Background
Accomack County hired Allstate Towers, Inc. to drill new foundations for guy wires supporting a communications tower, and Allstate subcontracted the drilling work to Dietzel Enterprises, Inc. During the project, Dietzel employee Kelvin Finck walked a steel cable into an A&N Electric Cooperative overhead high-voltage line located within ten feet of the worksite. Finck was electrocuted and later died.
Finck’s estate sued A&N, Allstate, and Dietzel in Virginia circuit court. Dietzel was dismissed under the Workers’ Compensation Act, Allstate settled, and A&N settled with the estate for $800,000 through its insurer. A&N’s insurer, as subrogee, then sought indemnification from Allstate and Dietzel in federal court under Virginia’s Overhead High Voltage Line Safety Act. The federal district court dismissed the action based on the Act’s exemption provision, and the Fourth Circuit certified two questions of Virginia law to the Supreme Court of Virginia.
The Court’s Holding
The Supreme Court of Virginia answered the first certified question yes: Code § 59.1-413 exempted Allstate’s and Dietzel’s work from the Overhead High Voltage Line Safety Act. The court held that the communications tower was an overhead communication circuit or conductor, that its guy-wire foundations were supporting structures, and that the tower was part of a communications system. The contractors performed the work on behalf of Accomack County, the system’s owner or operator.
The court rejected A&N’s argument that the exemption covers only work on overhead high-voltage lines themselves. The statute’s text refers to electrical or communication circuits or conductors and their supporting structures, rather than only “lines,” and its broad scope did not make the Act inoperable. Because the exemption applied, Allstate and Dietzel had no duties under the Act’s safety or indemnification provisions. The court therefore deemed the second question—whether indemnification requires a finding of liability against the indemnitee—moot.
Key Takeaways
- Virginia’s OHVLSA exemption extends to qualifying communications-tower work and its supporting structures, not only to work directly on power lines.
- Independent contractors working for a public system owner may fall within Code § 59.1-413’s exemption.
- The decision does not resolve whether OHVLSA indemnification is available after an underlying settlement without a liability finding.
Why It Matters
The decision gives the OHVLSA’s exemption provision a broad plain-text reading. Contractors performing work on communications infrastructure may be outside the Act’s notice, safety-measure, and indemnification regime when the work concerns a qualifying system and is performed for that system’s owner or operator.
Utilities pursuing statutory indemnification should first assess whether the underlying work falls within the exemption. The court left the statute’s settlement-and-indemnification question for another case.