No. 13-0744 -        Roger F. Holt v. West Virginia-American Water Company
                                                                           FILED
                                                                         June 12, 2014

                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA


Davis, Chief Justice, dissenting:

              Had Mr. Holt merely sought to challenge, through his lawsuit in the case sub

judice, West Virginia-American Water Company’s (“WVAW”) rates or late charges on his

regular monthly water bill that were not related to the series of water line leaks recounted in

the majority’s opinion, I would wholeheartedly agree with the majority’s decision herein.

However, in its zeal to quash Mr. Holt’s complaint, the majority of the Court has failed to

appreciate the true import of Mr. Holt’s claims, which challenge not only WVAW’s

imposition of late charges upon water usage attributable to WVAW’s own faulty meter and

efforts to collect the same, but also WVAW’s termination of Mr. Holt’s water service for his

failure to pay such late charges in direct contravention of the order of the Public Service

Commission of West Virginia (“PSC”) specifically prohibiting WVAW from terminating Mr.

Holt’s water service during the pendency of the underlying proceedings as long as he

continued to timely pay his customary monthly water bills. The parties do not dispute that,

throughout the pendency of the PSC proceedings, Mr. Holt continued to pay his monthly

water bills in an amount commensurate with his customary water usage prior to the

occurrence of the various leaks in his water line. Through his lawsuit against WVAW in the

case sub judice, Mr. Holt simply seeks recompense for the damages he incurred as a result


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of WVAW’s blatant disregard for the PSC’s order and its use of allegedly unfair trade

practices in the handling of his account. Because the language of W. Va. Code § 46A-1­

105(a)(3) specifically does not preclude Mr. Holt’s cause of action against WVAW under the

facts of this case, I adamantly dissent.



  A. The Majority Misapplied the Plain Language of W. Va. Code § 46A-1-105(a)(3)

               To uphold its dismissal of Mr. Holt’s lawsuit against WVAW, the majority

determined that W. Va. Code § 46A-1-105(a)(3) (2000) (Repl. Vol. 2006) applies to preclude

the claims he has asserted therein. However, an examination of the legislative intent

underlying the West Virginia Consumer Credit and Protection Act and a consideration of

how other courts have interpreted this statutory language reveal the flaws in the majority’s

interpretation and resultant application of this statute.



               When this Court is faced with a matter of statutory construction, we routinely

look to the intent of the Legislature in promulgating the provision at issue as an aid to

understanding the meaning of the challenged language. See generally Syl. pt. 1, Smith v.

State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary

object in construing a statute is to ascertain and give effect to the intent of the Legislature.”).

With regard to the statutory provision interpreted by the majority in this case, W. Va. Code

§ 46A-1-105(a)(3) is part of the West Virginia Consumer Credit and Protection Act


                                                2

(“WVCCPA”). In enacting the WVCCPA, the Legislature specifically adopted W. Va. Code

§ 46A-6-101 (1974) (Repl. Vol. 2006), which is entitled “Legislative declarations; statutory

construction” and directs, in full, as follows:

                      (1) The legislature hereby declares that the purpose of
              this article is to complement the body of federal law governing
              unfair competition and unfair, deceptive and fraudulent acts or
              practices in order to protect the public and foster fair and honest
              competition. It is the intent of the legislature that, in construing
              this article, the courts be guided by the interpretation given by
              the federal courts to the various federal statutes dealing with the
              same or similar matters. To this end, this article shall be
              liberally construed so that its beneficial purposes may be
              served.

                      (2) It is, however, the further intent of the legislature that
              this article shall not be construed to prohibit acts or practices
              which are reasonable in relation to the development and
              preservation of business or which are not injurious to the public
              interest, nor shall this article be construed to repeal by
              implication the provisions of articles eleven [§§ 47-11-1 et seq.,
              repealed], eleven-a [§§ 47-11A-1 et seq.] and eleven-B [§§ 47­
              11B-1 et seq.], chapter forty-seven of this Code.

(Emphasis added). Thus, it is apparent from this express statement of legislative intent that

(a) this Court has been instructed to look to similar federal statutes and court decisions for

guidance in construing the provisions of the WVCCPA and (b) the statutes comprising the

WVCCPA are to be “liberally construed so that its beneficial purposes may be served.”

