NORTHERN NEW ENGLAND TELEPHONE OPERATIONS LLC d/b/a FAIRPOINT COMMUNICATIONS-NNE, Plaintiff
JF2 LLC d/b/a ON TARGET UTILITY SERVICES LLC, et al., Defendants
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
the court is the motion for summary judgment filed by
defendant JF2 LLC d/b/a On Target Utility Services, LLC (On
Target). No opposition has been filed by cross-claim
plaintiffs Bangor Gas Company LLC (Bangor Gas) and
Infrasource Construction LLC (Infrasource). Plaintiff
Northern New England Telephone LLC d/b/a Fairpoint
Communications-NNE (Fairpoint) has filed an opposition
opposing only the request for summary judgment on count two
(breach of contract) of plaintiff's complaint. For the
following reasons, On Target's motion is granted.
On Target is in the business of marking the location of
underground utilities to assist excavators. (Pl's
Supp.'g S.M.F. ¶ 2.) In August 2010, On Target
contracted with Fairpoint to provide underground utility
marking services for the dates relevant to this lawsuit.
Id. ¶ 3. The contract contains an
indemnification clause obligating On Target to indemnify
Fairpoint for losses resulting from On Target's
"performance or nonperformance of the work under [the]
Agreement that is alleged to be directly or indirectly caused
... by any act, omission, default or negligence of [On
Target]." Id. ¶ 5.
September 19, 2011, defendant Infrasource damaged one of
Fairpoint's underground telephone cables while operating
an excavator. Id. ¶ 6. On October 28, 2011,
defendant Bangor Gas Company damaged another of
Fairpoint's underground telephone cables. Id.
¶ 7. Prior to these incidents, On Target had marked the
locations of the damaged cables. Id.¶¶ 8,
15. Videotapes of the markings taken prior to the excavations
show that the roadways where the two cables were located had
been properly marked. Id. ¶¶ 8, 9, 15.
Reports generated after the incidents provide that the
excavators were at fault for the damages. Id.
¶¶ 10, 11, 16, 17. Reports by plaintiff's
investigator provide that the excavators caused the damage
and do not reference that On Target was negligent or played
any role in causing the damage. Id.¶¶ 10,
16. Both defendants Infrasource and Bangor Gas Company were
fined by the Public Utilities Commission with regard to the
two incidents. Id. ¶¶ 12, 18.
5, 2017, Fairpoint filed a complaint against On Target,
Bangor Gas Company, and Infrasource. In the complaint,
plaintiff alleges two causes of action against On Target:
count I, breach of contract; and count II, negligence. On May
30, 2017, On Target filed a crossclaim for contribution and
indemnity against defendants Bangor Gas Company and
Infrasource. On June 8, 2017, Bangor Gas Company filed a
cross-claim for contribution and indemnity against defendants
On Target and Infrasource.
August 30, 2017, defendant On Target filed a motion for
summary judgment and requested judgment in its favor on
plaintiff's complaint and Bangor Gas Company's
cross-claim. On October 12, 2017, this court granted summary
judgment in favor of On Target and against plaintiff on
plaintiff's complaint and in favor of On Target on Bangor
Gas Company's cross-claim. In the motion, On Target did
not request judgment on its cross-claims against Bangor Gas
Company and Infrasource.
October 18, 2017, plaintiff filed a memorandum in opposition.
On October 27, 2017, defendant On Target filed a reply. On
October 24, 2017, plaintiff filed a motion to alter or amend
the summary judgment order. On October 30, 2017; this court
vacated the prior order granting summary judgment to On
Target; accepted plaintiff's opposition as filed; and
extended the deadline for defendant On Target to file a
reply. Neither defendant Bangor Gas Company nor defendant
Infrasource filed a memorandum in opposition to defendant On
Target's motion for summary judgment.
judgment is appropriate if the record reflects that there is
no genuine issue of material fact and the movant is entitled
to a judgment as a matter of law. M.R. Civ. P. 56(c). "A
party seeking to avoid summary judgment must adduce prima
facie evidence as to each element of a claim or defense that
the party asserts." Savell v. Duddy, 2016 ME
139, ¶ 18, 147 A.3d 1179. "[A] court should
consider only the portions of the record referred to
in the Rule 56(h) statements and is neither required nor
permitted to independently search a record to find support
for facts offered by a party." Cach, LLC v.
Kulas, 2011 ME 70, ¶ 10 n.3, 21 A.3d 1015
(quotation marks omitted). "Strict adherence" to
the requirements of summary judgment is necessary.
Id. ¶ 12 (quoting Deutsche Bank Nat'l
Trust Co. v. Raggiani, 2009 ME 120, ¶ 7, 985 A.2d
Gas and Infrasource.
Bangor Gas nor Infrasource filed an opposition to On
Target's motion. The pleadings show that there is no
genuine issue of material fact and that On Target is entitled
to judgment on Bangor Gas ...