Centerpoint Energy Res. Corp. v. Ramirez

• Decision Date: 25 March 2020
• Docket Number: No. 04-18-00103-CV,04-18-00103-CV
• Citation: 628 S.W.3d 530
• Court: Texas Court of Appeals
• Parties: CENTERPOINT ENERGY RESOURCES CORP., Appellant v. Fernando RAMIREZ and Minerva Ramirez, Appellees

628 S.W.3d 530

CENTERPOINT ENERGY RESOURCES CORP., Appellant

v.Fernando RAMIREZ and Minerva Ramirez, Appellees

No. 04-18-00103-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: March 25, 2020

Jonathan Little, Macey Reasoner Stokes, Baker Botts L.L.P., 910 Louisiana St., Houston, TX 77002, Sean Higgins, William Earl Touchstone, David A. Oubre, Lewis, Brisbois, Bisgaard & Smith, LLP, 24 Greenway Plaza, Suite 1400, Houston, TX 77046-2410, Adolfo Campero, Jr., Campero & Associates, P.C., 315 Calle Del Norte, Suite 207, Laredo, TX 78041, for Appellant.

Catherine M. Stone, Langley & Banack, Inc., 745 E. Mulberry Ave., Suite 900, San Antonio, TX 78212, Nicholas Morrow, Morrow & Sheppard LLP, 3701 Kirby, Suite 1000, Houston, TX 77098, John Sheppard, Morrow & Sheppard LLP, 3701 Kirby Drive, Suite 840, Houston, TX 77098, for Appellees.

Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice

MEMORANDUM OPINION

Opinion by: Sandee Bryan Marion, Chief Justice

CenterPoint Energy Resources Corp. appeals a judgment entered against it based on a jury verdict. The jury found in favor of Fernando and Minerva Ramirez and awarded them damages. On appeal, CenterPoint contends its tariff precludes liability against it for the Ramirezes’ claims. Alternatively, CenterPoint contends the evidence is legally and factually insufficient to support the jury's findings on the Ramirezes’ negligence and negligent undertaking claims, and the trial court erred in refusing to disregard the jury's finding of negligence per se because it was based on the City of Laredo's building ordinances which cannot support a negligence per se claim against CenterPoint as a matter of law. We affirm the trial court's judgment.

BACKGROUND

In 2011, Adrian and Graciela Castillo purchased a new house. The Ramirezes were Graciela's parents and frequently visited the Castillos’ home.¹ On February 17, 2015, the Ramirezes were visiting the Castillos. While there, Fernando attempted to repair the electric clothes dryer at the Castillos’ home when he inadvertently opened the gas valve to an unused gas line in the utility room. The gas ignited and exploded, severely injuring Fernando.

The City of Laredo's building ordinances required all gas valves or outlets that do not connect to an appliance in a house to be "capped gas tight." In addition, the ordinance provides, "During the process of turning gas on into a system of new gas piping , the entire system shall be inspected to determine that there are no open fittings or ends and that all valves at unused outlets are closed and plugged or capped." (emphasis in original). In addition to the City's ordinances, the provision of natural gas to homes is governed by a tariff. A tariff is a document filed by a utility with a regulatory agency and governs the relationship between the utility and its customers.

The Ramirezes sued: (1) CenterPoint, the entity that turned on and supplied the natural gas to the Castillos’ home; (2) WestWind Homes d/b/a WestWind Development, G.P.-Laredo, LLC, the homebuilder; and (3) Armando Aguilar & Son Contractor, the plumbing subcontractor who installed the gas lines. As previously noted, the jury found in favor of the Ramirezes and assessed responsibility as follows: (1) CenterPoint – 34%; (2) WestWind – 60%; and (3) Aguilar – 6%. The Ramirezes settled with Aguilar before trial and with WestWind while this appeal was pending. CenterPoint is the only remaining appellant.

DOES THE TARIFF PRECLUDE LIABILITY ?

In its first issue, CenterPoint asserts its tariff precludes liability against it for the Ramirezes’ claims as a matter of law, pointing to the provisions in the tariff that limit its liability for damage or loss caused by gas escaping from housepiping and damage or injury resulting from gas or its use after such gas leaves the point of delivery. The Ramirezes respond: (1) CenterPoint waived this defense by failing to introduce the tariff into evidence; (2) the tariff does not limit CenterPoint's liability to the Ramirezes because they are not CenterPoint's customers; (3) the rules in the tariff do not apply because they conflict with a valid municipal ordinance; (4) if the tariff applies to the Ramirezes, an exception to the limitation on liability applies due to CenterPoint's negligence in failing to maintain the meter loop; and (5) if the tariff applies, the limitations on liability violate the open courts provision of the Texas Constitution.