W. Va. Code § 46A-6-101(1).



              The statutory language at the center of the instant controversy is part of the


                                                  3

Legislature’s recognized exceptions to claims covered by the WVCCPA. W. Va. Code

§ 46A-1-105(a)(3) (2000) (Repl. Vol. 2006) provides as follows:

                      (a) This chapter does not apply to:

                      ....

                      (3) Transactions 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[.]

Until the majority’s opinion herein, this Court has never before interpreted this particular

statutory provision. Thus, pursuant to W. Va. Code § 46A-6-101(1), the majority of “the

[C]ourt[] [should have] be[en] guided by the interpretation given by the federal courts to the

various federal statutes dealing with the same or similar matters.”1 Had the majority heeded

this express statement of legislative intention, it would have appreciated that the construction

it has afforded to W. Va. Code § 46A-1-105(a)(3) is contrary to the interpretation of similar

federal language and does not effectuate the Legislature’s desire that the provisions of the

WVCCPA “be liberally construed so that its beneficial purposes may be served.” W. Va.

Code § 46A-6-101(1).




              1
               Looking to the courts of other jurisdictions for guidance when resolving
questions of law is an approach often employed by this Court. See, e.g., Kenney v. Liston,
___ W. Va. ___, ___ S.E.2d ___ (No. 13-0427 June 4, 2014); State ex rel. Thompson v.
Pomponio, ___ W. Va. ___, 757 S.E.2d 636 (2014); Dean v. State, 230 W. Va. 40, 736
S.E.2d 40 (2012); Motto v. CSX Transp., Inc., 220 W. Va. 412, 647 S.E.2d 848 (2007).

                                               4

              Using virtually identical language, Congress has enacted 15 U.S.C.A.

§ 1603(4) (2010), which operates to exclude from the federal Truth in Lending Act

substantially similar matters as those addressed in the exclusions to the WVCCPA set forth

in W. Va. Code § 46A-1-105(a)(3). The language of 15 U.S.C.A. § 1603(4) provides:

                    This subchapter [of the federal Truth in Lending Act]
              does not apply to the following:

                     ....

                    (4) Transactions under public utility tariffs, if the Bureau
              determines that a State regulatory body regulates the charges for
              the public utility services involved, the charges for delayed
              payment, and any discount allowed for early payment.[2]

              2
                In addition to the federal government, several other states have adopted
exclusionary language similar to that contained in W. Va. Code § 46A-1-105(a)(3). See
Colo. Rev. Stat. Ann. § 5-1-202(1)(c) (West 2012) (“This code does not apply to: . . . (c)
Transactions 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[.]”); Ind. Code Ann. § 24-4.5­
1-202(b)(3) (West 2012) (“This article does not apply to the following: . . . (3) Transactions
under public utility, municipal 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.”); Kan. Stat. Ann.
§ 16a-1-202(3) (West 1973) (“K.S.A. 16a-1-101 through 16a-6-414 do not apply to . . . (3)
transactions 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[.]”); La. Rev. Stat. Ann.
§ 9:3512(3) (2006) (“This law does not apply to: . . . (3) Transactions under public utility or
common carrier tariffs if a subdivision or agency of this state or of the United States
regulates, approves, or consents to the charges for the services involved, the charges for
delayed payment, and any discount allowed for early payment.”); Okla. Stat. Ann. tit. 14A,
§ 1-202(3) (West 1982) (“This act does not apply to . . . (3) transactions 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
                                                                                 (continued...)

                                              5

(Footnote added). While several federal courts have applied this statute in cases concerning

allegedly excessive or erroneous charges, none of these tribunals have considered, or applied,

it in the context of claims such as those asserted by Mr. Holt claiming that a public utility,

i.e., WVAW, has violated a direct order of its regulatory body, i.e., the PSC. See Aronson

v. Peoples Natural Gas Co., 180 F.3d 558 (3d Cir. 1999) (applying 15 U.S.C.A. § 1603(4)

to bar public utility customer’s claims challenging natural gas company’s billing methods

whereby calculation of late payment charge and interest assessed thereon were not clear from

customer’s monthly natural gas bill); Aronson v. Peoples Natural Gas Co., 180 F.3d 558 (3d

Cir. 1999) (same); Gattermann v. Rhodes, 898 F.2d 145 (4th Cir. 1990) (per curiam)

(unpublished op.) (applying 15 U.S.C.A. § 1603(4) to dismiss public utility customer’s

complaint challenging termination of her utility service while parties were determining

whether customer owed monies on previous account with same public utility); Monchino v.

