Bulgrin v. Madison Gas & Elec. Co.

Decision Date11 July 1985
Docket NumberNo. 83-2231,83-2231
Citation125 Wis.2d 405,373 N.W.2d 47
PartiesRussell J. BULGRIN and Susan M. Bulgrin, Plaintiffs-Appellants, v. MADISON GAS & ELECTRIC COMPANY and Wisconsin Public Service Corporation, Defendants-Respondents, Sargent & Lundy, Inc., Gibralter Casualty Co., Buffalo Forge Company, Utica Mutual Ins. Co., Fire Systems, Inc., Allegheny Ludlum Industries, Inc., Liberty Mutual Ins. Co., and Underwriters at Lloyd's of London, Defendants- Appellants, The Waldinger Corporation, Fireman's Fund Insurance Co., Safety First Products Corporation, and Insurance Company of North America, Defendants. *
CourtWisconsin Court of Appeals

Scott G. Pernitz and Winner, McCallum, Wixson & Pernitz, Madison, for plaintiffs-appellants Russell J. Bulgrin and Susan M. Bulgrin.

Donald L. Heaney, Michael J. Lawton, Kenneth B. Axe and Isaksen, Lathrop, Esch, Hart & Clark, Madison, for defendants-appellants Sargent & Lundy, Inc. and Gibralter Cas.

Michael P. May and Boardman, Suhr, Curry & Field, Madison, for defendants-appellants Fire Systems, Inc., Allegheny Ludlum Industries, Inc. and Liberty Mutual Ins. Co.

Eugene O. Gehl, Bradley D. Armstrong, Stuart S. Mukamal and Brynelson, Herrick, Gehl & Bucaida, Madison, for defendants-respondents.

Before GARTZKE, P.J., DYKMAN, J., and BRUCE F. BEILFUSS, Reserve judge.

BEILFUSS, Reserve Judge.

Russell and Susan Bulgrin appeal 1 from a summary judgment dismissing their action against Madison Gas & Electric and Wisconsin Public Service Corporation. 2 Russell was injured while working at the Columbia Energy Center in Portage. He applied for and received worker's compensation benefits from Wisconsin Power and Light Company. Section 102.03(2), Stats., provides that the right to compensation is an employe's exclusive remedy against his employer. The dispositive issue is whether MG&E and WPSC made a prima facie showing that Russell was also their employe under sec. 102.07(1). We conclude that they did not. We therefore reverse.

Summary judgment is governed by sec. 802.08, Stats. Its purpose is to determine whether a dispute can be resolved without a trial. Appellate and trial courts apply the same summary judgment methodology. The court examines the pleadings to determine whether a claim is stated and a material factual issue is presented. If the complaint states a claim and a factual issue exists, the court examines the moving party's affidavits or other proof for evidentiary facts admissible in evidence to determine whether that party has made a prima facie showing for summary judgment. It is only when the moving party makes a prima facie showing that the court examines the opposing party's affidavit or other proof for evidentiary facts to determine whether a genuine factual issue exists or whether conflicting reasonable inferences may be drawn from the undisputed facts and a trial is necessary. In re Cherokee Park Plat, 113 Wis.2d 112, 116, 334 N.W.2d 580, 582-83 (Ct.App.1983).

1. The Pleadings

We summarize the Bulgrins' complaint. Russell was injured June 2, 1980 in a fire and explosion at the Columbia Energy Center in Portage, Wisconsin. WP&L was Russell's employer and self-insured worker's compensation carrier. WP&L, WPSC and MG&E jointly owned, operated and maintained the center on that date. MG&E and WPSC violated their nondelegable duty to Russell to provide a safe place of employment in violation of secs. 101.01(2)(g) and 101.11(1), Stats. These utilities were negligent for failing to remove an excessive amount of coal dust that had accumulated in a coal dust collector, to warn Russell about this hazardous condition, for placing him in a position of extreme danger without providing him with "adequate training, warnings, safeguards or protective equipment" and for failing to establish "safe firefighting methods and procedures." WP&L's negligence for these same acts and omissions is imputed to MG&E and WPSC under the laws of "agency, joint venture and partnership." MG&E and WPSC were negligent in selecting WP&L to operate the Center and in supervising that operation.

MG&E and WPSC's joint answer denies that they violated secs. 101.01(2)(g) and 101.11(1), Stats., or were negligent. The utilities affirmatively defend that Russell was negligent, he was in their service under an express or implied contract when injured, and his third party tort action against them is therefore barred by ch. 102, Stats.

