St. Laurent, et al. v. Middleborough Gas & Electric Department (Lawyers Weekly No. 11-039-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 17-P-835 Appeals Court ALLISON ST. LAURENT & another[1] vs. MIDDLEBOROUGH GAS & ELECTRIC DEPARTMENT. No. 17-P-835. April 4, 2018. Municipal Corporations, Municipal electric plant, Governmental immunity. Middleborough. Massachusetts Tort Claims Act. Statute, Construction. Middleborough Gas & Electric Department (MGED) appeals from a Superior Court order denying its motion to dismiss for lack of presentment. The motion judge denied the motion on the ground that MGED is not a “public employer” subject to the Massachusetts Tort Claims Act, and thus the presentment requirement of G. L. c. 258, § 4, did not apply. We disagree and remand so that the Superior Court can address whether the presentment requirement was satisfied on the facts here. Background.[2] The complaint alleges that the plaintiffs were injured in October, 2013, when a ladder they were near came into contact with an “arc[ing]” electrical current. They claim that the current came from an “improperly grounded” line maintained by MGED, and that MGED was negligent. Between November, 2013, and July, 2015, and prior to filing suit, the plaintiffs’ attorney communicated with representatives of MGED multiple times, both orally and in writing. Eventually efforts at presuit resolution failed, and the plaintiffs filed this lawsuit on April 19, 2016. MGED filed a motion to dismiss, arguing that the plaintiffs had failed to make presentment as required by the Massachusetts Tort Claims Act, G. L. c. 258, § 4. The plaintiffs responded (1) that no presentment was required because MGED is not a “public employer” as defined in G. L. c. 258, § 1, as amended by St. 1993, c. 110, § 227, and thus the Tort Claims Act does not apply and (2) that in any event the plaintiffs had satisfied the presentment requirement through correspondence with representatives of MGED. The motion judge denied MGED’s motion on the ground that MGED was not a public employer, but rather was a “commercial business.” Discussion. The question before us turns on the definition of “public employer,” found at c. 258, § 1, which provides that “public employer” includes “any . . . town . . . and any department . . . thereof . . . including a municipal gas or electric plant.” In construing a statute we begin with its plain language, and we think the language here admits of only one interpretation. See Commonwealth v. Stewart-Johnson, 78 Mass. App. Ct. 592, 600 (2011) (“A statute is to be interpreted according […]
Categories: News Tags: 1103918, department, Electric, Laurent, Lawyers, Middleborough, Weekly
OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-112-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1240 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants. No. 13-P-1240. Suffolk. June 3, 2014. – August 31, 2016. Present: Kantrowitz, Hanlon, & Carhart, JJ.[2] Conflict of Laws. Insurance, Comprehensive liability insurance, Excess Liability Insurance, Pollution exclusion clause. Contract, Insurance, Choice of law clause. Real Property, Environmental damage. Civil action commenced in the Superior Court Department on July 25, 2005. Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J. Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue. CARHART, J. This matter is before us pursuant to the December 28, 2015, order of the Supreme Judicial Court, remanding to this court for express consideration the substantive law to be applied to the interpretation of the insurance contracts at issue in OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 2), 87 Mass. App. Ct. 1126 (2015) (OneBeacon No. 2). The plaintiff, OneBeacon America Insurance Company (OneBeacon), along with third-party defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), and Century Indemnity Company (Century) argued in their respective appeals that a Superior Court judge erred in determining that Rhode Island law would apply both in deciding whether the insured, Narragansett Electric Company (NEC), was entitled to coverage for environmental contamination at several Rhode Island sites, and in the allocation of damages on the jury’s verdicts as to one of the sites. For background, we refer to OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 1), 87 Mass. App. Ct. 417 […]
Bellermann, et al. v. Fitchburg Gas and Electric Light Company (Lawyers Weekly No. 10-110-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11979 MARCIA D. BELLERMANN & others[1] vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY. Worcester. March 10, 2016. – July 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Electric Company. Public Utilities, Electric company. Practice, Civil, Class action, Consumer protection case. Consumer Protection Act, Class action, Unfair or deceptive act. Civil action commenced in the Superior Court Department on January 7, 2009. Following review by this court, 470 Mass. 43 (2014), a renewed motion for class certification was heard by Richard T. Tucker, J., and a decision allowing class certification was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Gavin J. Rooney, of New Jersey (Anne W. Chisholm & Eric R. Passeggio with him) for the defendant. Deborah Phillips (Barry M. Altman & Edwin H. Howard with her) for the plaintiffs. Robin L. Main, for Massachusetts Electric Company & others, amici curiae, submitted a brief. DUFFLY, J. In Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43 (2014) (Bellermann I), we affirmed a Superior Court judge’s denial of a motion for class certification of residential and business customers of the defendant, Fitchburg Gas and Electric Light Company (FG&E).