PSE & G, Co., No. 11-1733 ES, 2012 WL 1988619 (D.N.J. June 4, 2012) (applying 15



               2
               (...continued)
discount allowed for early payment[.]”); S.C. Code Ann. § 37-1-202(3) (2005) (“Except as
otherwise provided, this title does not apply to: . . . (3) Transactions under public utility,
municipal 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 [.]”); Wis. Stat. Ann. § 421.202(3)
(West 2007) (“Chapters 421 to 427 do not apply to any of the following: . . . (3) Charges for
delayed payment and any discount allowed for early payment in transactions under public
utility or common carrier tariffs if a subdivision or agency of this state or of the United States
regulates such charges or discounts, or if such charges or discounts are made in connection
with the furnishing of electric service by an electric cooperative organized and operating on
a nonprofit basis under ch. 185.”).

                                                6

U.S.C.A. § 1603(4) to dismiss complaint alleging public utility failed to remove charges

erroneously billed to customer’s account); Huegel v. City of Easton, No. 00-CV-5077, 2003

WL 22428435 (E.D. Pa. May 13, 2003) (applying 15 U.S.C.A. § 1603(4) to grant city’s

motion for summary judgment on public utility customers’ complaint claiming city had failed

to inform delinquent account holders of amount of interest and other charges due under

repayment plans); King v. Town of Waynesville, No. 1:02CV55, 2003 WL 23354657

(W.D.N.C. Apr. 14, 2003) (applying 15 U.S.C.A. § 1603(4) to grant city’s motion for

summary judgment as to public utility customer’s complaint that city had charged late fees

without disclosing the same and had failed to properly credit customer’s account); Munson

v. Orrin E. Thompson Homes, Inc., 395 F. Supp. 152 (D. Minn. 1974) (applying 15 U.S.C.A.

§ 1603(4) to grant public utility’s motion for summary judgment regarding public utility

customers’ claims challenging surcharges added to customers’ monthly utility bills for

construction of underground utility distribution system).3 Cf. Pollice v. National Tax


              3
               Neither have other states who have interpreted their statutory exclusionary
language considered claims such as those raised by Mr. Holt in the instant proceeding
wherein he seeks damages for a public utility’s direct violation of an order issued by its
regulatory agency. See, e.g., Jones v. Kansas Gas & Elec. Co., 222 Kan. 390, 565 P.2d 597
(1977) (determining public utility exclusion applied to claims regarding late payment charges
imposed upon public utility bill); State of Louisiana ex rel. Guste v. Council of City of New
Orleans, 9 P.U.R.4th 353, 309 So. 2d 290 (La. 1975) (concluding that public utility’s
adoption and imposition of late payment provisions which increased customers’ monthly bills
were exempted from regulation under Louisiana’s consumer protection laws); Grein v.
Hawkins, 295 So. 2d 219 (La. Ct. App. 1974) (finding public utility exemption of Louisiana
Consumer Credit Protection Act applied so as to bar customer’s challenge to sanitary
corporation’s 60% monthly rate increase where sanitary corporation had been placed under
                                                                                 (continued...)

                                              7

Funding, L.P., 225 F.3d 379 (3d Cir. 2000) (refusing to apply 15 U.S.C.A. § 1603(4) to bar

claims against assignee of city’s and public utilities’ claims attempting to collect upon

delinquent public utility customers’ accounts). Rather, all of the federal cases addressing a

public utility customer’s claims against a public utility, and finding them to be excluded by

15 U.S.C.A. § 1603(4), have involved complaints about the imposition of late charges, the

excessiveness of rates, or other routine billing practices. Simply stated, no federal cases have

considered a public utility’s callous disregard of an order issued by its governing body.



