Portland General Electric Co. v. Jungwirth Logging, Inc.

951 P.2d 1101, 151 Or. App. 789, 1997 Ore. App. LEXIS 1926

• Court: Court of Appeals of Oregon
• Decided: December 24, 1997
• Docket: CCV 9406043; CA A89234
• Status: Published

Opinions

ARMSTRONG, J.

Defendant Jungwirth Logging, Inc. (JLI) appeals a summary judgment in favor of plaintiff Portland General Electric Company (PGE). We affirm.

The following facts are undisputed. JLI employed Mike Hartsell to work on a logging crew. In February 1994, Hartsell was electrocuted when a crew member threw a wire rope over a high voltage PGE power fine, causing it to ground on equipment that Hartsell was touching. JLI had not notified PGE of its logging activity and had not guarded effectively against accidents involving the high voltage power line, even though it was required to do both under ORS 757.805(1).¹ Hartsell’s estate filed an action against PGE, alleging negligence and other claims. PGE denied any liability for Hartsell’s death and moved for summary judgment, arguing that there was no factual dispute as to liability.² The court denied PGE’s motion. PGE continued to deny liability, but settled with Hartsell’s estate for the amount of $60,000. In addition to the $60,000 payment, PGE incurred $17,994 in attorney fees and costs defending against the action.

PGE then brought the present action against JLI pursuant to ORS 757.805(2), which provides:

“(2) If any violation of subsection (1) of this section or rules adopted pursuant to ORS chapter 654 results in, or is a contributing cause of, a physical or electrical accident involving any high voltage overhead line, the person or business entity violating subsection (1) of this section or rules adopted pursuant to ORS chapter 654 is liable to the utility operating the high voltage overhead lines for all damages to its facilities and all costs and expenses, including damages to any third persons, incurred by the utility as the result of the accident. However, any person or business entity that has given advance notice of the function, activity or work to the utility operating the high voltage overhead line, and has otherwise substantially complied with rules adopted pursuant to ORS chapter 654, shall only be liable for such damages in proportion to that person or business entity’s comparative fault in causing or contributing to the accident.”

(Emphasis supplied.) PGE alleged, inter alia, that JLI had not complied with the pertinent safety regulations and that, as a result of that noncompliance, PGE had been forced to defend against and resolve the action by Hartsell’s estate. PGE then moved for summary judgment, claiming that there were no material facts in dispute. JLI filed a cross-motion for summary judgment on its affirmative defense that PGE had failed to state a claim. JLI argued that, in order to state a claim under ORS 757.805(2), PGE had to plead and prove that it had been liable to Hartsell’s estate in the underlying action. The trial court granted PGE’s motion for summary judgment and denied JLI’s cross-motion. The trial court then awarded $77,994 to PGE — the sum of the settlement and PGE’s attorney fees and costs.

JLI likens the remedy under ORS 757.805(2) to common-law indemnity and argues that a party seeking indemnity must show that it has discharged an actual liability of its own. Accordingly, JLI contends that PGE cannot seek indemnification under ORS 757.805(2) unless PGE pleads and proves its own liability to Hartsell’s estate. PGE argues in response that our decision is controlled by the language of ORS 757.805(2) and that there is nothing in the statute to indicate that PGE must prove that it was liable to Hartsell’s estate before it may recover anything from JLI. We agree with PGE.³

In construing a statute, our purpose is to effectuate the intent of the legislature. In order to do that, we look first to the text of the statute, in context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). ORS 757.805(2) sets forth the elements of a statutory claim for reimbursement:

“If any violation of subsection (1) of this section or rules adopted pursuant to ORS chapter 654 results in, or is a contributing cause of, a physical or electrical accident involving any high voltage overhead line, the person or business entity violating subsection (1) of this section or rules adopted pursuant to ORS chapter 654 is liable to the utility * * * for all * * * costs and expenses, including damages to any third persons, incurred by the utility as a result of the accident.”

The language of the statute unambiguously requires only that the plaintiff plead and prove (1) that the defendant violated ORS 757.805(1) or rules adopted pursuant to ORS chapter 654; (2) that the violation resulted in, or was a contributing cause of, a physical or electrical accident; and (3) that, as a result of that accident, the utility incurred costs and expenses, which may include damages to third persons. PGE properly pleaded those elements in its claim against JLI.

