Walter Family Grain Growers, Inc. v. Foremost Pump & Well Servs., LLC, 37915-9-III

• Court: Court of Appeals of Washington
• Citation: 506 P.3d 705
• Docket Number: 37915-9-III
• Parties: WALTER FAMILY GRAIN GROWERS, INC., Appellant, v. FOREMOST PUMP & WELL SERVICES, LLC, Defendant, Inland Power & Light Co.; and Mitchell, Lewis & Staver Co., Respondents.
• Decision Date: 24 March 2022

506 P.3d 705

WALTER FAMILY GRAIN GROWERS, INC., Appellant,
v.
FOREMOST PUMP & WELL SERVICES, LLC, Defendant,

Inland Power & Light Co.; and Mitchell, Lewis & Staver Co., Respondents.

No. 37915-9-III

Court of Appeals of Washington, Division 3.

FILED MARCH 24, 2022

George M. Ahrend, Luvera Law Firm, 457 1st Ave., Nw, P.O. Box 816, Ephrata, WA, 98823-0816, for Appellant.

Scott Christopher Cifrese, Jeremy Michael Zener, Paine Hamblen LLP, 717 W Sprague Ave., Ste. 1200, Spokane, WA, 99201-3905, for Respondents.

PUBLISHED OPINION

Staab, J.

506 P.3d 707

¶ 1 Walter Family Grain Growers (Walter) installed new irrigation and power equipment on its farm that failed, resulting in lost crops. In addition to filing suit against the installation companies, Walter sued Inland Power & Light Company (Inland) for negligence, asserting that excessive voltage service destroyed the equipment. The trial court dismissed Walter's negligence claims against Inland, finding Walter's evidence of breach of duty insufficient to survive summary judgment. We reverse, holding that industry standards and regulations alone do not set a utility's duty of care in a tort, and Walter's evidence is sufficient to raise a material issue of fact on whether Inland breached its duty of care.

BACKGROUND

¶ 2 Since Walter's negligence claim was dismissed on summary judgment, the following facts are set forth in a light most favorable to Walter.

¶ 3 Walter Farms leased property in Lincoln County. Inland provided 3 phase 480-volt power to the Walter property from April 2012 to 2014.¹ Inland tries to push power at 480 volts plus or minus five percent per American National Standards Institute (ANSI) recommendations. Low voltage is a class of nominal system voltages of 1,000 volts or less. Nominal system voltage in a low voltage system is 480 on a three-wire three-phase system. However, nominal utilization voltage is 460 volts on a 480 system.

¶ 4 Power companies maintain service power at 480 volts that attenuates due to customer use and bleeds off to a level of 460 volts at customer utilization points, which is why equipment rated at 460 volts is recommended. Maximum service voltage is 504 volts. ANSI standards allow for 10 percent power fluctuations for temporary conditions. Inland admits that spikes above 506 can happen, and it is not uncommon for a spike to occur for 2/60th of a second. Any spike longer than that or higher than 600 volts, Inland's system would need to be shut off for safety but they would not know to do so.

¶ 5 Prior to 2019, Inland could not monitor or record the voltage in its electrical lines and relied on customers to alert them to problems such as something burned. Lightning arrestors at the substations and poles prevent transmission of huge voltages by blowing out. Inland's transformer is 10 feet from Walter's service meter. Inland rebooted the Walter service meter in April 2013. Colley Walter of Walter Farms did not remember any power problems prior to 2015.

¶ 6 In 2014, Walter contracted with Foremost Pump & Well Services LLC (Foremost) to install a used irrigation pump and new variable frequency pump drive (VFD). The pump was 14 years old, but a pump can be expected to function for 60 years. Walter then applied for an electrical subsidy through Inland for its upgraded VFD equipment. The Foremost contract called for a 300 horsepower pump using incoming phase 3 power of 480 volts and an attached VFD pump control system compatible with the pump to provide constant water pressure. A VFD converts power and emits it back out to the pump motor in pulses. It has an internal fault mechanism that alarms and shuts the drive down when there is too much voltage so that the VFD does not burn out. The VFD was rated for 3 phase 460 volts nominal voltage and can handle up to 485 volts.