[3] In that case, the plaintiffs, who lost electric power during a major winter ice storm in 2008 that struck significant portions of the northeast (Winter Storm 2008), sought class certification under G. L. c. 93A, §§ 9 (2) and 11, for themselves and other users of electricity who were injured by FG&E’s assertedly inadequate preparation for and response to Winter Storm 2008. See Bellermann I, supra at 44-46. The plaintiffs’ efforts to obtain class certification in that case were premised on FG&E’s asserted failure properly to prepare and plan for Winter Storm 2008, which prolonged the power outages the plaintiffs experienced, and on FG&E’s deceptive communications made before and during the storm that resulted in the plaintiffs’ inability to plan for the extended outages.[4] See id. at 45, 54. We concluded that there was no abuse of discretion in the judge’s determination that the record did not support class certification on these theories, because the asserted injuries suffered by class members were too dissimilar. See id. at 53-57. We also observed, however, that the plaintiffs had proposed […]
OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-055-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1240 Appeals Court ONEBEACON AMERICAINSURANCE COMPANY vs. NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants (No. 1). No. 13-P-1240. Suffolk. June 3, 2014. – June 3, 2015. Present: Kantrowitz, Hanlon, & Carhart, JJ. Conflict of Laws. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations, Dismissal, Judicial discretion, Attorney’s fees. Insurance, Comprehensive liability insurance, Excess Liability Insurance, Construction of policy, Insurer’s obligation to defend, Defense of proceedings against insured, Pollution exclusion clause, Disclaimer of liability. Indemnity. Contract, Insurance, Indemnity, Construction of contract, Parties, Performance and breach. Real Property, Environmental damage. Jurisdiction. Civil action commenced in the Superior Court Department on July 25, 2005. Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J. Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue. KANTROWITZ, J. To put this rather dense environmental case in perspective, pollution in some of the affected areas started in the mid-1800s, and the first of several insurance policies at issue was written in 1945. Today, we are asked to rule on the propriety of the allowance of numeroussummary judgment motions and the verdicts in three separate, lengthy jury trials.[2] I. Background. The plaintiff, OneBeacon America Insurance Company (OneBeacon), brought this declaratory judgment action in July, 2005, against its insured, Narragansett Electric Company (NEC), seeking a determination that OneBeacon had no duty to defend or indemnify NEC for damages associated with environmental contamination at several sites, formerly utilized by NEC’s predecessors for manufactured gas plant operations and waste disposal. NEC counterclaimed for breach of contract and declaratory relief, adding other insurers that had issued primary and excess liability insurance policies […]
Maryland Casualty Company, et al. v. NSTAR Electric Company, et al. (Lawyers Weekly No. 10-079-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11741 MARYLAND CASUALTY COMPANY[1] & another[2] vs. NSTAR ELECTRIC COMPANY & another.[3] Middlesex. January 5, 2015. – May 14, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Department of Public Utilities. Public Utilities, Electric company, Rate structure, Negligence. Negligence, Public utilities, Limitation of liability. Civil action commenced in the Superior Court Department on March 27, 2008. The case was heard by Dennis J. Curran, J., on motions for summary judgment, and entry of a stipulated final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Matthew M. O’Leary (Andrew J. Fay with him) for the plaintiffs. Andrea Peraner-Sweet (Barbara L. Drury with her) for the defendants. LENK, J. This case raises the question whether a tariff filed with and approved by the Department of Public Utilities (DPU) may limit a public utility from liability to nonresidential customers for special, indirect, or consequential damages resulting from the utility’s gross negligence. We hold that a properly approved tariff may so limit a public utility’s liability. 1. Background. On December 8, 2006, two employees of NSTAR Electric and Gas were performing a switching procedure to restore electrical equipment that had been taken out of service. During the procedure, an explosion occurred, igniting a fire in the basement of a building at One Broadway in Cambridge. Smoke filled the basement and flowed into the stairwells leading up to the other floors of the building. The fire and smoke resulted in extensive damage to the building, requiring its closure for approximately six weeks. Construction and repairs continued for a lengthy period of time thereafter. At the time of the fire, the building was owned by the Massachusetts Institute of Technology (MIT). MIT leased space in the building to Cambridge Incubator, Inc. (Cambridge Incubator),[4] Sedo.com, LLC (Sedo), and Allodia Corporation (Allodia). Cambridge Incubator and Sedo purchased insurance coverage from Maryland Casualty Corporation (Maryland Casualty); Allodia purchased insurance coverage from Assurance Company of America (Assurance). In the wake of the fire, Maryland Casualty paid claims by Cambridge Incubator and Sedo, and Assurance paid claims by Allodia. Maryland Casualty and Assurance then brought this complaint against NSTAR Electric Company and NSTAR Electric & Gas Company (collectively, NSTAR), seeking to recover for […]
