Supreme Judicial Court of Massachusetts, Worcester
Marcia D . Bellermann & others 
Fitchburg Gas and Electric Light Company
Argued: March 4, 2014.
Civil action commenced in the Superior Court Department on January 7, 2009.
Motions for class certification and for summary judgment were heard by Douglas H. Wilkins, J., and a decision denying class certification was reported by him to the Appeals Court.
A proceeding for interlocutory review was heard in the Appeals court by Cynthia J. Cohen, J., and after consolidation of the appeals, the Supreme Judicial Court granted an application for direct appellate review.
Barry M. Altman & C. Deborah Phillips ( James L. O'Connor, Jr., Edwin H. Howard, & James M. Galliher with them) for the plaintiffs.
Gavin J. Rooney, of New Jersey ( Natalie J. Kraner, of New Jersey, with him) for the defendant.
Robin L. Main for Massachusetts Electric Company & others, amici curiae, submitted a brief.
Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
This case arises out of a major ice storm that struck areas of the northeastern United States in December, 2008 (Winter Storm 2008). The defendant, Fitchburg Gas and Electric Light Company (FG& E), is a public utility that provides electric service to customers in the municipalities of Fitchburg, Lunenburg, Townsend, and Ashby, which were among those affected by the storm. FG& E is one of the utilities owned by Unitil Corporation (Unitil). The plaintiffs are twelve residential and business customers of FG& E who lost power during Winter Storm 2008. They filed a suit in the Superior Court on behalf of themselves and those similarly situated, asserting claims of gross negligence and violation of G. L. c. 93A. Pursuant to G. L. c. 93A, § § 9 (2) and 11, and Mass. R. Civ. P. 23, as amended, 452 Mass. 1401 (2008)
(rule 23), the plaintiffs moved to certify a class consisting of FG& E's residential and business customers; their dependents, tenants, and employees; and other users of electricity who sustained damages as a result of FG& E's inadequate preparation for and response to Winter Storm 2008. The parties also filed cross-motions for partial summary judgment on the plaintiffs' G. L. c. 93A claims. In their motion for partial summary judgment, the plaintiffs sought issue preclusive effect of certain findings made by the Department of Public Utilities (DPU) in two prior administrative adjudications related to FG& E's conduct during Winter Storm 2008. See D.P.U. 11-01 (2011); D.P.U. 09-01-A (2009).
After a combined hearing on these motions, the judge issued two decisions. He denied the plaintiffs' motion for class certification, and, while determining that the application of offensive issue preclusion was appropriate, he also denied the motions for summary judgment as to all but two claims that are not at issue here. The judge then reported his decision denying class certification to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and FG& E sought interlocutory review, pursuant to G. L. c. 231, § 118, of the judge's decision as to issue preclusion. A single justice of the Appeals Court allowed the petition for interlocutory review, and the two appeals were consolidated in the Appeals Court. We allowed the plaintiffs' application for direct appellate review. We conclude that the judge did not abuse his discretion in declining to certify
a class and in applying issue preclusion to facts found after evidentiary hearings at the DPU.
We summarize the facts set forth in the judge's decisions, supplemented by other undisputed facts in the record.
FG& E receives all of its electric power from four transmission supply lines owned by National Grid USA Service Company, Inc. (National Grid). Each of these lines ties into a substation in southwest Fitchburg. From this substation, FG& E's network consists of sixty miles of subtransmission lines that feed into 680 miles of distribution lines. At the time of Winter Storm 2008, FG& E had approximately 28,500 customers.
1. Winter Storm 2008.
Winter Storm 2008 was an ice storm that struck the northeastern United States, including FG& E's service territory, on December 11 and 12, 2008. As a result of that storm, ice accumulated on utility poles and tree limbs in FG& E's territory, causing limbs and whole trees to fall onto FG& E utility poles, electrical lines, and other electrical infrastructure. The storm also damaged the National Grid transmission lines that supply FG& E's system with power. In total, Winter Storm 2008 resulted in power outages for over one million customers in New England, New York, and Pennsylvania, including one hundred per cent of FG& E's customers.
2. FG& E's preparedness and restoration efforts.
In 1992, sixteen years before Winter Storm 2008, the DPU had directed FG& E and several other utilities to " implement or to maintain a system for reviewing emergency plans on an annual basis," and had advised them that " it would be beneficial for each company to examine the other [c]ompanies' plans in order to consider the incorporation of useful changes." D.P.U. 91-228, at 4 (1992). In 2002, the DPU further advised FG& E to " consider the use of extreme weather condition forecasts with outages or contingencies simulated in the power flow model for plan[n]ing and designing [transmission and distribution] facilities."
