Siewert v. Northern States Power Co., No. A07-1975.

• Decision Date: 09 December 2008
• Docket Number: No. A07-1975.,No. A07-2070.
• Citation: 757 N.W.2d 909
• Parties: Greg SIEWERT, et al., Respondents, v. NORTHERN STATES POWER COMPANY, d/b/a Xcel Energy, Appellant.
• Court: Minnesota Court of Appeals

757 N.W.2d 909

Greg SIEWERT, et al., Respondents, v. NORTHERN STATES POWER COMPANY, d/b/a Xcel Energy, Appellant.

No. A07-1975.

No. A07-2070.

Court of Appeals of Minnesota.

December 9, 2008.

Charles A. Bird, Bird, Jacobsen & Stevens, P.C., William D. Mahler, Will Mahler Law Firm, Rochester, MN, for respondents.

Timothy R. Thornton, Kevin M. Decker, Briggs and Morgan P.A., Minneapolis, MN, for appellant.

Considered and decided by CONNOLLY, Presiding Judge; LANSING, Judge; and MINGE, Judge.

OPINION

LANSING, Judge.

The district court denied Northern States Power's (NSP) motion for summary judgment on Harlan Siewert and Greg Siewert's common-law claims alleging damages and requesting injunctive relief from the effects of stray voltage on their dairy cows. Following NSP's initial appeal from the denial of summary judgment, the district court certified, as important and doubtful, questions on whether the Siewerts' action is barred by the filed-rate doctrine, the primary-jurisdiction doctrine, or the statute of repose for improvements to real property. We conclude that neither the filed-rate nor the primary-jurisdiction doctrine bars the Siewerts' claims for damages, but that the filed-rate doctrine bars their request for injunctive relief. We also conclude that none of the six claims is barred by the statute of repose, but our determination relies, in part, on an analysis that differs from that of the district court. Therefore, we answer the certified questions in the negative, affirm the district court as modified on the damages claims, reverse on the injunctive-relief claims, and remand for trial on the merits.

FACTS

Harlan Siewert and Greg Siewert are dairy farmers in Wabasha County. When they moved to their farm in 1989, they owned between 150 and 200 cows. Following their 1989 move, milk production did not meet expectations. The Siewerts assert that in the late nineties the milk production unexpectedly flattened, and then began to decrease in the early part of the current decade. During the years of unusually low production, the dairy herd also experienced more health problems than usual, and the Siewerts' veterinarians were unable to provide a satisfactory explanation for the problems.

The Siewerts' Wabasha County farm property was connected to the electrical grid in 1960 or shortly thereafter. The distribution line runs from the Zumbro Falls substation past the Siewerts' farm, and the electrical service to the farm is tapped in at the end of the driveway. The first major change that NSP made to the configuration of the electrical supply and grounding came in the eighties. A transformer pole was relocated on the property about the time of the Siewerts' move in 1989. In 1996 NSP added a new transformer and pole to the farm to extend service to a mobile home. And in 1999 NSP moved another utility pole on the farm. Over the same period, aggregate demand on the Zumbro Falls substation grew. The record indicates that part of the increase resulted from NSP's need to supply customers beyond the Siewerts' farm on the same distribution line.

In 2004 the Siewerts began to explore whether stray voltage might be the cause of their dairy herd's poor milk production. Stray voltage is a phenomenon in which voltage returning to the ground after powering an appliance is able to pass through an object not intended as a conductor. In March 2004 the Siewerts hired an electrician to test for stray voltage in the area of the dairy operation. Shortly before the testing, NSP responded to the Siewerts' concerns by installing a neutral isolator on the farm. The electrician's measurements at that time showed "[c]ow contact voltages exceeding 1.5 volts." The electrician described this voltage as excessive. NSP's engineer then designed a new three-phase configuration for electrical service to the farm, including a primary neutral isolator that had greater capacity. The engineer stated at a deposition that he took this action because he concluded that, at some time after 1989, the existing transformer bank had become overloaded. Greg Siewert testified at a deposition that the June 2004 reconfiguration caused the voltage to drop. He also stated that during one brief period the Siewerts powered their farm with a separate generator, and the voltage measurement dropped further.

The Siewerts sued NSP in June 2004, alleging that the stray voltage had in fact been the source of losses in their dairy production. They filed an amended complaint in March 2007, alleging that NSP caused the stray voltage and pleading seven grounds for their requested injunctive and compensatory relief. The grounds included trespass, nuisance, strict liability, and common-law negligence.

