2011-028, Jo Anne Rainville & a. v. Lakes Region Water Company, Inc. & a.

This is an interlocutory appeal from an order of the

defendants. Nelson ___________________________ and Adam J. Chandler on the brief, and Mr. Nelson orally), for the Nelson, Kinder, Mosseau & Saturley, PC, of Manchester (Richard C.

brief and orally), for the plaintiffs. a.m. on the morning of their release. T Cooper Cargill Chant, P.A., of North Conway (Christopher T. Meier on the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address:

LAKES REGION WATER COMPANY, INC. & a.

THE SUPREME COURT OF NEW HAMPSHIRE v.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

defendants moved for partial summary judgment as to the plaintiffs’ CPA

violations of the CPA, breach of contract and other claims. In August p. 2 2009, the

In August p. 2 2008, the plaintiffs brought suit against LRWC alleging

of its customers.

investigation open so as to continue to monitor LRWC and protect the interests

Because of the pending investigation by the attorney general, the PUC kept its General was investigating the allegation that LRWC had reconnected Well 004. part of its investigation, the PUC observed that the New Hampshire Attorney

financial capacity to provide safe and adequate service to its customers.” As

investigate, among other things, whether LRWC had the “managerial and Also in September p. 2 2007, PUC staff requested the PUC to formally

DES requirements.

levels of the water from the Tamworth Water Works returned to levels that met

the water lines and electrical connections to Well 004. Thereafter, the uranium levels greater than those allowed by DES. In September p. 2 2007, LRWC severed a subsequent test of water from the Tamworth Water Works found uranium

In August p. 2 2007, DES employees discovered that Well 004 was active, and

005. Services (DES). Subsequently, LRWC replaced Well 004 with a new well, Well

the maximum allowed by the New Hampshire Department of Environmental

Well 004, was shut down because its water contained levels of uranium above bedrock well to service the Tamworth Water Works system. In p. 2 2004, this well, water to Tamworth residents and businesses. In 1998, LRWC installed a

necessary. See interlocutory appeal statement and rely upon the record for additional facts as We accept the statement of the case and facts as presented in the

In 1995, LRWC purchased the Tamworth Water Works, which supplies

proceedings consistent with this opinion. misrepresentations about the quality of water provided. We remand for further others, under the Consumer Protection Act (CPA) seeking damages for alleged regulated by the New Hampshire Public Utilities Commission (PUC). sole shareholders are defendant Mason and his wife. LRWC is a public utility which owns and operates several public water systems in New Hampshire. Its

Carl Beher, Lisa Mullins d/b/a The Olde Village Store, and approximately fifty

LRWC is a small, privately-owned water company based in Moultonborough,

State v. Hess Corp., 159 N.H. p. 2 256, 258 (2009). Defendant

partial summary judgment as to the claims of the plaintiffs, Jo Anne Rainville, We answer this question in the affirmative and reverse the trial court’s denial of

the water they provided was safe for use and consumption? 358-A:3 to the extent the defendants allegedly misrepresented that interpretation of a statute is a question of law, which we review de 3 p. 3 Trade or commerce that is subject to the jurisdiction of

RSA 358-A:3, I, exempts from the CPA:

from the CPA. Resolving this issue requires statutory construction. The

uranium.

defendants misrepresented that the water was safe for consumption is exempt The sole issue for our review is whether the plaintiffs’ claim that the relative to retail installment sales of motor vehicles.

knowingly misrepresenting that the water was safe and met DES standards for

ratemaking and, thus, not exempt from the CPA. regulated by, the bank commissioner pursuant to RSA 361-A, includes trade or commerce under the jurisdiction of, and plaintiffs have alleged that the defendants violated this provision of the CPA by regulate unfair or deceptive trade practices. This paragraph competition specifically prohibited by the CPA. RSA 358-A:2, VII. The are of a particular style or model, if they are of another,” is a form of unfair

that these claims were not part of the PUC’s exclusive jurisdiction over the water was safe for consumption and free from contamination, reasoning disclose the level of uranium in the water, the defendants misrepresented that banking or securities regulators who possess the authority to institutions and insurance regulators of other states, or federal goods or services are of a particular standard, quality, or grade, or that goods commissioner, the public utilities commission, the financial commissioner, the director of securities regulation, the insurance