In 2006 and 2007, FG& E sent newsletters to its customers extolling its ability to respond to outages and asserting that " safety and service reliability are our first priorities." FG& E also filed annual emergency restoration plans (ERPs) with the DPU; these plans set forth an overview of FG& E's service restoration
processes and priorities, defined organizational and functional responsibilities, identified communications protocols, and described the framework required to restore power in the event of a major storm or other emergency. Other severe ice storms occurred in Unitil's service area, but contrary to the recommendation in the DPU's 1992 order, FG& E did not study the storm preparation and response practices of other Massachusetts utilities. FG& E's ERP in effect at the time of Winter Storm 2008 did not address a storm as severe and widespread as that storm.
At the time of Winter Storm 2008, FG& E also had in effect a vegetation management policy providing tree-trimming cycles for each of the circuits in its system. By the end of 2006, however, FG& E's vegetation management program had become underfunded, and FG& E had fallen behind on its tree-trimming schedule. Rather than increasing its vegetation management budget, FG& E responded by adjusting downward its clearance standards and vegetation management cycles.
After Winter Storm 2008 struck, FG& E began restoring power to its customers on a rolling basis. The process started early on December 12, once National Grid had repaired its transmission supply lines, when FG& E restored power to about five hundred customers in downtown Fitchburg whose underground network system was largely insulated from the weather. To complete full restoration, however, FG& E had to repair 244 utility poles, 192,729 feet of wire conductor, and 170 transformers. FG& E did not employ a sufficient number of its own restoration crews to respond to Winter Storm 2008, and had only limited success in obtaining additional crews from other utilities. By December 20, more than 4,000 FG& E customers remained without power, and at the Commonwealth's request, National Grid stepped in to complete the necessary restoration work. The last customers did not have power until December 25.
The plaintiffs experienced outages beginning on either December 10, 11, or 12, and persisting for periods ranging from four to twelve days. Although all were attributable to the storm, the immediate reasons for their loss of power differed. For example, some plaintiffs lost power due to damage to FG& E's subtransmission lines, whereas others lost power when trees in their yards, for which FG& E does not bear responsibility, fell on their individual service lines. The plaintiffs' affidavits set forth various damages caused by the outages, including lost income and business profits, burst pipes, dead plants and pet fish, spoiled food,
and other expenses incurred as a consequence of and in response to the outages.
3. FG& E's public communications.
FG& E's ERP at the time of Winter Storm 2008 provided that one of its primary responsibilities during an emergency was " [t]o keep the public informed of the status of the restoration in a timely manner through direct contact with town and city officials and the news media." According to FG& E, its principal method for communicating with the public during Winter Storm 2008 was through public service announcements (PSAs). FG& E issued between one and five PSAs daily from December 11 through December 24.
As of the morning of December 11, FG& E knew that the weather forecast was for " anywhere from 1/4 inch to more than 1 inch of ice," that " the current thinking is that FG& E is in the worst position" of the Unitil subsidiaries, and that " 1/4 inch of ice and a little wind would be problematic, so having a forecast of over 1 inch would likely result in an extended restoration period that could easily exceed one week." Nevertheless, FG& E issued the following PSA later that day: " Most electrical outages are expected to be for relatively short periods of time, only. However, severe weather conditions can create substantial damage to the electrical system, and restoration can take an extended period of time."
Within the first few hours of Winter Storm 2008, FG& E had information that its system had suffered extensive damage that affected more than just its subtransmission and distribution facilities. Accordingly, when it energized its subtransmission lines on December 14, it knew that this would not restore power to a large majority of its customers. During this time, FG& E also learned that it would not have access to repair crews that it previously had believed would be available. Nonetheless, from December 12 through December 15, FG& E's PSAs stated that it would " take days" or " several days" to restore power. On December 16, FG& E's PSAs began referring to " restoration of all primary circuits" by the end of the week, without explaining that this did not mean that all customers would have their power restored by that time. FG& E had information about the need for " extensive rebuilding of circuits," but it did not communicate this fact until December 19.
FG& E's PSAs also served as the source of information for its customer service representatives. From December 11 through December 25, FG& E's call ...