The pleadings raise claims and factual issues of safe place violations and negligence, and defenses to those claims of contributory negligence and the exclusivity of ch. 102, Stats., as a remedy.

We next examine the affidavits of the moving parties MG&E and WPSC to determine whether they made a prima facie showing for summary judgment.

2. The Affidavits

MG&E and WPSC submitted documents 3 and affidavits by Richard Solboe, manager of fuels and fossil operations at WPSC and chairman of the joint plant operating committee of the Columbia Energy Center, Charles Michels, general ledger account supervisor at WP&L, Dale St. John, secretary and assistant treasurer at MG&E.

The documents and affidavits show these facts. WP&L, MG&E and WPSC jointly constructed, own and maintain the Columbia center. Operation of the center is governed by a series of agreements, one of which is entitled "Agreement for Construction and Operation of Generating Plant." Paragraph 9 of that agreement provides that

[t]he Companies shall establish an Operating Committee for the purpose of establishing general policies for the operation and maintenance of the 1975 Unit. All of the Companies shall be represented on the Operating Committee and the voting power of the representatives of each Company shall be in proportion to the Ownership Share of such Company. The vote of the representatives of Companies having Ownership Shares aggregating more than 50% shall be controlling on any question to be determined by the Operating Committee. The Operating Committee shall meet at the call of any member.

The 1975 Unit will be directly operated and maintained by the "Operating Company" in accordance with good utility operating practices and the general policies to be established by the Operating Committee. Power Company shall be the Operating Company. It shall operate and maintain the 1975 Unit in the same manner as if it were one of its own generating stations, utilizing its own employees and supervisory personnel as required in the performance of this Agreement, and any independent technical advisers which it may select, and otherwise acting in all respects as though it were an independent contractor engaged by the Companies to be responsible for the result to be attained, i.e. generation of power and energy at the 1975 Unit, as economically as possible, and delivery thereof to the connected 345 KV transmission system for transmission to the Companies, the Operating Company having sole responsibility for the specific manner of attaining that result. During operation conditions which the Operating Company in its sole judgment deems abnormal, the Operating Company shall take such action as it deems appropriate to safeguard equipment and to maintain service of the 1975 Unit.

In hiring additional employees for work at the 1975 Unit, the Operating Company will give reasonable preference to qualified employees of the other two Companies who express their desire to work at the 1975 Unit and have the consent of their respective Companies to make an application.

A similar provision is found in paragraph 9 of the July 26, 1973 "Agreement for Construction and Operation of Columbia Generating Plant."

The Operating Committee was formed September 15, 1972. WP&L, MG&E and WPSC are represented on the Committee. WP&L has acted as the "Operating Company" since that date under "the direction and control of the committee." The Center is managed and operated according to the provisions of the "Columbia Energy Center Operating Manual," which is revised and approved by the Committee. WP&L prepares an annual budget for operating the Center. That budget must be approved by MG&E and WPSC. The Committee is involved in the oversight and control of the Center's costs. Projected capital improvements are prepared by WP&L, reviewed by the Committee and approved by the financial officers of WP&L, MG&E and WPSC.

The Committee meets quarterly. Some meetings are held at the Center. At each meeting an official of WP&L presents a "detailed operating status report." That report discusses the Center's operations and maintenance experience, problems developing in the administration of the Center and a summary of scheduled maintenance and repair. The Committee may formulate policies for the Center's future operation based on these reports.

Members of the committee are informed of "all matters" affecting the Center's operation, including "financial requirements, maintenance and repair needs, modifications and improvements to the physical plant, fuel and other inventory needs, staffing needs, staff training, safety and environmental matters." Special reports are prepared for and acted on by the Committee. Information and technical data is exchanged between WP&L, MG&E and WPSC, and a "Joint Plant Operations Information Exchange" has been formed to facilitate that exchange.

The percentage ownership interests in the Center are WP&L, 46.2%, MG&E, 22% and WPSC, 31.8%. By agreement all costs including wages and benefits for the workers at the Center are paid in proportion to those ownership interests. Any third party tort claim will be shared by agreement in those same proportions.

3. Prima Facie Case Showing

We conclude that the facts in the affidavits and documents make a prima facie showing that a joint venture existed between WP&L, MG&E and WPSC. 4 We also conclude that the documents show that MG&E and WPSC surrendered to WP&L their right to supervise and...

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