Stray voltage cases were timely filed

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Two sets of dairy farmers timely filed lawsuits against Northern States Power Co., alleging damage to their herds from stray voltage, the Wisconsin Supreme Court held on Thursday.

The court also held that the utility’s compliance with the filed rate doctrine does not immunize it from suit.

In the first case, Ralph and Karline Schmidt became aware their herd may be suffering from stray voltage in 1993, but did not file suit until 2001. The utility contended this was untimely under the six-year statute of limitations.

However, the Supreme Court disagreed in a unanimous opinion by Justice Annette Kingsland Ziegler, concluding that, although the facts may be undisputed, different inferences can be drawn as to when the Schmidts discovered the problems with their herd were caused by stray voltage.

Noting that voltage measurements did not confirm stray voltage was to blame, the court concluded that a jury could reasonably find that the Schmidts merely had a “hunch” that stray voltage was the cause.

The court also rejected the utility’s argument it was immune under the filed rate doctrine.

The court wrote, “No authority exists for extending the doctrine to circumstances where a defendant is allegedly responsible for harming the plaintiff, … but then claims that eliminating the harm is a ‘service’ or ‘privilege’ within the meaning of the doctrine.”

In the second case, the court held that another group of dairy farmers, the Gumz family, were also timely in filing their suit.

In the circuit court, the utility unsuccessfully sought a special jury question whether the Gumz knew or should have known that stray voltage caused their herd damage more than six years before they filed suit.

Writing for the court, Justice Ann Walsh Bradley disagreed, concluding that, by hiring different nutritionists, trying different feeds, changing milking equipment, and hiring electricians to check their equipment, the Gumzes were diligent as a matter of law in seeking to determine the cause of their herd’s problems.

Justices Ziegler, Roggensack, and Prosser dissented, concluding that the jury should decide whether they were diligent.