Orion Flight v. Basler Flight Service

• Decision Date: 19 May 2006
• Docket Number: No. 2003AP1731.,2003AP1731.
• Citation: 2006 WI 51,714 N.W.2d 130
• Parties: ORION FLIGHT SERVICES, INC., Plaintiff-Respondent-Petitioner, v. BASLER FLIGHT SERVICE, a division of Basler Turbo Conversions, LLC, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 130

714 N.W.2d 130

2006 WI 51

ORION FLIGHT SERVICES, INC., Plaintiff-Respondent-Petitioner, v. BASLER FLIGHT SERVICE, a division of Basler Turbo Conversions, LLC, Defendant-Appellant.

No. 2003AP1731.

Supreme Court of Wisconsin.

Argued October 12, 2005.

Decided May 19, 2006.

COPYRIGHT MATERIAL OMITTED

For the plaintiff-respondent-petitioner there were briefs by Russell A. Klingaman, Jeffrey D. Patza and Hinshaw & Culbertson LLP, Milwaukee, and oral argument by Russell A. Klingaman.

For the defendant-appellant there was a brief by Laura A. Brenner, Joseph W. Voiland and Reinhart Boerner Van Deuren s.c., Milwaukee, and oral argument by Laura A. Brenner.

An amicus curiae brief was filed by Colleen D. Ball and Appellate Counsel SC, Wauwatosa, on behalf of Midwest Airlines and Wisconsin Aviation Trades Association, Inc.

¶ 1 LOUIS B. BUTLER, JR., J

Orion Flight Services, Inc. ("Orion") seeks review of a published decision by the court of appeals¹ reversing the circuit court's preliminary injunction requiring that Basler Flight Service, a division of Basler Turbo Conversions, LLC ("Basler"), set the price of its aviation fuel pursuant to the minimum markup provisions for motor vehicle fuel under the Wisconsin Unfair Sales Act.²

¶ 2 At issue in this case is whether aviation fuel constitutes "motor vehicle fuel" under the Wisconsin Unfair Sales Act, subjecting aviation fuel to the Act's minimum markup provisions for motor vehicle fuel.³

¶ 3 Upon review, we conclude that "motor vehicle fuel" does not include aviation fuel, that the minimum markup provisions in Chapter 100 of the Wisconsin Statutes do not apply to aviation fuel, and that Orion cannot rely on Wis. Stat. § 100.30 for a private cause of action against Basler. We also conclude that the Wisconsin Administrative Code § ATCP 105.001(4) (Sept., 1990) does not incorporate aviation fuel in its definition of "motor vehicle fuel," and is thus consistent with the statute. We therefore affirm the court of appeals' decision reversing the circuit court's preliminary injunction.

I

¶ 4 The relevant facts are undisputed. In 1957, Winnebago County and Basler entered into an agreement for Basler to sell aviation fuel at the Wittman Regional Airport ("Wittman") in Oshkosh, Wisconsin. Basler is a Fixed Based Operation ("FBO"), which is a vendor of services at an airport or airfield. Basler sells "Jet A fuel" and "100 LL aviation fuel" at Wittman through a self-service pump for use by airplane owners, as well as through the use of a fleet of trucks that deliver the fuel to aircrafts. Basler continues to operate under this agreement.

¶ 5 From 1957 to 2002, Basler had been the sole provider of aviation fuel for Wittman, and the only FBO under an agreement with Winnebago County. However, on May 29, 2002, Winnebago County entered into an agreement with Orion to sell aviation fuel at Wittman. Orion, like Basler, sells Jet A fuel and 100 LL aviation fuel. Unlike Basler, Orion only delivers the fuel to aircrafts and does not operate self-service pumps.

¶ 6 In 2002 and early 2003, the parties engaged in a "price war" where the price of aviation fuel at Wittman dropped from $2.59 to a low of $1.599 per gallon.⁴ In November 2002, Orion filed a complaint with the Wisconsin Department of Agriculture, Trade and Consumer Protection ("DATCP"). Orion alleged that when Basler set its price of fuel at $1.599 per gallon, Basler set its fuel price below cost, in violation of the Unfair Sales Act, Wis. Stat. § 100.30(3).⁵ DATCP began an investigation into Basler's fuel prices.⁶

¶ 7 On March 19, 2003, before DATCP completed its investigation, Orion filed a suit in Winnebago County alleging that Basler sold motor vehicle fuel below the statutory minimum required for motor vehicle fuel, in violation of the Unfair Sales Act, and seeking injunctive relief.

¶ 8 Two days after Orion filed this suit, Basler received a warning letter from DATCP. DATCP concluded that Basler's "cost" of the 100 LL aviation fuel was $1.78, and therefore Basler violated Wis. Stat. § 100.30 when it sold its 100 LL aviation fuel at prices below $1.78.⁷ In the warning letter, DATCP further concluded that the minimum markup requirement under the Unfair Sales Act for sales of "motor vehicle fuel" did not include aviation fuel.

