Roger F. Holt v. West Virginia American Water Co. ( 2014 )

No. 13-0744 – Holt v. West Virginia-American Water Co.
FILED
June 11, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LOUGHRY, Justice, with whom Justices Workman and Ketchum join, concurring:
While I agree with the result reached by the majority that the claims asserted
by Mr. Holt are precluded by the West Virginia Consumer Credit and Protection Act,1 I write
separately to emphasize that Mr. Holt had other legal avenues of relief that he opted against
pursuing. Instead of instituting a claim under this state’s Consumer Credit and Protection
Act, he could have filed a common law claim predicated on the same allegations of unfair
and deceptive practices that he relied upon as the basis for his statutory claim. The crux of
Mr. Holt’s allegations was that West Virginia-American Water Company, with information
regarding the source of the water leak, continued to improperly bill him in excess of $5,000
for four straight months, and even went so far as to terminate his water supply for
nonpayment of the disputed charges. The record in this case suggests that West Virginia-
American Water Company was less than forthcoming with information regarding its
discovery of the initial leak2 as well as its repair of this leak. In addition, the record indicates
that West Virginia-American Company failed to notify Mr. Holt regarding its corporate
1
See W.Va. Code § 46A-1-101 et seq. (2006).
2
This leak was at the meter box.
responsibility for the first large leak.
Rather than viewing West Virginia-American Water Company as lacking any
responsibility for both the prolonged period of time necessary to resolve this matter and for
Mr. Holt’s exasperating experience in trying to identify and solve his water leak, what this
Court has done is simply to recognize the lack of a viable claim based on clear legislative
language. See W.Va. Code § 46A-1-105(a)(3) (2006) (barring claims involving transactions
under public utility or common carrier tariffs where public agency regulates charges for
services). This Court has not, however, precluded Mr. Holt from pursuing any viable non-
statutory claims against West Virginia-American Water Company.
Based on the foregoing, I respectfully concur.