Tort: Supreme Court of Virginia asked to resolve question on Overhead High Voltage Line Safety Act

Where the owner of a power line settled a claim for wrongful death brought by the estate of a worker who was electrocuted, and it then sought indemnification from the entities responsible for the man working near the lines, two questions about how the statute applies to the facts of this case were certified to the Supreme Court of Virginia.

Background

This case concerns the death of a worker who was electrocuted when he walked into a high voltage power line while repairing a radio tower. A&N Electric Cooperative, owner of the power line, settled a claim for wrongful death with the worker’s estate and now seeks indemnity from the entities responsible for the work near the lines: Allstate Tower Inc. and Dietzel Enterprises Inc. A&N’s claim is brought under, and turns entirely on, the meaning of two provisions of the Virginia Overhead High Voltage Line Safety Act.

Allstate asserted that the work performed at the time of the incident was exempt from the Act, and, as a result, the indemnity provision does not apply. It also argued that, to state a claim for indemnity, A&N had to allege that it was found liable in the underlying litigation and that is impossible here because A&N settled with the worker’s estate prior to the conclusion of trial. Dietzel filed a separate motion to dismiss raising the same arguments.

The district court dismissed the case. It concluded that the activities the Dietzel employee was engaged in at the time of the incident were properly categorized as “construction . . . of overhead electrical or communications circuits or conductors . . . of . . . (iii) communication systems,” or “(iv) any other publicly . . . owned system,” and “that such work . . . [was] performed by . . . independent contractors engaged on behalf of the owner or operator of the system to perform the work.”

Analysis

Faced with two purely legal questions for which there is no controlling precedent of the Supreme Court of Virginia or the Virginia Courts of Appeals, the court concludes it is appropriate to certify the questions to the Supreme Court of Virginia: (1) does the exemption provision of the Act, Va. Code Ann. § 59.1-413, apply to the conduct alleged in the complaint and (2) does the indemnification provision of the Act, Va. Code Ann. § 59.1 414(B), require a finding of liability against the indemnitee?

These questions are determinative of the proceeding before this court. If the Act’s exemption applies to the work the complaint asserts was being done at the time of the incident, A&N’s case is foreclosed. If the exemption does not apply, A&N’s case survives.

If the exemption does not apply, the federal court would next consider whether the Act requires a finding of liability as a prerequisite for indemnification. If the answer is yes, A&N’s claim fails. If the answer is no, A&N may proceed.

Question certified.

A&N Electric Cooperative v. Dietzel Enterprises Inc., Case No. 24-1742, Oct. 9, 2025. 4th Cir. (Berner), from EDVA at Norfolk (Jackson). Gibson Sinclair Wright for Appellant. Julie Smith Palmer and James Leslie Hoyle for Appellees. VLW 025-2-382. 9 pp.