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A Defendant Is Not Entitled to Indemnification When Its Own Negligence Is the Primary Cause of an Injury, or When Another Party Does Not Intend to Indemnify It

In Hemond v. Frontier Communications of America, Inc., Citizens Communications Company, Inc., Citizens Energy Services, Vermont Electric Power Company, Inc. v. Stantec Consulting, Inc., Stantec Consulting Corp., Inc., Stantec Consulting Services, Inc., Dufresne Henry, Navigant Consulting, Inc. Turner Electric Corp., Turner Electric, LLC, Graybar Electric Co., Inc., 2015 VT 67 (April 17, 2015) (“Hemond I”) the Vermont Supreme Court affirmed that Defendant Frontier, the owner of electrical equipment upon which a person was electrocuted, was not entitled to indemnification for the individual’s injuries from a consulting firm, the manufacturer of the electrical equipment, or its distributor, because its own negligence was the primary cause of the injury.

Issue: Defendant Frontier appealed the trial court’s grant of summary judgment for third party defendants on the issue of indemnification, arguing that there was both implied and (as to one of the third party defendants) express indemnity.

Holding: The Court affirmed on all issues, finding that: 1) Frontier was not entitled to implied indemnification because there were no facts to show that its liability was vicarious, or that it was not primarily responsible for creating the dangerous condition that caused the employee’s injury; 2) Frontier was not entitled to express indemnification because the indemnity agreement between two of the third party defendants did not contemplate conferring the indemnification onto Frontier as a third party beneficiary; and 3) Frontier was not prejudiced by the trial court’s treating a third party Defendant’s motion to dismiss as a motion for summary judgment.

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