Grant v. Southwestern Electric Power Company
| Decision Date | 09 May 2000 |
| Docket Number | No. 06-98-00159-CV,06-98-00159-CV |
| Citation | 20 S.W.3d 764 |
| Parties | (Tex.App.-Texarkana 2000) MUR LEE GRANT, Appellant v. SOUTHWESTERN ELECTRIC POWER COMPANY, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 4th Judicial District Court Rusk County, Texas Trial Court No. 97-164
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Before Cornelius, C.J., Grant and Ross, JJ.
This is an appeal from a summary judgment granted in favor of Southwestern Electric Power Company (SWEPCO) in a negligence suit brought by Mur Lee Grant (hereafter referred to as "Grant") for personal injuries and property damage. The overriding issue in this case is the scope and interpretation of a public utility tariff filed by SWEPCO with the Public Utility Commission (PUC).
In three points of error, Grant contends (1) the trial court erred in granting a summary judgment in favor of SWEPCO based upon the law, (2) the trial court erred in finding no evidence of a duty owed by SWEPCO to her, and (3) the trial court erred in failing to allow Grant to proceed to trial based upon a genuine issue of material fact and allegations of gross negligence
There was summary judgment proof that on or about June 10, 1995, Grant experienced electrical problems at her home. She noticed that her lights were going from bright to dim. Grant's husband, Harolie, testified during his deposition that a thunderstorm came and "the house just lit up and all the lights outside -- the yard lights lit up." He turned off the breakers to their house, but he testified that the lights were "still lit up all over the house, the outside, too, with the breakers off." Grant began to smell smoke and noticed that smoke was coming from a VCR and a television. She noticed that they were not working properly, so she unplugged them. She also noticed that other electrical appliances, such as a microwave, were also not working properly.
She called SWEPCO, which sent a troubleman to her residence around 11:00 p.m. The troubleman, Henri Killgore, checked the voltage of the electricity coming into the home from the meter outside the house, using standard procedures. The voltage checked out O.K., and Killgore told Grant to contact an electrician. The electrician arrived at Grant's house later that evening. Bill Turner, the electrician, testified in his deposition that Grant told him the SWEPCO troubleman had said that the problem was not caused by any electrical problem outside of her home and that it must have been caused by an electrical problem inside her home. Turner checked the electrical box inside her home and determined that the voltage readings were not consistent. He explained that the inconsistent voltage readings were causing her lights to go from bright to dim.
Upon Turner's advice, Grant called SWEPCO again, and Killgore returned to the Grant house at approximately 12:30 a.m. Turner waited for Killgore and told Killgore what he had done. The first thing Killgore did was to pull the meter (as he had done on his first visit) and check the flow of electricity to the Grant home. Killgore found a floating or irregular voltage problem. Killgore checked the power lines and discovered that a tree limb had fallen on a secondary neutral line, damaging it. Killgore proceeded to repair the fallen line and completed all of the necessary repairs within four hours of his initial visit to the Grant home. In his deposition testimony, Grant's husband testified that they experienced no further problems that evening.
The following Monday, Grant took a list of her damaged appliances to a SWEPCO representative and told her what had happened. Jackie Gassoway, who worked in customer service, told Grant that an adjuster would come to her house later that afternoon. According to Grant's deposition testimony, she got a call from SWEPCO around 5:00 p.m., explaining that they would not be coming to get the damaged appliances and that she needed to take them to get them repaired. She told the SWEPCO representative she did not want to touch them because she was afraid of them.
After the phone call, she disconnected the appliances that were not already disconnected. She put a microwave, a small television, and a toaster on the kitchen table. According to her deposition testimony, as she was walking by the kitchen table, she smelled something burning. She turned around, and when she did, she saw a streak of light. The streak of light hit her in the face and went up her nose, knocking her against the door facing a nearby clothes dryer. She did not know if the streak of light came either from the appliances, a nearby plug, or a nearby light switch. According to her affidavit, the surge of electricity came from one of the appliances she was attempting to disconnect or from an electrical outlet. However, Harolie Grant testified that his wife said a surge "came out of that TV and went up her nostrils." In her affidavit, Grant contends she suffered a severe electrical shock, causing her injuries and further damage to her property. In her first amended petition, Grant alleges she suffered physical pain, mental anguish, $7,400 in medical expenses, loss of earnings, and damages to her property.
Grant contends the trial court erred in granting summary judgment in favor of SWEPCO. SWEPCO moved for summary judgment on two theories: (1) that there was no evidence of negligence,1 gross negligence, or willful misconduct, and (2) that SWEPCO was not liable under its tariff on file with the PUC, regardless of any alleged negligence, for voltage fluctuations due to an accident, a breakdown of power lines, or an act of God. SWEPCO's motion contained both a no-evidence summary judgment motion under Rule 166a(i) and an ordinary summary judgment motion, under Rules 166a(b) & (c).2 The rules do not prohibit such a hybrid motion, but the better practice is either to file two separate motions, one containing the no evidence summary judgment and one containing the ordinary summary judgment, or to file one document containing both motions but with the arguments and authorities for each clearly delineated and separate from one another.
