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HomeMy WebLinkAbout20080915Answer to McKay Petition.pdfMcDevitt & Miller LLP Lawyers RECE,VEO i. SEP \ 5 PM 31 i9 i i' Chas. F. McDevitt \OÀHO PUJ~\Š~J. (Joe) Miler Ul\L\T\ES CO (208) 343-7500 (208) 336-6912 (Fax) 420 W. Bannock Street P.O. Box 2564-83701 Boise, Idaho 83702 September 15,2008 VIA HAND DELIVERY Jean Jewell, Secretary Idaho Public Utilities Commission 472 W. Washington St. Boise, Idaho 83720 Re: UWI-W-û8-ûl Dear Ms. Jewell: Enclosed for filing in the above matter, please find the original and seven (7) copies of United Water's Answer to Petition for Reconsideration. An additional copy of the documents and this letter is included for return to me with your fie stamp thereon. Very Truly Yours, ~"~iJ~iier DJM/hh Ends. OR\G\NAL DeanJ. Miler ISB #1968 McDEVIT & MILLER LLP 420 West Banock Street P.O. Box 2564-83701 Boise, il 83702 Tel: 208.343.7500 Fax: 208.336.6912 joe(ámcdevitt-miller.com RECE.NEO Zooß SEP \ 5 PM 31 29if' QIIUQ PlH3Li\,'1 ,.'11\ t,n COMM\SShJÎ\ UT\L\l \'E.S ., , Attornys for United Water Idaho Inc. BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION McKAY CONSTRUCTION CO., INC., COMPLAINANT and SCHMIDT CONSTRUCTION CO., INC., COMPLAINANT Case No. UW-W-08-01 ANSWER TO PETITION FOR RECONSIDERATION vs. UNITED WATER IDAHO INC. RESPONDENT COMES NOW United Water Idaho Inc., ("United Water) and Answers the "Petition for Reconsideration" ("Petition") of McKay Constrction dated September 10,2008 as follows, to wit: Argument As a procedural matter, it may fairly be obsered that the Petition fails to comply with the Commission's procedural Rule 331. Relevant portions of that Rule are: "Petitions for reconsideration must set fort specifically the ground or grounds why the petitioner contends that the order or any issue decided in the order is uneasonable, unawfl, eroneous or not in the conformity with the law, and a statement of the natue ANSWER TO PETITION FOR RECONSIDERATION-1 and quantity of evidence or arguent the petitioner wil offer if reconsideration is granted." "The petition or cross-petition must state whether the petitioner or cross-petitioner requests reconsideration by evidentiar hearng, wrtten briefs, comments, or interogatories. " As a substantive matter, the Petition does not allege any grounds that should cause the Commission to alter its conclusions contained in Order No. 30624. The Petition relies on an August 22, 2005 letter from United Water to Mckay that stated in par, "When you are able to meet the required insurance coverage minimums you wil be allowed to perform work on United Water Idaho Projects." The Petition then states, "We strongly feel that they are not honoring their stated position of placing us back on the approved contractors list at ths time." As United Water pointed out in its Reply and Motion dated July 31, 2008, McKay in response to the 2005 letter, for a perod of almost two and one half year, did not take any steps to up-grade its insurance. It is uneasonable to expect that United Water intended the offer contained in the 2005 letter to live in peretuity, regardless of a change in circumstaces. In essence, the Petition assers it would be somehow unfair to relieve United Water of its offer made in 2005. The legal doctrne for such a claim is known as promissory estoppel. Under that doctrne, a promise which is otherwise not supported by consideration may be made enforceable under these circumstaces: The elements of promissory estoppel are as follows: "'(1) the detrment suffered in reliance (on the promise) was substantial in an economic sense; (2) substatial loss to the promisee acting in reliance was or should have been foreseeable by the promisor; and (3) the promisee must have acted reasonably in justifiable reliance on the promise as made. Gilespie v. Mountain Parks Estates 138 Idaho 27,59 P.3d 1227 (2002). ANSWER TO PETITION FOR RECONSIDERATION-2 " Here, the Petition does not allege any facts demonstrating that McKay justifiably relied on the 2005 offer from United Water or that McKay suffered a detrment as a result of that reliance that was substantial in an economic sense. McKay, for example, did not purchase additional equipment or incur other expense in anticipation of inclusion on the approved contractor's . list. Conclusion The Petition is procedurally defective and it does not allege any substantive grounds to reconsider Order No. 30624. Accordingly, it should be dened. DATED this ~ day of September, 2008. Respectfully submitted, McDEVITT & MILLER LLP ~~Yl "' McDevitt & Miler LLP 420 W. Banock Boise, ID 83702 Phone: (208) 343-7500 Fax: (208) 336-6912 Counsel for United Water Idaho Inc. ANSWER TO PETITION FOR RECONSIDERATION-3 .l #' CERTIFICATE OF SERVICE I hereby cerify that on the J~y of September, 2008, I caused to be sered, via the method(s) indicated below, tre and correct copies of the foregoing document, upon: Jean Jewell, Secretar Idaho Public Utilties Commission 472 West Washington Street P.O. Box 83720 Boise,ID 83720-0074 ii ewellW2uc.state.id. us Hand Delivered U.S. Mail Fax Fed. Express Email Peter Richardson Richardson O'Lear 515 N. 27th Street Boise, ID 83702 Hand Delivered U.S. Mail Fax Fed. Express Email McKay Constrction Inc. P.O. Box 2450 Eagle, ID 83616 Hand Delivered U.S. Mail Fax Fed. Express Email ~.... ....ù .... *-.. .... .... ;t.. .... .... _~&~iQ.f McDevitt & Miler LLP ANSWER TO PETITION FOR RECONSIDERATION-4