WILBERT v. VERIZON NEW ENGLAND INC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case arises from an accident in which Paula S. Wilbert struck a utility guy wire owned by Verizon New England Inc. (Verizon) while biking along a designated bike path in the town of Dennis (town). Wilbert suffered serious injuries. She and her husband, Luis A. Espinoza, brought suit against defendants Verizon and NSTAR Electric Company (hereinafter, Eversource) for negligence, public nuisance, and loss of consortium.⁴ The Superior Court judge awarded summary judgment to Verizon, reasoning that G. L. c. 84, §§ 15 and 18, the road defect and notice statutes, shielded Verizon from liability. Summary judgment also entered for Eversource because the plaintiffs had failed to articulate a cognizable duty owed by Eversource to Verizon. The plaintiffs appeal from the judgment. In accordance with Meyer v. Veolia Energy N. Am., 482 Mass. 208 (2019), a case that neither the parties nor the judge had the benefit of when the motions were decided, which held that private companies are not insulated by G. L. c. 84, §§ 15 and 18, we vacate the portion of the judgment that dismissed the claims against Verizon. Regarding the portion of the judgment in favor of Eversource, we affirm.

Background. We summarize both the allegations found in the second amended complaint as well as the procedural history of the case. Wilbert struck the guy wire, which was owned and installed by Verizon, on July 21, 2017. The Verizon wire extended from a ground anchor to a utility pole and “significantly encroached into the path of travel” of bicyclists. The utility pole was installed in 2004, and was jointly owned by Verizon and Eversource. A joint operating agreement (JOA) between the two companies made Eversource responsible for the care and maintenance of the poles located in the town. The sole section of the JOA addressing the guy wires states: “[e]ach company is responsible for placing guys adequate to support its own facilities on J. O. [jointly-owned] Poles.”

As the bike path was being constructed in 2012, the town realized that the guy wires would encroach on the bike path. As a result, an engineer from the town wrote an e-mail to an Eversource employee requesting that Eversource's guy wire be relocated and sent a work order application to Eversource to that effect. In May 2013, Eversource repositioned its guy wire to accommodate the bike path. The Verizon guy wire was left untouched.⁵

The plaintiffs filed suit against Verizon on November 13, 2017, some four months after the accident, for negligence, public nuisance, and loss of consortium. The first and second amended complaints added Eversource and the town. In allowing the defendants' motion for summary judgment,⁶ the judge found that the claims against Verizon were governed by the road defect statute, G. L. c. 84, § 15, which made the plaintiffs' claims untimely pursuant to G. L. c. 84, § 18. The judge also determined that the plaintiffs had abandoned their direct negligence claims against Eversource in the first amended complaint and were proceeding solely on the theory that Eversource had a contractual duty to “notify or cause Verizon to repair its guy wire” under the JOA. The judge concluded that nothing in the JOA imposed such a duty of care on Eversource and, as a result, the defendants were entitled to summary judgment.⁷ The plaintiffs timely appealed.

Discussion. The standard for review of a summary judgment is de novo. Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 756 (2010). Summary judgment will not be granted unless, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

1. Verizon. The plaintiffs argue that the Supreme Judicial Court decision in Meyer requires us to vacate the portion of the judgment in favor of Verizon for further proceedings in the trial court. We agree.⁸ Meyer provides that the road defect and notice provisions ⁹ do “not apply to a private entity responsible for a particular defect in the road.” Meyer, 482 Mass. at 214. “Private parties are not covered by these statutes when they cause particular defects in public roadways; rather, they are subject to suits in tort.” Id.¹⁰ Because the motion judge dismissed the claims against Verizon on the ground that the defect and notice statutes applied to private companies, which is contrary to the holding in Meyer, we vacate that portion of the judgment.¹¹

2. Eversource. The plaintiffs next argue that Eversource had an affirmative duty to notify Verizon of the dangerous placement of the Verizon guy wire because, under the JOA, Eversource served as the town's “point of contact” for the utility pole.¹² Upon review of the JOA, however, we find no such contractual provision. The document is devoid of any language that requires Eversource to advise Verizon of the town's concerns or that requires Eversource to ensure that Verizon alter the location of its guy wire. Indeed, we agree with the motion judge's reading -- the JOA makes Eversource and Verizon responsible for the maintenance of their own respective guy wires.¹³ Cf. Great Divide Ins. Co. v. Lexington Ins. Co., 478 Mass. 264, 267 (2017) (“If the language is clear and unambiguous, we must give effect to that language, without considering the underlying intent of the parties”). Eversource's role as custodian of the utility pole does not imply that Eversource had a duty to notify Verizon of issues regarding their wires;¹⁴ nor does serving as the point of contact for the town regarding questions about the pole impose such a duty.¹⁵ Dismissal of the claims against Eversource was correct.¹⁶

So much of the judgment entered on December 20, 2018, that dismissed the claims against Verizon is vacated. The remainder of the judgment is affirmed.

So ordered.

Affirmed in part; vacated in part.

FOOTNOTES

4.   The plaintiffs also named the town as a defendant. Those claims were dismissed on the town's motion, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), on the ground that the plaintiffs failed to provide the town with timely notice as required by G. L. c. 84, § 18. A separate and final judgment entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), which was initially a part of this appeal. However, the plaintiffs dismissed that portion of the appeal with prejudice and we do not address it here.

5.   Verizon readjusted the Verizon guy wire only after the plaintiff suffered her injury.

6.   Although the defendants had moved for judgment on the pleadings, the judge treated the motions as ones for summary judgment under Mass. R. Civ. P. 12 (c), 365 Mass. 756 (1974), noting that the parties were given an opportunity to respond and that there was a lack of dispute on the material facts.

7.   As noted, the claims against the town also were dismissed and the plaintiffs have not pursued an appeal from the judgment in favor of the town.

8.   Verizon concedes on this argument.

9.   General Laws c. 84, §§ 15 and 18.

10.   The court in Meyer, 482 Mass. at 223 n.15, expressly overruled Filepp v. Boston Gas Co., 85 Mass. App. Ct. 901 (2014), and Bartholomew v. Charter Communications, Inc., 84 Mass. App. Ct. 1104 (2013), which were cited by the motion judge in his decision.

11.   We note that all of Verizon's cross claims are preserved.

12.   As noted above, the plaintiffs abandoned their initial claim that Eversource had a common-law or statutory duty to repair the guy wire defect, and proceeded solely on a contractual theory of liability.

13.   The JOA provides that “[e]ach company is responsible for placing guys adequate to support its own facilities on [jointly owned] Poles.”

14.   Eversource's predecessor in interest, Cape & Vineyard Electric Company, is listed within the intercompany operating procedures (IOP) as the custodian of the poles in the town. Within the JOA, however, the custodian is referenced only in sections governing the replacement of damaged utility poles: “When a pole is damaged by a party not party to this Agreement, the Custodian Company shall replace the damaged pole.” It also states: “The custodian shall be responsible for the following work with no billing to the other party: Anchors - All anchors jointly owned. Sidewalk repairs. Pole Inspections. Ground bracing of existing poles. Trenching poles up to about 18″ from pole center.”

15.   A representative from the town testified that he expected Eversource to pass along the work request to Verizon. Nonetheless, the JOA is silent on this issue, and as stated before, the JOA places the responsibility of the location and maintenance of the guy wires with each respective company.

16.   At oral argument, the plaintiffs argued that the Meyer ruling should permit them to resurrect the common-law claims they abandoned against Eversource after filing the second amended complaint. This argument was insufficiently raised and we do not consider it.