Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Const. Corp.

• Decision Date: 27 June 1980
• Docket Number: No. 77-838,77-838
• Parties: WISCONSIN NATURAL GAS COMPANY, a Wisconsin corporation, Plaintiff-Respondent, Cross-Appellant and Cross-Petitioner, v. FORD, BACON & DAVIS CONSTRUCTION CORPORATION, a Foreign Corporation, Defendant- Appellant Cross-Respondent-Petitioner, Tomaro Contractors, Inc., a Wisconsin corporation, Defendant-Respondent, Employers Mutual Liability Insurance Company of Wausau, a Wisconsin corporation, Defendant.
• Court: Wisconsin Supreme Court

Page 825

291 N.W.2d 825

96 Wis.2d 314

WISCONSIN NATURAL GAS COMPANY, a Wisconsin corporation Plaintiff-Respondent, Cross-Appellant and Cross-Petitioner, v. FORD, BACON & DAVIS CONSTRUCTION CORPORATION, a Foreign Corporation, Defendant- Appellant Cross-Respondent-Petitioner Tomaro Contractors, Inc., a Wisconsin corporation Defendant-Respondent Employers Mutual Liability Insurance Company of Wausau, a Wisconsin corporation, Defendant.

No. 77-838.

Supreme Court of Wisconsin.

Argued March 3, 1980.

Decided May 6, 1980.

As Modified on Denial of Reconsideration June 27, 1980.

Willard S. Stafford and Robert Horowitz (argued), Peter T. Julka, Gary M. Young, John W. Markson, Jr., and Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief, for Ford, Bacon & Davis Construction Corp.; Burt W. Sperry and Shotwell, Brown & Sperry, Monroe, La., of counsel.

George W. Greene and William P. Croke (argued), Douglas H. Starck and Prosser, Wiedabach & Quale, S. C., Milwaukee, on brief, for Wisconsin Natural Gas Company.

Francis X. Krembs (argued) and Kenney, Krembs & Fellows, Milwaukee, on brief, for Tomaro Contractors, Inc.

COFFEY, Justice.

Ford, Bacon & Davis Construction Corp. (Ford, Bacon & Davis), has appealed from that portion of the court of appeals' decision holding that the plaintiff's, the Wisconsin Natural Gas Company (the Gas Company), cause of action was not barred by the six (6) year statute of limitation, sec. 893.19(5), Stats., and refusing to modify the comparative negligence rule of law as set forth in sec. 895.045, Stats. The Gas Company cross -appealed from that portion of the court of appeals' decision affirming the trial court's refusal to allow the jury to consider the claims for (1) "future damages" and (2) damages incurred as a result of the negligent installation of piping necessitating excavations numbered 12, 32, 40 and 47.

The subject of the appeal was the negligent installation of a 14 mile natural gas transmission pipeline in Milwaukee County by Ford, Bacon & Davis and Tomaro Construction Co. The Gas Company retained the defendant-appellant, Ford, Bacon & Davis, a pipeline engineering and consulting firm, to design and supervise the installation of the pipeline. The defendant-respondent, Tomaro Contractors, Inc. ¹ (Tomaro) was hired as the contractor for the installation of the pipeline (excavation, etc.).

Construction of the pipeline was commenced in January, 1968 and became operational in September of the same year. Two months thereafter, in November, shortly after the pipeline was operational, the Gas Company conducted a survey to test for possible corrosion. Following this survey, in early 1969 (March or April), the utility retained the Harco Corporation (Harco), a corrosion engineering firm specializing in cathodic protection, ² to conduct a more extensive corrosion survey and to assist in developing a system of cathodic protection on the pipeline. In May of 1969 Harco located one casing short ³ at a street crossing but concluded that the pipeline could be cathodically protected from corrosion "with little difficulty." Harco then designed and installed a system of cathodic protection to prevent further corrosion to the pipeline. In January, 1970, after the cathodic protection process was in operation, Harco recommended a yearly survey of the system. The Gas Company, following Harco's recommendation, conducted a second survey in early 1971, and after finding a number of casing shorts, determined that the pipeline could no longer be considered under cathodic protection. As a result of their findings in the 1971 survey, the Gas Company hired a second engineering and consulting firm, the Hinchman Company (Hinchman), to conduct a comprehensive survey of the entire 14 mile pipeline installed less than three (3) years earlier. Hinchman discovered six (6) "shorts" (five (5) casing and one (1) intermittent short) ⁴ and recommended that the utility clear and repair the underground casing shorts thus necessitating extensive excavation. Hinchman recommended that the utility excavate and repair as opposed to increasing the electrical current of the cathodic protection process because the current was already operating at its maximum level.