¶ 7 The VFD creates "noise" known as harmonic current and sends this current back up the power grid. To prevent this from happening, most power companies require a harmonic filter to be installed with a VFD. The VFD that Walter purchased was ordered with a harmonic filter in it. The harmonic

506 P.3d 708

filter built into the VFD adds 8 to 12 volts to the system.²

¶ 8 Inland turned off the service in May 2014, while Foremost performed the pump installation. At the same time, Jim Klopmeyer of Mitchell, Lewis & Staver (MLS) installed the VFD, electrical control relay, and other components connected to the VFD system. The relay is separate from the VFD. The relay has a threshold for excess voltage. The record does not contain voltage ratings for the control relay or other components except that the relay feeds 120 volts into the harmonic filter. There is no fuse or trip between the relay and the service to prevent excess voltage from burning the relay. If the relay burns, power proceeds directly into the VFD and pump and they would burn and fail after a short period. In summary, power feeds through the electrical system in the following order:

1. Inland South Creston substation.

2. Inland transformer.

3. Inland service entrance and breaker.

4. MLS control power transformer.

5. MLS control relay.

6. Foremost VFD and harmonic filter.

7. Water pump motor.

¶ 9 A year after it was installed, Walter began experiencing electrical problems with the pump. The VFD exhibited repeated error codes indicating " ‘DC Bus Overvoltage’ " which caused the pump to shut down and deprive the crops of water. Clerk's Papers (CP) at 97. The first error code occurred on May 5, 2015. There was no evidence of moisture damage or burn damage to the pump. The pump was unlikely to fail from age. There is nothing in the record suggesting other Inland customers experienced problems at the same time or weather conditions that could cause temporary power service fluctuations.

¶ 10 On May 14, 2015, Walter complained to Foremost and MLS, who investigated the problem. On May 18, 2015, James Klopmeyer from MLS drove out to Walter's site. He pulled up the VFD alarm log and noticed several "trips" on the DC bus over-voltage alarm. He went through the programming parameter settings and visually inspected the unit and wiring. He then used a fluke meter³ to measure incoming voltage on the input terminals of the VFD "downstream" from the harmonic filter, which was turned off at the time. The measure was at 496 volts. His opinion was that the power was too high for the unit, and he recommended that Walter contact Inland. Once a VFD shuts down, it must be manually reset, and the breaker must be turned on and off. Klopmeyer got the system up and running and watched the power levels for two hours. With the harmonic filter active, his measurements remained at 496 volts.

¶ 11 Colley Walter from Walter called Inland. They came out the same day and indicated that the voltage was "good on their end." CP at 283. Six hours later, the VFD indicated another DC fault code.

¶ 12 On May 19, 2015, Colley Walter called Inland and Foremost. Mr. Jensen of Foremost responded and personally checked the Walter equipment before the Memorial Day weekend while the Inland employees were on site. He did not see any problems with the relay himself, but based on comments by James Klopmeyer, he thought that a "fluttering relay" could cause the harmonic filter to create high voltages. CP at 249. On May 21, 2015, Inland placed a remote voltage meter on the Walter property. The next day, the VFD fault coded again. Inland employee Ver Don Nelson saw spike measurements of 510 volts once or twice and expects that those were taken from the transformer next to the Walter breaker. No voltage measurements were taken from the substation that feeds the Walter property.

506 P.3d 709

¶ 13 The following Saturday, May 23, 2015, Mr. Jensen returned to the Walter property and personally measured voltage of 498 volts, "about" 500 volts, coming in from the service. He also observed voltage readings on the VFD panel. Inland employee "Mike" arrived at the same time and measured the same voltage amount. Mike turned the power down. The pump was turned on and ran. It shut down again due to another DC fault on May 24, Memorial Day weekend.

¶ 14 The next Thursday after Memorial Day, May 26, Mr. Jensen met with Ver Don Nelson of Inland, Mr. Jessup, and Mr. Walter at the Walter property. They saw voltage measurements of 470 to 475 approximately measured on the breaker side. Inland denied anything was wrong and "bumped up" the voltage close to 480. Mr. Nelson did not do this from the office. He increased the voltage by calling Mike Andriola, the Inland engineer. Ver Don Nelson did not say when he did this, but Mr. Walter and Mr. Jensen's depositions evidence establish the date. The VFD shut down again for a DC fault code that night.

¶ 15 On May 27, during his second visit, Mr. Klopmeyer from MLS discovered that Walter's control relay was burned. He testified that a relay is designed to burn up when there is elevated voltage. There were no loose connections. He removed the damaged relay and replaced it with a new one. He re-measured incoming voltage at 482. In his opinion, elevated voltage caused the relay to burn at some earlier time. Mr. Klopmeyer admitted at deposition that the VFD could have been defective but did not think that the relay was defective.

¶ 16 The pump motor...