OPINION ISSUED APRIL 30, 1986
AMERICAN TELETRONICS CORPORATION
DEPARTMENT OF HEALTH
Willard Sullivan, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
Claimant, American Teletronics Corporation, seeks $15,769.25 in
performed on the telephone system of the Greenbrier Center, a
in Lewisburg operated by
the West Virginia Department of Health. Claimant installed the
system in 1983.
Thereafter, claimant and respondent entered into a Maintenance
This Maintenance Agreement provided that American Teletronics
Corporation, for a payment
of $220.00 per month, would service the telephone system. Paragraph
provides in pertinent
"It is understood that this Agreement does not cover damages to or
failure of the System
resulting from causes other than wear and tear from normal use,
including, but not limited to
misuse, negligence, accident, theft, or unexplained loss, abuse,
connection to direct current, fire,
flood, wind, Acts of God or the public enemy, or improper wiring,
installation, repair or
alteration by anyone other than the NECTEL Associate."
In July of 1984, the telephone system failed and claimant was
upon to effect repairs.
Claimant determined that the cause of the failure was a surge of
electrical power engendered by a
lightning strike and billed the respondent for the cost of labor
materials. Respondent asserts
that the repairs were covered by the maintenance agreement and were
necessitated by any
of the causes excepted by paragraph 4 thereof.
Jerry Ayers, a technician employed by claimant, testified that
components of the
switching mechanism were 'burned' and that, in his opinion, the
this burning was a
power surge. There was no other admissible testimony as to the
the system failure.
Respondent introduced testimony that the system had failed
times in the year prior to
the failure at issue and that, shortly after installation, certain
the grounding mechanisms were
inadequate. Claimant's evidence, however, indicated that these
had been corrected.
The Court finds that the claimant has failed to meet its burden of
establishing that the cause of
the system failure of July 1984 was excepted under paragraph 4 of
Mr. Ayers' testimony was inconclusive, and there is some question
his qualifications as an
expert in the field of electronics. Moreover, his testimony related
number of things about
which he had no firsthand knowledge. A thorough examination of the
record leaves the Court
with no better understanding as to the cause of the system failure.
The evidence in the record is not sufficient to establish the
precedent to respondent's
liability for breach of the Maintenance Agreement, in that no cause
the system failure has
been shown. Accordingly, the Court is of the opinion to and does
disallow the claim.