Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Northern New England Telephone Operations LLC v. JF2 LLC

Superior Court of Maine, Cumberland

December 21, 2017

NORTHERN NEW ENGLAND TELEPHONE OPERATIONS LLC d/b/a FAIRPOINT COMMUNICATIONS-NNE, Plaintiff
v.
JF2 LLC d/b/a ON TARGET UTILITY SERVICES LLC, et al., Defendants

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          NANCY MILLS JUSTICE.

          Before 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.

         UNDISPUTED FACTS

         Defendant 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.

         On 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.

         PROCEDURAL HISTORY

         On May 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.

         On 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.

         On 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.

         STANDARD OF REVIEW

         Summary 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 1).

         DISCUSSION

         1.Bangor Gas and Infrasource.

         Neither 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.