Town of Middleborough v. Middleborough Gas & Electric Department

664 N.E.2d 25, 422 Mass. 583, 1996 Mass. LEXIS 97
CourtMassachusetts Supreme Judicial Court
DecidedMay 3, 1996
StatusPublished
Cited by16 cases

This text of 664 N.E.2d 25 (Town of Middleborough v. Middleborough Gas & Electric Department) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Middleborough v. Middleborough Gas & Electric Department, 664 N.E.2d 25, 422 Mass. 583, 1996 Mass. LEXIS 97 (Mass. 1996).

Opinion

Fried, J.

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 [584]*584damages in excess of $4,000,000. The town’s property insurer, United Community Insurance Company (United), indemnified the town for its damage and the town subrogated its rights to United, who then initiated this action against MG&ED. The complaint alleges that MG&ED negligently failed to ground its electrical utility pole at the school, breached an implied contract to provide electrical services in a careful manner, and breached a warranty by failing to provide safe electrical services to the town.

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.1 This court has regularly relied on practical considerations when deciding, for a variety of purposes and in a variety of contexts, issues related to the financial and political independence of a town and its associated bodies. See, e.g., Dattoli v. Hale Hospital, 400 Mass. 175 (1987) (hospital, on the record before the court, a “public employer” for purposes of G. L. c. 258); Board of Pub. Works of Wellesley v. Selectmen of Wellesley, 377 Mass. 621 (1979) (in the context of unique local regulations and State law, the board of public works could not bring a suit on [585]*585behalf of town unless by special application); Municipal Light Comm’n of Peabody v. Peabody, 348 Mass. 266, 273 (1964) (determining respective powers and duties of mayor and light commission with respect to G. L. c. 164); Municipal Light Comm’n of Taunton v. State Employees’ Group Ins. Comm’n, 344 Mass. 533 (1962) (commission a “public unit” for purposes of G. L. c. 32B, § 2[c]). Moreover, MG&ED itself directs our attention to numerous cases in which courts have adjudicated disputes between cities or towns and entities within them, or between two entities created by a city or town. See, e.g., Municipal Light Comm’n of Peabody, supra; Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460 (1951); Commissioners of Woburn Cemetery v. Treasurer of Woburn, 319 Mass. 86 (1946). MG&ED seeks to distinguish those cases on the ground that they all involved suits for declaratory, equitable or extraordinary relief, and were not suits for money damages. But that distinction goes to appropriateness of remedy and not to justiciability. If sufficient adversariness exists for purposes of equitable relief then it exists for a suit for money damages, and the only question is whether money damages would be appropriate as a practical matter here. But cf. Merchants Nat’l Bank v. Merchants Nat’l Bank, 318 Mass. 563, 565 (1945). In sum, the jurisdiction of the court depends on whether MG&ED and the town are sufficiently distinct as financial and political entities to support a suit by the town against MG&ED for the town’s loss as a result of the fire. The test is a practical test and we apply it here.

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[586]*586men to the light board. The voters of Middleborough elect the five members of the light board.

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. [587]*587See Municipal Light Comm’n of Peabody, supra (budget of municipal light department determined in accordance with G. L. c. 164, governing the operation of commercial business, and not by the procedures of G. L. c.

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Bluebook (online)
664 N.E.2d 25, 422 Mass. 583, 1996 Mass. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-middleborough-v-middleborough-gas-electric-department-mass-1996.