Our analysis starts with the plain meaning of the relevant statutes. See

Id ratemaking. The trial court denied the motion as to claims that, by failing to

trade or commerce within this state.” RSA 358-A:2 (2009). “Representing that of competition or any unfair or deceptive act or practice in the conduct of any 2011). Under the CPA, it is “unlawful for any person to use any unfair method State v. Empire Automotive Group, 163 N.H. ___, ___ (decided December 28,

legislature might have said nor add words that it did not see fit to include. Id. subject to modification. Id. Further, we will neither consider what the . When the language of a statute is clear on its face, its meaning is not the legislature as expressed in the words of the statute considered as a whole. Billewicz v. Ransmeier found that these claims were related to the PUC’s exclusive jurisdiction over, 161 N.H. 145, 151 (2010). We determine the intent of

claims that the defendants overcharged for contaminated water because it RSA 358-A:3, I (2009). The trial court granted the motion as it pertained to falls within the jurisdiction of the PUC, their conduct is exempt from the CPA. claims, arguing that because they are involved in a “trade or commerce” that distributing water. See p. 4 very trade or commerce that is subject to the PUC’s jurisdiction – selling and misrepresented that the water was, in fact, safe. These allegations concern the

the water LRWC sold and distributed to the public was unsafe, and that LRWC

deceptive practices in conducting this very trade or commerce. They allege that setting. See trade or commerce related to the PUC’s jurisdiction over public utility rate-

authority: CONTROL.” Webster's Third New International Dictionary power to interpret and administer the law,” or “[the] power or right to exercise is: “the legal power, right, or authority to hear and determine a cause,” “legal

Moreover, the plaintiffs have alleged that the defendants engaged in The plaintiffs argue, and the trial court ruled, that the CPA exempts only jurisdiction of the PUC.

limitation that does not exist. The CPA exempts any

The term “jurisdiction” is not defined in the CPA, but its plain meaning

owned, operated or controlled by the same.” RSA 374:3 (2009); see

is engaged – selling and distributing water to the public – is subject to the exempt from the CPA. concerns trade or commerce that is subject to the PUC’s jurisdiction and is

plenary.”). This interpretation of RSA 358-A:3, I, reads into the statute a (“Except in narrowly defined instances, the ratemaking power of the [PUC] is

Bacher v. Public Serv. Co. of N.H., 119 N.H. 356, 357 (1979) jurisdiction.

practices in selling or distributing a service that is subject to the PUC’s The PUC has “general supervision of all public utilities and the plants

subject to the PUC’s jurisdiction. Thus, the trade or commerce in which LRWC LRWC, which sells and distributes water to the public, is a “public utility” Accordingly, the plaintiffs’ claim may not be brought under the CPA because it (explaining when water company is public utility). Here, it is undisputed that Empire Automotive Group, 163 N.H. at ____.

Appeal of Pennichuck Water Works

Thus, the CPA does not apply to claims of unfair competition or deceptive statutes that define the PUC’s powers and authority. distributing a service is “subject to the jurisdiction of” the PUC, we examine the

RSA 362:2, I (2009) (defining “public utilities” generally); RSA 362:4 (2009)

owns or operates a water system or part thereof is deemed a “public utility.” Pennichuck Water Works, 160 N.H. 18, 33 (2010). Generally, any entity that

trade or commerce directly or indirectly affecting the people of this state.” article, commodity, or thing of value wherever situate, and shall include any and property, tangible or intangible, real, personal or mixed, and any other (unabridged ed. 2002). Accordingly, to determine when offering for sale or

to “include the advertising, offering for sale, sale, or distribution of any services (Emphases added.) RSA 358-A:1, II (2009) defines “‘[t]rade’” and “‘commerce’” p. 5 (amended 2002, 2004); see

authority of this state or of the United States.” RSA 358-A:3, I (1995)

permission and approval. Appeal of Pennichuck Water Works operate as a public utility in New Hampshire, it must first obtain the PUC’s quality fall squarely within the PUC’s jurisdiction. Before any entity may

authority to regulate unfair and deceptive trade practices. Thus, Averill

as administered by any regulatory board or officer acting under statutory purview; it excluded only “[t]rade or commerce otherwise permitted under laws the CPA did not exempt any particular profession or occupation from its

Moreover, contrary to the plaintiffs’ assertions, concerns about water

cases interpreting a prior version of the CPA still apply. The prior version of

commissioner, the PUC, the financial institutions and insurance regulators of commissioner, the director of securities regulation, the insurance and approval “without first satisfying any requirements of [DES] concerning the jurisdiction of only a few specified agencies and officers: the bank see RSA 374:22, I (2009). Water companies may not obtain such permission

The issue is not whether a party’s deceptive practice deceptive practices related to water quality. This frames the issue incorrectly. same fraud and unfair practices as the CPA. Id The plaintiffs’ argument may be based upon an assumption that our 358-A:3, I, it had to be comprehensive and had to protect consumers from the not govern our construction of the CPA exemption at issue. regulatory board or officer authorized by statute. Averill does

RSA 358-A:3, I, exempts any trade or commerce that is subject to the After we decided Averill, the legislature amended RSA 358-A:3, I. Now,

332-33. We also explained that for regulation to fall within the purview of RSA officers, the CPA does not apply. commerce” that is subject to the jurisdiction of one of these agencies or, 145 N.H. at 331, we decided that this exemption applied to trade or commerce subject to a including the PUC. Id Averill v. Cox, 145 N.H. 328, 331 (2000). In Averill, subject to the jurisdiction of certain state and federal agencies and officers,

the statute that the legislature did not see fit to include. See of competition or unfair or deceptive practice in the conduct of “[t]rade or

added). The CPA exempts from its purview all “[t]rade or commerce” that is commerce” that is subject to the PUC’s jurisdiction. RSA 385-A:3, I (emphasis jurisdiction, but whether the practice occurred in the conduct of “[t]rade or

N.H. at 151.

that which involves setting consumer rates. We will not read a limitation into is subject to the PUC’s jurisdiction. RSA 358-A:3, I. It does not exempt only requirements for providing safe water. See p. 6 company to operate as a public utility unless the company satisfies DES’s

the quality of water provided by a public utility. The PUC cannot allow a water

Thus, contrary to the plaintiffs’ assertions, the PUC has jurisdiction over

from sales in the state, whichever is lower.”

$250,000 or 2.5 percent of the annual gross revenue that the utility received

neglects to obey, observe or comply with” any PUC order, “not to exceed that violates “any provisions of [Title XXXIV: Public Utilities], or fails, omits or (2009) allows the PUC to impose a civil penalty against “[a]ny public utility”

utility in violation of any provision of law.” RSA 365:5 (2009). RSA 365:41

or thing having been done or having been omitted or proposed by any [public]

365:4 (2009). The PUC may also inquire on its own motion “as . . . to any act complaint and “take such action within its powers as the facts justify.” RSA “reasonable grounds” for the complaint, the PUC must investigate the

injury and does not cease its illegal activities, and the PUC finds that there are

RSA 365:1 (2009). If the public utility does not make reparation for any alleged have been omitted by any public utility in violation of any provision of law.” with the PUC setting forth “any thing or act claimed to have been done or to

Further, pursuant to RSA chapter 365, “[a]ny person” may file a petition

necessary to assure continued service.” RSA 374:47-a (2009). may appoint a receiver or direct its staff “to take such temporary action as is

imminent threat to the health and welfare” of the utility’s customers, the PUC

reasonable service to its customers,” and that this failure poses “a serious and

annual revenues of less than $2,000,000 is failing to provide adequate and Additionally, “whenever the [PUC] finds that a public utility . . . having gross to, or in violation of, law or any order of the [PUC].” RSA 374:41 (2009).

p. 6 company to operate as a public utility. See

omitting, or about to fail or omit, to do anything required of it by law or by against a public utility if the PUC is “of opinion that a public utility is failing or RSA 374:28. And, if the PUC is of water service, the PUC may withdraw its permission that allows the water 374:28 (2009). The PUC may also direct the attorney general to bring an action determines that the water company has provided the public with inadequate

“withdraw[ ] from a public utility its authority to engage in business.” RSA

PUC, either on its own motion or on the motion of “any interested party,” may unreasonably failed to render service” or has rendered inadequate service, the If the PUC determines that the water company “has declined or

facilities as shall be reasonably safe and adequate and approval to become a “public utility,” it must “furnish such service and

and reasonable.” RSA 374:1 (2009) (emphasis added).

RSA 374:22, III (2009). Once a water company obtains the PUC’s permission suitability and availability of water for the applicant’s proposed water utility.” p. 7 In Empire Automotive Group

requirements and prohibitions relative to retail installment sales contracts).

penalty against the utility. See contracts. Empire Automotive Group

or collecting on retail installment contracts), :7 (2009) (setting forth the borrowing terms or for engaging in dishonest or unethical practices in making retail sales installment contracts for fraudulently misrepresenting certain

the conduct was unrelated to the financing terms under which the vehicles

into any alleged unlawful activity by a public utility, and may assess a civil jurisdiction is the financing of vehicles pursuant to retail sales installment

suspend or revoke license of person selling motor vehicles to buyers under

whatsoever to do with the fraudulent conduct alleged in the indictment”; thus, question may have been sold under retail installment contracts ha[d] nothing company’s customers. RSA 374:47-a. The PUC may also initiate an inquiry, “the fact that the two motor vehicles in temporary action as is necessary” to assure continued service to the water the “[t]rade or commerce” that is subject to the bank commissioner’s customers, the PUC may also appoint a receiver or direct its staff to take “such 361-A, relative to retail installment sales of motor vehicles”). We implied that jurisdiction of, and regulated by the bank commissioner pursuant to RSA

motor vehicles pursuant to retail installment sales contracts. Id the bank commissioner under RSA chapter 361-A involved only the sale of We observed that the “[t]rade or commerce” subject to the jurisdiction of bank commissioner), :3, I-a (c), (h) (Supp. 2011) (bank commissioner may retail seller in this state” without first obtaining a license to do so from the commissioner, its conduct was exempt from the CPA. Id (2009) (“No person shall engage in the business of a sales finance company or

posed “a serious and imminent threat to the health and welfare” of the utility’s vehicles subject to retail installment sales contracts. Empire Automotive 358-A:3, I (exempting from the CPA “[t]rade or commerce that is . . . under the licensed by the New Hampshire Banking Department as a seller of motor.; see RSA

Our recent decision in Empire Automotive Group

under RSA chapter 361-A, and subject to the jurisdiction of the bank

under installment sales contracts, knowing that the vehicles had not actually violating the CPA by placing inspection stickers on vehicles sold to consumers Group, 163 N.H. at ____. The defendant was indicted by a grand jury for “adequate and reasonable service” to its customers and that this failure has

action against the public utility. See factually distinguishable from this case. The defendant in that case was

companies, if the PUC determines that a water company has failed to provide

regarding providing safe water, it may direct the attorney general to bring an the opinion that the public utility has violated any law, including those p. 8 Reversed and remanded

with this opinion.

quality of the water provided and remand for further proceedings consistent

sought damages for the defendants’ alleged misrepresentations about the

of partial summary judgment as to the plaintiffs’ claims under the CPA that For all of the above reasons, therefore, we reverse the trial court’s denial

water to the public.

Moreover, while in Empire Automotive Group

the exemption did not apply. Id

generally), here, the PUC has express authority over selling or distributing HICKS, CONBOY and LYNN, JJ., concurred.

generally, and because this was the trade or commerce at issue, we held that

authority over the trade or commerce at issue (the sale of motor vehicles,

or commerce subject to the PUC’s jurisdiction, is related to the alleged In this case, by contrast, providing water to the public, which is the trade

the bank commissioner did not have jurisdiction over the sale of motor vehicles not their financing under retail sales installment contracts. See id. Because that the trade or commerce at issue was the sale of motor vehicles generally, were sold. Empire Automotive Group, 163 N.H. at ___. We ruled, therefore,