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Sharp v. Kansas City Power & Light Co.

Court of Appeals of Missouri, Western District, Third Division

January 13, 2015

RICHARD SHARP, et al., Respondents,
v.
KANSAS CITY POWER & LIGHT COMPANY and KCP & L GREATER MISSOURI OPERATIONS COMPANY, Appellants

Appeal from the Circuit Court of Buchanan County, Missouri. The Honorable Weldon C. Judah, Judge.

R. Edward Murphy, Michael L. Taylor, Kenneth E. Siemens, Jennifer C. Ray, and Benjamin S. Creedy, St. Joseph, MO, for Respondents.

William D. Beil, Brandon Boulware, Jeremy M. Suhr, and Laura Wood, Kansas City, MO, for Appellants.

Karen King Mitchell, Presiding Judge. Cynthia L. Martin and Gary D. Witt, Judges, concur.

OPINION

Karen King Mitchell, Presiding Judge.

Page 824

Kansas City Power & Light Company and KCP& L Greater Missouri Operations Company (collectively " KCP& L" ) appeal the trial court's denial of their motion to stay litigation and compel arbitration, filed in response to a putative class action filed by Respondents, a group of consumers, which raised claims of breach of contract, negligence, violation of the Missouri Merchandising Practices Act, and fraud/misrepresentation, surrounding the consumers' participation with KCP& L in the Solar Energy Rebate Program. KCP& L argues that, pursuant to a dispute resolution provision found within a net-metering agreement upon which the consumers' claims are allegedly based, the consumers were required to arbitrate their disputes before the Missouri Public Service Commission (PSC) rather than seeking relief in a court of law. But because the dispute resolution provision does not constitute an arbitration agreement, the trial court committed no error in denying KCP& L's motion to stay proceedings and compel arbitration. We affirm.

Factual and Procedural Background[1]

In 2008, the legislature passed the Renewable Energy Standard, a statutory scheme designed to encourage the use of renewable energy sources by producers and consumers alike. § 393.1020 et seq.[2]

Page 825

Included within the new legislation was the Solar Energy Rebate Program (SERP), which required all electric utilities (subject to certain exemptions inapplicable here) to " make available to its retail customers a solar rebate for new or expanded solar electric systems sited on customers' premises, up to a maximum of twenty-five kilowatts per system." § 393.1030.3. The legislation directed the PSC and the Department of Natural Resources to " make whatever rules are necessary to enforce the renewable energy standard." § 393.1030.2. Pursuant to that dictate, the PSC promulgated 4 C.S.R. § 240-20.100,[3] which required electric utilities to make a rebate available for consumers owning or leasing solar-generated power equipment that was interconnected with the electric utility's system. In order to facilitate interconnection, the PSC required electric utilities and consumers to enter into an interconnection agreement, the terms of which were laid out in 4 C.S.R. § 240-20.065(9). One of the provisions of the form agreement created by the PSC was a dispute resolution provision, which provided:

If any disagreements between the Customer-Generator and [Utility Name] arise that cannot be resolved through normal negotiations between them, the disagreements may be brought to the Missouri Public Service Commission by either party, through an informal or formal complaint. Procedures for filing and processing these complaints are described in 4 CSR 240-2.070. The complaint procedures described in 4 CSR 240-2.070 apply only to retail electric power suppliers to the extent that they are regulated by the Missouri Public Service Commission.

Id.

KCP& L advertised availability of the SERP on its website and solicited participation in the program by its customers. The consumers in this appeal all applied to KCP& L to participate in the SERP. KCP& L's website advised its customers of various forms and contracts required for participation, along with a list of approved installers of solar electric systems. Among those installers was United States Solar (USS). Each of the consumers in the purported class used USS to install their solar-power systems. Among the various forms and contracts required was the ...


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