Siewert v. Northern States Power Co.

GILDEA, Chief Justice

(concurring in part, dissenting in part).

The Siewerts brought several tort claims against NSP, alleging that NSP’s delivery of electricity caused damage to their dairy farm. The Siewerts sought damages and injunctive relief based on their allegations that the way in which NSP delivered electricity violated the common law.1 The majority holds that the filed rate doctrine bars some of the Siewerts’ claims for in-junctive relief, but not others, and that the doctrine does not bar the claims for damages. I would hold that the filed rate doctrine bars all of the claims.

*289We have applied the filed rate doctrine in two recent eases. See Hoffman v. N. States Power Co., 764 N.W.2d 34 (Minn.2009); Schermer v. State Farm Fire & Cas. Co., 721 N.W.2d 307 (Minn.2006). In those cases, we discussed the considerations that underlie the filed rate doctrine, including separation of powers, comity, justiciability, and nondiscrimination among ratepayers. Hoffman, 764 N.W.2d at 42; Schermer, 721 N.W.2d at 314-15. In my view, the decision as to whether the doctrine should be applied to bar the Siewerts’ claims depends on the extent to which their claims implicate the considerations that underlie the doctrine. I therefore begin with an analysis of this question.

With respect to the separation-of-powers and comity considerations, we have recognized that “prescribing or fixing rates for a public utility involves a legislative function which may not be usurped by the courts.” N. States Power Co. v. City of St. Paul, 256 Minn. 489, 493, 99 N.W.2d 207, 211 (1959); see also Peoples Natural Gas Co. v. Minn. Pub. Utils. Comm’n, 369 N.W.2d 530, 535 (Minn.1985) (describing the public regulation of utilities as “an intricate, ongoing process,” subject to “an ever-widening set of consequences and adjustments”). The Legislature has delegated this function to the Minnesota Public Utilities Commission (MPUC). See Minn.Stat. § 216A.05, subd. 1 (2010) (“The functions of the [MPUC] shall be legislative and quasi-judicial in nature. It may make such investigations and determinations, hold such hearings, prescribe such rules and issue such orders with respect to the control of the businesses coming within its jurisdiction as the legislature itself might make.... ”). The functions the Legislature assigned to the MPUC include the setting of rates a utility may charge for its service. See MinmStat. § 216B.16, subd. 5 (2010) (“If, after the hearing, the commission finds the rates to be unjust or unreasonable or discriminatory, the commission shall determine the rates to be charged or applied by the utility for the service in question and shall fix them by order.... ”); see also Minn.Stat. § 216B.03 (2010) (“Every rate made, demanded, or received by any public utility ... shall be just and reasonable”).

The Legislature has also delegated to the MPUC the responsibility to “adopt standards for safety, reliability, and service quality for distribution utilities,” Minn.Stat. § 216B.029, subd. 1 (2010), and provided that regulated utilities, like NSP, must “comply” with those standards. Minn.Stat. § 216B.029, subd. 1(d) (“Electrical distribution utilities shall comply with all applicable governmental and industry standards required for the safety, design, construction, and operation of electric distribution facilities.... ”); see also Minn.Stat. § 216B.04 (2010) (“Every public utility shall furnish safe, adequate, efficient, and reasonable service.... ”). Finally, and specifically with respect to electrical services, the MPUC has authority to “ascertain and fix adequate and reasonable standards for the measurement of the quantity, quality, pressure, initial voltage, or other condition pertaining to the supply of service.” Minn.Stat. § 216B.09, subd. 2 (2010).