Bellerman, et al. v. Fitchburg Gas and Electric Light Company (Lawyers Weekly No. 10-180-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11492 MARCIA D. BELLERMANN & others1 vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY. Worcester. March 4, 2014. – October 30, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Electric Company. Public Utilities, Electric company. Practice, Civil, Class action, Consumer protection case, Judicial discretion. Consumer Protection Act, Class action, Unfair or deceptive act. Administrative Law, Preclusive effect of decision. Collateral Estoppel. Estoppel. Civil action commenced in the Superior Court Department on January 7, 2009. Motions for class certification and for summary judgment were heard by Douglas H. Wilkins, J., and a decision denying class certification was reported by him to the Appeals Court. A proceeding for interlocutory review was heard in the Appeals court by Cynthia J. Cohen, J., and after consolidation of the appeals, the Supreme Judicial Court granted an application for direct appellate review. Barry M. Altman & C. Deborah Phillips (James L. O’Connor, Jr., Edwin H. Howard, & James M. Galliher with them) for the plaintiffs. Gavin J. Rooney, of New Jersey (Natalie J. Kraner, of New Jersey, with him) for the defendant. Robin L. Main for Massachusetts Electric Company & others, amici curiae, submitted a brief. DUFFLY, J. This case arises out of a major ice storm that struck areas of the northeastern United States in December, 2008 (Winter Storm 2008). The defendant, Fitchburg Gas and Electric Light Company (FG&E), is a public utility that provides electric service to customers in the municipalities of Fitchburg, Lunenburg, Townsend, and Ashby, which were among those affected by the storm. FG&E is one of the utilities owned by Unitil Corporation (Unitil). The plaintiffs are twelve residential and business customers of FG&E who lost power during Winter Storm 2008. They filed a suit in the Superior Court on behalf of themselves and those similarly situated, asserting claims of gross negligence and violation of G. L. c. 93A. Pursuant to G. L. c. 93A, §§ 9 (2) and 11,2 and Mass. R. Civ. P. 23, as amended, 452 Mass. 1401 (2008) (rule 23),3 the plaintiffs moved to certify a class consisting of FG&E’s residential and business customers; their dependents, tenants, and employees; and other users of electricity who sustained damages as a result of FG&E’s inadequate preparation for and response to Winter Storm 2008. The parties also filed cross-motions for partial summary judgment on the plaintiffs’ […]
Massachusetts Electric Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-153-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11526 SJC-11527 SJC-11528 MASSACHUSETTS ELECTRIC COMPANY[1] & another[2] vs. DEPARTMENT OF PUBLIC UTILITIES. NSTAR ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. WESTERN MASSACHUSETTS ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. April 7, 2014. – September 4, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Electric Company. Public Utilities, Electric company. Department of Public Utilities. Penalty. Administrative Law, Substantial evidence, Findings. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2012. The cases were reported by Spina, J. Robert J. Keegan (Cheryl M. Kimball with him) for NSTAR Electric Company & another. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Massachusetts Electric Company & another. Christopher K. Barry-Smith, Assistant Attorney General, for Department of Public Utilities. GANTS, J. Three utility companies (utilities) challenge orders entered against them by the Department of Public Utilities (department) that impose monetary penalties for failing to “restore service to [their] customers in a safe and reasonably prompt manner,” in violation of 220 Code Mass. Regs. § 19.03(3) (2010), after electrical outages arising from Tropical Storm Irene (Irene) on August 28, 2011, and a snowstorm two months later on October 29 (October snowstorm). The utilities — Massachusetts Electric Company and Nantucket Electric Company, each doing business as National Grid (collectively, National Grid); NSTAR Electric Company (NSTAR); and Western Massachusetts Electric Company (WMEC) — claim on appeal that (1) the department made an error of law in failing to apply the prudence standard when assessing the utilities’ storm performances; (2) the department’s findings were not supported by substantial evidence; and (3) the department’s penalty calculations lacked the necessary subsidiary findings and constituted an abuse of discretion. We affirm in part and reverse in part. We conclude that the department applied the appropriate reasonableness standard in finding that the utilities violated their duty to restore service in a safe and reasonably prompt manner. We also conclude that the department’s over-all findings regarding National Grid and WMEC were supported by substantial evidence, as were its findings regarding the deficiencies of NSTAR’s communication with municipal officials and the general public, but that its finding that NSTAR failed timely to respond to priority two and three wires-down calls was not supported by […]
