Act, id.

§ 759.5

[¶19] Because the potential for grave, and even fatal, injury is high when 

employees work near power lines, the Legislature’s enactment serves to motivate 

employers arranging for on-site work to take every required measure to avoid 

injury.6 In this context, it is reasonable that the Legislature would place the fiscal 

burden for any injury resulting from violations of these provisions on the violator 

 5

 The Act includes an enforcement provision that allows for the assessment of a civil penalty of up to 

$1,000 for each day a person causes, permits, or allows work or any other activity to occur that is in 

violation of the Act’s provisions. 35-A M.R.S. § 759 (2012).

6

 The Legislature has enacted a similar statute to protect utilities’ underground facilities that requires 

notification to a centralized system prior to commencing excavation activities. See 23 M.R.S. § 3360-A 

(2012). As an incentive to notify underground facility operators of planned excavation activity, section 

3360-A(6-B) provides:

An excavation that is made without the excavator providing any or all of the notices 

required by this section that results in any damage to an underground facility or facilities 

is prima facie evidence in any civil or administrative proceeding that the damage was 

caused by the negligence of the excavator.
12

that is in the best position to ensure safety through compliance with the Act. See 

id. § 760.

2. The Inapplicability of the Comparative Fault Statute

[¶20] Notwithstanding the language of section 760, Devereux urges us to 

apply principles of comparative fault articulated in 14 M.R.S. § 156. That statute 

provides: 

When any person suffers death or damage as a result partly of 

that person’s own fault and partly of the fault of any other person or 

persons, a claim in respect of that death or damage may not be 

defeated by reason of the fault of the person suffering the damage, but 

the damages recoverable in respect thereof must be reduced to such 

extent as the jury thinks just and equitable having regard to the 

claimant’s share in the responsibility for the damage.

. . . .

Fault means negligence, breach of statutory duty or other act or 

omission that gives rise to a liability in tort or would, apart from this 

section, give rise to the defense of contributory negligence.

If such claimant is found by the jury to be equally at fault, the 

claimant may not recover. 

In a case involving multiparty defendants, each defendant is 

jointly and severally liable to the plaintiff for the full amount of the 

plaintiff’s damages. However, any defendant has the right through the 

use of special interrogatories to request of the jury the percentage of 

fault contributed by each defendant.

Id. (emphasis added).
13

[¶21] This is a circumstance in which Devereux could not have been a 

“multiparty defendant” in a suit by Smith. Devereux could not be sued by Smith 

because it was “exempt from civil actions . . . at common law . . . involving 

personal injuries sustained by an employee arising out of and in the course of 

employment.” 39-A M.R.S. § 104 (2012). Therefore, Devereux was never a 

co-defendant with CMP, and no opportunity arose for a fact-finder to determine the 

percentage of fault as between co-defendants.

[¶22] Devereux must therefore assert that, pursuant to the first paragraph of 

section 156, CMP would be considered the “person suffering the damage,” whose 

recovery would be “reduced to such extent as [a] jury thinks just and equitable 

having regard to the claimant’s [here, CMP’s] share in the responsibility for the 

damage.” To interpret section 760 statute to allow for proportioned liability on the 

basis of the broadly applicable statute governing comparative fault would, 

however, violate the fundamental rule of statutory construction that we favor the 

application of a specific statutory provision over the application of a more general 

provision when there is any inconsistency. See Fleet Nat’l Bank v. Liberty, 2004 

ME 36, ¶ 10, 845 A.2d 1183. The comparative fault statute cannot be interpreted 

to nullify the narrowly applicable indemnification provision of section 760, which 

explicitly contemplates that the line owner or operator may independently become 

liable for damages and nonetheless requires indemnification of the line owner or 
14

operator for “all . . . injuries to persons” by a person who violates the Act by 

engaging in work that brings a person or materials within ten feet of the overhead 

high-voltage line without notifying the line owner or operator, resulting in contact 

with the line. See 35-A M.R.S. §§ 754(1), 757(1), 760.

