Garrison v. Pacific Northwest Bell

• Jurisdiction: Oregon
• Citation: Garrison v. Pacific Northwest Bell, 608 P.2d 1206, 45 Or.App. 523 (Or. App. 1980)
• Docket Number: No. A7702-02262,A7702-02262
• Parties: Penelope K. GARRISON, Appellant, v. PACIFIC NORTHWEST BELL, a Washington Corporation, Respondent. ; CA 13601.
• Court: Oregon Court of Appeals
• Decision Date: 24 March 1980

Page 1206

608 P.2d 1206

45 Or.App. 523

Penelope K. GARRISON, Appellant, v.PACIFIC NORTHWEST BELL, a Washington Corporation, Respondent.

No. A7702-02262; CA 13601.

Court of Appeals of Oregon.

Argued and Submitted Jan. 30, 1980.

Decided March 24, 1980.

Michael O. Moran, Portland, argued the cause for appellant.With him on the briefs were William B. Crow and Miller, Anderson, Nash, Yerke & Wiener, Portland.

E. Joseph Dean, Portland, argued the cause and filed the brief for respondent.With him on the brief was Stoel, Rives, Boley, Fraser & Wyse, Portland.

Before SCHWAB, C. J., and CAMPBELL and GILLETTE, ^* JJ.

CAMPBELL, Judge.

Plaintiff appeals from the trial court's order granting defendant's motion for summary judgment.The court ruled that (1)plaintiff has no private right of action under ORS 757.020 for a telephone directory error; (2)plaintiff is, therefore, not entitled to treble damages under ORS 756.185 for a violation of ORS 757.020, but is entitled only to the limited remedy established in Public Utility Commission Rule and RegulationNo. 15, par.XV.B, Schedule E-41¹ covering directory errors; and (3)defendant is entitled to judgment as a matter of law.Plaintiff assigns error to the trial court's rulings that plaintiff is required to prove gross negligence under "the statute giving rise to plaintiff's cause of action," that there was no genuine issue of material fact and that as a matter of law plaintiff had insufficient evidence of defendant's gross negligence.We affirm.

The following facts are undisputed.Plaintiff is a licensed physician holding the degree of M.D. and specializing in child psychiatry.During the year 1976 and at all material times, plaintiff has subscribed to defendant's telephone service for her office.As part of the service defendant provides for its business subscribers, including physicians such as plaintiff, it lists the correct name, business address, medical degree, and telephone number of the physician-subscriber in the alphabetical directory (white pages), and in the classified directory (yellow pages) in an alphabetical list of physicians.In June 1976plaintiff ordered directory listings for the 1977 editions of the white pages and yellow pages.When the 1977 directories were issued, plaintiff was incorrectly listed in the white pages as "Garrison Penelope K phy & sur D O "(emphasis added).Her yellow pages listing erroneously appeared in the section in which osteopaths are listed.

Plaintiff's second amended complaint alleged two causes of action, the first concerning the white pages and the second the yellow pages.Count I of each cause of action alleged that the particular erroneous listing was a result of defendant's reckless disregard for and indifference to plaintiff's right to an accurate listing:

"(1) in failing to provide its employees with adequate or any instruction concerning the necessity for accurate processing of listing requests; (2) in failing to instruct and educate its employees as to the differences between a doctor of osteopathy and a medical doctor, even though defendant knew or should have known that an improper listing would result in great and irreparable harm to a medical doctor improperly listed; (3) in failing to provide adequate procedures for collecting accurate listing information; and (4) in failing to provide adequate or any procedures to verify that listing information is correct."²

Under each cause of action plaintiff prayed for $55,000 damages and alleged in Count I of each cause of action her entitlement to treble damages under ORS 756.185 for defendant's failure to provide adequate service as mandated by ORS 757.020.She also prayed in Count I of each cause of action for reasonable attorney's fees, as authorized by ORS 756.185, in the amount of $5,000.

