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STATE OF MINNESOTA IN SUPREME COURT A06-2275

Court of Appeals

Gildea, J. Concurring, Dietzen, J. Took no part, Magnuson, C.J.

Irene Hoffman, et al., Appellants, vs. Northern States Power Company, d/b/a Xcel Energy, Respondent. ________________________ Filed: April 16, 2009 Office of Appellate Courts

Vincent J. Esades, Lori A. Johnson, Scott W. Carlson, Heins Mills & Olson, P.L.C., Minneapolis, Minnesota; and C. Andrews Waters, Charles S. Siegel, Waters & Kraus, LLP, Dallas, Texas; and Mark R. Stanley, Roger L. Mandel, Martin Woodward, Stanley, Mandel & Iola, L.L.P., Dallas, Texas; and Jay E. Stuemke, Simon Eddins & Greenstone LLP, Dallas, Texas, for appellants. Timothy Thornton, Kevin M. Decker, Jonathan P. Schmidt, Briggs and Morgan, P.A., Minneapolis, Minnesota, for respondent. Lori Swanson, Attorney General, Karen D. Olson, Ronald M. Giteck, William T. Stamets, Assistant Attorneys General, St. Paul, Minnesota, for amicus curiae Office of the Minnesota Attorney General--Residential and Small Business Utilities Division. 1

Lori Swanson, Attorney General, Alison C. Archer, Assistant Attorney General, St. Paul, Minnesota, for amicus curiae Minnesota Public Utilities Commission. David M. Cialkowski, Zimmerman Reed P.L.L.P., Minneapolis, Minnesota; and Hart L. Rabinovitch, Zimmerman Reed P.L.L.P., Scottsdale, Arizona; and Stephen Gardner, National Consumer Law Center, Dallas, Texas, for amicus curiae National Association of Consumer Advocates. ________________________

SYLLABUS 1. The filed rate doctrine applies to private claims challenging the

reasonableness of a rate established for an electrical utility under the administration of the Minnesota Public Utilities Commission. 2. The filed rate doctrine bars appellants breach of contract claim for

compensatory damages, but it does not bar appellants claim for injunctive relief. 3. The district court should have referred resolution of appellants claim for

injunctive relief to the Minnesota Public Utilities Commission under the primary jurisdiction doctrine. 4. The district courts jurisdiction over claims by North Dakota and South

Dakota residents was not properly before the court of appeals. Affirmed in part, reversed in part, and remanded.

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OPINION GILDEA, Justice. Respondent Northern States Power Company ("NSP") supplies appellants Irene and David Hoffman (Minnesota), Jerry Ustanko (North Dakota), and Mulugeta Endayehu (South Dakota) with electrical power.1 Appellants initiated a breach of contract action

against NSP alleging that NSP failed to inspect and maintain the point of connection between NSPs service facilities and each customers electrical equipment. Appellants argued that the filed tariff required the inspection and maintenance. Appellants

demanded relief in the form of compensatory damages and either specific performance or an injunction to require NSP to perform what they alleged to be its tariff obligations. The district court denied NSPs motion for judgment on the pleadings and certified two questions to the court of appeals regarding whether the filed rate doctrine or the primary jurisdiction doctrine precluded the district court from adjudicating the action. The court of appeals held that the filed rate doctrine barred all of appellants claims, Hoffman v. N. States Power Co., 743 N.W.2d 751, 756 (Minn. App. 2008), and we granted appellants petition for further review. We conclude that the filed rate doctrine applies to claims challenging the reasonableness of a rate the Minnesota Public Utilities Commission ("MPUC") has

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The appellants seek to represent a class of plaintiffs. No action has been taken on class certification, and this appeal does not involve any class certification issues.

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established for an electrical utility, and that the doctrine does not bar the claim for injunctive relief, but it does bar appellants claim for compensatory damages. We further conclude that under the doctrine of primary jurisdiction, the district court should have referred appellants claim for injunctive relief to the MPUC. Finally, we reverse the court of appeals dismissal of claims brought by non-Minnesota residents and remand those claims for proceedings consistent with this opinion. According to the complaint, NSPs wires connect to each customers wires within a meter box, usually attached to the side of the customers home. NSP sets up the meter box by attaching the utilitys wires to grooved channels with brass lugs, which allows electricity to flow through the meter to the customers wires. NSP then seals or locks the meter box, preventing customers from gaining access to its contents. The complaint alleges that the brass lugs within the box loosen and may corrode over time. These changes, according to the complaint, increase the electrical resistance at the connection site, generate heat, and create a fire hazard. Appellants contend that inspections, along with cleaning and tightening the connection sites as needed, would prevent the dangerous condition. The complaint does not allege that any of customers in the proposed class have been the victim of any particular fire. Nor does the complaint allege that any NSP customer has engaged a third party to perform the inspection and maintenance services.

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The services that NSP is obligated to perform for Minnesota customers are set forth under the tariff that NSP files with the MPUC.2 As a public utility, NSP is a regulated monopoly under Minn. Stat. ch. 216B (2008). Thus, NSP files its tariffs with regulatory agencies in each state in which it operates, and the tariffs govern the terms of the legal relationship between NSP and its customers. See, e.g., Minn. Stat.

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