Cox et al v. NorthWestern Corporation et al
Filing
70
ORDER granting 56 Motion for Court to Treat Motion for Summary Judgment as Timely Filed, denying 52 Motion for Summary Judgment. Signed by Judge Brian Morris on 7/16/2018. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA GREAT
BUTTE DIVISION
CV 16-47-BU-BMM
REECE COX and JODY HERTZOG,
Plaintiffs,
vs.
ORDER
NORTHWESTERN CORPORATION
d/b/a NORTHWESTERN ENERGY
and DOES 1-25,
Defendants.
I.INTRODUCTION
Plaintiffs Reece Cox and Jody Hertzog own a house located at 132 Shirley
Way in Anaconda, Montana. (Doc. 13 at 2.) Defendant Northwestern Corporation,
d/b/a Northwestern Energy (“Northwestern”), operates powerlines that run
adjacent and “in close proximity” to Plaintiffs’ house. Id. Plaintiffs’ Amended
Complaint contains eight counts against Northwestern alleging various acts of
trespass, negligence, private nuisance, takings, strict liability, and failure to warn.
Id. at 4-21. Plaintiffs seek compensatory and punitive damages. Id. at 21.
Northwestern moves the Court for summary judgment on Counts 1-8. (Docs.
52; 53 at 2.) For the reasons below, the Court will deny the motion.
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II.BACKGROUND
Shortly after Plaintiffs purchased their house, Plaintiffs “discovered very
high voltage and [electric and magnetic fields] were intruding the exterior and
interior of their house.” (Doc. 13 at 3, ¶ 7.) Northwestern verified that the
powerlines were emitting high voltage on the exterior of the house. Id. at 3, ¶ 8. An
independent electrician verified that “irregular high voltage” from the powerlines
was passing through to the interior of Plaintiffs’ house. Id. at 3, ¶¶ 8-9.
III.TIMELINESS
Northwestern moves the Court to consider its Motion for Summary
Judgment timely filed. (Doc. 56.) Plaintiffs oppose the motion. (Doc. 57.)
This Court issued a Scheduling Order on July 12, 2017. (Doc. 22.) The
Scheduling Order required the parties to file and fully brief all pretrial motions by
May 4, 2018. Id. at 2. The Scheduling Order mandated that the parties file motions
within enough time that the brief in support of the motion and the opposing party’s
response would be filed before the deadline. Id. at 3-4.
Responses to motions for summary judgment must be filed within twentyone days after the filing of the motion. D. Mont. L.R. 7.1(d)(1)(B)(i). To meet the
Court’s “fully briefed” deadline, Northwestern should have filed its motion for
summary judgment by April 11, 2018. Northwestern filed its motion for summary
judgment on May 4, 2018. (Doc. 52.) Plaintiffs responded on May 25, 2018. (Doc.
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59.)
Northwestern argues that the Court should excuse its tardy filing because
Northwestern acted diligently. (Doc. 56-1 at 5.) In support, Counsel submitted an
affidavit regarding Northwestern’s attempts to access Plaintiffs’ property to
procure updated data regarding the component parts and function of the electrical
transmission line running through Plaintiffs’ property. (Doc. 56-1.) Plaintiffs
initially declined to allow Northwestern’s employees access to their property
because discovery had closed. Id. at 3. Plaintiffs ultimately agreed to allow
Northwestern to examine their property. Id. at 4. Northwestern examined
Plaintiffs’ property on April 26, 2018. Id.
Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be
modified only for good cause and with the judge's consent.” Plaintiffs argue that
Northwestern’s failure to move to modify the July 12, 2017, Scheduling Order in
advance of the tardy filing prevents Northwestern from so moving now.
Northwestern relies on Federal Rule of Civil Procedure 6(b)(1)(B), which affords
the Court the ability to extend time “on motion made after the time has expired if
the party failed to act because of excusable neglect.”
The Court notes that Northwestern failed to move for an extension of time to
file pretrial motions. The Court further acknowledges that discovery had closed at
the time Northwestern sought to re-examine Plaintiff’s property, and that
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Northwestern’s reason for the re-examination—that an employee had left the
company—did not confer upon Plaintiffs the responsibility to accommodate outof-time discovery requests.
The Court finds, however, that Northwestern’s tardy filing caused only
minor delay. The parties have now fully briefed the motion for summary judgment,
and the Court finds no indication of prejudice because of the delay. The Court will
consider Northwestern’s motion timely filed.
IV.LEGAL STANDARD
A court should grant summary judgment where the movant demonstrates
that no genuine dispute exists “as to any material fact” and the movant is “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This Court will grant
summary judgment where the documentary evidence produced by the parties
permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986).
V.DISCUSSION
Northwestern raises multiple grounds in support of its motion for summary
judgment. (Doc. 53 at 6-17.) In brief, Northwestern claims: 1) that the easement
held by Northwestern across Plaintiffs’ property defeats Plaintiffs’ trespass claims
(Counts I and II); 2) that the condition of the powerline is not in dispute, and that
compliance with the National Electrical Safety Code (NESC) thus defeats
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Plaintiffs’ negligence claim (Count III); 3) that Northwestern’s easement defeats
Plaintiff’s negligence claim regarding tree removal (Count IV); 4) that the
powerline cannot constitute a “private nuisance” because Montana law exempts
acts taken pursuant to express authorization by statute (Count V); 5) that Plaintiffs’
private taking or inverse condemnation claim fails because the easement and the
powerline predate the construction of the house or its possession by the Plaintiffs
(Count VI); and 6) that Plaintiffs’ products liability and failure to warn claims fail
because the record lacks testimony tending to establish that the powerline or the
electricity carried by the line is defective (Counts VII and VIII). Id. at 6-14.
