Bahr v. Am. Transmission Co.

• Docket Number: 2022AP2189
• Decision Date: 08 November 2023
• Parties: Glen Bahr and Lori L. Erschen-Bahr, Plaintiffs-Appellants, v. American Transmission Company LLC, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

1

Glen Bahr and Lori L. Erschen-Bahr, Plaintiffs-Appellants,
v.
American Transmission Company LLC, Defendant-Respondent.

No. 2022AP2189

Court of Appeals of Wisconsin, District II

November 8, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Winnebago County, Cir. Ct. No. 2020CV448, BRYAN D. KEBERLEIN, Judge. Affirmed.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

Before Gundrum, P.J., Grogan and Lazar, JJ.

2

PER CURIAM

¶1 Glen Bahr and Lori L. Erschen-Bahr appeal from an order of the circuit court granting summary judgment to American Transmission Company, LLC ("ATC") in their wrongful death and negligence action. The Bahrs alleged that ATC's negligence in failing to mark certain transmission wires led to their son's fatal helicopter crash. Because we conclude that the Bahrs' claims are precluded by the limitation of liability provision in the federal tariff regulating ATC, we affirm.

¶2 The tragic facts underlying the Bahrs' case are not in dispute. The Bahrs' twenty-seven-year-old son, Jonathan Bahr, was a helicopter pilot employed by MF Helicopters, LLC. On June 9, 2018, Jonathan was hired to fly a photographer to a boating event on the Fox River and adjacent lakes near Oshkosh, Wisconsin. He flew with the photographer for about ninety minutes and then dropped the photographer off at a restaurant where he was to be picked up again after Johnathan refueled the helicopter. Shortly after taking off toward the airfield for refueling, as the helicopter was crossing the Fox River, it struck and severed two wires-a shielding wire owned by ATC and a fiber-optic ground wire owned by a third party but attached to ATC's poles.^[1] The helicopter plunged into the river, and Jonathan drowned.

¶3 The Bahrs (individually and on behalf of Jonathan's estate) filed suit against ATC for wrongful death and negligence, alleging that ATC breached a duty to mark the relevant wires and that this breach caused Jonathan's death. ATC

3

moved for summary judgment after the close of discovery, asserting (among other arguments) that the federal tariff under which ATC operates precludes the suit.

¶4 Pursuant to the Federal Power Act, 16 U.S.C. § 824 et seq., the Federal Energy Regulatory Commission ("FERC") has exclusive authority over "'the transmission of electric energy in interstate commerce' and 'the sale of electric energy at wholesale in interstate commerce.'" New York v. FERC, 535 U.S. 1, 6-7 (2002) (quoting 16 U.S.C. § 824(b)). The Midwest Independent System Operator ("MISO") is an organization authorized by FERC to control the transmission of electricity in fifteen states, including Wisconsin. Wisconsin Pub. Power, Inc. v. FERC, 493 F.3d 239, 245 (D.C. Cir. 2007); MISO Energy, https://www.misoenergy.org/about/ (last visited Oct. 12, 2023). MISO is required to file a federal tariff with FERC subject to FERC's review and oversight. See 16 U.S.C. § 824d(c). ATC is one of the transmission owners that operates under the MISO tariff. See Wis. Stat. § 196.485(3m)(a) (2021-22)^[2] (requiring ATC to transfer its facilities to MISO); MISO FERC Electric Tariff, Module 1.T, Definitions - T, Version 42.0.0 (effective Sept. 1, 2022) (defining "Transmission Owner(s)" as parties that transferred their transmission facilities). The circuit court agreed with ATC that the MISO tariff precludes the Bahrs' suit and granted summary judgment on that basis.^[3] The Bahrs appeal, contending that the circuit court's interpretation of the tariff is incorrect.

4

¶5 We review a circuit court's decision to grant summary judgment de novo, applying the same methodology set forth in Wis.Stat. § 802.08. E.g., Bank of N.Y. Mellon v. Klomsten, 2018 WI.App. 25, ¶31, 381 Wis.2d 218, 911 N.W.2d 364. We view the summary judgment materials in the light most favorable to the nonmoving party (in this case, the Bahrs), and we affirm a grant of summary judgment only if there are no genuine issues of fact in dispute such that judgment, as a matter of law, is appropriate. Magnussen v. State, 2022 WI.App. 23, ¶12, 402 Wis.2d 147, 975 N.W.2d 286. Where the decision involves interpretation of a federal regulation or its equivalent, our review requires us to apply the "general principles of statutory interpretation" to discern the meaning of the regulation. Id., ¶13 (quoting Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, ¶13, 373 Wis.2d 348, 891 N.W.2d 803); see also State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. "This analysis presents a question of law, which we review de novo." Magnussen, 402 Wis.2d 147, ¶13. Finally, issues concerning preemption are also questions of law for us to review independently. Town of Delafield v. Central Transp. Kriewaldt, 2019 WI.App. 35, ¶4, 388 Wis.2d 179, 932 N.W.2d 423.

¶6 At issue in this case is the MISO tariff's limitation of liability, which states:

The Transmission Owner shall not be liable, whether based on contract, indemnification, warranty, equity, tort, strict liability or otherwise, to any Transmission Customer, Coordination Customer, Market Participant, User, Interconnection Customer, Interconnecting Transmission Owner or any third party or other person for any damages whatsoever, including, without limitation, direct, incidental, consequential (including, without limitation, attorneys' fees and litigation costs), punitive, special, multiple, exemplary or indirect damages arising or resulting from any act or omission in any way associated with service provided under this Tariff, including, but not limited to, any act or

5

omission that results in an interruption, deficiency or imperfection of service, except to the extent that the Transmission Owner is found liable for gross negligence or intentional misconduct, in which case the Transmission Owner will only be liable for direct damages. Nothing in this section, however, is intended to affect obligations otherwise provided in agreements between the Transmission Provider and Transmission

...