Kerns v. Madison Gas & Elec. Co., 85-0772

• Decision Date: 28 October 1986
• Docket Number: No. 85-0772,85-0772
• Citation: 396 N.W.2d 788,134 Wis.2d 387
• Parties: Richard B. KERNS and Kathleen E. Kerns, Plaintiffs-Appellants, v. MADISON GAS & ELECTRIC COMPANY, a Wisconsin corporation, Defendant-Respondent, William Chandler, Mary Chandler, and General Casualty Company of Wisconsin, a Wisconsin corporation, Defendants.
• Court: Wisconsin Court of Appeals

Page 788

396 N.W.2d 788

134 Wis.2d 387

Richard B. KERNS and Kathleen E. Kerns, Plaintiffs-Appellants, v. MADISON GAS & ELECTRIC COMPANY, a Wisconsin corporation Defendant-Respondent William Chandler, Mary Chandler, and General Casualty Company of Wisconsin, a Wisconsin corporation, Defendants.

No. 85-0772.

Court of Appeals of Wisconsin.

Submitted on Briefs July 8, 1986.

Opinion Released Oct. 28, 1986.

Opinion Filed Oct. 28, 1986.

Mark S. Young, Lawrence M. Shindell and James F. Boyle, and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, for plaintiffs-appellants.

Bruce D. Huibregtse and Erik T. Salveson, and Stafford, Rosenbaum, Rieser & Hansen, Madison, for defendant-respondent.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

DYKMAN, Judge.

Richard and Kathleen Kerns, personal injury plaintiffs, petitioned for leave to appeal from a nonfinal order granting partial summary judgment in favor of MG & E. We granted the petition. The court dismissed plaintiffs' claims that MG & E maintained its electrical transmission line below clearance requirements in violation of the electrical code, Wis.Adm.Code, sec. PSC 114 (February, 1982) ¹ and the statutes, secs. 196.64, ² 196.67 ³ and 196.74, ⁴ Stats. (1981-82), causing plaintiffs' damages. MG & E does not challenge plaintiffs' common law negligence claims on summary judgment. Because we conclude that no genuine issue of material fact exists as to whether MG & E violated the statutes or the electrical code, we affirm the trial court's order granting partial summary judgment.

FACTS

Richard was injured in 1982 when a metal pole he was holding came in contact with an MG & E electric transmission line. MG & E acquired the line in 1917. At the time

                of the accident, Richard was standing on the roof of a two-story building which had been constructed beneath MG & E's line in 1946 as a one-story building.  The building's second story, which reduced the line's clearance below code requirements, was constructed in 1956.  It is undisputed that MG & E last modified the conductors in 1950 and that the line's clearance complied with the vertical clearance requirements of the 1944 Wisconsin State Electrical Code, Volume 1 which was in effect in 1950. 5  From 1956 until Richard's accident, no administrative authority required MG & E to increase the clearance.  Sec. PSC 114.05(2)
                

SUMMARY JUDGMENT METHODOLOGY

Section 802.08(2), Stats., provides that summary judgment will be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. When reviewing a grant of summary judgment, we follow the same methodology as the trial court. That methodology is detailed in In re Cherokee Park Plat, 113 Wis.2d 112, 116, 334 N.W.2d 580, 582-83 (Ct.App.1983), and we will not repeat it here.

PLEADINGS AND AFFIDAVITS

Our review of the pleadings and affidavits reveals that the material facts are undisputed. The second amended complaint states a claim and MG & E's answer joins issue. Plaintiffs and MG & E submitted the affidavits of their respective experts. However these affidavits do not raise any issue of material fact. They offer conflicting opinions as to whether MG & E violated the statutes and the code and whether the "existing installation" provision applies to the line. Whether the "existing installation" provision applies and whether MG & E violated the statutes and the code are questions of law. Backhaus v. Krueger, 126 Wis.2d 178, 180, 376 N.W.2d 377, 378 (Ct.App.1985). The affidavits set forth conclusions of law, not disputed facts. Where only a question of law remains, it may properly be decided on summary judgment. Konkel v. Town of Raymond, 101 Wis.2d 704, 707, 305 N.W.2d 190, 192 (Ct.App.1981).

STATUTORY AND CODE VIOLATIONS

MG & E argues that the line is an "existing installation" under Wis.Adm.Code, sec. PSC 114.05(2) (February, 1982) because it was in place when the building's first and second stories were built beneath it. MG & E contends that the line complied with the code at the time Richard was injured and that compliance with the code constitutes compliance with sec. 196.74, Stats. Therefore, plaintiffs are not entitled to treble damages under sec. 196.64.

Plaintiffs argue that MG & E had a duty under the electrical code to raise the line after the 1956 addition reduced the clearance, and that MG & E cannot rely on the "existing installation" provision to relieve itself of that duty. They also argue that MG & E breached a separate statutory duty under sec. 196.74, Stats., because the line's reduced clearance was not "reasonably adequate and safe." Plaintiffs contend that MG & E's violation of sec. 196.74 entitles them to treble damages under sec. 196.64.

