Employco Personnel Services, Inc. v. City of Seattle
| Decision Date | 24 October 1991 |
| Docket Number | No. 57273-9,57273-9 |
| Citation | 817 P.2d 1373,117 Wn.2d 606 |
| Court | Washington Supreme Court |
| Parties | EMPLOYCO PERSONNEL SERVICES, INC., a Washington corporation; Intersales Food Services, Inc., a Washington corporation, d/b/a Tempura and Teriyaki; Bergman Luggage Company, Inc., a Washington corporation; L'Oustau, Inc., a Washington corporation, d/b/a Campagne; Market Place Center, Ltd, a Washington limited partnership; and Sound Resources, Inc., a Washington corporation; Individually and as Class Representatives, Respondents, v. The CITY OF SEATTLE, a Charter City, Appellant, GRANCO CONSTRUCTION, INC., a Washington corporation, and Clise Agency, Inc., a Washington corporation, Respondents. The Bon Marche, a division of Allied General Stores, Inc., as subrogor to American Home Assurance Company, a foreign corporation; Seattle Westin Hotel Company, a Washington partnership, d/b/a the Westin Hotel, Steve's Broiler, Inc., a Washington corporation, d/b/a Steve's Broiler, Western Stone and Metal Corp., a Colorado corporation, d/b/a Shane Company, as subrogors to The Insurance Company of North America and Aetna Life and Casualty Company; Relph & Panser, Inc., a Washington corporation; and Ogden Murphy Wallace, a Washington partnership, Plaintiffs, v. CITY OF SEATTLE, a Charter City, and Granco Construction, Inc., a Washington corporation, Defendants. |
Mark H. Sidran, Seattle City Atty., Brian Faller, Asst., Seattle, for appellant.
Davis, Wright & Tremaine, Michael J. Murphy, Stephen M. Rummage, Suzanne M. DuRard, Helsell, Fetterman, Martin, Todd & Hokanson, Andrew J. Kinstler, Seattle, for respondent Employco Personnel Services, et al.
Preston Niemi, Seattle, for respondent Granco Const.
Carney, Stephenson, Badley, Smith & Spellman, P.S., R. Jack Stephenson, James E. Lobsenz, Seattle, for respondent Clise Agency.
Carol A. Wardell, Julie A. Anderson, Wenatchee, amicus curiae, for appellant on behalf of Chelan County Public Utility Dist.
David A. Bricklin, Seattle, amicus curiae, for appellant on behalf of Snohomish, Franklin, Mason, Benton, Grays Harbor and Okanogan County Public Utility Districts.
S. Leigh Fulwood, GTE Northwest Inc., Everett, Richard A. Finnigan, Tacoma, Mark Roellig, Seattle, amicus curiae, for appellant on behalf of GTE-Northwest Inc., USWest Communications and Washington Independent Telephone Ass'n SMITH, Justice.
This is an appeal by the City of Seattle upon direct review from a partial summary judgment in favor of several Seattle businesses in a class action brought in the King County Superior Court by those businesses for damages arising from a power outage which they contend was proximately caused by the negligence of the City and Granco Construction. The appeal asks this court to interpret a section of the Seattle Municipal Code which states that the Seattle City Light Department "shall not be liable for any loss, injury, or damage resulting from the interruption ... of electric service from any cause ...". The trial court ruled that the ordinance does not provide the City immunity from liability under the facts of this case.
We agree with the trial court and affirm its judgment.
This case arises out of a power outage in Seattle which occurred from August 31, 1988, to September 3, 1988, when an underground fire damaged or destroyed several major electrical feeder cables. It affected an approximately 38-block area North of downtown Seattle. As a consequence, several businesses, respondents here, 1 brought this class action against the City of Seattle (City) and against Granco Construction, Inc. (Granco). The suit claimed that the City violated RCW 19.122.030 by failing to fulfill its statutory obligation to locate underground electric utility facilities upon request, and that the City was liable for the damages caused by its failure to meet that statutory obligation. Respondents also claimed that the City was liable for negligence in failing to use reasonable care to locate and identify its own underground electric facilities. Further, respondents claimed that the City breached its contractual obligation to supply electricity to them.
Appellant City maintains and operates the electric public utility which serves the City of Seattle and is commonly known as Seattle City Light.