              The majority’s opinion focuses solely upon the fact that WVAW has filed a

tariff with the PSC, which contains a listing of the utility’s rates, charges, and general rules

and regulations, and then concludes that all of Mr. Holt’s claims arise from transactions

related to said tariff. I do not dispute that had Mr. Holt’s complaint focused solely on

WVAW’s routine billing practices and imposition of late fees for nonpayment of his

customary water bill in the absence of the leak scenario involved in this case, such claims

likely would be precluded by W. Va. Code § 46A-1-105(a)(3). However, those are not



              3
                (...continued)
Public Service Commission’s control and PSC’s operation of said sanitary corporation
provided prima facie evidence of regulation of its charges by a state regulatory body); Dalton
v. City of Tulsa, 1977 OK 25, 560 P.2d 955 (1977) (ruling that public utility customers could
not maintain cause of action against city providing such services under either Oklahoma
Consumer Credit Act or federal Consumer Protection Act because city utility board had
authority to establish rates for city water services, and city board of commissioners had
approved 5% late penalty).

                                               8

allegations set forth in Mr. Holt’s complaint. Rather, Mr. Holt seeks redress for WVAW’s

flagrant violation of the PSC’s order that specifically prohibited WVAW from terminating

his water service during the pendency of the underlying proceedings. Such allegations are

wholly unrelated to a public utility’s rates, charges, tariffs, or routine billing practices and

are fully suggestive of a public utility’s pattern of unlawful conduct.



              Shortly after Mr. Holt filed his administrative complaint with the PSC, the PSC

issued a temporary order on April 19, 2010, specifically ordering, in pertinent part, as

follows:

                     IT IS, THEREFORE, ORDERED that, while this case is
              pending final resolution, West Virginia-American Water
              Company not terminate public utility water service to the
              Complainant, Roger F. Holt, and to continue to provide water
              service to the Complainant, provided that the Complainant pays
              each of his bills for current public water utility service on or
              before the due dates stated on each billing.

Despite such directives prohibiting WVAW from turning off Mr. Holt’s water service if Mr.

Holt continued to make timely payments of his customary monthly water charges, and Mr.

Holt’s timely monthly payments during this period, WVAW nevertheless terminated Mr.

Holt’s water service in October 2010. In his circuit court complaint alleging violations of

the WVCCPA, Mr. Holt recounted WVAW’s actions in this regard:

                      [West Virginia-]American Water engaged in the
              following unfair or deceptive acts or practices against the
              plaintiff [Mr. Holt]:


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                     ....

                     Threatening to terminate Plaintiff’s [Mr. Holt’s] water
              service in violation of the PSC’s April 19, 2010 Order Granting
              Interim Relief via letters dated October 4, 2010 and October 15,
              2010, with each letter constituting a discrete violation.

                      Terminating Plaintiff’s [Mr. Holt’s] water service in
              violation of the PSC’s April 19, 2010 Order Granting Interim
              Relief.

Thus, it is evident that these claims asserted by Mr. Holt do not concern tariffs, rates, or

charges within the contemplation of W. Va. Code § 46A-1-105(a)(3). Rather, Mr. Holt seeks

to hold WVAW accountable for its flagrant violation of an express order issued by WVAW’s

own regulatory agency–the PSC. As such, W. Va. Code § 46A-1-105(a)(3) should be

“liberally construed so that its beneficial purposes may be served,” W. Va. Code § 46A-6­

101(1), and not applied to bar Mr. Holt’s claims.



              I do not mean to imply, however, that damages incurred as the result of any

violation of a court’s order routinely may be pursued under the WVCCPA. Rather, I simply

wish to point out that Mr. Holt’s allegations regarding WVAW’s violation of the PSC’s order

are not the type of “[t]ransactions under public utility . . . tariffs” contemplated by the

exclusionary language of W. Va. Code § 46A-1-105(a)(3). As such, Mr. Holt pled claims

sufficient to survive WVAW’s motion to dismiss for failure to state a claim upon which

relief may be granted. See generally John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161

W. Va. 603, 606, 245 S.E.2d 157, 159 (1978) (“In view of the liberal policy of the rules of

                                            10

pleading with regard to the construction of plaintiff’s complaint, and in view of the policy

of the rules favoring the determination of actions on the merits, the motion to dismiss for

failure to state a claim should be viewed with disfavor and rarely granted. The standard

which plaintiff must meet to overcome a Rule 12(b)(6) motion is a liberal standard, and few

complaints fail to meet it.”). Because the majority has reached a contrary conclusion in its

decision of this case, I respectfully dissent.




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