Plaintiffs concede that whether MG & E had a duty under the code to increase the clearance depends largely on interpretation of the code's existing installation provision, sec. PSC 114.05(2), which states:

(a) Existing installations, including maintenance replacements, which comply with prior editions of the code, need not be modified to comply with this chapter except as may be required for safety reasons by the administrative authority.

(b) Where conductors or equipment are added, altered, or replaced on an existing structure, the structure or the facilities on the structure need not be modified or replaced if the resulting installation will be in compliance with the rules which were in effect at the time of the original installation.

"We interpret administrative regulations in the same manner as we interpret statutes." Uebele v. Oehmsen Plastic Greenhouse Mfg., Inc., 125 Wis.2d 431, 434, 373 N.W.2d 456, 458 (Ct.App.1985). "Interpretation of a regulation is governed by its language." Larsen v. Wisconsin Power & Light Co., 120 Wis.2d 508, 513, 355 N.W.2d 557, 560 (Ct.App.1984). If that language is plain and clearly understood, that meaning must be given to the regulation. Stoll v. Adriansen, 122 Wis.2d 503, 510, 362 N.W.2d 182, 186 (Ct.App.1984). We will apply rules of construction only if the provision is ambiguous. A regulation is ambiguous if well-informed individuals could understand the regulation in different ways. Uebele, 125 Wis.2d at 434, 373 N.W.2d at 458. Plaintiffs do not argue that the existing installation provision is ambiguous. We conclude that the regulation is unambiguous on its face.

The language of the existing installation provision is plain and clearly understood: An existing installation which complies with prior editions of the code need not be modified to comply with the current code unless the PSC has ordered the installation brought into compliance. Sec. PSC 114.05(2)(a). We reject plaintiffs' argument that the existing installation provision only applies to changes in code requirements and not to changes in the installation's surroundings. The provision does not make that distinction.

Because the line was in place when both stories were constructed, it is an existing installation. MG & E's compliance with the code is determined under the 1944 code, which was in effect when MG & E last modified the conductors in 1950. Order 1013(B), Wisconsin State Electrical Code, Volume 1 (5th ed.1944). ⁶ It is undisputed that the line complied with the applicable 1944 clearance requirements and that the PSC has not ordered MG & E to raise the line. Therefore, the line complied with the code at the time of Richard's 1982 accident.

Plaintiffs cite several cases from other jurisdictions to support their contention that MG & E cannot rely on the existing installation provision. Ruhs v. Pacific Power & Light, 671 F.2d 1268 (10th Cir.1982), involved an existing installation provision. However, the Ruhs court could not conclude as a matter of law that the existing installation provision applied because it was unclear if the installation complied with a prior edition of the code. Here, it is undisputed that MG & E's line complied with the 1944 electrical code.

The rest of plaintiffs' cases are distinguishable because they do not involve an existing installation provision. In Phelps v. Magnavox Company of Tennessee, 497 S.W.2d 898 (Ct.App.Tenn.1972), relocated power lines did not meet the applicable clearance requirements. The case did not involve an existing installation. In Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976), the utility's line complied with code requirements but the utility was found liable in common law negligence. The case is inapposite because plaintiffs' common law claims are not at issue in the instant case; MG & E has challenged only their statutory and code claims. Miller v. Leavenworth-Jefferson Elec. Co-op., 653 F.2d 1378 (10th Cir.1981) did not arise under the existing installation provision. Arkansas-Missouri Power Co. v. Davis, 222 Ark. 686, 262 S.W.2d 916 (1953), presented a jury question of whether the utility negligently maintained a power line near a billboard. Pape v. Kansas Power and Light Co., 231 Kan. 441, 647 P.2d 320 (1982), did not involve the electrical code.

The Wisconsin cases cited by plaintiffs are also distinguishable. Neither Wilbert v. Sheboygan, L., P. & R. Co., 129 Wis. 1, 106 N.W. 1058 (1906), nor Sandeen v. Willow River Power Co., 214 Wis. 166, 252 N.W. 706 (1934), addresses the electrical code or ch. 196, Stats.

We reject plaintiffs' argument that MG & E had a separate duty to increase the clearance under sec. 196.74, Stats. Section 196.74 authorizes the PSC to "issue orders or rules ... requiring electric construction and operating of such wires and equipment to be safe." Section 227.014, Stats., ⁷ authorizes the PSC "to adopt such rules interpreting the provisions of statutes enforced or administered by it as it considers to be necessary to effectuate the purpose of the statute...." Pursuant to this statutory authority, the PSC promulgated Volume 1 of the Wisconsin State Electrical Code which includes the existing installation provision....