To effectuate the MPUC’s authority, the Legislature requires that all public utilities “file with the commission schedules showing all rates, tolls, tariffs, and charges which it has established.” Minn.Stat. § 216B.05, subd. 1 (2010). Public utilities also must file with the MPUC “all rules that, in the judgment of the [MPUC], in any manner affect the service or product, or the rates charges or to be charged for any service or product.” Minn.Stat. § 216B.05, subd. 2 (2010). The standards and rates that govern regulated utilities therefore are reflected in the tariffs those *290utilities file with the MPUC. Because the rates set forth in the agency-approved tariff are conclusive, the Legislature also prohibits “any person [from] knowingly receiving] or accepting] any service from a public utility for a compensation greater or less than that prescribed in the schedules” filed with the MPUC. Minn.Stat. § 216B.06 (2010).

Because the Legislature has specifically charged the MPUC with adopting standards regulating how NSP is to deliver electricity and setting the rate that NSP may charge for that delivery, I would hold that the Siewerts’ claims directly trigger the separation-of-powers and comity considerations that underlie the filed rate doctrine.2 In their claims, the Siewerts request that the judiciary order NSP to deliver electricity differently than the method set forth in the agency-approved tariff. The Siewerts also request that the judiciary assess damages against NSP because NSP has not delivered electricity in a manner different from that provided in the tariff. The Siewerts specifically acknowledged in their brief to our court that their case “is not based upon breach of tariff obligations.”3 Rather, the Siewerts cite the common law as the source for the judiciary’s authority to order NSP to deliver electricity differently. But the Legislature has assigned to the MPUC the function of defining the manner in which NSP is to deliver electricity. See, e.g., Minn.Stat. § 216B.029, subd. 1(a) (“The commission ... shall adopt standards for the safety, reliability and service quality for distribution utilities.”); see also Minn. Stat. §§ 216B.09, subds. 1, 2 (2010). Separation-of-powers and comity considerations counsel that the judiciary defer to *291that assignment. See Hoffman, 764 N.W.2d at 44 (noting that claims that seek to add services to those the utility is required by the tariff to perform “indirectly challenge the reasonableness of the filed rates”).

Regarding the justiciability considerations relevant to the filed rate doctrine, the means by which a utility provides electricity is inherently bound up with agency procedures and rate determinations. The judiciary is not in the position to order NSP to adopt one electrical distribution system over another without potentially undermining the nuanced balancing and determinations made by MPUC in accepting NSP’s tariff. Nor is the judiciary in the position to determine what rate MPUC would have allowed NSP to charge if NSP had adopted an entirely different distribution system, as the Siewerts contend it should have. See Schermer, 721 N.W.2d at 315 (discussing justiciability consideration). Because the Siewerts’ claims are grounded in their theory that NSP must deliver electricity in a manner different from that outlined in the tariff, the justici-ability considerations that underlie the filed rate doctrine are squarely implicated.4

After assessing the separation-of-powers, comity and justiciability considerations that underlie the filed rate doctrine, I would hold that the doctrine operates to bar the Siewerts’ claims. In apparent recognition of the separation-of-powers, comity and justiciability considerations, the majority holds that the filed rate doctrine bars some of the Siewerts’ claims for in-junctive relief. See Hoffman, 764 N.W.2d at 45 (“If the services requested in the litigation are not part of the original tariff obligations, the courts cannot, consistent with the filed rate doctrine, require performance of those services.”).

But the majority holds that the filed rate doctrine does not bar “the Siewerts’ claims for injunctive relief to prevent further nuisance” upon their property. The majority concludes that this claim for in-junctive relief survives the filed rate doctrine because the district court could order NSP to accede to the Siewerts’ demands “without specifying how NSP must accomplish that task.” The majority states that an order granting the requested relief “would not have added to the terms of the tariff or direct the scope of service to be provided.” I disagree. This case is about the manner in which NSP provides electrical service. The Siewerts contend that NSP is causing a nuisance through the manner in which it provides electricity. Any order to change that manner is still an order to NSP that it change how it delivers electricity. As such, the filed rate doctrine, as our precedent has interpreted and applied it, operates to bar such an order. See Hoffman, 764 N.W.2d at 45.

