20080915Answer to McKay Petition.pdf

McDevitt & Miller LLP
Lawyers
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i i' Chas. F. McDevitt
\OÀHO PUJ~\Š~J. (Joe) Miler
Ul\L\T\ES CO
[phone]
[phone] (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: [phone]
Fax: [phone]
joe(ámcdevitt-miller.com
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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
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McDevitt & Miler LLP
420 W. Banock
Boise, ID 83702
Phone: [phone]
Fax: [phone]
Counsel for United Water Idaho Inc.
ANSWER TO PETITION FOR RECONSIDERATION-3
.l
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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
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McDevitt & Miler LLP
ANSWER TO PETITION FOR RECONSIDERATION-4