FRANCIS ROGERS, et al. v. UNITED WATER NEW JERSEY, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0761-04T10761-04T1

FRANCIS ROGERS, KAREN ROGERS,

MARY ALICE DAMURJIAN, JAMES

DAMURJIAN, JANET BORATTO,

MARYANN CERBO, FRANK CERBO,

VIRGINIA CHACE, DONALD CHACE,

ROSE MARIE GAZZOLA, CARL

GAZZOLA, NEIL VILL, MAURA VILL,

individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

v.

UNITED WATER NEW JERSEY, INC.,

J. FLETCHER CREAMER & SON, INC.,

J. FLETCHER CREAMER, INC., CREAMER

BROTHERS, INC., CREAM RIDGE

CONSTRUCTION COMPANY, REPAIR WELDING,

INC., VIANINI PIPE, INC., WATT

INDUSTRIES, INC.,

Defendants-Respondents.

_____________________________________

 

Argued September 28, 2005 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

No. L-1089-02.

Donald MacLachlan argued the cause for

appellants (MacLachlan Law Offices, co-counsel;

(Mr. MacLachlan, of counsel and on the brief).

Breslin & Breslin, co-counsel for appellants

(Angelo A. Bello, of counsel and on the brief).

Louis Smith argued the cause for respondent

United Water New Jersey, Inc. (Greenberg

Traurig, attorneys; Mr. Smith on the brief).

Timothy P. Burns argued the cause for

respondent Creamer Brothers, Inc. (Robinson,

Burns & McCarthy, attorneys; Mr. Burns, of

counsel; Patrick S. Espey, on the brief).

Kenneth P. Westreich argued the cause for

respondent Cream Ridge Construction Company,

Inc. (Swain & Westreich, attorneys; Mr.

Westreich, of counsel and on the brief).

Andrew N. Kessler argued the cause for

respondent Repair Welding, Inc. (Hoagland,

Longo, Moran, Dunst & Doukas, attorneys;

Mr. Kessler, of counsel and on the brief;

Ryan K. Brown, on the brief).

Respondent J. Fletcher Creamer & Son, Inc.

relies on the brief of Cream Ridge Construction

Company (Golden, Rothschild, Spagnola, Lundell,

Levitt & Boylan, attorneys; David D. Blake,

of counsel).

No brief was submitted on behalf of respondent

Watts Industries, Inc.

PER CURIAM

Plaintiffs appeal from trial court orders granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The thirteen plaintiffs are customers of defendant United Water New Jersey, Inc., a privately-owned water company that is subject to the jurisdiction of, and regulated by, the Board of Public Utilities ("BPU"). United Water provides water to approximately seven-hundred-fifty-thousand customers in Bergen and Hudson counties. In 2002, plaintiffs filed a complaint seeking damages for the interruption in water service they had experienced in February 1996. Defendants include United Water and contractors United Water had engaged to repair a leak that had developed in a water main. Plaintiffs contended these repair activities were improperly performed, with the result that a major disruption in service occurred. Although plaintiffs' complaint is captioned a class action complaint, at no time did plaintiffs seek class certification. R. 4:32-2.

Following the incident, BPU conducted an investigation and issued a report detailing its findings as to the cause, with recommendations for future actions. In its report, BPU attributed the service interruption to a chain of events. A partial list of the events cited includes the incomplete closure of a thirty-inch gate valve during certain repairs, insufficient tensile strength in a pipe that had been manufactured in approximately 1910, a failure to notice during repair work that a certain joint was a slip joint, as opposed to a bolted connection, and removal of one section of leaking pipe without its immediate replacement. In connection with its investigation, BPU considered whether United Water's customers would be entitled to a refund for the period of time during which their water service was interrupted. It determined that relief was only available under N.J.S.A. 48:19-22 and that none of the affected customers fit within the statute's parameters.

BPU issued its report in May 1997. As we noted earlier, plaintiffs commenced this action in 2002.

After a period of discovery, United Water moved for summary judgment. Defendant contractors also sought that relief. The trial court granted summary judgment, concluding that plaintiffs' claims were barred both by the statute and by the filed rate doctrine. In our judgment, the trial court was correct in both regards.

N.J.S.A. 48:19-22 provides in pertinent part:

In case any water company of this state shall fail for more than five consecutive days during any period for which water rent is charged, collected or received, to supply water to a person who has paid such rents in advance, the water company shall refund to the consumer a portion of such rent proportioned to the time of nonsupply.

Plaintiffs seek to avoid application of this statute, asserting there is a factual dispute whether they suffered a loss of service for five consecutive days. According to plaintiffs, the fact that a "boil water" advisory was in effect for more than five days constitutes a failure of water service. United Water contends it does not, that the water was satisfactory for all purposes other than drinking and was safe to drink after having been boiled a few minutes. We consider it unnecessary to resolve that question because it is undisputed that none of the plaintiffs paid in advance for their water service.

The statute has been in existence in its present form since the Legislature adopted it in 1878. We can perceive no basis to disregard the statute's explicit linkage between a consumer's entitlement to a refund and having paid in advance for water service. In our judgment, the statute provides no basis to afford any relief to plaintiffs.

As a utility subject to the jurisdiction of the BPU, United Water cannot charge rates beyond what the BPU has approved. Included among the standard terms and conditions of United Water's tariff that has been approved by the BPU is the following provision:

The Company does not undertake to render any special service or maintain any fixed pressure. The Company will endeavor to provide a regular and uninterrupted supply of water through its facilities, but in case service is interrupted, irregular, defective or fails because of breakdown or emergency, or from causes beyond the control of the Company, the Company will not be liable for damage or inconvenience resulting therefrom.

The Supreme Court has twice in recent years been called upon to consider the filed rate doctrine in the context of the telecommunications industry. Smith v. SBC Commc'ns, Inc., 178 N.J. 265 (2004); Weinberg v. Sprint Corp., 173 N.J. 233 (2002). In Weinberg, Justice LaVecchia traced the evolution of the doctrine and noted that it "bars money damages from telecommunications carriers where the damage claims are premised on state contract principles, consumer fraud, or other bases on which plaintiffs seek to enforce a rate other than the filed rate." Weinberg, supra, 173 N.J. at 243.

At bottom, plaintiffs' action here is a direct challenge to the conditions to United Water's tariff already approved by BPU. The trial court correctly declined to permit plaintiffs to proceed in derogation of that condition. Any such challenge, moreover, would have to be presented to the BPU, the exclusive agency having jurisdiction over such a claim. Essex Cty. Welfare Bd. v. N.J. Bell Tel. Co., 126 N.J. Super. 417 (App. Div. 1974) (plaintiff's challenge to the telephone company's failure to continue its charitable discount presented to the Board of Public Utility Commissioners as a request to amend the tariff).

Finally, we agree with the trial court that dismissal of plaintiffs' claims against United Water leads, ineluctably, to dismissal of their claims against the contractors United Water hired to perform the repair activities. Plaintiffs had no relationship with these parties, and their claims against the contractors are wholly derivative of their claims against United Water.

The order granting summary judgment is affirmed.

 

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A-0761-04T1

November 1, 2005