*292The majority also holds that the filed rate doctrine does not bar the Siewerts’ claims for damages. In my view, the same analysis that compels the conclusion that the filed rate doctrine bars the claims for injunctive relief logically leads to the same conclusion for the damages claims. If the judiciary cannot, consistent with the filed rate doctrine, require the regulated entity to perform additional services beyond those defined in the tariff, it follows that the judiciary cannot assess damages against the entity for failing to perform those additional services.5

The majority attempts to find support for its conclusion that the filed rate doctrine does not bar the damages claims in Chief Justice Rehnquist’s concurrence in American Telephone & Telegraph Co. v. Central Office Telephone, Inc. (AT & T), 524 U.S. 214, 228-31, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998) (Rehnquist, C.J., concurring). In his concurrence, the Chief Justice said:

The tariff does not govern, however, the entirety of the relationship between the common carrier and its customers. For example, it does not affect whatever duties state law might impose on petitioner to refrain from intentionally interfering with respondent’s relationships with its customers by means other than failing to honor unenforceable side agreements, or to refrain from engaging in slander or libel, or to satisfy other contractual obligations.

Id. at 230, 118 S.Ct. 1956. The majority uses this quotation to support its conclusion that “the distinction between those claims barred by the filed rate doctrine and those claims not barred rests on whether the contract itself — or some other duty — is the basis of the alleged harm.” Because the majority sees some other duty (i.e., the common law), and not the tariff, as the basis of the Siewerts’ alleged harm, the majority concludes that the filed rate doctrine does not bar the damages claims. The majority’s analysis misunderstands AT&T.

The plaintiff in AT & T, Central Office Telephone, Inc. (COT), brought suit for breach of contract and tortious interference with contract arising from AT & T’s provision of long-distance communication services. 524 U.S. at 216, 118 S.Ct. 1956. The relationship between AT & T and COT was the subject of a tariff that federal law required be filed with the Federal Communications Commission. Id. at 216-17, 118 S.Ct. 1956. COT’s common law claims “were not limited by [the] tariff but also included certain understandings [the plaintiffs] president derived from reading [the defendant’s] brochures and talking with its representatives.” Id. at 220, 118 S.Ct. 1956.

If the majority’s analysis were correct, COT’s extra-tariff claims should have withstood a filed rate challenge because the claims were not based on duties created in the tariff, but were based on common law obligations. The Court however found *293that the claims were barred. Id. at 226, 118 S.Ct. 1956. (“Because [plaintiff] asks for privileges not included in the tariff, its state-law claims are barred.... ”). Because the source of the obligation at issue in both COT’s breach of contract claim and its tort claim was outside the tariff, and the additional obligations COT sought to enforce in its common law claims related to the very subject that was regulated in the tariff, the filed rate doctrine barred COT’s common law claims. See id. at 224-25, 118 S.Ct. 1956 (noting that “the additional services and guarantees that [plaintiff] claims it was entitled to ... all pertain to subjects that are specifically addressed by the filed tariff’) (emphasis original); see also id. at 229, 118 S.Ct. 1956 (Rehnquist, C.J., (concurring) (noting that the filed rate doctrine “pre-empt[s] only those suits that seek to alter the terms and conditions provided for in the tariff’)).

As AT & T makes clear, the applicability of the filed rate doctrine turns not, as the majority concludes, on the legal source of the cause of action. See 524 U.S. at 225-26, 118 S.Ct. 1956; see also Keogh, 260 U.S. at 163, 43 S.Ct. 47. Rather, the question of whether the filed rate doctrine bars particular claims depends on the extent to which judicial resolution of those claims would entangle the judiciary in the ratemaking process the Legislature has delegated to the agency.6

