Safe. Prog. All. for Nonvio. v. Qwest Corp., 06CA0083.

• Citation: 174 P.3d 821
• Decision Date: 14 June 2007
• Docket Number: No. 06CA0083.,06CA0083.
• Parties: SAFEHOUSE PROGRESSIVE ALLIANCE FOR NONVIOLENCE, INC., f/k/a Boulder County Safehouse, Inc., a Colorado nonprofit corporation, Plaintiff-Appellant, v. QWEST CORPORATION, a Colorado corporation; McLeodUSA Publishing Company, d/b/a Yellow Book USA, an Iowa corporation; and Verizon Directories Corporation, a Delaware corporation, Defendants-Appellees.
• Court: Colorado Court of Appeals

174 P.3d 821

SAFEHOUSE PROGRESSIVE ALLIANCE FOR NONVIOLENCE, INC., f/k/a Boulder County Safehouse, Inc., a Colorado nonprofit corporation, Plaintiff-Appellant, v. QWEST CORPORATION, a Colorado corporation; McLeodUSA Publishing Company, d/b/a Yellow Book USA, an Iowa corporation; and Verizon Directories Corporation, a Delaware corporation, Defendants-Appellees.

No. 06CA0083.

Colorado Court of Appeals, Div. II.

June 14, 2007.

Hutchinson Black and Cook, LLC, William D. Meyer, Christopher W. Ford, Constance Tromble Eyster, Boulder, CO, for Plaintiff-Appellant.

Brownstein Hyatt & Farber, P.C., Timothy R. Beyer, Peter J. Korneffel, Richard P. Barkley, E. Tim Walker, Denver, CO, for Defendant-Appellee Qwest Corporation.

Moye White, LLP, Scott R. Bauer, William F. Jones, Denver, CO, for Defendant-Appellee McLeodUSA Publishing Company.

Senter Goldfarb & Rice, L.L.C., William L. Senter, Billy-George Hertzke, Denver, CO, for Defendant-Appellee Verizon Directories Corporation.

Opinion by Judge CASEBOLT.

In this negligence action, Safehouse Progressive Alliance for Nonviolence, Inc. (SPAN), formerly known as Boulder County Safehouse, Inc., appeals the summary judgment in favor of defendants, Qwest Corporation, McLeodUSA Publishing Company, doing business as Yellow Book USA, and Verizon Directories Corporation. We affirm.

SPAN is a nonprofit corporation that, among other services, provides refuge at an emergency shelter in Boulder for battered women and children seeking to escape violent assailants. In December 2002, a SPAN employee contacted a Qwest customer service representative (CSR) to obtain a digital subscriber line (DSL). The employee indicated that she was calling on behalf of the Boulder County Safehouse.

The DSL service required the customer to provide a local telephone connection. The CSR offered the employee a package called "Qwest Business Line Plus," which included a business telephone line that would serve as the local telephone connection. Among other things, the package included a directory listing, which would contain the address of the premises at which the DSL line would be installed.

The SPAN employee ordered the package, and the transaction was completed. The employee did not tell the CSR that the line would be installed at SPAN's shelter and did not request that the listing be nonpublished, nor did the CSR mention that it would be published. In the past, SPAN had taken measures to ensure that the shelter address remained confidential.

Because the SPAN employee had not requested that the listing be nonpublished, the shelter's address subsequently became available on Qwest's directory assistance and through Qwest Dex, Inc. (Dex). Qwest also sold the directory listing to third parties, including Yellow Book and Verizon, which had requested Qwest to provide them with its published listings.

In May or June 2003, a SPAN volunteer called directory assistance to obtain SPAN's telephone number. Because SPAN had multiple telephone numbers, the operator asked whether the volunteer wanted the number at a particular address, one of which was the physical address for the shelter. The volunteer reported this to SPAN's office manager, who contacted Qwest.

SPAN's manager informed Qwest that its confidential shelter address was being disseminated by directory assistance. A Qwest employee erroneously told the manager that directory assistance was operated by Dex, and directed her to call Dex to remedy the problem. In fact, directory assistance was operated by Qwest. During this phone call, Qwest did not inform SPAN that Qwest had sold or otherwise disseminated the directory listing. After the call, because there had not been a request that the listing be nonpublished, Qwest continued to disseminate the listing and did not notify those who had obtained it to request that it not be published.

In August 2003, Yellow Book began delivering its Boulder/Longmont Yellow Book, which contained the shelter address. Soon after, Verizon began delivering its Greater Denver SuperPages, which also contained the shelter address.

In September 2003, SPAN learned that the shelter address had been published in the Yellow Book directory. When SPAN contacted Yellow Book to deal with the problem, a Yellow Book representative stated that it had purchased the listing from Qwest. SPAN then contacted Qwest and requested that its listing be nonpublished. Qwest immediately removed the listing from directory assistance and took steps to ensure the address would not appear in any subsequent directories.