Northwestern further challenges Plaintiffs’ assertion that they are entitled to
punitive damages. Id. at 14.
I.
Northwestern’s Easement (Counts I, II, IV)
Northwestern claims that its easement to construct and operate the powerline
prevents Plaintiffs from recovering for electricity flowing onto and through
Plaintiffs’ home, and the removal of a tree from Plaintiffs’ property.
Plaintiffs dispute that Northwestern has demonstrated that its easements
cross Plaintiffs’ property. (Doc. 60 at 3-4.) Plaintiffs additionally dispute that
Northwestern possesses any easement allowing Northwestern to emit electric or
magnetic fields into or onto Plaintiffs’ property. (Doc. 13 at 4.)
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The record developed at this stage fails to establish the relationship of the
easement to Plaintiffs land. The record further lacks information regarding the
scope of the easement. Whether Northwestern has exceeded the scope of any
easement that may exist on Plaintiffs’ land represents a dispute as to a material fact
for the jury to resolve.
Similar issues regarding the status of the easement apply to the tree removal
claim. The record lacks further the requisite undisputed facts about the tree in
question and whether the tree fell within the scope of any easement that may exist
on Plaintiffs’ land. These questions represent disputes as to material facts for the
jury to resolve.
II.
Statutory Compliance and Authorization (Counts III, V, VII,
VIII)
Northwestern claims that the line’s compliance with the NESC defeats
Plaintiffs’ negligence claim. Northwestern similarly claims that the powerline
cannot constitute a private nuisance because the Montana legislature expressly
authorized construction of the line. Northwestern’s argument that Plaintiffs cannot
succeed on theories of strict products liability or failure to warn also hinges on
compliance with the NESC and the absence of expert testimony to the contrary.
The line’s alleged compliance with the NESC does not defeat Plaintiffs’
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negligence claim at this stage. The Montana Supreme Court has recognized that a
danger may exist “beyond the minimum which [the NESC] was designed to meet”
which provides the jury with the opportunity to decide whether a defendant should
be found negligent for failure to prevent that danger. Martel v. Montana Power
Company, 231 Mont. 96, 104 752 P.2d 140, 145 (1988). Further, the underlying
factual dispute regarding the location of the easement and lines relative to
Plaintiffs’ property may prove that the lines in question do not meet the statutory
exemption.
Northwestern reasons additionally that it cannot be held liable for private
nuisance because it exists as a public utility regulated by the Montana Public
Service Commission and, as such, it operates its lines under the express authority
of a statute. Northwestern claims to possess no statutory authorization for its lines
to transmit electricity onto Plaintiffs’ property. Further, given the factual dispute
regarding the easement, the Court cannot determine at this juncture whether
Northwestern’s operation of the line in question falls within any statutory
authorization that it claims to possess.
III.
Taking Claim (VI)
The factual ambiguity regarding the scope and location of the easement
defeats at this stage Northwestern’s argument that the easement preempts
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Plaintiffs’ taking claim.
Additionally, Northwestern’s argument fails because it misapprehends
Plaintiffs’ claims. Plaintiffs claim that Northwestern’s transmission of electricity
onto Plaintiffs’ property constitutes a taking. Whether this condition existed when
Plaintiffs purchased the house presents a question of fact independent of the date of
any easement or construction of the lines themselves.
IV.
Punitive Damages
Northwestern argues in closing that Plaintiffs cannot demonstrate that
Northwestern has acted with indifference toward Plaintiffs’ alleged trespass as
required by statute for an award of punitive damages. (Doc. 53 at 14); Mont. Code
Ann. § 27-1-221.
The undisputed facts reflect that Northwestern dispatched a serviceman to
Plaintiffs’ property on August 25, 2015. (Docs. 53 at 15; 13 at 3.) Northwestern’s
employee informed Plaintiffs that they would need to hire an electrician to correct
the problem. Plaintiffs subsequently contacted a private electrician, who explained
the repairs necessary to ground Plaintiffs’ property to mitigate the problem.
Northwestern’s conduct, on these facts, does not appear egregious.
Questions of fact persist regarding the necessary repairs, however, including the
costs of such repairs and whether such repairs successfully mitigate the trespass.
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Further, the alleged trespass concerns stray electricity encroaching on
Plaintiff’s property. The fact that Plaintiffs potentially could mitigate that trespass
may not remove the burden on Northwestern to act likewise to prevent its alleged
trespass. A reasonable jury could weigh the facts to find that Northwestern has
acted with the indifference required to merit an award of punitive damages.
I.ORDER
Accordingly, IT IS ORDERED that Northwestern Energy’s Motion to
Treat Northwestern’s Motion for Summary Judgment as Timely Filed (Doc. 56) is
GRANTED.
IT IS FURTHER ORDERED that Northwestern’s Motion for Summary
Judgment (Doc. 52) is DENIED.
DATED this 16th day of July, 2018.
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