As Amended January 6, 2016.
This opinion is subject to revision before final publication in the Michigan Court of Appeals reports.
Oakland Circuit Court. LC No. 2012-128816-CZ.
Before: METER, P.J., and CAVANAGH and WILDER, JJ.
[311 Mich.App. 370] Per Curiam.
Defendants, Ralph and Donna Stenman, appeal as of right a trial court order that, pursuant to a stipulation between the parties, dismissed the remaining claims of plaintiff, the Detroit Edison Company (DTE), with prejudice following an order that granted partial summary disposition in favor of plaintiff. We affirm.
In September 2011, plaintiff installed an advanced-metering-infrastructure (AMI) meter, commonly known as a " smart meter," on defendants' property. In March 2012, defendants mailed a letter to plaintiff indicating that they revoked and denied their consent to the installation of a smart meter or any other meter that emits electromagnetic radiation, conducts surveillance, or records events and activities on their property, asserting a series of claims related to the health-related consequences of smart meters and the legality of plaintiff's installation of such a meter on their property. Additionally, among numerous other claims and demands, defendants asked plaintiff to immediately remove the smart meter from their property, threatened to remove and replace the meter themselves if plaintiff failed to remove it within 21 days after receiving the letter, and asserted that plaintiff's personnel may only enter or perform activities on their property if they schedule an appointment at a time [311 Mich.App. 371] convenient for defendants. Defendants ultimately removed the smart meter and mailed it back to plaintiff in May 2012, installing an analog meter in its place.
On August 17, 2012, plaintiff filed a three-count complaint against defendants. Plaintiff alleged that defendants tampered with the smart meter and replaced it with an unauthorized and untested meter, which potentially created safety risks for individuals on defendants' property. Additionally, plaintiff alleged that defendants' conduct constituted a felony in violation of MCL 750.383a and violated the terms of the tariff filed by plaintiff and approved by the Michigan Public Service Commission (MPSC) under MCL 460.6(1), which defendants were required to follow as a condition of receiving electricity from plaintiff. Plaintiff asked the trial court to enter a declaratory judgment ordering that (1) plaintiff had the right to access defendants' property and install and maintain its equipment on defendants' property, as authorized by the tariff, (2) defendants were responsible for protecting plaintiff's equipment on their property and preventing any individuals, including themselves, from tampering with or removing the equipment, and (3) plaintiff's tariff and the rules promulgated by the MPSC control the rights and obligations of the parties, not the letter that defendants sent to plaintiff in March 2012.
[311 Mich.App. 372] On September 24, 2012, defendants filed an amended answer and counterclaim to plaintiff's complaint. Defendants asserted, inter alia, that a factual dispute exists regarding whether a smart meter is actually a " meter" under the relevant tariff and regulations, that plaintiff failed to demonstrate that the tariff authorized the installation of " smart meters" with radio transmitters, and that smart meters constitute surveillance devices in violation of federal law. Defendants also raised numerous affirmative defenses, including that smart meters will allow plaintiff to collect and sell private data in violation of the Fourth Amendment, that the smart meter will constantly cover their home with electromagnetic radiation and endanger defendants' health, and that defendants acted in self-defense by removing and replacing the smart meter in light of the ways in which the smart meter threatened their health and safety.
On October 4, 2012, plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(10), asserting that there was no genuine issue of material fact with regard to the claims raised in Count I of its complaint. With its motion, plaintiff proffered an MPSC order that discussed a staff report that considered concerns similar to those raised by defendants in this case and concluded that the health risks associated with smart meters including radio transmitters were insignificant. Additionally, in its October 9, 2012 reply to defendants' affirmative defenses, plaintiff asserted that the defenses raised by defendants were either untrue or improper under MCR 2.111(F)(3).
In their November 7, 2012 response to plaintiff's motion for partial summary disposition, defendants asserted, among other things, that there were genuine issues of material fact regarding (1) whether plaintiff [311 Mich.App. 373] was authorized by the MPSC to install a smart meter on defendants' property, when plaintiff had failed to show that a smart meter qualifies as a " meter" under the definition set forth in the tariff or any other rule promulgated by the MPSC, and (2) whether the smart meter presents a danger to defendants' health and privacy rights under the Fourth Amendment. Defendants also argued that they are entitled to an " opportunity to prove, through an evidentiary process, that their concerns about the health and safety of the [smart meter] . . . are valid," asserting that they had provided " preliminary evidence" indicating " that it is at least plausible that they might meet their burden with respect to the danger posed by [the smart meter]" through the affidavit of Dr. Donald Hillman, which described the alleged effects of a smart meter on the health of a child not involved in the instant case.
On November 16, 2012, plaintiff filed a reply to defendants' response, in which they asserted that both a smart meter and a digital meter qualify under the definition of " meter" under the MPSC rules and regulations and that the MPSC has authorized the use of smart meters.
After holding a hearing on plaintiff's motion, the trial court granted plaintiff's motion for partial summary disposition on November 29, 2012. The opinion provided, in relevant part:
Defendants fail to present any evidence creating a question of fact regarding either health or privacy issues sufficient to preclude enforcement of the law governing Plaintiff's use of the smart meter and Defendants responsibilities under the tariff and administrative rules. Defendants' reliance on Dr. Hillman's Affidavit is not responsive to Plaintiff's argument and refers to individuals that are not parties to this case. The Court observes that the Michigan Public Service Commission issued an
Order that [311 Mich.App. 374] addressed the concerns similar to Defendants['], specifically adverse health effects, customer privacy concerns, data protection and cyber security issues as well as costs raised by individuals and local governments regarding implementing the AMI by electric utilities operating in Michigan. The Commission accepted a Staff report that health risks from the installation and operation of metering systems using radio transmitters [are] insignificant and that the appropriate federal health and safety regulations provide assurance that smart meters represent a safe technology. Additionally, the Commission held that investor-owned utilities, such as Detroit Edison, must make available an opt-out option, based on cost-of-service principles for their customers.
For these reasons and those further stated by Plaintiff, the Court grants Plaintiff's motion for partial summary disposition and orders that Plaintiff shall be entitled to have access to Defendants' property to install, inspect, read, repair and/or maintain its company-owned equipment on their premises. Furthermore, the Court orders that Defendants shall be responsible for the safe-keeping of Plaintiff's property on Defendants' premises. Finally, the Court ...