Grant's first two points of error are predicated on the construction of a tariff filed by SWEPCO with the PUC. SWEPCO is an electric utility in the State of Texas as that term is defined in the Texas Utility Code § 31.002(1).3 Under the Public Utilities Regulatory Act (PURA), the Legislature has conferred jurisdiction upon the PUC to regulate utility rates, operations, and services.4 The PURA is an executive agency, with the power to create rules as necessary to carry out its legislative mandate.5 The PURA requires each utility to file a tariff with the PUC.6 A tariff is a document which lists a public utility's services and the rates for those services.7 Unless found to be unreasonable, filed tariffs govern a utility's relationship with its customers and have the force and effect of law.8 Tariffs, thus, amount to a binding contract between the utility and its customers.9 Because a tariff is presumed reasonable, the burden to prove unreasonableness is on the customer.10
As a binding contract, a tariff can establish contractual duties of the parties. If these duties are breached, a contract action would be the appropriate remedy. But a tariff can also limit a public utility's liability. The provisions of the tariff applicable in this case include
1. APPLICABLE TO ALL CLASSES OF ELECTRIC SERVICE
In order that all Customers may receive uniform, efficient, and adequate service, electric service will be supplied to and accepted by all Customers receiving service from the Company in accordance with these Terms and Conditions.
. . . .
8. CUSTOMER'S INSTALLATION
Customer is responsible for installing and maintaining such protective devices as are recommended or required by the then current edition of the National Electrical Code or as may be necessary to protect Customer's equipment or process during abnormal service conditions or the failure of all or a part of the electric service provided by the Company. All wiring and other electrical equipment furnished by the Customer will be installed, operated, and maintained by the Customer at all times in conformity with good electrical practice and with the requirements of the constituted authorities and these Terms and Conditions.
. . . .
13. CONTINUOUS SERVICE
Company will make reasonable provisions to insure satisfactory and continuous service, but does not guarantee a continuous supply of electric energy or that the voltage, wave form or frequency of the supply will not fluctuate. The Company shall not be liable for damages occasioned by interruption, failure to commence delivery, or voltage, wave form or frequency fluctuation caused by interruption or failure of service or delay in commencing service due to accident to or breakdown of plant, lines, or equipment, strike, riot, act of God, order of any court or judge granted in any bonafide adverse legal proceedings or action or any order of any commission or tribunal having jurisdiction; or, without limitation by the preceding enumeration, any other act or things due to causes beyond its control, to the negligence of the Company, its employees, or contractors, except to the extent that the damages are occasioned by the gross negligence or willful misconduct of the Company.
(Emphasis added.)
The leading Texas case on the reasonableness of public utility tariffs is Houston Power & Light Co. v. Auchan.11 In Auchan, a grocery store sued its electric company for spoiled food and the cost of removal after an extended power outage. The applicable portions of the tariffs in Auchan and in the present case are almost identical. The Texas Supreme Court stated, "We conclude that tariffs such as the one...
To continue reading
Request your trial
-
In re Escalera Res. Co.
...wire before metering and delivery, electricity was a service, not a product, under Pennsylvania UCC).11 Grant v. Sw. Elec. Power Co., 20 S.W.3d 764, 771 (Tex. App. 2000) ("The Texas Supreme Court has ruled that: 'Electricity is a commodity, which, like other goods, can be manufactured, tran......
-
In Re Erving Industries Inc.
...courts would consider electricity to be a good under Article 2 of the UCC); Pacific Gas, 271 B.R. at 640; Grant v. Southwestern Elec. Power Co., 20 S.W.3d 764, 771 (Tex.App.2000), rev'd on other grounds, 73 S.W.3d 211 (Tex.2002) (citing, Houston Lighting & Power Co. v. Reynolds, 712 S.W.2d ......
-
Southwestern Elec. Power Co. v. Grant
...and that Grant produced enough evidence to raise a material fact issue about whether SWEPCO owed Grant a duty to prevent her injuries. 20 S.W.3d 764. We disagree that, in this case, SWEPCO's tariff limiting liability for personal injury is prima facie unconscionable under the UCC. Rather, w......
-
State Farm Fire & Cas. Co. v. PECO
...life.... Indeed, a defect in electrical current often reveals itself only when it causes a catastrophe.”); Grant v. S.W. Elec. Power Co., 20 S.W.3d 764, 772–76 (Tex.App.2000) (distinguishing between a utility's privilege to limit by tariff liability for economic damages and its inability to......