Bellermann v. Fitchburg Gas & Electric Light Co.
470 Mass. 43
| Mass. | 2014Background
- Winter Storm 2008 caused widespread outages; FG&E (a Unitil utility) lost power to 100% of its ~28,500 customers and required extensive repairs and rebuilding.
- Plaintiffs (12 residential and business customers) sued in Superior Court alleging gross negligence and violations of G. L. c. 93A based on FG&E’s preparedness, restoration, and communications during the storm; they sought class certification and partial summary judgment invoking issue preclusion from DPU findings.
- The Department of Public Utilities (DPU) conducted adjudicatory hearings, found numerous systemic deficiencies in FG&E’s emergency planning, vegetation management, resource acquisition, restoration logistics, and public communications, and ordered remedial measures; DPU later disallowed recovery of certain storm costs and reduced return on equity.
- The Superior Court judge denied class certification under both G. L. c. 93A and Mass. R. Civ. P. 23, but applied offensive issue preclusion to certain DPU factual findings; the judge denied most summary judgment requests. The judge reported the denial of class certification to the Appeals Court; review was taken to the SJC.
- The SJC affirmed: no abuse of discretion in denying class certification (insufficient showing of class-wide causation/similar injury), and the judge acted within discretion in applying offensive issue preclusion to DPU factual findings made after evidentiary hearings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether class certification under G. L. c. 93A is proper | Plaintiffs: FG&E’s systemic failures caused similar injuries (prolonged outages and inability to plan) across customers, supporting class treatment | FG&E: Injuries and causation vary by customer; individualized inquiries required | Denied — plaintiffs failed to show class-wide causation or similar injury; individualized inquiries predominate |
| Whether class certification under Mass. R. Civ. P. 23 is proper for gross negligence claim | Plaintiffs: same systemic conduct supports a Rule 23 class for gross negligence | FG&E: Individualized causation and damages defeat predominance and superiority requirements | Denied — same reasons as G. L. c. 93A; class certification would degenerate into many individual determinations |
| Whether certain DPU factual findings have issue-preclusive effect in Superior Court | Plaintiffs: DPU’s adjudicatory findings (after hearings) establishing deficiencies should be given preclusive effect | FG&E: DPU lacked authority on some issues; procedural differences and incentives to litigate differ, making preclusion unfair | Allowed — court may apply offensive issue preclusion to DPU factual findings from adjudicatory hearings; FG&E had adequate incentive and full opportunity to litigate |
| Whether procedural differences between DPU proceedings and Superior Court bar offensive preclusion | Plaintiffs: DPU hearings were adjudicatory and FG&E had full process; findings are identical and essential | FG&E: DPU considered unsworn public comments, burden shifts, and limited appeal rights, so preclusion would be unfair | Rejected — procedural differences did not make preclusion unfair given FG&E’s opportunity to litigate, the evidentiary record, and the financial stakes at DPU proceedings |
Key Cases Cited
- Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337 (class-certification abuse-of-discretion standard and c.93A considerations)
- Aspinall v. Philip Morris Cos., 442 Mass. 381 (c.93A class principles; similarity and causation issues)
- Fletcher v. Cape Cod Gas Co., 394 Mass. 595 (c.93A class limitations and requirement of similar injury)
- Moelis v. Berkshire Life Ins. Co., 451 Mass. 483 (judge’s discretion on class certification and consideration of individualized issues)
- Pierce v. Morrison Mahoney LLP, 452 Mass. 718 (offensive collateral estoppel framework and fairness inquiry)
- Matter of Goldstone, 445 Mass. 551 (when procedural differences/ burden shifts do not preclude issue preclusion)
- Alba v. Raytheon Co., 441 Mass. 836 (administrative findings can have preclusive effect if tribunal had authority)
- Jarosz v. Palmer, 436 Mass. 526 (prior adjudication essentiality and preclusion principles)
- Stowe v. Bologna, 415 Mass. 20 (preclusive effect of administrative findings where proper procedures were available)
- Evans v. Lorillard Tobacco Co., 465 Mass. 411 (discussion of deceptive conduct and application of preclusion principles)