SPAN then instituted this action, asserting claims against Qwest for negligence, breach of contract, misappropriation of trade secrets, and violation of the Colorado Consumer Protection Act. SPAN also asserted claims for negligence and misappropriation of trade secrets against Dex, Yellow Book, and Verizon. SPAN asserted that it was forced to relocate its shelter because its secret address had been published, claiming more than $3 million in damages. Dex later settled the claims brought by SPAN and was dismissed from the case.

Defendants moved for, and the trial court granted, summary judgment on all claims. As relevant here, the trial court ruled that the claims against Qwest were either precluded by the filed tariff doctrine or failed because Qwest owed no legal duty to SPAN with respect to the address. The court also concluded that Yellow Book and Verizon did not owe SPAN a legal duty under these circumstances. The sole issue on appeal is whether SPAN's negligence claims should be reinstated for trial.

I.

SPAN contends that Qwest's actions present factual issues precluding summary judgment. Because we conclude that there are no material facts in dispute and SPAN's claims fail as a matter of law, we disagree.

We review a summary judgment de novo. Summary judgment is proper only upon a showing that there are no issues of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); McCormick v. Union Pac. Res. Co. 14 P.3d 346, 348 (Colo.2000). The nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party. Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999).

Under § 40-3-103, C.R.S.2006, a public utility such as Qwest is required to file tariffs of "rates, tolls, rentals, charges, and classifications collected or enforced, or to be collected and enforced, together with all rules, regulations, contracts, privileges, and facilities which in any manner affect or relate to rates, tolls, rentals, classifications, or service." Here, Qwest's filed tariffs describe, among other things, the "Qwest Business Line Plus" package purchased by SPAN.

Where applicable, a filed tariff carries the force of law. U S W. Commc'ns, Inc. v. City of Longmont, 948 P.2d 509, 516 (Colo.1997). In this context, the filed tariff doctrine holds that the "rate of the carrier duly filed is the only lawful charge," and that "[d]eviation from it is not permitted upon any pretext." Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 222, 118 S.Ct. 1956, 1962, 141 L.Ed.2d 222 (1998)(quoting Louisville & Nashville R.R. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915)).

Filed tariffs are not limited only to rates.

Not only is a carrier forbidden from charging rates other than as set out in its filed tariff, but customers are also charged with notice of the terms and rates set out in that filed tariff and may not bring an action against a carrier that would invalidate, alter or add to the terms of the filed tariff.

Evanns v. AT & T Corp., 229 F.3d 837, 840 (9th Cir.2000) (footnote omitted). "The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier." Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., supra, 524 U.S. at 227, 118 S.Ct. at 1965 (quoting Keogh v. Chicago & Nw. R.R., 260 U.S. 156, 163, 43 S.Ct. 47, 49, 67 L.Ed. 183 (1922)).

Thus, a common law claim that is inconsistent with the terms of a filed tariff is barred. See Redfern v. U S W. Commc'ns, Inc., 38 P.3d 566, 567 (Colo.App.2000); Shoemaker v. Mountain States Tel. & Tel. Co., 38 Colo.App. 321, 323, 559 P.2d 721, 723 (1976). Further, if the subject matter of a claim falls within a tariff's scope, then the extent of the carrier's liability may be limited by the tariff. See Shoemaker v. Mountain States Tel. & Tel. Co., supra, 38 Colo.App. at 324, 559 P.2d at 724.

SPAN contends that Qwest breached a duty of care on three separate occasions. We conclude that SPAN's negligence claims are barred by the filed tariff doctrine and by federal law, and that the tariffs limit Qwest's liability to zero as a matter of law.

Standard principles of statutory construction apply to the interpretation of a tariff. We must give effect to the intent of the regulatory agency by looking first at the language of the tariff. The language must be read and considered as a whole, and it should be construed to give consistent, harmonious, and sensible effect to all its parts. We need not defer to the trial court's construction of the tariff. Redfern v. U S W. Commc'ns, Inc., supra, 38 P.3d at 568.

A.

SPAN contends that Qwest was negligent in December 2002 when it published the shelter address in the listing and sold it to third parties. Specifically, SPAN asserts that Qwest had a duty to notify it that the address would be published and sold, or affirmatively to ascertain whether SPAN wanted the address published. We conclude that this claim is inconsistent with the tariffs and is therefore barred by the filed tariff doctrine and federal law.

1.

Section 5.9.1(D)(2)(e) of the Exchange and Network Services Tariff provides, "One primary directory listing is furnished without charge for each "QWEST BUSINESS LINE PLUS." Section 5.7.1(C) of the same tariff...