MADISON - The state Supreme Court agreed Wednesday to hear an appeal from a utility company of a $1.2 million judgment for two dairy farmers in a stray voltage lawsuit.
The court will decide whether Wisconsin Electric Power Co., recently renamed We Energies, can be found negligent for permitting stray voltage to occur at a level that state regulators have determined does not create problems.
Justices also will determine whether the Waupaca County Circuit Court can require the company to install an overhead, ungrounded power system to serve the New London farm owned by Allan and Beverly Hoffman.
The utility asked the court to take the case after the 4th District Court of Appeals upheld a jury's May 2000 verdict in favor of the Hoffmans, who claimed the utility was negligent in permitting an underground utility system to serve their farm.
Stray voltage is low levels of electricity that leaks from a utility's electrical distribution system or farm wiring and might decrease milk production or cause animal health problems. Some utility company representatives argue stray voltage isn't a problem.
In the mid-1980s, the Hoffmans' cows started producing less milk, behaving oddly and not consuming as much feed and water, attorney Scott Lawrence said.
The utility argued there was no evidence that it was negligent in relying on findings by the state Public Service Commission that its manner of distributing electricity could only harm livestock if it passes through the animal.
Lawrence said that if the court finds in the Hoffmans' favor, utilities will be compelled to fix stray voltage problems, regardless of what levels the Public Service Commission says are harmful.
"If they uphold the appeals court, we'll get rid of the argument that the PSC sets all the rules as to what is harmful exposure to electricity and what is not," he said.
The PSC has filed a brief with the court because the trial court's remedy did not comply with state electrical code, spokeswoman Annemarie Newman said.
"It ordered an ungrounded electrical system, which poses a danger to anyone around it," she said.
The PSC brief also says the commission is concerned with the plaintiffs' introduction of stray voltage evidence based on tests that do not comply with the mandatory testing protocol established by the PSC.
We Energies spokeswoman Margaret Stanfield did not immediately return a telephone message The Associated Press left at her office Wednesday.
In its appeals petition to the Supreme Court, WE Energies attorneys said allowing the judgment to stand would undermine the PSC's authority in stray voltage cases and would open the door to additional lawsuits.
"Permitting juries to reject these PSC findings and orders simply provides plaintiffs' experts with a new forum in which to seek acceptance of their stray voltage theories," the petition says.
The Wisconsin Utilities Association also has filed a friendly brief in the case, saying the circuit court incorrectly overruled the PSC authority.
For more information about stray voltage, visit the La Crosse Tribune's award-winning Web site at www.strayvoltage.org.