There is no dispute in this case that the damages the Siewerts claim to have suffered are based on their theory that NSP did not deliver electricity in the safest or most prudent way. But the tariff provides how NSP is to deliver electricity. See, e.g., Northern State Power Company Tariff, General Rules and Regulations § 5 (2006). Ordering NSP to deliver electricity differently or awarding the Siewerts damages because NSP did not deliver electricity differently is an indirect challenge to the legislative rate-making function. AT & T, 524 U.S. at 223, 118 S.Ct. 1956 (“Rates, however, do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for excessive rates can be couched as a claim for inadequate services and vice versa.”). In my view, the filed rate doctrine bars such claims, whether for injunc-tive relief or for damages.7

*294I do not contend that the filed rate doctrine bars all common law claims. There may be any number of common law claims that would not implicate the principles of separation of powers and comity, justiciability, and non-discrimination that underlie the doctrine. But the Siewerts challenge the actual way in which electricity is distributed and ask the judicial branch to conclude that the electricity should have been delivered in a different manner, and to award either damages or injunctive relief on that basis. Such claims necessarily entangle the judiciary in the ratemaking process and the filed rate doctrine therefore bars them.8

In sum, I would hold that the filed rate doctrine bars all the Siewerts’ claims. Because I would conclude the claims are barred by the filed rate doctrine, I would not reach the issues of the primary jurisdiction doctrine or the statute of repose.

. The Complaint alleges negligence, strict liability, nuisance and trespass theories. The district court dismissed the trespass claim on partial summary judgment and that ruling is not before us.

. The concurrence argues that "disputes arising from common law duties fall within the purview of the judicial branch” and that therefore s.uch disputes are outside the scope of the filed rate doctrine. Infra at C-2. I do not disagree that claims arising from common law duties often fall within the purview of the judicial branch. But, in my view, the concurrence asks the wrong question in determining the applicability of the filed rate doctrine. Whether a claim is or is not barred by the filed rate doctrine does not depend on the theory the plaintiff pleads or whether the claim is based on the common law or a statute. See Keogh v. Chi. & N.W. Ry. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 67 L.Ed. 183 (1922) (concluding that the legal rights as defined by the tariff "cannot be varied or enlarged by either contract or tort or the carrier”). As one federal court aptly put it, “[t]he applicability of the filed rate doctrine is determined by the statutes empowering agencies to approve rates, not the statutes under which a plaintiff alleges a cause of action.” See Gelb v. Am. Tel. & Tel. Co., 813 F.Supp. 1022, 1026 n. 5 (S.D.N.Y.1993). Instead of looking to the origins of the claims, as the concurrence does, I look to whether the claim potentially implicates the underlying principles of the filed rate doctrine: justiciability, separation of powers and non-discrimination. This approach guards against judicial interference in the intricate process of utility regulation. Adopting the concurrence’s interpretation of the filed rate doctrine as not barring claims grounded in common law duties, regardless of how these duties interact with the regulatory functions of the agencies, largely eviscerates the doctrine.

. This case is different from Hoffman in that in Hoffman we found that to the extent the plaintiffs were seeking to enforce the terms of the tariff by claiming that NSP had breached its maintenance obligations under the tariff, the filed rate doctrine would not bar that claim. See 764 N.W.2d at 45. Accordingly, as we recognized in Hoffman, the filed rate doctrine would not bar the Siewerts’ claims if they sought merely to enforce obligations set forth in the tariff. 764 N.W.2d at 44 (“[A]t least in the absence of a legislative decision to vest exclusive jurisdiction in the agency, the filed rate doctrine does not bar a court from considering a request to enforce the clear terms of an agency-approved tariff.”). But the Siewerts do not bring such a claim. Rather, it is undisputed that the tort claims are grounded on the Siewerts' assertion that NSP needed to deliver electricity in a way other than the way set forth in the tariff.

