Cuevas v. Pub. Serv. Co. of Colo.

537 P.3d 418

2023 COA 64 M

Francisco CUEVAS, Plaintiff-Appellant and Cross-Appellee,

v. PUBLIC SERVICE COMPANY OF COLORADO, d/b/a Xcel Energy, Defendant-Appellee and Cross-Appellant,andOutdoor Design Landscaping, LLC, Third-Party Defendant-Appellant and Cross-Appellee.

Court of Appeals Nos. 22CA0301 & 22CA1108

Colorado Court of Appeals, Division VI.

Announced July 13, 2023

As Modified on Denial of Rehearing August 10, 2023

Connelly Law, LLC, Sean Connelly, Denver, Colorado; McDermott Stuart & Ward, LLP, Sean McDermott, Thomas R. Ward, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee

Gordon Rees Scully Mansukhani, LLP, Franz Hardy, Gregory S. Hearing, II, Stephanie S. Brizel, Abigail H. Kregor, Denver, Colorado, for Defendant-Appellee and Cross-Appellant

Lamdin & Chaney, LLP, L. Kathleen Chaney, Amber F. Ju, Denver, Colorado, for Third-Party Defendant-Appellant and Cross-Appellee

Opinion by JUDGE SCHUTZ

¶ 1 This consolidated appeal arises from the personal injury action plaintiff, Francisco Cuevas, brought against defendant, Public Service Company of Colorado, d/b/a Xcel Energy (Xcel). Cuevas and the company for which he worked and was an owner, third-party defendant, Outdoor Design Landscaping, LLC (Outdoor Design), appeal the district court's grants of summary judgment in favor of Xcel pursuant to Tariff Sheet No. R87 (R87) of the Xcel Electric Tariff, Colo. PUC No. 7 (Tariff), and the High Voltage Safety Act (HVSA), §§ 9-2.5-101 to 106, C.R.S. 2022.

¶ 2 Cuevas and Outdoor Design also appeal the district court's order holding them jointly and severally liable for Xcel's costs pursuant to C.R.C.P. 54(d). Xcel, in turn, appeals the district court's denial of its motion for summary judgment against Cuevas under HVSA and its claim for attorney fees. We affirm in part, reverse in part, vacate in part, and remand with instructions.

I. Background

¶ 3 In November 2017, Peggy Anderson¹ hired Outdoor Design to decorate her spruce tree with Christmas lights. The tree had grown within twenty-six inches of a high voltage overhead power line. Cuevas was hanging lights on the tree when he was electrically shocked, knocking him off his stepladder to the ground. The fall fractured Cuevas's spine and caused permanent paralysis.

¶ 4 Cuevas filed the underlying action against Xcel based on its alleged failure to maintain the vegetation near its power line, and against Anderson based upon her asserted failure to warn of the dangerous condition created by the proximity between the tree and the line. Xcel moved to dismiss the case pursuant to R87, arguing that it barred Cuevas's claims as a matter of law. Cuevas countered that R87 did not insulate Xcel from liability for his injuries.

¶ 5 R87 states, in relevant part:

The Customer shall be responsible for any damage to or loss of Company's property located on Customer's premises, caused by or arising out of the acts, omissions or negligence of Customer or others. ...

The Customer shall be responsible for any injury to persons or damage to property occasioned or caused by the acts, omissions or negligence of the Customer or any of his agents, employees, or licensees, in installing, maintaining, operating, or using any of Customer's lines, wires, [or] equipment, ... and for injury and damage caused by defects in the same.

The Company shall not be held liable for injury to persons or damage to property caused by its lines or equipment when contacted or interfered with by ladders, pipes ... ropes, aerial wires, attachments, trees ... or other objects not the property of Company, which cross over, through, or are in close proximity to Company's lines and equipment, unless said lines and equipment are in a defective condition.

¶ 6 In denying the motion to dismiss, the district court reasoned that R87 relieved Xcel of liability for any injuries caused by the proximity of a tree to its lines, unless the subject line was in a defective condition. Because the court was "without sufficient information ... as to whether the line was defective ... and what caused [Cuevas] to be electrocuted," it denied the motion to dismiss.

¶ 7 Xcel then filed an answer and third-party complaint, joining Outdoor Design as a third-party defendant. Xcel argued that Outdoor Design's failure to notify Xcel in advance of the work violated HVSA.

¶ 8 Section 9-2.5-102(1), C.R.S. 2022, provides:

Unless danger against contact with high voltage overhead lines has been effectively guarded against as provided by section 9-2.5-103, a person or business entity shall not, individually or through an agent or employee, perform or require any other person to perform any function or activity upon any land, building, highway, or other premises if at any time during the performance of any function or activity it could reasonably be expected that the person performing the function or activity could move or be placed within ten feet of any high voltage overhead line or that any equipment, part of any tool, or material used by the person could be brought within ten feet of any high voltage overhead line during the performance of any function or activity.