JLI argues, nevertheless, that the word “incurred” in the statute embodies a requirement that a utility must be liable to the third party on a claim of this kind, because the utility would “incur” costs and expenses only if it were liable to the third party. We disagree. The commonplace meaning of incur is “to become liable or subject to.” Webster’s Third New International Dictionary 1146 (unabridged ed 1993) (emphasis supplied). See PGE, 317 Or at 611 (words of common usage typically should be given their plain, natural and ordinary meaning). Thus, in order to prevail, PGE need only plead and prove that, as a result of JLI’s safety violations, PGE was subjected to certain costs and expenses that it now seeks to have reimbursed. Here, there is no dispute that, but for JLI’s actions, PGE would not have been sued by Hartsell’s estate and would not have been subject to resolving that action through settlement or litigation.⁴ Indeed, ORS 757.805(2) specifically contemplates a situation in which the utility has no liability by authorizing reimbursement of costs and expenses incurred as a result of “any violation [that] results in, or is a contributing cause of, a physical or electrical accident.” (Emphasis supplied.) If the utility could seek reimbursement only when it was partially or fully responsible, there would be no need for the statute to refer to accidents that were caused solely by the defendant’s violation of the safety rules.

In order to support its contention that PGE must plead and prove liability, the dissent cites to definitions of “subject to” that imply liability. 151 Or App at 797. One definition of “subject to” that the dissent omits, however, is “governed or affected by.” Black’s Law Dictionary 1425 (6th ed 1990) (emphasis supplied). There is no question that PGE was affected by the cost and expense of settling the underlying claim, whether or not it was actually liable. Moreover, to define “subject to” as “liable for” makes redundant the definition of “incur,” which is “to become liable or subject to,” that this court has accepted in the past. See King v. AFSD, 142 Or App 444, 448, 921 P2d 1326 (1996).

As for the dissent’s discussion of the Texas statute that a Texas court interpreted to require a party seeking reimbursement to plead and prove actual or potential liability, it simply does not apply to this case and this statute. The Texas statute is not analogous in one important respect. The Texas statute refers not to “costs and expenses” incurred by the party seeking reimbursement but, rather, to “liability incurred.” (Emphasis supplied.) Had the Oregon legislature used the latter language in ORS 757.805(2), the outcome of this case could well have been different. The legislature chose to allow for reimbursement of costs and expenses incurred, however, and there is nothing in that choice to indicate that those costs and expenses must have been linked to a finding of actual or potential liability.

JLI also contends that the trial court erred in including attorney fees in its award to PGE. Specifically, JLI invokes the well-established Oregon principle that, unless specifically provided by statute or contract, courts are not free to include attorney fees in litigation costs awarded to a prevailing party. Riedel v. First National Bank, 287 Or 285, 290-91, 598 P2d 302 (1979). Were the awarded fees those incurred by PGE in the present action against JLI, that principle would control. ORS 757.805(2) does not authorize a utility to recover attorney fees in an action brought to recover its costs and expenses incurred as a result of a violation of ORS 757.805(1). The fees awarded in this case, however, were not the fees incurred in bringing this action but, rather, the fees incurred as part of the expense of defending against the underlying action. For that reason, they are merely a component of PGE’s damages and, as such, are not barred by the rule in Riedel. See, e.g., Astoria v. Astoria & Columbia River R. Co., 67 Or 538, 550,136 P 645 (1913).

Affirmed.

1 ORS 757.805(1) provides:

“Any person or business entity responsible for performing any function, activity, work or operation in proximity to a high voltage overhead line shall guard effectively against accidents involving such high voltage overhead line, as required by rules adopted pursuant to ORS chapter 654.”

2 PGE also filed a third-party claim against JLI in the original action. JLI stipulated to a dismissal of that claim without prejudice to PGE’s rights to bring an action under ORS 757.805.

3 Because we agree with PGE that the plain language of the statute controls our decision, we need not address JLI’s contention that the common law requires an indemnitee to plead and prove actual liability. For the same reason, we disagree with the dissent’s application of the common law of indemnity to this case.

4 Here, no one has argued that there was a factual issue about whether the Hartsell action against PGE resulted from JLI’s safety violations. Also, no one has raised a factual issue about whether the costs and expenses sought by PGE, including the amount that it paid to settle the Hartsell action, were reasonably incurred by it in responding to the action.