[¶23] If the Legislature intended to allow or provide for allocated liability 

instead of indemnification in section 760, it could have used clear language to 

achieve this goal.7 In a similar statute, which was enacted to protect the public

from fires or explosions that may be caused by natural gas leaks, the Legislature 

has done just that. See 14 M.R.S. § 165 (2012). The statute provides exceptions to 

what would otherwise be strict liability for a natural gas company or a natural gas 

 7

 Some other state Legislatures have explicitly created a right to contribution in their overhead 

high-voltage power line statutes. Mississippi’s statute creates

a right of action on behalf of any electric utility which is required to pay any sum for 

injury or death of any person resulting from contact with a high voltage overhead line 

against any person whose negligence is a proximate contributing cause . . . for that 

portion . . . attributable to the negligence of such person, however, the electric utility may 

not recover any portion of such sum which is attributable to its own negligence.

Miss. Code Ann. § 45-15-13(2) (Westlaw through 2012 Reg. Sess.) (emphasis added). Missouri’s statute 

similarly includes explicit language that “the public utility shall have the right of contribution against any 

such violator [of the Overhead Power Line Safety Act].” Mo. Ann. Stat. § 319.085 (Westlaw through 

2012 2d Reg. Sess.) (emphasis added).

As another example, Alaska’s high-voltage power line safety act provides that a “violator is liable to 

the owner or operator of the high voltage line . . . for all damage to the facilities and for all liability 

incurred by the owner or operator as a result of the unlawful activities.” Alaska Stat. Ann. § 18.60.685(b)

(Westlaw through legislation effective Mar. 1, 2013, passed during 2013 1st Reg. Sess.) (emphasis 

added). Because of the emphasized language, the Supreme Court of Alaska interpreted this statute as 

adopting a comparative causation approach, which would require a person in violation of the statute to 

indemnify a utility owner “only for that portion of the total liability caused by the violator’s unlawful 

activities and not for that portion caused by the utility’s negligence.” Atwater v. Matanuska Elec. Ass’n, 

Inc., 727 P.2d 774, 778 (Alaska 1986). Maine’s indemnification statute contains no such limiting 

language.
15

pipeline company that stores, transports, or distributes natural gas when a death or 

injury due to explosions or fire results from the actions of a third party: 

§ 165. Liability of those who store or distribute natural gas

1. Liability without proof of negligence. A natural gas 

company or an intrastate or interstate natural gas pipeline company 

that stores, transports or distributes natural gas is liable for all acts 

and omissions of its servants and agents that cause death or injury to 

persons or damage to property resulting from explosions or fire 

caused by natural gas escaping from the natural gas storage, 

transportation or distribution system under its control or from 

explosions or fire caused by defects in the natural gas storage, 

transportation and distribution systems under its control.

. . . .

3. Exceptions. The company is not liable for death or injury to 

persons or damage to property caused by:

. . . .

C. Intervening fault of a 3rd party for whose actions the 

company is not legally liable. If death or injury to persons or 

damage to property is caused by the combined fault of the 

company and other parties, the liability of the company is joint 

and several with those other parties.

Id. (emphasis added).

[¶24] In contrast to this explicit apportioning of liability,8 the statutes 

applicable to overhead high-voltage lines provide for full indemnification of the 

line owner or operator by the entity that allowed work to take place within ten feet 

 8

 See also 28-A M.R.S. § 2512 (2012) (apportioning liability by explicitly creating several but not 

joint liability between intoxicated individuals and servers of alcoholic beverages).
16

of the overhead high-voltage line without providing notification. Unlike the 

natural gas statute, the overhead high-voltage line statute does not provide for 

offsets, for joint or several liability, or for the determination of contributory fault. 

We must apply that law as written.

3. Persuasive Authority from Other States with Similar Statutes

[¶25] To be sure, the Legislature’s decision to require full indemnification 

from the violator of the Act could, because of the extraordinary potential for injury 

or death, result in substantial liability for those who allow or permit work or other 

activities that may cause materials to come within ten feet of an overhead 

high-voltage line without notifying the owner or operator of the line. When we 

look to the jurisprudence in other states that have adopted statutes related to 

overhead high-voltage line safety,

9 as the parties have suggested, we find that the 

 9

 See Alaska Stat. Ann. §§ 18.60.670-.695 (Westlaw through legislation effective Mar. 1, 2013, 

passed during 2013 1st Reg. Sess.); Ariz. Rev. Stat. Ann. §§ 40-360.41 to .45 (Westlaw through 2d Reg. 

