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State Farm Fire and Casualty v. Aquila Inc.6/14/2005
Minn. Stat. § 541.051 limits the time to bring an action in order to protect from suits those who install or create the improvement and then surrender control of it. We do not interpret Minn. Stat. § 541.051 to shelter from liability an electric power company that installs and maintains control of an electric pole and transformer, especially when the purpose is to distribute power.
Id. at 520.
Thus, the central facts in Johnson that apply here are that the transformer and center pole (1) were owned and controlled by the utility, and (2) were part of the utility's distribution system. We first consider the district court's decision to grant summary judgment in favor of Aquila. Appellants argue that Johnson controls, and therefore the court erred. Respondents make a number of arguments in support of their position that Johnson does not control. Respondents first argue that "to the extent Johnson purports to exclude owners of improvements from the protection of Minnesota's statute of repose, it is antagonistic to Minnesota jurisprudence." In support of this contention, respondents cite a number of cases in which, they claim, "no Minnesota appellate court has followed [Johnson's] holding." But the cases cited by respondents do not deal with a utility-owned distribution network.
We recognize that in Kemp v. Allis-Chalmers Corp., we said that " n electrical transformer is an improvement to real property for the purposes of the statute." 390 N.W.2d 848, 850 (Minn. App. 1986) (citing Lovgren v. Peoples Elec. Co., 380 N.W.2d 791, 794-95 n.5 (Minn. 1986)). But Kemp is of questionable authority as applied here, because the improvement at issue in Kemp was not a transformer, but electrical cables clamped to a starter compartment of a waste gas fan located inside a pellet plant. Kemp 390 N.W.2d at 849. It is not clear from the opinion even if a transformer was part of an improvement or involved in the plaintiff's injury . And Kemp's citation of Lovgren is not entirely on point, because the improvement at issue in Lovgren was a not a transformer, but a transformer vault, located inside of a steel mill. Lovgren, 380 N.W.2d at 793. In any event, in neither Kemp nor Lovgren was there a showing that a utility owned the improvement at issue, or that the improvement was part of a utility-owned distribution network. Therefore we conclude that neither case conflicts with our reading of the court's holding in Johnson.
Next, respondents attempt to distinguish the facts of this case from Johnson. Respondents point out that the pipeline, unlike the center pole and transformer in Johnson, was underground and not accessible for routine inspection and maintenance. But respondents cite no authority for the proposition that a gas company is relieved from a duty of due care merely because its pipeline is underground Respondents further state that the plaintiffs in Johnson alleged an ongoing tort of defective electrical service while the appellants in this case allege defective construction. But as we demonstrate below in section II, appellants have made a showing that Aquila was negligent in its maintenance, operation, and inspection of the pipeline.
The record contains Aquila's documentation on terms and conditions of its service, indicating that " he point of delivery and the point where Company ownership and maintenance of service pipe ends, shall be at the outlet side of the Company's meter." Thus it is clear that the gas pipeline was owned and controlled by Aquila and served the utility's distribution purposes by enabling Aquila to deliver natural gas to the residents of the trailer park. We therefore hold that Johnson controls, and we conclude that with respect to Aquila, the gas
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