Olson v. Mountain States Tel. & Tel. Co.

• Decision Date: 16 June 1978
• Docket Number: No. 1,CA-CIV,1
• Citation: Olson v. Mountain States Tel. & Tel. Co., 580 P.2d 782, 119 Ariz. 321 (Ariz. App. 1978)
• Parties: Leonora M. OLSON, a single woman, Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, d/b/a Mountain Bell, a Colorado Corporation, Appellee. 3771.
• Court: Arizona Court of Appeals

Page 782

580 P.2d 782

119 Ariz. 321

Leonora M. OLSON, a single woman, Appellant, v.The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, d/b/a Mountain Bell, a Colorado Corporation, Appellee.

No. 1 CA-CIV 3771.

Court of Appeals of Arizona,Division 1,Department A.

June 16, 1978.

Meyer & Vucichevich, P. C. by Henry G. Hester, Phoenix, for appellant.

Fennemore, Craig, von Ammon & Udall by Michael Preston Green and George T. Cole, Phoenix, for appellee.

OPINION

HAIRE, Presiding Judge.

This is an appeal from the granting of summary judgment in favor of appellant, plaintiff below, and against appellee, defendant below, in the amount of $4.87.Appellant's complaint on appeal is that the court erred in an earlier interlocutory ruling that Section 20(G), General Exchange Tariff, on file with the Arizona Corporation Commission, applied to the case.¹The crux of the argument between the parties is whether the conduct of appellee in this case falls within the exception to the general limitation on liability of the tariff for "willful and deliberate" acts of the telephone company.

In reviewing on appeal the action of the trial court in granting summary judgment this Court will view the evidence most favorably to appellant.Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227(1977).It is also a well established principle that summary judgment must be denied if the record reveals a genuine issue of material fact.Gibbons v. Globe Development, Nevada, Inc., 113 Ariz. 324, 553 P.2d 1198(1976).When the record in this case is examined in light of these principles it is apparent that summary judgment was properly granted and we therefore affirm.

Neither party disputes what the facts are as revealed by the record.Appellant was engaged in the business of giving Yoga instruction and in June 1973she moved her business to a new location.Because of the move appellee assigned appellant a new telephone number.Appellant claimed that she arranged with appellee to have any calls to her old telephone number intercepted and her new number given to any callers.Appellant deposed each of appellee's employees who had contact with her.None remembered the details of the conversations with appellant and none of their records indicated that a request for such an intercept was ever made.They testified, however, that the intercept service was extended to all customers at no extra charge and was supposed to be provided automatically whether or not there was a request.

It is conceded by appellee that after the move in June the intercept service was not working on appellant's old telephone number and no intercept was in fact placed on her former number until November of 1973 when appellant advised appellee's top management of her problem.In September 1973appellant's previous telephone number was assigned to another telephone subscriber.Apparently, between June and September of 1973 many persons calling appellant at her old phone number were, with some difficulty, able to contact her at her new place of business.There were, however, other callers who were not able to reach her.Appellant sought monetary damages for loss of potential customers and revenues as a result of this situation.

The validity of General Exchange Tariff§ 20(G) was upheld by Division 2 of this Court in Sommer v. Mountain States Telephone and Telegraph Co., 21 Ariz.App. 385, 519 P.2d 874(1974).The tariff generally limits appellee's liability for mistakes or errors in providing telephone service to the amount of the charge to the customer during the period of the mistake or error.The only exception to this limitation on liability is for willful and deliberate acts of the telephone company.In Sommer v. Mountain States Telephone and Telegraph Co., supra, the Court of Appeals held that the exception did not require proof of malice or of a primary intent to injure the customer.The Court interpreted the word "willful" to mean " 'done deliberately or intentionally' ", and "deliberate" as " 'carefully thought out or formed; premeditated; done on purpose.' "

Appellant presented no evidence that appellee had failed to place the intercept on her old telephone number intentionally or that they had done it deliberately.Appellant herself in her deposition described the situation as a "mix-up"....