Between June 2004 and July 2007, the Siewerts and NSP conducted discovery, and, in July 2007, both moved for summary judgment. As relevant to this appeal, the district court rejected NSP's arguments that the Siewerts' claims are barred by the filed-rate doctrine, the primary-jurisdiction doctrine, and the statute of repose for improvements to real property, and denied summary judgment. NSP initially raised these three issues in a direct appeal based on a claim of right and also filed a petition for discretionary review. While these matters were pending, the district court certified for review the same three questions, making the order denying summary judgment appealable under Minn. R. Civ.App. P. 103.03(i). The petition for discretionary review was denied, and the appeal based on a claim of right was consolidated for decision with this appeal because it raised the same three issues as the certified questions.

ISSUES

I. Are the questions properly certified as important and doubtful?

II. Does the filed-rate doctrine bar the district court from considering the Siewerts' claims?

III. Does the primary-jurisdiction doctrine bar the district court from considering the Siewerts' claims without first referring them to the Minnesota Public Utilities Commission?

IV. Are the Siewerts' claims barred by the statute of repose for improvements to real property set forth in Minn.Stat. § 541.051?

ANALYSIS

I

The district court may, as an exception to the general rule of finality, certify to the court of appeals an order denying a motion for summary judgment if the question presented is important and doubtful. Minn. R. Civ.App. P. 103.03(i). We independently review whether a question is important and doubtful. See Emme v. C.O.M.B., Inc., 418 N.W.2d 176, 180-81 (Minn.1988) (applying de novo review to determine whether question is important and doubtful).

To be doubtful, a question need not be one of first impression, but "it should be one on which there is a substantial ground for a difference of opinion." Fedziuk v. Comm'r of Pub. Safety, 696 N.W.2d 340, 344 (Minn.2005). A question is important if it has statewide impact, will likely be reversed, is dispositive of potentially lengthy proceedings, and will impose substantial harm if wrongly decided by the district court. Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 884 (Minn. 2000). Among these factors, significant weight attaches to whether reversal would terminate potentially lengthy proceedings. Id.

In evaluating whether the district court's three certified questions are important and doubtful, we must also ensure that "the issue set forth in the certified question accurately reflects the record." Prof'l Fiduciary, Inc. v. Silverman, 713 N.W.2d 67, 70 (Minn.App.2006), review denied (Minn. July 19, 2006). The crux of each question is whether the given rule— the filed-rate doctrine, the primary-jurisdiction doctrine, or the statute of repose— bars the Siewerts' claims. In restructuring the questions in the statement of the issues, we have restricted the questions to their summary-judgment context and avoided adversarial characterizations that would enlarge the questions beyond this stage of the litigation.

We first address whether the three issues presented are doubtful. Whether the filed-rate doctrine bars the claims essentially raises an issue on the scope of the filed-rate doctrine. This issue is not well settled, and less than eight months ago we recognized as doubtful the issue of whether the filed-rate doctrine applied to an alleged breach of NSP's contractual obligation to maintain points of connection between its wires and its customers' homes. See Hoffman v. N. States Power Co., 743 N.W.2d 751, 754 (Minn.App.2008) (deciding that certification was proper for filed-rate question in suit against NSP), review granted (Minn. Apr. 15, 2008). Despite Hoffman, the scope of the filed-rate doctrine remains doubtful because the supreme court has granted review and has the case under consideration and because the cause of action in Hoffman is based on contract, which is distinct from the Siewerts' tort claims.

We also conclude that the primary-jurisdiction question is doubtful. Although the district court certified a primary-jurisdiction question in Hoffman, it was unnecessary to address this question on appeal because the filed-rate doctrine was determined to be dispositive. Id. at 753. Thus, even on Hoffman's contract claim, direct precedent is not available on whether NSP's maintenance obligation is within the special competence of the Minnesota Public Utilities Commission (MPUC) or is, instead, inherently judicial. See City of Rochester v. People's Coop. Power Ass'n, Inc., 483 N.W.2d 477, 480 (Minn. 1992) (explaining primary-jurisdiction doctrine). Due to the lack of precedent and the absence of a primary-jurisdiction analysis in Hoffman, the scope of the primary-jurisdiction doctrine remains doubtful.

Similarly, the question of whether the Siewerts' claims are barred by the statute of repose is doubtful. See Minn. Stat. § 541.051 (setting forth statute of repose). To support their argument that their claims are not barred, the Siewarts rely, in major part, on our decision in Johnson v. Steele-Waseca Coop. Elec.,...