Sess. 2012); Ark. Code Ann. §§ 11-5-301 to -309 (Westlaw through 2012 Fisc. Sess. & emerg. acts of 

2013 Reg. Sess.); Colo. Rev. Stat. Ann. §§ 9-2.5-101 to -106 (Westlaw through chs. 1-4, 6 of 1st Reg. 

Sess. 2013); Del. Code Ann. tit. 16, §§ 7401B-7408B (Westlaw through 79 Laws 2013, chs. 1-4); 

Ga. Code Ann. §§ 46-3-30 to -40 (Westlaw through 2012 Reg. Sess.); Idaho Code Ann. §§ 55-2401 to -

2405 (Westlaw through 2013 Sess., chs. 1, 2, 4, 17, 20, 22 effective on or before July 1, 2013); Kan. Stat. 

Ann. §§ 66-1709 to -1716 (Westlaw through 2012 Reg. Sess.); La. Rev. Stat. Ann. §§ 45:141-:146 

(Westlaw through 2012 Reg. Sess.); Mass. Ann. Laws ch. 166, §§ 21A-21G (LexisNexis 2002); Miss. 

Code Ann. §§ 45-15-1 to -15 (Westlaw through 2012 Reg. Sess.); Mo. Ann. Stat. §§ 319.075-.090 

(Westlaw through 2012 2d Reg. Sess.); Nev. Rev. Stat. Ann. §§ 455.200-.250 (Westlaw through 2011 

76th Reg. Sess.); N.C. Gen. Stat. Ann. §§ 95-229.5 to .13 (Westlaw through S.L. 2013-7, excluding ch. 6 

of 2013 Reg. Sess.); Okla. Stat. Ann. tit. 63, §§ 981-987 (Westlaw through 2d Reg. Sess. 2012); Or. Rev. 

Stat. Ann. § 757.800-.805 (Westlaw through 2012 1st Spec. Sess.); S.D. Codified Laws §§ 49-32-1 to -20 

(Westlaw through 2012 Reg. Sess.); Tenn. Code Ann. §§ 50-3-1001 to -1008 (Westlaw through 2012 2d 

Reg. Sess.); Tex. Health & Safety Code Ann. §§ 752.001 to .008 (Westlaw through 2011 Reg. Sess. & 1st 

Called Sess. of 82d Legis.); Utah Code Ann. §§ 54-8c-1 to -6 (Westlaw through 2012 4th Spec. Sess.); 
17

states with Acts most similar to ours have interpreted those statutes as we do, based 

on their plain meaning, to require full indemnification notwithstanding the heavy 

burden on those conducting work near overhead high-voltage lines.

[¶26] Interpreting statutory language similar to Maine’s, the Court of 

Appeals of Arizona held that Arizona’s statute transfers all responsibility for a 

worker’s personal injuries from the negligent owner of the power line to the 

employer who allowed work to occur near the line in violation of statute. Ariz. 

Pub. Serv. Co. v. Shea, 742 P.2d 851, 857-58 (Ariz. Ct. App. 1987) (interpreting 

Ariz. Rev. Stat. Ann. § 40-360.44(B) (Westlaw through 2d Reg. Sess. 2012)). 

Pursuant to Ariz. Rev. Stat. Ann. § 40-360.44(B), which has not been amended 

since the Arizona Court of Appeals decision, “the person or business entity 

violating this article is liable to the public utility operating the high voltage 

overhead line for all damages to the facilities and all costs and expenses, including 

damages to third persons, incurred by the public utility as a result of the contact.” 

(Emphasis added.)

[¶27] The Texas High Voltage Overhead Lines Act also contains 

indemnification language that is similar to that of Maine’s Act. Compare Tex. 

 Va. Code. Ann. §§ 59.1-406 to -414 (Westlaw through 2012 Reg. Sess., 2012 Spec. Sess. I, and 2013 

Reg. Sess. cc. 2-3); Wyo. Stat. Ann. §§ 37-3-301 to -306 (Westlaw through 2012 Budget Sess.).
18

Health & Safety Code Ann. § 752.008 (Westlaw through 2011 Reg. Sess. & 1st 

Called Sess. of 82d Legis.) with 35-A M.R.S. § 760. The Texas statute provides:

If a violation of this chapter results in physical or electrical 

contact with a high voltage overhead line, the person, firm,

corporation, or association that committed the violation is liable to the 

owner or operator of the line for all damages to the facilities and for 

all liability that the owner or operator incurs as a result of the 

contact.

