Holt v. W. Virginia-American Water Co.
| Citation | 233 W.Va. 688,760 S.E.2d 502 |
| Decision Date | 11 June 2014 |
| Docket Number | No. 13–0744.,13–0744. |
| Court | Supreme Court of West Virginia |
| Parties | Roger F. HOLT, Plaintiff Below, Petitioner v. WEST VIRGINIA–AMERICAN WATER COMPANY, Defendant Below, Respondent. |
OPINION TEXT STARTS HERE
Syllabus by the Court
“ .’ .” Syl. pt. 2, Mace v. Mylan Pharm., Inc., 227 W.Va. 666, 714 S.E.2d 223 (2011).
John H. Tinney, Esq., Wesley M. Jarrell II, Esq., The Tinney Law Firm PLLC, Charleston, WV, for Petitioner.
John Philip Melick, Esq., Ryan J. Aaron, Esq., Jackson Kelly PLLC, Charleston, WV, for Respondent.
This case is before the Court on appeal by the petitioner, Roger F. Holt, of the June 24, 2013, order of the Circuit Court of Kanawha County dismissing his complaint against the respondent, West Virginia–American Water Company (“WVAW”). The circuit court determined that Mr. Holt's claims for damages and penalties, which he brought pursuant to the West Virginia Consumer Credit and Protection Act (“WVCCPA”), W. Va.Code § 46A–1–101 et seq., arose from transactions encompassed by W. Va.Code § 46A–1–105(a)(3) (2000), which precludes Mr. Holt's WVCCPA claims. After a thorough review of the record presented for consideration, the briefs, the legal authorities cited, and the arguments of parties, we find that the circuit court did not commit reversible error. Therefore, we affirm the circuit court's order.
In December 2009, Mr. Holt received his residential water bill from WVAW, charging him $5,136.96. Believing the bill was in error—Mr. Holt asserts that his customary monthly bill ranged from $21.00 to $30.00—he contacted both WVAW and the Public Service Commission (“PSC” or “Commission”) to inquire about the charge. The PSC then inspected Mr. Holt's water line and concluded that the overcharge likely resulted from a problem with Mr. Holt's water meter. WVAW subsequently determined that the meter box was leaking, and in January 2010, WVAW repaired the meter box.1 WVAW did not inform Mr. Holt of the repair, and it did not adjust Mr. Holt's account to eliminate the overcharge on his December 2009 bill. Instead, WVAW continued to seek payment for the full amount of the $5,136.96 bill.
On April 15, 2010, Mr. Holt filed a formal complaint with the PSC against WVAW. The PSC issued an order on April 19, 2010, granting interim relief requested by Mr. Holt. The order
directed that, pending the final resolution of this formal complaint proceeding [WVAW] not terminate water service to Complainant [Mr. Holt] and continue to provide water service to the complainant, provided that the Complainant pays his bills for current water service on or before the due dates stated on each billing while this case is pending.
WVAW accepted responsibility for the overcharge due to the leaking meter, and on May 13, 2010, WVAW credited $5,110.64 to Mr. Holt's account. In May, WVAW also informed Mr. Holt that a second leak existed, which it believed was on Mr. Holt's side of the water line. Mr. Holt repaired the line on June 11, 2010,2 but WVAW refused to credit charges associated with the second leak, approximately $250.00 per month from January 2010 to June 2010, because under WVAW's leak adjustment policy, Mr. Holt was required to replace his entire water line in order to receive a credit for the leak. Upon the discovery of a third leak, Mr. Holt contracted in June 2010 to replace the water line. Because of problems associated with acquiring an excavator, the line replacement was not completed until November 2010.
Between December 2009 and November 2010, WVAW billed Mr. Holt for his regular water usage and for the water flow occasioned by the leaks. During that time, Mr. Holt paid only for his regular usage, between $26.00 and $30.00. Each time Mr. Holt did not pay his bill in full, WVAW assessed a 10% late penalty to his account. Each month, the previous month's penalty was added to the total bill, resulting in a progressive increase of the monthly penalty imposed. Mr. Holt also received termination notices from WVAW, and in October 2010, Mr. Holt's service was terminated for nonpayment of the disputed charges. However, service was restored the following day. At the request of PSC staff, WVAW credited Mr. Holt's account for the second leak on October 29, 2010, in the amount of $1,643.12.