. The non-discrimination principle that underlies the doctrine reflects the awareness that granting judicial relief to one or a few customers would amount to different treatment among ratepayers of the same service. See Schermer, 721 N.W.2d at 315 (“If the court were to retroactively adjust the rates of only the Class members, it would inevitably disrupt the balancing of interests achieved by the [agency] ... because the court has no jurisdiction to reallocate rates among other customer classes....”). Given the individualized nature of the damages claims the Siewerts present, this principle is likely not implicated by their claims and so I do not consider it further. We reached a different conclusion in Hoffman, but in that case, the damages claim was not individualized because no homeowner claimed to have suffered property damage from NSP’s failure to perform the obligations at issue. See Hoffman, 764 N.W.2d at 39; see also id. at 48 (“Because appellants’ claim for compensatory damages ... would lead to discrimination between ratepayers, we hold that the filed rate doctrine bars this claim.”).

. I do not disagree with the majority that in the legislation granting authority to the MPUC, the Legislature did not expressly abrogate the common law. But the absence of abrogation does not answer the question of whether the filed rate doctrine dictates the dismissal of the Siewerts' claims. As discussed above, because the Siewerts' claims directly trigger the separation-of-powers, comity and justiciability considerations that underlie the filed rate doctrine, proper application of the doctrine dictates that the claims be dismissed. The majority also cites In re Hubbard, 778 N.W.2d 313 (Minn.2010), for the proposition that legislative delegations of authority to administrative agencies must be interpreted strictly. Again, I do not disagree as a matter of principle, but that principle is not directly applicable to the prudential considerations that underlie the filed rate doctrine.

. The majority also relies heavily on the Wisconsin Supreme Court decision of Schmidt v. N. States Power Co., 305 Wis.2d 538, 742 N.W.2d 294 (2007), to conclude that the filed rate doctrine does not bar stray voltage claims because the plaintiffs are not seeking a "privilege” within the meaning of the filed rate doctrine and conformance with the tariff does not eliminate the common law duty of due care. See id. at 310-11. In my view, Schmidt does not properly recognize the serious separation-of-powers concerns raised by the filed rate doctrine. Proper application of the filed rate doctrine requires an examination of the nature and extent of the judicial interference with the complex regulatory system that would result from judicial resolution of the claims. See, e.g., AT & T, 524 U.S. at 230-31, 118 S.Ct. 1956 (Rehnquist, C.J., concurring) (explaining that, while the filed rate doctrine does "not serve as a shield against all actions based in state law," its purpose is "to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff”). The analysis in Schmidt, in essence, ignores this dispositive consideration, and I therefore would not follow it.

. The district court dealt with the applicability of the filed rate doctrine summarily, relying on Ferguson v. N. States Power Co., 307 Minn. 26, 239 N.W.2d 190 (Minn.1976). Ferguson is inapposite because it does not even mention the filed rate doctrine and it does not appear that any arguments under the filed rate doctrine were raised in the case. Similarly, Mahowald v. Minn. Gas Co., 344 N.W.2d 856 (Minn.1984), on which the majority relies for the proposition that the filed rate doctrine does not apply to common law tort claims, does not address the filed rate doctrine. Because they do not even mention or purport to *294address the filed rate doctrine, Ferguson and Mahowald cannot be read to support the conclusion that the doctrine does not apply in the context of common law tort claims.

. The MPUC also has broad authority to resolve complaints customers raise regarding the service that public utilities deliver. Minn. Stat. § 216B.098, subd. 6 (2010) ("In addition to any other authority, the [MPUC] has the authority to resolve customer complaints against a public utility ... whether or not the complaint involves a violation of this chapter.”); see also Minn.Stat. § 216B.17, subd. 1 (2010) ("[U]pon a complaint ... by any 50 consumers of the particular utility that ... any service in connection therewith is in any respect unreasonable, insufficient, or unjustly discriminatory, or that any service is inadequate ... the [MPUC] shall proceed, with notice, to make such investigation as it may deem necessary.”). But we have held that the MPUC does not have authority to award monetary refunds to injured customers. Peoples Natural Gas Co., 369 N.W.2d at 536.