Categories: News Tags: 1015314, Company, department, Electric, Lawyers, massachusetts, Public, Utilities, Weekly
Fitchburg Gas and Electric Light Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-068-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11397 FITCHBURG GAS AND ELECTRIC LIGHT COMPANY[1] & others[2] vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. December 5, 2013. ‑ April 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Public Utilities. Public Utilities, Electric company, Rate setting, Costs of service, Rate of return. Constitutional Law, Taking of property. Due Process of Law, Taking of property, Regulatory proceeding. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 17, 2012. The case was reported by Botsford, J. David S. Rosenzweig (Erika J. Hafner with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Rebecca Tepper with him) for the defendant. CORDY, J. This matter comes before us on a reservation and report, without decision, by a single justice of this court of an administrative appeal filed pursuant to G. L. c. 25, § 5. The petitioners, electric companies as defined by G. L. c. 164, § 1, within the jurisdiction of the Department of Public Utilities (department), appeal a final order of the department imposing on the petitioners monetary assessments for the Storm Trust Fund (assessment), pursuant to G. L. c. 25, §§ 12P, 18. In accordance with the language of the fourth sentence of G. L. c. 25, § 18, third par., the order specifically prohibited the petitioners from seeking recovery of the assessment in any rate proceeding. The petitioners claim that this prohibition on recovery, as required by the statute and imposed by the department’s order, is an unconstitutional taking in violation of art. 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. They seek a declaration that the recovery prohibition is unconstitutional, severance of the prohibition from the remainder of the statutory scheme, and reversal of the department’s order. The petitioners essentially assert three grounds on which the recovery prohibition constitutes a taking. First, they claim that the recovery prohibition, as it operates on the assessment, effects a per se taking without just compensation. We conclude that it does not, because a mere obligation to pay such an assessment, regardless of whether recovery is permitted or precluded, does not rise to the level of a compensable per se taking. Second, they assert that it constitutes a taking by way of a confiscatory rate because the recovery […]
Where Is the South End’s Closest Electric Car Charging Station?
Drivers who are considering a switch to electric vehicles or current vehicle owners looking for a place nearby to charge their rides have a couple of places to find their outlet. In the South End, the closest charging station is at Boston Medical Center garage, at 710 Albany St., according to crowd-sourced website carstations.com. Carstations allows users to upload new car charging locations to a Google map and (when applicable) provides details on the station. There are also more official sites providing electric car charging information. This week, NSTAR launched a new hotline and website to provide customers with information about electric vehicles, including local options for charging, payment options and details about electric vehicle technology, according to a statement released Wednesday. Launched in partnership with the Massachusetts Department of Energy Resources, the new information center is a key part of a pilot program designed to help the state establish an electric vehicle infrastructure and continue efforts to reduce greenhouse gas emissions, according to the NSTAR statement. “We’re excited about the launch of our new electric vehicle information center to offer customers expert service, information and guidance about electric vehicles and vehicle charging options,” said Penni Conner, senior vice president and chief customer officer at Northeast Utilities, NSTAR’s parent company. “NSTAR is providing a single point of contact for our customers and communities, making it easy for them to find the answers they need to make informed decisions about electric vehicles.” The NSTAR electric vehicle information hotline can be reached at 855-463-6438 and is staffed Monday through Friday from 8 a.m. to 5 p.m. In addition, customers can find information 24/7 at the company’s new website, nstar.plugymride.org. The NSTAR hotline is the first of many to come, according to the statement. Northeast Utilities plans to set up similar information centers through its other companies in New England. Have a question you want Fenway-Kenmore Patch to answer? Send it to fenwaykenmore@patch.com. Each week, we’ll pick a submitted question to publish and answer. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch