Schmidt v. Northern States Power Co.

• Decision Date: 06 December 2007
• Docket Number: No. 2005AP1677.,2005AP1677.
• Citation: 742 N.W.2d 294,2007 WI 136
• Parties: Ralph SCHMIDT and Karline Schmidt, Plaintiffs-Appellants, August C. Heeg, Jr. and Joanne Heeg, Plaintiffs, v. NORTHERN STATES POWER COMPANY d/b/a Xcel Energy, Defendant-Respondent-Petitioner, St. Paul Fire & Marine Insurance Company, Associated Electric & Gas Insurance Services Limited d/b/a Aegis Insurance Services, Inc., and/or Aegis Security Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

742 N.W.2d 294

2007 WI 136

Ralph SCHMIDT and Karline Schmidt, Plaintiffs-Appellants, August C. Heeg, Jr. and Joanne Heeg, Plaintiffs, v. NORTHERN STATES POWER COMPANY d/b/a Xcel Energy, Defendant-Respondent-Petitioner, St. Paul Fire & Marine Insurance Company, Associated Electric & Gas Insurance Services Limited d/b/a Aegis Insurance Services, Inc., and/or Aegis Security Insurance Company, Defendants-Respondents.

No. 2005AP1677.

Supreme Court of Wisconsin.

Argued September 11, 2007.

Decided December 6, 2007.

For the defendant-respondent-petitioner there were briefs by Michael J. Happe, J. Drew Ryberg, and Ryberg & Happe, S.C., Eau Claire, John D. Wilson, Jordan J. Hemaidan, and Michael Best & Friedrich LLP, Madison, and oral argument by Andrea B. Niesen and Charles A. Bird.

For the plaintiffs-appellants there was a brief by Charles A. Bird, Andrea B. Niesen, and Bird, Jacobsen & Stevens, P.C., Rochester, MN, and James R. Koby and O'Flaherty Heim Egan, Ltd., La Crosse, and oral argument by Charles A. Bird.

An amicus curiae brief was filed by Trevor J. Will, G. Michael Halfenger, and Foley & Lardner LLP, Milwaukee, and Mark S. Henkel and First Law Group S.C., Stevens Point on behalf of Wisconsin Public Service Corporation and Wisconsin Power and Light Company.

An amicus curiae brief was filed by O. Thomas Armstrong, William P. Croke, and von Briesen & Roper, S.C., Milwaukee on behalf of Wisconsin Electric Power Company.

An amicus curiae brief was filed by H. Dale Peterson, John J. Laubmeier, and Stroud, Willink & Howard, LLC, Madison on behalf of Wisconsin Farm Bureau Federation, Cooperative.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J

This is a review of an unpublished decision of the court of appeals,¹ which reversed and remanded the decision of the Clark County Circuit Court, Jon M. Counsell, Judge. The circuit court determined on summary judgment that the six-year statute of limitations barred Ralph and Karline Schmidt's (Schmidts) claims. See Wis. Stat. § 893.52 (2003-04).² The circuit court also concluded at summary judgment that the Schmidts' claims were barred by the filed rate doctrine.³ The court of appeals reversed and remanded, and Northern States Power Company d/b/a Xcel Energy (Northern States), petitioned this court for review. We affirm the court of appeals' decision.

¶ 2 The Schmidts filed action in 2001 against Northern States alleging that "stray voltage" attributable to Northern States caused damage to the health and productivity of their dairy herd.⁴

¶ 3 This appeal presents the following two issues: First, we must decide whether the summary judgment record compels us to conclude as a matter of law that the statute of limitations bars the plaintiffs' claims. Northern States asserts that the Schmidts' claims are time barred because the summary judgment record shows they "discovered" their injury and its cause in 1993 but did not bring their claim until November 13, 2001, which is over six years later. The Schmidts assert that, while the record reflects that they suspected early on that stray voltage was negatively affecting their cows, they did not have an objective belief that stray voltage from Northern States was the cause of their injury until much later. We hold that where the undisputed facts lead to more than one reasonable inference about when discovery occurred, summary judgment is not proper. Here, more than one reasonable inference about when discovery occurred may be drawn from the undisputed facts in the summary judgment record.⁵ Therefore, summary judgment is not appropriate.

¶ 4 Second, we must decide whether the filed rate doctrine precludes the plaintiffs' common-law tort claims as a matter of law. Northern States asserts that its filed tariff "gives rise to an affirmative obligation of [Northern States], if — and only if — the stray voltage exceeds" one milliampere in the "cow contact" area due to off-farm sources. Northern States, therefore, concludes that if no evidence shows a measurement greater than one milliampere, it cannot be liable because it would be a violation of the filed rate doctrine for Northern States to act when it does not have an obligation to act under its tariff. The Schmidts claim that the "stray voltage tariff" states nothing about damages for stray voltage and does not provide a limitation of liability for stray voltage. Rather, the Schmidts argue that the tariff addresses the circumstances under which a consumer may ask Northern States to test for stray voltage and when Northern States is obligated to provide a reduction of stray voltage. We hold that the filed rate doctrine does not bar the plaintiffs' claims because (1) the Schmidts do not seek a "privilege" within the meaning of the filed rate doctrine and (2) as stated in Hoffmann,⁶ conformance with the Public Service Commission of Wisconsin's (PSC) findings does not abolish Northern States' common-law duty of ordinary care.

I

¶ 5 In 1978, the Schmidts purchased a dairy farm in Clark County, Wisconsin. They began experiencing problems with their dairy herd soon after they purchased the farm. Their cows, including new cows brought to the farm, developed problems such as mastitis, udder deformities, knee ailments, breeding difficulties, low appetite, low milk production, and unusually high mortality. These problems continued to varying degrees through 2001 when they filed their claim against Northern States.

¶ 6 In the fall of 1992, the Schmidts were experiencing problems with their herd and "reaching for reasons." According to Mrs. Schmidt, "somebody suggested that we should call the power company for stray voltage, so we called the power company. . . ." On November 24, 1992, a representative from Northern States came to the Schmidts' farm to "attempt to detect and correct neutral-to-earth or stray voltage concerns."⁷ Northern States took voltage readings, but it did not find off-farm sources causing more than one milliampere, the "level of concern" set by the PSC⁸ in the "cow contact"⁹ area. Accordingly, Northern States told the Schmidts that they did not have a problem with stray voltage, and they "would never have this problem because [the Schmidts] have plastic water lines." Northern States concluded, "no corrective action [was] needed."

¶ 7 In the spring of 1993, the Schmidts again contacted Northern States because they "had a miserable winter." The Schmidts told Northern States there has "to be something wrong." During the winter, a number of cows died, acquired mastitis, and exhibited troubling behavior, such as stomping, slopping at drinking cups, and not eating or drinking. Nothing in the record indicates Northern States returned to the farm to conduct more stray voltage analysis in response to this call. During this time, the Schmidts also called their veterinarian to treat their cows. Although the record does not give an exact date, the Schmidts replaced their electric water tanks with plastic tanks sometime in 1993, and at some point, the Schmidts attached rubber tires to their feed bunks.

¶ 8 Also in the spring of 1993, a representative from Dairy Services checked the Schmidts' milking system. After using a "meter of some sort," he told the Schmidts, "you've got some current problems here" and "[y]ou should have somebody check this out." The Dairy Services representative suggested that the Schmidts contact Northern States and Brian Van Ert (Van Ert), an electrician.¹⁰

¶ 9 Later in the spring of 1993, the Schmidts hired Van Ert to rewire the "whole farm and upgrade[ ] all the wiring" of their on-farm or internal system. The Schmidts also asked Van Ert to assess whether they had problems with stray voltage. Van Ert concluded that the Schmidts had a problem with stray voltage, and he thought the problem was from Northern States. Van Ert called Northern States and told them he "did not think the transformer was large enough" and that "problems started when neutral fell to [the] ground in Sept. of 1992."

¶ 10 On July 1 and July 22, 1993, Northern States returned to the Schmidts' farm to do stray voltage analysis. However, neither test showed that off-farm sources caused voltage measurements to exceed the "level of concern" in the "cow contact" area.

¶ 11 In an August 26, 1993, letter to the Schmidts from Northern States, Northern States informed the Schmidts that it would be doing "some more grounding work on the lines west" of the Schmidts on County Highway C, and it stated that Northern States planned to do some deep grounding near the Schmidts the week of August 30, 1993. The letter also stated, "[Northern States] would like to get together after this is completed and set up another recording session at your farm to determine if the effort has had any positive effects." The letter also indicated that Mr. Schmidt had asked to see some of the previous test results, but he was told by Northern States to make this request in writing.

¶ 12 On August 30, 1993, the Schmidts wrote a letter to Northern States and requested the "test results from the monitor set up in the barn." Specifically, the Schmidts requested voltage-testing results from November 24, 1992, July 1, 1993, and July 22, 1993.

¶ 13 Sometime between the August 30, 1993, letter and September 15, 1993, Mr. Schmidt called the Northern States district manager in Abbotsford, Wisconsin. According to Mr. Schmidt, "I told him I wanted to be released" from Northern States' electrical services.¹¹ Mr. Schmidt told Northern States he wanted something done; "I've got the test results. I'm going to an attorney." The district manager, however, asked Mr. Schmidt to "give him a few days," and the district manager said that he had a "new man on the block."

¶ 14 On September 15, 1993, two Northern States representatives came to the Schmidts' farm and conducted another stray voltage analysis. On this date, they found off-farm sources that caused voltage measurements to exceed the "level of concern" in the "cow contact" area....