422 Mass. 583 | Mass. | 1996
The plaintiff, the town of Middleborough, filed this action against the defendant, the Middleborough Gas and Electric Department (MG&ED), for damages arising out of a 1988 fire that partially destroyed a public school building owned by the town. As a result of the fire, the town suffered
In opposition to the town’s action, MG&ED made the “formal objection” that the same party cannot be both the plaintiff and the defendant in the same suit. See Cutting v. Daigneau, 151 Mass. 297, 298 (1890). On this ground, the Superior Court judge granted summary judgment in favor of MG&ED. In a memorandum and order pursuant to rule 1:28, the Appeals Court reasoned that because MG&ED “is a division or department of the town,” the town was in effect suing itself, and, thus, dismissed the suit. See 38 Mass. App. Ct. 1127 (1995). We granted further appellate review and now reverse.
Whether there is a genuine dispute with practical consequences is a question depending not on abstract deductions from the supposed formal characteristics of the disputing parties, but on the circumstances of the particular case and the practical consequences of the adjudication.
We first examine the statutory framework that created both the town and MG&ED. The town of Middleborough is incorporated and organized under G. L. c. 39, c. 40 (1994 ed.), and art. 2 of the Massachusetts Constitution. The town may sue or be sued in its corporate capacity. G. L. c. 40, § 2. In 1893, pursuant to St. 1891, c. 370, now appearing at G. L. c. 164, § 34, the town purchased a private gas company, the Middleborough Gas and Electric Company (renamed MG&ED), by town vote and by using town-issued bonds. Until 1982, the town’s board of selectmen was charged with the operation of MG&ED. In 1982, the town amended its charter as authorized by G. L. c. 164, § 55, to establish a municipal light board (light board). By this amendment, the town transferred control of MG&ED from its board of select
Next, we consider the relationship between the MG&ED and the town to determine the extent to which they act independently of each other. The light board has the “authority to construct, purchase or lease a gas or electric plant in accordance with the vote of the town and to maintain and operate the same.” Id. The light board appoints the manager of MG&ED. G. L. c. 164, § 56. The manager has “full charge of the operation and management of the plant, the manufacture and distribution of gas or electric, the purchase of supplies, the employment of attorneys and of agents and servants, the method, time, price, quantity and quality of the supply, the collection of bills, and the keeping of accounts.” Id. See Municipal Light Comm’n of Peabody, supra at 273 (“management and fiscal operation of the municipal light department . . . are vested in the commission and the manager of the plant”). The statute further provides for the general supervision of MG&ED by the Department of Public Utilities (DPU). Specifically, DPU requires the submission of annual filings, limits annual earnings, and regulates such issues as accounting methods, billing practices, bidding procedures, and depreciation rates. See G. L. c. 164, §§ 57-59, 63. The statute also authorizes DPU to order the furnishing of power to a consumer. See G. L. c. 164, § 60. The light board sets the gas and electric rates by the formula specified in G. L. c. 164, § 58, and submits all rate changes to the DPU. G. L. c. 164, § 59. DPU has “supervisory power to review such rates as set forth in G. L. c. 164. See, e.g., Municipal Light Comm’n of Peabody [,supra at] 268-273.” Bertone v. Department of Public Utils., 411 Mass. 536, 548 (1992). Cf. Board of Gas & Electric Comm’rs of Middleborough v. Department of Pub. Utils, 363 Mass. 433, 436-439 (1973) (although municipally-owned gas and electric companies not subject to G. L. c. 164, § 94, court did not reach the issue of the “existence, source, nature or scope of the power or authority of the Department to investigate, review, or determine the adequacy, sufficiency or reasonableness of rates”).
MG&ED determines its own budget in accordance with G. L. c. 164, §§ 1 et seq. (governing the operation of commercial businesses), and does not depend on appropriations as do the town’s other departments. See G. L. c. 44, §§ 1 et seq.
MG&ED has broad authority to contract in its own name. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Electric Co., 399 Mass. 640, 647 (1987) (municipal light plant has broad powers to contract with other parties); Municipal Light Comm’n of Taunton, supra at 84 (commission not subject to local ordinances governing the awarding of contract because provisions of c. 164 exclusively delineate restrictions on commission and its manager). For example, the town and MG&ED carry different liability insurance policies.
Finally, MG&ED is distinct from the town in another,
MG&ED invites the court to affirm summary judgment in its favor on an alternative ground. MG&ED asserts that if the town can sue MG&ED for money damages, the town’s complaint nevertheless fails to assert a claim on which relief can be granted. Specifically, it argues that no contract or warranty, express or implied, existed between the parties and that the town has presented no evidence of MG&ED’s negligence. Neither the Superior Court nor the Appeals Court addressed this issue, and we do not reach it here. For the same reason, we do not reach the issue of the applicability of the Massachusetts Tort Claims Act (Act), G. L. c. 258 (1994 ed.), to this case. We note only that the Act was amended after the cause of action here accrued and that there is a serious question as to the impact of this amendment on this suit. Cf. Fontaine v. Ebtec Corp., 415 Mass. 309 (1993) (discussing amendments to G. L. c. 151B, § 9, authorizing the recovery of
We remand this case for proceedings consistent with, this opinion.
Judgment reversed.
This court first stated the abstract proposition that a party may not sue itself in a number of cases involving suits between a partnership and a one of its partners concerning disputes that related to items involved with the partnership’s business. See Cutting v. Daigneau, 151 Mass. 297, 298 (1890); Stoddard v. Wood, 9 Gray 90, 91 (1857); Temple v. Seaver, 11 Cush. 314, 314 (1853); Thayer v. Buffin, 11 Met. 398 (1846). Today, the relationship among partners and between a partner and the partnership is governed by G. L. c. 108A, §§ 1-44 (1994 ed.) (Uniform Partnership Act), and that body of law is not relevant to the dispute here.
Although the policies are not part of the record, the town has submitted an affidavit that avers that Lexington Insurance provided MG&ED a general liability insurance coverage for claims up to $1,000,000 and that Aegis Insurance provided MG&ED excess coverage with unknown limits. The parties both state that they are separately covered by insurance.
MG&ED originally supplied electricity only to the residents of Middle-borough. But in 1916 the Department of Public Utilities’ predecessor approved the extension of power lines “into . . . the town of- Lakeville for the purpose of distributing and selling electricity therein.” St. 1915, c. 191. See Board of Gas & Electric Comm’rs of Middleborough v. Department of Pub. Utils., 363 Mass. 433, 434 (1973). MG&ED has been supplying electricity to both Middleborough and Lakeville ever since.