Respondent Granco Construction, Inc., is a Washington corporation engaged in the construction business. On August 31, 1988, it was driving steel piles into the ground and drove through the center of two electrical conduits in the duct crossing Virginia Street to the Securities Building in downtown Seattle. This resulted in an underground fire that damaged or destroyed several major electrical feeder cables serving properties operated by businesses in the area.
Respondents Employco Personnel Services, Inc., Tempura and Teriyaki, Bergman Luggage Company, Inc., L'Oustau, Inc., Market Place Center, Ltd., and Sound Resources, Inc., are businesses operating in downtown Seattle whose electric service was interrupted by the power outage.
Respondent Clise Agency, Inc. (Clise) owns and manages the Securities Building at Fourth Avenue and Virginia Street in downtown Seattle. The sidewalk on the Virginia Street side of the building was in need of repair and Clise earlier hired Granco to repair and replace it. When Clise hired Granco, the repair plan included sinking steel pilings as support for a new walkway. A design plan for the project, by Lance Herlocker & Associates, showed an underground conduit of some type running perpendicular to Virginia Street and across the sidewalk next to the Securities Building, although the conduit was not in the area initially intended for repair.
On August 12, 1988, Granco submitted a "locate request" to the 1-number locator service at Seattle City Light requesting the location of underground facilities on the South side of Virginia Street alongside the Securities Building. The request stated that Granco intended to drive steel piles underground.
On August 15, 1988, City Light completed its location service in the requested area and marked "no electrical" in the construction area and on the Underground Locate Report form furnished to Granco.
On August 22, 1988, Granco made a second "locate request" to City Light because of expansion of the project site. The second request asked for locate service for the 60 feet East of the previously requested area. It also referred to the prior request submitted by Granco. A third "locate request" was made on August 23, 1988.
On August 24, 1988, City Light completed its second location work in the requested area. The City's locator crew marked an electrical line for a streetlight running through the sidewalk parallel to the South side of Virginia Street from the alley to Fourth Avenue. No other underground facilities were marked by the locator crew.
On August 26, 1988, City Light completed its third and final location in the requested area. The City Light crew marked "no E" for "no electric" on its Underground Locate Report form.
The map of underground facilities used by City Light's locator crew showed that an underground duct ran from a "manhole" on the North side of Virginia Street across the street from the Securities Building within the area in which Granco was to drive piles. That duct, however, was not marked by the City Light locator crews.
Since 1980, Seattle's electric rate ordinance has provided that "[t]he [City Light] Department shall not be liable for any loss, injury, or damage resulting from the interruption, restoration, or reduction of electric service from any cause ...". 2 Respondents in their lawsuit asked for declaratory relief, seeking a judicial determination that the ordinance did not confer upon the City immunity from liability.
Granco Construction then filed a third party complaint against the Clise Agency, alleging that Clise was negligent in failing to inform Granco of the location of underground electric facilities that might be endangered by their sidewalk repair project. In response, Clise filed a counterclaim against Granco and a cross claim against the City of Seattle, seeking contribution and indemnity from Granco and the City. The City of Seattle filed a cross claim against the Clise Agency.
The City moved to dismiss the respondents' complaint, pursuant to CR 12(b)(6), for failure to state a claim. For purposes of that motion, the City assumed the truth of all of respondents' allegations. The respondents cross-moved for partial summary judgment against the City, and the Clise Agency joined in that motion.
On May 10, 1990, the Honorable Terrence A. Carroll, King County Superior Court, entered an order denying the City's motion to dismiss and granting respondents' motion for partial summary judgment. The order recites, in part:
Sections 21.49.110(M & N) (1988) 3 of the Seattle Municipal Code and the provisions of any contracts with the plaintiffs incorporating those sections do not confer immunity upon the City from liability for its own negligence, whether ordinary, reckless or gross, nor from liability for its breaches of the statutory, contractual and/or common-law duties alleged in this action. Further, even if the referenced sections of the Seattle Municipal Code and the provisions of any contracts with plaintiffs incorporating those sections are construed to apply to the claims alleged in this action, they would be invalid and unenforceable. The referenced ordinances and contractual provisions do not provide the City with immunity from liability under the facts alleged in plaintiffs' complaint.
The court further declared that the partial summary judgment constituted a final judgment under CR 54(b), thus permitting an expedited appeal. The City of Seattle timely filed this appeal from the partial summary judgment.
The question presented by this case is whether the Seattle electric rate ordinance, SMC 21.49.110(S), confers upon the City immunity from...
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