On November 30, 2010, an administrative law judge (“ALJ”) assigned by the PSC heard testimony and received evidence from Mr. Holt and WVAW regarding the billing dispute. By order of March 3, 2011, the PSC adopted the ALJ's recommended decision, finding that WVAW had
arbitrarily adopted a leak adjustment policy which is contrary to and unsupported by the Commission's Water Rules [W. Va.Code R. § 150–7–1 et seq.]. The Commission's Water Rules do not require leak adjustments to be limited to a two-month time period or to be limited to a one-time adjustment.
The PSC ordered that Mr. Holt be given a leak adjustment for billing between June 2010 and November 2010, and that Mr. Holt's account be adjusted for any inappropriate late penalty charges between December 2009 and November 2010. Although Mr. Holt requested damages in the amount of $1,885.48, which represented the amount he expended in labor and materials to replace his water line, the PSC concluded that it did not have jurisdiction to award the monetary damages sought.
On April 4, 2013, Mr. Holt filed a complaint against WVAW in the Circuit Court of Kanawha County seeking damages and penalties for alleged violations of the WVCCPA, specifically violations of W. Va.Code § 46A–6–104 (1974),3 arising from WVAW's business policies and practices regarding leaks in Mr. Holt's water line.4 Mr. Holt also sought attorney fees and costs. WVAW filed a motion to dismiss the action pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure (“ Rule 12(b)(6)”),5 arguing that the express terms of W. Va.Code § 46A–1–105(a)(3)6 exempt WVAW's transactions under its public utility tariff from the WVCCPA and that Mr. Holt's claims arise from those transactions. WVAW further argued that the complaint did not allege any conduct of WVAW that would constitute an “unfair or deceptive” act or practice under the WVCCPA.
The circuit court held a hearing on the motion to dismiss on May 30, 2013. On June 24, 2013, the circuit court entered an order granting WVAW's motion to dismiss. In that order, the court found, “Mr. Holt's pled claims arise from transactions encompassed by W. Va.Code § 46A–1–105(a)(3), and thus are statutorily excluded from the WVCCPA.” The court ordered that the case be dismissed. Mr. Holt appeals that order to this Court.
This is an appeal of the circuit court's order granting WVAW's Rule 12(b)(6) motion to dismiss.
This Court's review of a circuit court's dismissal of a complaint pursuant to Rule 12(b)(6) is plenary. In other words, “[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
Hill v. Stowers, 224 W.Va. 51, 55, 680 S.E.2d 66, 70 (2009).
On appeal, Mr. Holt asserts that the circuit court erred in finding that his claims could not be brought under the WVCCPA because of the exclusion set forth in W. Va.Code § 46A–1–105(a)(3). W. Va.Code § 46A–1–105(a)(3) states, in pertinent part, “This chapter does not apply to ... [t]ransactions under public utility or common carrier tariffs if a subdivision or agency of this state or of the United States regulates the charges for the services involved, the charges for delayed payment, and any discount allowed for early payment....” Although the circuit court did not explicitly state it, its decision necessarily implies that it determined that Mr. Holt's claims arise from transactions under a public utility tariff.
Mr. Holt argues four main points in this appeal: that W. Va.Code § 46A–1–105(a)(3) is ambiguous and must be construed in his favor; that the public utility exclusion in W. Va.Code § 46A–1–105(a)(3) does not bar his claim because the claim pertains to WVAW's unfair and deceptive course of conduct, not its rates; that claims under the WVCCPA against public utilities would not unduly interfere with the PSC's jurisdiction over utilities; and that the circuit court's application of the exclusion in W. Va.Code § 46A–1–105(a)(3) frustrates the WVCCPA's “gap-filling” function.
WVAW disagrees on all of Mr. Holt's points, arguing that W. Va.Code § 46A–1–105(a)(3) is not ambiguous, that it is not limited to “rates,” that it is effective for all WVCCPA claims, and that it excludes Mr. Holt's claims. WVAW further contends that allowing claims such as Mr. Holt's claims to proceed in circuit court would unduly interfere with public utility regulation and that there is no “gap” to be filled by the WVCCPA. Finally, WVAW asserts that it was entitled to dismissal on alternative grounds: Mr. Holt failed to allege an “unfair or deceptive act or practice” within the meaning of W. Va.Code § 46A–6–102(7).
We begin our analysis by addressing Mr. Holt's argument that W. Va.Code § 46A–1–105(a)(3) is ambiguous. Specifically, Mr. Holt contends that the WVCCPA does not define “public utility tariffs” or what it means to “transact under” a tariff for consumer protection purposes and that it is therefore unclear as to whether the statute prevents consumers from challenging more than PSC-approved rates and charges. Mr. Holt assertsthat the statute is best read to only prevent consumers from challenging rates and charges under the WVCCPA. As noted above, WVAW disagrees with...
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