As a result of Hinchman's report and recommendation, the Gas Company embarked upon an extensive program of repair and maintenance of the pipeline to clear the "shorts." The work was divided into three phases involving 49 separate excavations. Phase I of the work included eight excavations, made between July and December of 1972, at street crossings where there were indications of casing shorts. The following year the Gas Company commenced Phase II of the project and repaired and cleared casing shorts at 22 sites between August of 1973 and December of 1974, primarily in areas where the pipeline crossed under streets.

As part of their continuing effort to rectify the problems of casing shorts resulting from the faulty installation of the pipeline, the Gas Company conducted another survey and utilized a new instrument known as a "kaliper pig" for locating and measuring any diametrical changes in the pipeline, such as buckles or dents. Following the survey with the "kaliper pig", the Gas Company completed the third and last phase of the repair project between May of 1976 and December of 1977 and thus incurring the additional expense of nineteen (19) more excavations.

It should be noted that the 14 mile gas pipeline was enclosed within outer casing pipes only at those locations where the gas line was laid under street or railroad crossings. Insulators ⁵ were then installed on the carrier pipe to keep it from coming in contact with the casing pipe. The principal source of the pipeline problems occurred at locations where the contractor, Tomaro, in laying the pipeline under street and railroad crossings, failed to provide adequate support or proper backfill in the trenches. As a result of the negligent installation of the gas pipeline, the outer casing pipe and the enclosed gas line shifted, thus causing the gas line to come in contact with the protective casing pipe and causing "casing shorts." On site inspections of the gas line confirmed that the "carrier piping" had shifted because Tomaro had failed to provide adequate support for the gas line against the expected settling and shifting of the soil after installation of the pipeline. The inspections also revealed evidence that the pipeline had "buckled" or dented at other locations due to Tomaro's negligence, necessitating the removal of several other sections of damaged pipe during the repair program.

Following the costly and extensive surveys and repair of the pipeline, the Gas Company in 1975 commenced the present lawsuit against Ford, Bacon & Davis and Tomaro alleging that their joint negligence caused damage to the pipeline, thereby rendering it unusable. Specifically, the utility contends that the contractor, Tomaro, was negligent in the installation of the pipeline by failing to provide adequate support for the pipe in light of anticipated shifting soil conditions. It was alleged that Ford, Bacon & Davis' (the engineering inspector and consultant) negligence was attributable to its failure to properly supervise the construction of the pipeline. The Gas Company claimed that as a result of the defendants' negligence, it incurred the added expenses of inspection, repair and unusually early maintenance problems of the pipeline.

The defendants, Ford, Bacon & Davis and Tomaro, claimed that the plaintiff's cause of action was barred by the six-year statute of limitation contained in sec. 893.19(5), Stats., because it was not commenced until six years and one month after the determination of the original defect. The defendants also answered the complaint alleging that the Gas Company was negligent in that it substituted inferior pipe and insulators (a thinner piping) than those recommended by Ford, Bacon & Davis.

Following a five week trial, the jury, answered a series of special verdict questions, finding the Gas Company 40% causally negligent, Ford, Bacon & Davis 45% causally negligent and Tomaro 15% causally negligent. The jury assessed total damages in the amount of $394,740. The trial court entered judgment in favor of the plaintiff, the Gas Company, against the defendant, Ford, Bacon & Davis, in the amount of $236,844, plus costs (60% of the total damages). ⁶ Ford, Bacon & Davis appealed from that portion of the judgment, holding:

" . . . (1) in favor of the plaintiff, Wisconsin Natural Gas Company, against the defendant, Ford, Bacon & Davis Construction Corp., for the sum of $236,844.00 damages, and $5,637.74 costs, amounting in the aggregate to $242,481.74 damages and costs; and (2) in favor of the defendant, Tomaro Contractors, Inc., dismissing the above-entitled action as to the defendant, Tomaro Contractors, Inc., on the merits and for the recovery of $460.80 costs by the defendant, Tomaro Contractors, Inc., against the plaintiff."

The Gas Company cross-appealed from that portion of the judgment awarding it $242,481.74 in damages and costs and "seeks a modification of that judgment increasing the amount of damages or granting a new trial on the issue of damages." The court of appeals affirmed the trial court's judgment affirming the jury verdict and Ford, Bacon & Davis and the Gas Company each petitioned for review of the decision of the court of appeals.

Issues :

1. Was the Wisconsin Gas Company's cause of action for negligence barred by the six-year Statute of Limitation?

2. Should the statutory law of comparative negligence in multiple tortfeasor cases be changed so as to combine and compare the negligence of the defendants to that of the plaintiff's negligence?

3. Should the rule of joint and several liability be abolished?

4. Did the trial court err in failing to include a special verdict question for future damages?

5. Did the trial court err in failing to include in the...