A. Tariff Provisions

The tariff generally provides, "Unless otherwise expressly stated, these rules apply to all Consumers." The tariff contains the following provisions limiting CenterPoint's liability:

5. SERVICE CONNECTIONS

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(d) Housepiping. Consumer shall be responsible for installing and maintaining Consumer's housepiping. Company may refuse service to any consumer whose housepiping is inadequate or unsafe, but Company shall have no responsibility for determining whether or not Consumer has complied with applicable safety codes, inspecting Consumer's housepiping or in any way establishing or enforcing housepiping specifications. Information relating to piping may be obtained at the Company's local offices.

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14. ESCAPING GAS

Immediate notice must be given to Company by Consumer of any escaping gas on Consumer's premises. No flame shall be taken near the point where gas is escaping and as an added precaution, the gas should immediately be shut off at the meter by Consumer. Company shall not be liable for any damage or loss caused by the escape of gas from Consumer's housepiping or Consumer's appliances.

17 NON-LIABILITY

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(b) Company shall not be liable for any damage or injury resulting from gas or its use after such gas leaves the point of delivery other than damage caused by the Company in the manner of installation of the service lines, in the manner in which such service lines are repaired by the Company, and in the negligence of the Company in maintaining its meter loop. All other risks after the gas left [sic] the point of delivery shall be assumed by the Consumer, his agents, servants, employees, or other persons.

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The tariff provides the terms " ‘Consumer, Customer and Applicant’ are used interchangeably and mean a person or organization utilizing services or who wants to utilize services to CENTERPOINT ENERGY ENTEX." The tariff defines the term "Consumer's Housepiping" to mean "[a]ll pipe and attached fittings which convey gas from the outlet side of the meter to the Consumer's connection for gas appliances." The tariff also defines the term "point of delivery" to mean "[t]he point where the gas is measured for delivery into Consumer's housepiping." Finally, the tariff provides "these rules apply to all Consumers regardless of classification, except insofar as they are changed by or are in conflict with any ... valid municipal ordinance ... in which case such ... ordinance ... shall control to the extent that it is applicable to the Consumer(s) in question."

B. Filed-Rate Doctrine

The Texas Supreme Court has described the filed-rate doctrine as follows:

The "filed-rate doctrine" applies when state law creates a state agency and a statutory scheme under which the agency determines reasonable rates for the service provided. The doctrine holds that a tariff filed with and approved by an administrative agency under a statutory scheme is presumed reasonable unless a litigant proves otherwise. Thus, under the doctrine, filed tariffs govern a utility's relationship with its customers and have the force and effect of law until suspended or set aside.

Additionally, under the filed-rate doctrine, regulated utilities cannot vary a tariff's terms with individual customers, discriminate in providing services, or charge rates other than those properly filed with the appropriate regulatory authority. And a utility's obligations to its customers cannot exceed its duties under a filed tariff. It follows, then, that aggrieved customers cannot enforce alleged rights that contradict the tariff's provisions. Consequently, the filed-rate doctrine prohibits a customer from suing a utility in contract or tort over issues that a publicly-filed tariff's terms govern.

Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 216–17 (Tex. 2002) (internal citations omitted).

With regard to the provisions in a tariff limiting liability, the court has noted:

A regulatory agency's rate-making authority authorizes it to approve a tariff's provision limiting liability, because a limitation on liability is an inherent part of the rate the utility charges for its services. And, because regulatory agencies have this authority, we have applied the filed-rate doctrine to hold that a tariff provision that limits liability for economic damages arising from a utility's negligence is reasonable.

Id. at 217 (internal citations omitted). In Grant , the court also applied the filed-rate doctrine to hold a tariff provision limiting liability for a customer's personal injury damages is reasonable. Id. at 220.

C. Did CenterPoint waive its affirmative defense based on the tariff by not having it admitted as evidence?

The Ramirezes argue this court cannot consider CenterPoint's defense to liability based on the tariff because CenterPoint failed to introduce the tariff into evidence. In support of this argument, the Ramirezes cite opinions referring to a tariff as evidence. See Del Carmen Canas v. CenterPoint Energy Res. Corp. , 418 S.W.3d 312, 319 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ("The summary-judgment evidence contains the CenterPoint tariff...."); Roberts Express, Inc. v. Expert Transp., Inc. , 842 S.W.2d 766, 769 (Tex. App.—Dallas 1992, no writ) ("During Roberts's case in chief, the trial court admitted evidence of four separate tariffs Roberts used in billing its clients."); Cont'l Oil Co. v. Simpson , 604 S.W.2d 530, 532 (Tex. Civ. App.—Amarillo 1980, writ ref'd n.r.e.) ("During the course of the trial, the Simpsons offered Supplement No. 13 to...