Bucking the Current : High Court to Hear Couple’s Claim That Power Lines Made House Unlivable
When Martin and Jean Covalt built a lavish home herein 1989 they considered it their “dream house,” with a price tag to match: $1.5 million.
Six years later, the Covalts have deserted their hillside estate and spend much of their time talking to lawyers.
They are at the forefront of a nasty legal battle that involves one of Southern California’s most powerful utility companies, as well as the California Supreme Court.
In what may become a landmark case, the Covalts are about to find out how far the court system is willing to go in granting damages to homeowners who feel themselves victimized by the electromagnetic fields--or EMFs--emitted by power lines.
The lawyer for the other side--the San Diego Gas & Electric Co.--sees the case as a turning point, saying that if the Covalts lose, plaintiffs across the country will no longer feel empowered to seek damages from utilities over “nebulous” claims surrounding EMFs.
A state appellate court in March sided with SDG&E; and dismissed the Covalts’ suit, saying that questions of power-line safety were more appropriately the responsibility of the state Public Utilities Commission, which can fine a utility but can’t award damages to homeowners.
In a rare occurrence, the state Supreme Court has agreed to hear the matter and decide once and for all whether the Covalts have a claim--and whether the court should award damages. Lawyers for both sides say the high court lets an appellate court’s ruling stand about 95% of the time.
The opposing lawyers call the case one of national significance, saying its outcome will set a standard for the industry.
The case also threatens to divide the scientific community, which remains in conflict over the issue of EMFs, which the Covalts say have worsened the medical condition of their 4-year-old son, Bohn, whom they describe as mildly autistic.
“It’s taken a heavy toll,” Martin Covalt, 33, said in describing the emotional and economic stress. “It’s deeply affected my wife, as well as me and the [four] children. It was our dream home, and we loved it when we first moved in. But we’re happy to be out of there. We have a lot more peace of mind knowing we’re not at risk.”
Shortly after the Covalts occupied the hillside property in the upscale neighborhood of Mariner’s Point, SDG&E; doubled the number of power lines affixed to the towering grid rising over their back-yard tennis court.
The Covalts contend that the level of EMFs coursing through the 5,000-square-foot estate jumped considerably, impairing the health of their 4-year-old and putting everyone else at risk, not to mention diminishing their investment.
After bickering with SDG&E; and then finally filing suit, the couple walked away from the property early last year and let the lender foreclose. Now, a new couple has moved in, having bought the two-story, Gatsby-like home for a bargain-basement-low $425,000.
Although the new occupants, Frank and Ira Montesinos, also have young children, they appear not to share the Covalts’ concern--or that of other neighbors who have sued SDG&E--over; the EMF issue.
“We don’t really care about that,” said Frank Montesinos, who called the price he paid for the home “a wonderful deal. . . . There’s no question about that.”
Beyond that, Montesinos declined to be interviewed, noting that when a community newspaper published a recent article about the house he bought--complete with information about the Covalt matter--the sale of a neighbor’s home then pending in escrow promptly collapsed.
“Let’s just say the seller wasn’t thrilled,” Montesinos said.
Like the seller, the Covalts face an uphill battle. In numerous cases across the country, juries have sided with utility companies in determining that the EMFs emitted by power lines are too low in frequency to harm human life.
Utility spokesmen say that dozens of scientific organizations around the globe--including the Geneva-based World Health Organization and the U.S. Environmental Protection Agency--have found no link between cancer and EMFs.
They also cite the findings of Yale University physicist Robert Adair, who says the EMFs generated by electric power lines are far too weak to affect human cells and thus do not pose a danger to humans.
Nevertheless, there are those in the scientific community who think that high levels of EMFs are harmful to humans and accuse the utilities of insensitivity to the needs of consumers. Cedric Garland, an epidemiologist at the UC San Diego School of Medicine, has written that EMFs are created in the modern home in myriad threatening ways.
They are emitted by home computers, television sets, electric alarm clocks on the night stand and dimmers on light switches. But power lines, he has said, carry some of the most harmful EMFs.
“Our [UCSD research] group believes that intercellular communication is what prevents cancer,” Garland said. “When it’s disrupted, a precondition of cancer is thus created. It’s the large amount of [EMFs] that disrupts communication among the cells” and can induce cancer.
Regardless of the outcome, Greg Barnes, the assistant general counsel of SDG&E;, said the ramifications of the Covalt case threaten to stretch from one end of the nation to the other and could define how courts look at the issue of EMFs in the future.
“This case is a very big deal,” Barnes said. “Essentially, [environmental lawyers] are out there selling paranoia for profit. If we win, though, it closes the book on these actions in California.”
Barnes said that SDG&E; asked the appellate court that ruled in its favor for what he called “the legal equivalent of a Hail Mary pass"--and then scored a touchdown.
“We asked them to consider whether these cases even belong in the courts,” Barnes said, articulating the company position that such complaints should best be handled by the PUC and not the courts, which have the power to award damages and, in turn, invite new suits.
He said that SDG&E; is supported in briefs to the higher court by 14 scientists, including six Nobel laureates, as well as both the California Medical Assn. and the American Medical Assn.
The plaintiffs have the backing of building industry and homeowner groups that see the issue largely in terms of a powerful entity--SDG&E--squelching; a person’s property rights.
“There are about 25 or 30 relatively recent reviews by panels of scientists on the issue of EMFs,” Barnes said. “All of them conclude that there is no basis for concluding that EMFs make people sick.”
But San Diego attorney Fred Schenk, the Covalts’ lawyer, argues that the perception of power-line-related illnesses has had a devastating impact on property values, causing the investment of the Covalts and others in Mariner’s Point to plummet by more than half.
Schenk said that when the Covalts bought the property, the power line bore a single pole with two circuits, carrying “seven lines with low EMFs.” But after 1990, when the utility upgraded to double poles bearing three circuits and four more lines, the EMFs doubled.
Now, in what should be one of Southern California’s most coveted neighborhoods, it is not uncommon to see for sale signs in yard after yard.
Mark McCartin, a former neighbor of the Covalts in Mariner’s Point, recently lost his own suit in Orange County Superior Court. McCartin, an emergency room physician and father of five children, and his wife also walked away from their investment, turning over to the bank a five-bedroom home they originally purchased for more than $730,000.
In 1991, Schenk and Seattle lawyer Michael Withey--his partner in the Covalt case--fought SDG&E; and lost in a case involving a San Diego couple who alleged that their young daughter had incurred two rare types of kidney cancer because of power lines running next to their home.
Ted and Michelle Zuidema lived in the home near Jack Murphy Stadium from February, 1985, until February, 1990. Not long after the girl was born in 1987, she was found to be suffering from nephroblastomatosis and Wilm’s tumor, conditions that began to subside after the couple moved out.
Nevertheless, a San Diego Superior Court jury ruled in favor of SDG&E; and against the Zuidemas, saying there appeared to be no scientific evidence in support of their claims.
Despite the prevailing trend, Schenk seems unperturbed. Years ago, he said, people were reluctant to file lawsuits claiming injury from asbestos or cigarette smoking, now widely regarded as being dangerous to human health.
“I think with all of these, the Covalts and others, it’s simply a case of being ahead of our time,” he said. “One day, people will see it differently. Who knows, this case may make the difference.”