Xcel also argued that Outdoor Design was obligated to reimburse Xcel for any liabilities resulting from Cuevas's injuries pursuant to HVSA's indemnification provision: "If a violation of this article results in physical or electrical contact with any high voltage overhead line, the person or business entity violating this article shall be liable to the owner or operator of the high voltage overhead line for damages ... caused by the contact ...." § 9-2.5-104(2), C.R.S. 2022.

¶ 9 Xcel moved for summary judgment against Cuevas under both R87 and HVSA. Xcel also moved for summary judgment against Outdoor Design under HVSA. Outdoor Design filed a cross-motion for summary judgment against Xcel, contending the undisputed facts demonstrated that no equipment, tool, or other materials it used came within ten feet of the power line at the time of the incident, and that there was no causal link between the alleged HVSA violation and Cuevas's injuries.

¶ 10 The district court granted Xcel's motion for summary judgment against Cuevas, concluding R87 barred his claim as a matter of law. The court rejected Xcel's argument that section 9-2.5-102(1) barred Cuevas's claim but granted summary judgment for Xcel against Outdoor Design based on section 9-2.5-104(2). Finally, the court denied Xcel's claim for an award of costs and attorney fees under HVSA but awarded Xcel its costs under C.R.C.P. 54(d). The aggrieved parties appeal these respective determinations.

II. Analysis

A. Timeliness of Cuevas's Notice of Appeal

¶ 11 Before reaching the merits of the parties’ contentions, we must first address Xcel's argument that Cuevas's appeal was untimely. We conclude Cuevas's notice of appeal was timely filed.

¶ 12 After the court granted summary judgment for Xcel, Cuevas filed a timely motion to reconsider. At the time, there were still unresolved claims. Then, on March 15, 2022, the court issued an order resolving the parties’ remaining claims against Anderson. The parties agree that the summary judgment became final on that date, but that the court still had not resolved Cuevas's motion for reconsideration at that time. Cuevas contends that once the summary judgment order became final, his motion for reconsideration became a de facto C.R.C.P. 59 motion to amend the judgment.² We agree.

¶ 13 As Xcel argues, once the judgment became final, Cuevas could have filed a new motion, specifically denominated as a Rule 59 motion, raising the same issues he raised in the motion for reconsideration. But that was not necessary. As Cuevas notes, "[D]ivisions of this court have repeatedly held that ‘[a] motion to reconsider may be treated as a post-trial motion under C.R.C.P. 59.’ " Spiremedia Inc. v. Wozniak , 2020 COA 10, ¶ 18, 487 P.3d 1211 (quoting Bailey v. Airgas-Intermountain, Inc. , 250 P.3d 746, 752–53 (Colo. App. 2010) ). Thus, motions to reconsider need not cite or reference C.R.C.P. 59 to be recognized as falling within its purview. Spiremedia , ¶ 18 ; see also Church v. Am. Standard Ins. Co. of Wis. , 742 P.2d 971, 972 (Colo. App. 1987) (the type of relief sought fixes a motion's actual nature).

¶ 14 Accordingly, we conclude that the motion to reconsider became a de facto C.R.C.P. 59 motion on March 15, 2022. Because the district court did not rule on the motion within sixty-three days, the motion was deemed denied on June 17, 2022. See C.R.C.P. 59(e). Cuevas's appeal is timely because he filed his notice of appeal prior to that date. See, e.g. , Ditirro v. Sando , 2022 COA 94, ¶ 28, 520 P.3d 1203 (a premature notice of appeal may confer appellate jurisdiction once the appealed order becomes final).

B. The Tariff

¶ 15 We begin with Cuevas's argument that the district court erred by concluding his claim was barred by R87. Cuevas argues that the plain language of R87 merely memorializes the contractual rights and responsibilities shared between Xcel and its customers. Accordingly, Cuevas argues that R87 only impacts Xcel's customers, such as Anderson, and those who use or benefit from a customer's electric service pursuant to the Tariff. Thus, his argument continues, R87 does not preclude his negligence claim against Xcel.

1. Standard of Review

¶ 16 We review a grant of summary judgment de novo. CadleRock Joint Venture LP v. Esperanza Architecture & Consulting, Inc. , 2021 COA 119, ¶ 9, 500 P.3d 402. Summary judgment is only appropriate when the pleadings and supporting evidence show no genuine issue of material fact is in dispute. Martini v. Smith , 42 P.3d 629, 632 (Colo. 2002). The nonmoving party is "entitled to the benefit of all favorable inferences that may be drawn from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party." Id.

¶ 17 But even if "it is extremely doubtful that a genuine issue of fact exists," summary judgment is not appropriate....