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Muise v. GPU6/14/2000
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 24, 2000
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
I.
In these actions, consolidated as one class-action lawsuit, plaintiffs sought damages from GPU, Inc., and related entities (defendants) for electric-service outages arising from high demand during a week-long heatwave in July 1999. Plaintiffs attributed the outages to defendants' negligence in operations, maintenance, and planning for a predictable event. Defendants moved without success to dismiss in favor of the primary jurisdiction of the Board of Public Utilities (the Board).
We granted defendants' motion for leave to appeal the denial of their motion to dismiss. R. 2:2-3(b); R. 2:5-6. Defendants argue here that the Board must consider plaintiffs' claims before a court does, in order to preserve the integrity of its oversight functions. Plaintiffs and the Board as amicus disagree. The Board asserts that it has finished its investigation of the power outages and has ordered appropriate measures to prevent a recurrence. It declares that trial of this case in the Law Division will not prejudice the Board or the public interest as long as any new issue within its exclusive jurisdiction is referred to it. No such issue is presently identified. Defendants also argue that plaintiffs have no right to a jury trial of their claims.
We conclude that the Law Division judge properly retained jurisdiction over these claims, rather than defer to the Board. We affirm that decision. Future developments may require reference of certain issues to the Board, but not at present.
II.
This is the procedural background. On July 20, 1999 the Muise plaintiffs, individual and business customers of the public utility's electrical service, filed a class-action complaint against GPU, Inc., and related entities, alleging damage "as a result of electrical power interruption and/or electrical deficiency and/or power failures and blackouts." They alleged that those defendants failed "to properly and adequately prepare for and anticipate the demand for electricity," and pleaded negligence, breach of contract, breach of warranty, intentional misrepresentation, failure to warn, fraud, and consumer fraud. They sought compensatory damages, treble damages pursuant to the consumer fraud statutes, punitive damages, and a jury trial on all issues. The defendants denied liability and asserted numerous affirmative defenses which included the Board's primary jurisdiction and the court's lack of subject-matter jurisdiction.
On July 22, 1999 the Tzannetakis plaintiffs, who were also individual and business customers of the public utility's electrical service, filed a class-action complaint against GPU, Inc., and other related entities, also alleging damage from the failure of those defendants "to provide safe and reliable delivery of energy in the form of electrical power." They alleged that those defendants should have known that their infrastructure and maintenance were inadequate to furnish service as represented and required. They pleaded many theories of liability, including negligence, strict liability, fraud, misrepresentation, breach of warranty, breach of contract, and consumer fraud. They sought compensatory damages, treble damages pursuant to the consumer fraud statutes, punitive damages of at least $350,000 "per claimant," and a trial by jury "on all issues so triable." The defendants denied liability and asserted the same defenses.
On October 8, 1999 the parties consented to consolidate the Muise and Tzannetakis actions. On October 12, 1999 t
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