Defendant first contends that plaintiff has not preserved her first assignment.Throughout the proceedings below, plaintiff acknowledged the Public Utility Commissioner's authority to limit defendant's liability for ordinary negligence, and took the position that she was required to prove gross negligence.She now urges this court to hold that the trial court erred in requiring her to prove gross negligence.As plaintiff concedes, it is the general rule that the parties to an appeal are restricted to the theory upon which the case was presented before the trial court.SeeLeiser v. Sparkman, 281 Or. 119, 122, 573 P.2d 1247(1978);Friesen v. Fuiten, 257 Or. 221, 478 P.2d 372(1970).An exception may arise in cases involving questions of substantial public importance.State v. Hickmann, 273 Or. 358, 540 P.2d 1406(1975);Agan et al. v. U. S. Bank, 227 Or. 619, 629, 363 P.2d 765(1961).Central to the present case are the questions whether a telephone subscriber may bring a private action under ORS 757.020 and 756.185 for a directory error, and whether the Public Utility Commissioner (Commissioner) has the authority to limit by regulation the damages recoverable by a telephone service subscriber for such an error.In view of the public importance of the fundamental issues of the Commissioner's regulatory and ratemaking authority involved here, we will exercise our discretion to address plaintiff's arguments.³

ORS 757.020 provides:

"Every public utility is required to furnish adequate and safe service, equipment and facilities, and the charges made by any public utility for any service rendered or to be rendered in connection therewith shall be reasonable and just, and every unjust or unreasonable charge for such service is prohibited."

Under ORS 756.010(11), " 'Service' is used in its broadest and most inclusive sense and includes equipment and facilities related to providing the service or the product served."

Plaintiff argues that accurate directories are an integral and necessary part of defendant's telephone service.As a result of defendant's directory error, plaintiff was listed as having an entirely different business, the practice of osteopathy, from that in which she is engaged.She concludes, therefore, that defendant failed to furnish her "adequate . . . service," in violation of ORS 757.020.That violation, she argues, gives rise to a private cause of action under ORS 756.185, which provides:

"(1) Any public utility, railroad, air carrier or motor carrier which does, or causes or permits to be done, any matter, act or thing prohibited by ORS chapter 756, 757, 758, 760, 761, 763, 764, 767 or 773 or omits to do any act, matter or thing required to be done by such statutes, is liable to the person injured thereby in treble the amount of damages sustained in consequence of such violation together with a reasonable counsel's or attorney fees, to be fixed by the court in every case of recovery.Such attorney fees shall be taxed and collected as part of the costs in the case.

"(2) Any recovery under this section does not affect recovery by the state of the penalty, forfeiture or fine prescribed for such violation.

"(3)This section does not apply with respect to the liability of any public utility, railroad, air carrier or motor carrier for personal injury or property damage."

Finally, plaintiff contends that the Commissioner's attempt through rulemaking to limit recovery for directory errors exceeds his statutory authority.

A brief overview of the Commissioner's rulemaking and ratemaking authority will aid our discussion of plaintiff's contentions.

ORS 756.040 grants the Commissioner broad regulatory authority over public utilities, including the duty to

"represent the customers of any public utility, railroad, air carrier or motor carrier, and the public generally in all controversies respecting rates, valuations, service and all matters of which he has jurisdiction.In respect thereof he shall make use of the jurisdiction and powers of his office to protect such customers, and the public generally, from unjust and unreasonable exactions and practices and to obtain for them adequate service at fair and reasonable rates.

"(2) The commissioner is vested with power and jurisdiction to supervise and regulate every public utility, railroad, air carrier and motor carrier in this state, and to do all things necessary and convenient in the exercise of such power and jurisdiction."ORS 756.040(1) and (2)(emphasis added)

General rulemaking authority is granted under ORS 756.060, which delegates to the Commissioner the authority to

"adopt and amend reasonable and proper rules and regulations relative to all statutes administered by him * * *."

The Commissioner also has general ratemaking authority.SeeORS 757.205; 757.245;Pacific Northwest Bell v. Davis, 43 Or.App. 999, 608 P.2d 547(1979);Pacific N.W. Bell v. Sabin, 21 Or.App. 200, 534 P.2d 984, rev. den. (1975).Whenever a public utility files a new rate or schedule of rates, the Commissioner may, upon written complaint or on his own motion, conduct a hearing in which the public utility must prove that the proposed rate or schedule of rates is reasonable.ORS 757.210.The Commissioner may also conduct an investigation and hearing on his own motion whenever he believes "that any service is . . . inadequate."ORS 756.515(1).

Under ORS 756.565, "All rates, tariffs, classifications, regulations, practices and service fixed, approved or prescribed by the commissioner . . . shall be in force and shall be prima facie lawful and reasonable, until found otherwise in a proceeding brought for that purpose under ORS 756.580 to 756.610."(emphasis added)Thus, the rates and service levels set by the Commissioner are prima facie lawful and are not open to collateral attack in this proceeding.

The first question we address is whether by the erroneous listings defendant has violated ORS 757.020, the "adequate service"statute.

Viewed in the context of the regulatory scheme outlined above, ORS 757.020 establishes the standard, "adequate service," that must guide the Commissioner in setting the level of...