This case arises out of a billing dispute with the defendant, a PSC-regulated utility. In December, 2009, the plaintiff received a bill that was $5,000 in excess of his average monthly bill. The plaintiff contacted the defendant and the PSC regarding the excessive bill. The PSC conducted an inspection, concluding that the problem was with the defendant’s meter and not with the plaintiff’s line. The defendant repaired the meter, but failed to inform the plaintiff or make any reimbursement. Instead, the defendant continued to bill for the full $5,000 and to impose late charges. Eventually, the plaintiff filed a formal complaint with the PSC. Only then did the defendant refund the overcharge.
The defendant’s delay in informing the plaintiff of the meter repair also prevented the plaintiff from learning of a secondary leak in his own line. The defendant charged for this leak too, including late charges, but the PSC found these charges were improper and ordered full reimbursement. However, the PSC also concluded that it lacked power to award any damages for the defendant’s wrongdoing.
The plaintiff then brought suit against the defendant under West Virginia’s consumer law, specifically W.Va. 46A-6-104, alleging unlawful acts or practices relating to the defendant’s billing. The defendant argued that W.Va. Code 46A-1-105(a)(3) excluded any claim by the plaintiff. The trial court agreed.
Does W.Va. Code 46a-1-105(a)(3), which excludes “transactions under public utility…tariffs” from the scope of West Virginia’ consumer law, prohibit a claim by a consumer against a public utility alleging consumer law violations in its billing practices?
This case appeared on the Rule 20 docket. However, the court issued a per curiam opinion, treating this as a straightforward case of statutory construction.
West Virginia has adopted the Consumer Credit and Protection Act, W.Va. Code 46A-1-1 et seq. The purpose the CCPA is to protect West Virginia consumers from improper, unfair and deceptive practices. Under the CCPA, consumers are given a wide range of legal remedies and, in most cases, they can recover their attorney fees and costs if they prevail.
The key issue addressed by the court was whether the plaintiff’s claims involved “transactions under public utility…tariffs.” W.Va. Code 46A-1-105(a)(3). If so, the claims would be excluded from the CCPA and the plaintiff would have no statutory remedy for the defendant’s improper billing practices.
The plaintiff argued that the statute’s language was ambiguous. The CCPA did not define what a public utility “tariff” was or what transactions fell “under” a tariff. Thus, the plaintiff urged the court to construe this language narrowly to give the greatest possible protection to consumers. The plaintiff conceded that consumers should not have the right to challenge PSC-approved rates and charges through the CCPA, but anything beyond that, including a public utility’s improper, unfair, or deceptive practices, should be covered by the CCPA.
The Supreme Court disagreed, flatly rejecting the argument that the language in question was ambiguous:
“The term ‘public utility tariffs’ is universally understood to mean more than just PSC-approved rates and charges. It also governs the rules, regulations, and practices relating to rate- and charge-based services between a utility and its consumers. We therefore find that the language of W.Va. Code 46A-1-105(a)(3) is unambiguous and clearly expresses the Legislature’s intent that the exclusion from suit set forth therein applies to more than simply the PSC-approved rates and charges themselves.”
Next, the court proceeded to apply this statutory language to the case at hand. Reviewing the defendant’s tariff, the court noted that it regulated a variety of things, including rates, when and where bills are to be sent, and how services may be terminated. Because of its broad scope, the court concluded that the plaintiff’s claims “all arise from transactions described in the tariff.” Therefore, the plaintiff’s claims were excluded from the CCPA and the trial court’s dismissal of the plaintiff’s complaint was affirmed.
Justices Loughry, Workman and Ketchum concurred in a separate opinion. They noted that the plaintiff could have filed a common-law claim “predicated on the same allegations of unfair and deceptive practices that he relied upon as the basis for his statutory claim.” The concurring justices acknowledged that the defendant’s billing was improper and that the plaintiff’s experience in trying to resolve the billing issue had been exasperating. Thus, they pointed out that the plaintiff remained free to assert “any viable non-statutory claims” he might have.
Justice Davis dissented, criticizing the majority for its method of interpretation. According to Justice Davis, the starting point for analysis should have been W.Va. Code 46A-6-101, which specifically directs West Virginia courts to be “guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or similar matters.” The dissent then analyzed federal cases, concluding that claims involving utilities are excluded from the CCPA only when they involve “the imposition of late charges, the excessiveness of rates, or other routine billing practices.” Here, however, Justice Davis emphasized that the termination of the plaintiff’s water service was actually in direct violation of a PSC order. Thus, the plaintiff stated a viable claim under the CCPA because he was “seek[ing] to hold [the defendant] accountable for its flagrant violation of an express order issued by [the defendant’s] own regulatory agency--the PSC.”
This case will have a broader impact than its per curiam status might suggest. All billing practices of a public utility are now exempt from CCPA’s coverage. Unfortunately, the assurances given by the concurring justices provide little comfort to the plaintiff here or to consumers generally. Common-law claims (like fraud, for example) are time-consuming and difficult to prove. Beyond that, only claims under the CCPA provide for an award of attorney fees. This is an important feature of the CCPA, leveling the playing field and making it possible for consumers to hire an attorney even where only small sums are involved. Because the plaintiff will not receive the protection of the CCPA, his claims--though clearly legitimate--may never be vindicated.