Tex. Health & Safety Code Ann. § 752.008 (emphasis added). In applying this 

statute’s indemnification clause in a situation similar to the instant case, where the 

utility’s power lines were hanging below the minimum height required by Texas 

law, the Texas Court of Appeals held that, because the statute allows for 

indemnification “for all liability” incurred by the utility, the provision applies even 

in “circumstances in which the utility’s own actions contributed to the damage 

caused by contact with one of its lines.” AEP Tex. N. Co. v. SPA Pipe, Inc., 

2008 Tex. App. LEXIS 9269, at *27 (Tex. App. Dec. 12, 2008).

[¶28] Also comparable to Maine’s statute, Louisiana’s Overhead Power 

Line Safety Act provides that, if a violation of the act results in contact with a 

power line, the violator “shall be liable to the owner or operator of the high voltage 

overhead line for all damages, costs, or expenses incurred by the owner or operator 

as a result of the contact.” La. Rev. Stat. Ann. § 45:144(A) (Westlaw through 

2012 Reg. Sess.) (emphasis added). The statute specifies that it shall not “be 
19

construed to alter, amend, restrict, or limit the liability of an owner or operator of 

the high voltage line under current law,” La. Rev. Stat. Ann. § 45:144(B) (Westlaw 

through 2012 Reg. Sess.), which the Supreme Court of Louisiana recently 

interpreted to mean that the owner of the line may recover from a violator “even 

for the utility company’s own negligence,” Moreno v. Entergy Corp., 105 So. 3d 

40, 50 (La. 2012).

[¶29] The statutory basis for indemnification in each of these states is 

similar to Maine’s. Given such statutory language, anything short of full 

indemnification “would directly contravene the clear legislative directive requiring 

employers to contact utilities and enter into safety agreements before requiring 

their employees to engage in work on or near active power lines and would 

encourage rather than discourage the initiation of hazardous work near power 

lines.” AEP Tex. N. Co., 2008 Tex. App. LEXIS 9269, at *33.

III. CONCLUSION

[¶30] If it is determined that Devereux Marine required or allowed its 

employee, Smith, to lower the boat’s mast in close proximity to CMP’s power line 

without first complying with the Act’s requirements, see generally 35-A M.R.S.

§§ 754-758, Devereux Marine could be found to have “cause[d], permit[ted] or 

allow[ed] any work or activity in violation of” the Act, id. § 760. Pursuant to the 

plain language of the statute, Devereux Marine would then be responsible for 
20

indemnifying CMP for “all damages to facilities, injuries to persons and all costs, 

expenses and liabilities incurred by” CMP due to Smith’s contact with the line. Id.

(emphasis added).

[¶31] Because the plain language of the statute does provide for full 

indemnification by an entity that causes, permits, or allows work in violation of the 

Act, even in cases where the owner or operator of an overhead high-voltage line 

may have been negligent, we vacate the court’s judgment denying the motion for 

attachment and remand for further proceedings consistent with this opinion.

The entry is:

Judgment vacated. Remanded for further 

proceedings consistent with this opinion.

On the briefs:

John B. Lucy, Esq., Richardson, Whitman, Large & Badger, Bangor, and 

Henry Sorett, Esq., Brickley, Sears & Sorett, Boston, Massachusetts, for 

appellant Central Maine Power Company

Barry K. Mills, Esq., Hale & Hamlin, LLC, Ellsworth, for appellees 

Devereux Marine, Inc., Devereux Family LLC, Andrea Devereux, William 

Stevenson, and Andrea Devereux, LLC

Christian T. Chandler, Esq., James L. Costello, Esq., and Benjamin M. 

Leoni, Esq., Curtis Thaxter LLC, Portland, for amicus curiae Bangor Hydro 

Electric Company
21

Christian T. Chandler, Esq., Curtis Thaxter LLC, Portland, and Kenneth P. 

Carter, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, 

Louisiana, for amicus curiae Edison Electric Institute

At oral argument:

Henry Sorett, Esq., for appellant Central Maine Power Company

Barry Mills, Esq., for appellees Devereux Marine, Inc., Devereux Family 

LLC, Andrea Devereux, William Stevenson, and Andrea Devereux, LLC

Business and Consumer Docket docket number CV-2011-13

FOR CLERK REFERENCE ONLY