[W]e have explored the issue of whether or not 100 LL aviation fuel should be treated as "motor vehicle fuel" under the Unfair Sales Act.... We have concluded that 100 LL aviation fuel is not "motor vehicle fuel" as the term is used in the statute. We base this conclusion on the common sense fact that airplanes are generally not considered "motor vehicles" under various transportation statutes and codes. Furthermore, it seems illogical that the term "motor vehicle fuel" as it is used in the statute was intended to be used outside of the contents of sales of fuel intended for highway use through the well established industry of retail gas stations and convenience stores.⁸

¶ 9 Although DATCP concluded that aviation fuel was not "motor vehicle fuel," it also warned Basler that "any person who is injured as a result of a competitor selling motor vehicle fuel below cost may sue for $2,000 per day or treble actual damages, whichever is greater, plus reasonable accounting and attorney fees."⁹ In addition later that same day, DATCP followed up with a second letter to Basler, stating that

[S]ome additional information has come to our attention regarding the question of whether aviation fuel is covered under the Unfair Sales Act as "motor vehicle fuel." Based on this new development, we have decided that we need to do additional research on this question before we issue a final interpretation on this issue. Specifically, in the first paragraph on page 2 of the warning letter, we state an opinion that 100 LL aviation fuel is not "motor vehicle fuel" under the Unfair Sales Act. That paragraph and the opinion it expresses is hereby retracted. However, the remainder of the warning letter still stands.¹⁰

¶ 10 This second letter explicitly retracts "the opinion that 100 LL aviation fuel is not `motor vehicle fuel.'" However, DATCP failed to retract its conclusion that the cost for Basler's 100 LL aviation fuel was $1.78. The analysis used to reach the $1.78 figure did not include a minimum markup calculation.¹¹ See Wis. Stat. § 100.30(2)(am)1m.a. to e. Moreover, the record contains no final interpretation of "motor vehicle fuel," and no final order from DATCP.

¶ 11 On March 19, 2003, the Winnebago County Circuit Court issued an ex parte temporary restraining order, ordering Basler to, among other things, "immediately refrain from selling any motor vehicle fuel below the minimum prices established by Wis. Stat. § 100.30, the Unfair Sales Act."¹²

¶ 12 On May 2, 2003, the Honorable Thomas J. Gritton granted Orion's preliminary injunction request, finding that:

The definition is clear to me and under the circumstances as we have them here the fuel that is being used is being placed into what I would consider to be under that definition a motor vehicle for purposes of the Unfair Sales Act.

¶ 13 The circuit court ordered Basler to "immediately refrain from selling 100 LL fuel `below cost' as defined in Wis. Stat. § 100.30(2)(am)1m.c."¹³ The circuit court based its decision on the definition of motor vehicle fuel in Wis. Admin. Code § ATCP 105.001(4).¹⁴ The court reasoned that the definition of motor vehicle is unambiguous in the code, and under the circumstances of the facts of this case, the fuel sold by Basler and Orion constitutes "motor vehicle fuel" for purposes of the Unfair Sales Act.

¶ 14 Basler filed an interlocutory appeal. The court of appeals granted leave to appeal and reversed. The court of appeals concluded that including aviation fuel in the definition of "motor vehicle fuel" strayed too far from the legislature's intent.¹⁵ The court of appeals also concluded that because the Unfair Sales Act excludes aviation fuel from the definition of "motor vehicle fuel," "the DATCP's definition may extend no further."¹⁶

¶ 15 Orion asks this court to reverse the court of appeals and find that "motor vehicle fuel" includes aviation fuel for purposes of the Unfair Sales Act. Orion contends that the court of appeals unnecessarily limited the definition of "motor vehicle fuel." In contrast, Basler asks this court to affirm the court of appeals, asserting that the language of the statute, along with its context, structure, and its relationship with other statutes, indicate that aviation fuel is not "motor vehicle fuel" within the meaning of the Unfair Sales Act.

II

¶ 16 This case presents a question of statutory interpretation, which we review de novo. State v. Reed, 2005 WI 53, ¶ 13, 280 Wis.2d 68, 695 N.W.2d 315. The purpose of statutory interpretation is to determine what a statute means in order to give the statute its full, proper, and intended effect. Id. "We begin with the statute's language because we assume that the legislature's intent is expressed in the words it used." Id. Generally, language is given its common, ordinary, and accepted meaning. Kalal v. Dane County Cir. Ct., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. In addition, statutory language is interpreted in the context in which it is used, in relation to the language of surrounding or closely-related statutes, and interpreted to avoid absurd or unreasonable results. Id., ¶ 46, 681 N.W.2d 110.

¶ 17 "If the meaning is plain, we ordinarily stop the inquiry." Reed, 280 Wis.2d 68, ¶ 13, 695 N.W.2d 315. However, if a statute is ambiguous, we examine extrinsic sources, such as legislative history, to ascertain the legislative intent. Kalal, 271 Wis.2d 633, ¶ 48, 681 N.W.2d 110. A statute is ambiguous if "[t]he statute's ability to support two reasonable constructions creates an ambiguity which cannot be resolved through the language of the statute itself. [A] statutory provision is ambiguous if reasonable minds could differ...