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State Farm Fire and Casualty v. Aquila Inc.6/14/2005
en-year statute of repose in Minn. Stat. § 541.051 applies to Aquila and that the exception to the statute of repose in Minn. Stat. § 541.051, subd. 1(c), does not apply on this record.
In a well-reasoned opinion, the district court properly applied Minn. Stat. § 541.051 to appellants' action against Aquila and determined the action was time-barred. The court found that, under the plain language of the statute and numerous cases interpreting the statute, the new polyethylene pipe was "an improvement to real property" because it (1) enhanced the trailer park's "capital value and its ability to safely and efficiently provide natural gas to its tenants"; and (2) "was built to extend the useful life of the new natural gas system and to improve its performance over that of the original steel pipeline system." The evidence in the record supports these findings.
Contrary to appellants' argument, neither Aquila's ownership and control of the pipeline, nor the fact that Aquila is a utility that uses the pipeline to supply appellants with natural gas, provide a basis for a determination that the pipeline is not an improvement to real property. The statute contains no such exceptions.
In attempting to graft this exception on to Minn. Stat. § 541.051, appellants rely on a 1991 decision by this court, Johnson v. Steele-Waseca Coop. Elec., 469 N.W.2d 517 (Minn. App. 1991). Appellants argue that Aquila's pipeline cannot be an improvement to real property because the pipeline is owned by Aquila and used to distribute natural gas. But Johnson, which has never been cited for this holding, is not applicable here because by its own terms, Johnson addressed an alleged improvement that "raises a new issue of liability for stray voltage, an issue virtually unexplored by Minnesota's judiciary." Id. at 519. Moreover, unlike the facts here, where the improvement did not stand alone, in Johnson, the court specifically distinguished "earlier cases involving improvements attached to buildings" by pointing out that the alleged improvements at issue were "an electric pole and transformer which stands independently on appellants' property and serves the distribution purposes of the cooperative." Id. And finally, unlike the findings of the district court here, the Johnson court concluded that " ather than being an improvement to appellants' property, this equipment is an addition to respondent's distribution system." Id. Johnson does not apply to the facts here. Because the district court properly applied the statute and appropriate caselaw, and determined that the pipeline was an improvement to real property, I would affirm.
On this record I would also affirm the district court's determination that Aquila is entitled to summary judgment on appellants' claim that Aquila was negligent in maintaining, operating or inspecting the improvement to real property. Importantly, other than making a general allegation of negligence in their complaint, appellants did not present the district court with any facts establishing ongoing negligence by Aquila. And mere averments are not sufficient to survive summary judgment. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
In addition, the presumption that "gas does not escape from pipelines if those responsible exercise proper care" does not apply to establish a prima facie case of Aquila's negligence here because: (1) it is undisputed that the gas leak at issue was caused when Drain-Rite, another defendant who has entered into a settlement with appellants, operated an auger that struck and ruptured the gas line; and (2) appellants merely alleged negligence but offered no evidence as to the standard of care that was breached and no facts indicating how
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