3. Positions of the Parties

Flamingo presented its evidence through witnesses Bob Leeds, a 12-year resident of the park who assists management in various projects, and Todd Fitschen, part owner and manager of the complex.

They testified that Flamingo has spaces for 92 coaches, with 59 of the units created in the mid-1950s and the other 33 units added in 1962. All but the first 16 units were served by underground telephone conduit. The evidence shows that Pacific paid for the cable and service connection wire for those installations, and Flamingo paid for the conduit. For the first 16 units, however, Pacific installed distribution cable and service connection wires by stapling them to a 3-foot-high utility rail that stretched for about 600 feet behind the 16 units.

Fitschen testified that he was not involved in the original installation. Based on conversations with his late father, who had developed the park, Fitschen said that he understood that the utility had installed the rail. On cross-examination, he admitted that Flamingo had removed rotted portions of the rail and had permitted residents to add fence posts to the rail to fence their units. Over time, he said, about 50% of the utility rail has deteriorated, and cable has fallen to the ground or dangles between pieces of the rail, presenting a safety hazard. A number of photographs showing the downed or dangling lines were received into evidence. Both Leeds and Fitschen testified that they had for years sought to have Pacific place the cable underground behind units 1 through 16, but were always told that Flamingo would have to pay the cost of the conversion.

When a service line at unit 15 or 16 failed in 1999, Pacific put in a temporary line, then later did permanent undergrounding behind units 12 through 16 at no cost to Flamingo.

Larry Signaigo, a Pacific facilities engineer for two years, said that Pacific was required by its tariffs to replace the defective service wire connection at unit 15 or 16, and that the incremental cost of also burying the connections of four nearby units was modest. He said that because there had been a misunderstanding about the scope of the work, Pacific made the decision to bury the service wires for the five units that could be served by a common trench.

In a letter to Leeds dated August 3, 1999 (Exhibit 12), Signaigo made it clear that the work behind the five units was an exception, and that further underground work involving the utility rail would have to be at Flamingo's cost. While underground work for the five units cost about $2,300, he estimated that the cost of burying cable and wire for the other 11 units would be $26,000 because of the more difficult terrain behind those units.

Michael Shortle, a Pacific senior designer with 22 years of experience, testified that he had never encountered a case where distribution cable was attached to a supporting structure like the wooden fence. He said that he had called a retired colleague who told him that new facilities in the mid-1950s were installed from poles or were placed underground in iron pipe. However, Shortle said, he was told that the utility might have agreed to an owner's request to place the lines on a utility rail as an alternative to putting poles on the property. That practice would not be followed today, Shortle said, and to his knowledge has not been followed for many years.

Shortle testified that the utility rail was not likely to have been built by Pacific because, had the utility done so, the wood used would have been injected with creosote, a black tarry substance used on telephone poles and other wood facilities to deter insect damage. Through photos taken at the scene, Shortle demonstrated that the utility rail did not have a creosote injection, since such an application leaves a permanent dark brown stain on the wood.