The Vill. Of Deerfield v. Commonwealth Edison Co.

• Decision Date: 30 March 2010
• Docket Number: No. 2-08-0917.,2-08-0917.
• Citation: 340 Ill.Dec. 697,399 Ill.App.3d 84,929 N.E.2d 1
• Parties: The VILLAGE OF DEERFIELD, Plaintiff-Appellant,v.COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 84
929 N.E.2d 1
340 Ill.Dec. 697

The VILLAGE OF DEERFIELD, Plaintiff-Appellant,
v.
COMMONWEALTH EDISON COMPANY, Defendant-Appellee.

No. 2-08-0917.

Appellate Court of Illinois,
Second District.

Dec. 15, 2009.
Supplemental Opinion Upon Denial of Rehearing March 30, 2010.

929 N.E.2d 2

COPYRIGHT MATERIAL OMITTED

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Peter D. Coblentz, Rosenthal, Murphey, Coblentz & Donahue, Norman T. Finkel, Richard M. Goldwasser, Schoenberg, Finkel, Newman & Rosenberg, LLC, Chicago, IL, for Village of Deerfield.

Barry Levenstam, Gabriel A. Fuentes, Erinn L. Wehrman, Jenner & Block LLP, Chicago, IL, for Commonwealth Edison Co.

Justice HUDSON delivered the opinion of the court:

Plaintiff, the Village of Deerfield, appeals an order of the circuit court of Lake County dismissing its three-count complaint against defendant, Commonwealth Edison Company (ComEd). Plaintiff asserts that the trial court erred in dismissing the first and third counts of its complaint, and it abandons count II. Count I, which it titled “Breach of Contract,” alleges that chronic electrical outages occurred within the village as a result of various breaches of ComEd's duties under a “Franchise Agreement.” Its prayer for relief requests the appointment of “an independent receiver during the pendency of this litigation to act on behalf of the Court for purposes of monitoring actions by [ComEd] to eliminate breaches and to periodically report to the Court as to the status of such actions”; an award of attorney fees and costs; and other relief that the court deems appropriate. Count III is titled “Civil Damages for Violation of Public

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Utilities Act.” This count alleges the existence a statutory duty and a willful violation of that duty. Count III seeks class-action certification for all customers located within the village. It alleges that potential class members have suffered damages such as “spoiled food, purchase of electric generators to deal with [ComEd's] unreliable service, property damage temporary housing, [and] extra municipal and policing services.” As relief, it requests monetary damages exceeding $50,000, punitive damages, attorney fees and costs, and whatever other relief the court finds proper.

The trial court dismissed plaintiff's complaint with prejudice. It determined that the Illinois Commerce Commission (Commission) had exclusive jurisdiction over this dispute. It also found that the third count was barred by the Moorman doctrine. See Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 91, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982) (holding that a “plaintiff cannot recover for solely economic loss under the tort theories of strict liability, negligence and innocent misrepresentation”). Plaintiff timely appealed the trial court's decision. While we disagree with the trial court's determination that it lacked jurisdiction over the subject matter of this dispute, we agree with ComEd's contention that the court should defer to the Commission in accordance with the doctrine of primary jurisdiction. Further, regarding count III, we hold that some, but not all, of the relief requested is barred by Moorman. We will first turn to the jurisdictional question. Our review of a trial court's grant of a motion to dismiss is de novo. Freeman v. Williamson, 383 Ill.App.3d 933, 936, 322 Ill.Dec. 208, 890 N.E.2d 1127 (2008).

The initial question we face concerns the determination of whether the relief plaintiff seeks implicates rates. This is because the Commission has “exclusive jurisdiction over complaints of excessive rates or overcharges by public utilities[ ] and courts have jurisdiction over those matters only on administrative review.” Village of Evergreen Park v. Commonwealth Edison Co., 296 Ill.App.3d 810, 813, 231 Ill.Dec. 220, 695 N.E.2d 1339 (1998); see also City of Chicago ex rel. Thrasher v. Commonwealth Edison Company, 159 Ill.App.3d 1076, 1079-80, 112 Ill.Dec. 46, 513 N.E.2d 460 (1987). Plaintiff questions the vitality of this proposition in light of the changes that were made to the Illinois Constitution in the 1960s. We need not address this contention, since we ultimately hold that plaintiff's complaint does not implicate rates.

We will first set forth the applicable law. ComEd argues that the Commission has exclusive jurisdiction over the instant case by virtue of section 9-252 of the Public Utilities Act (Act) (220 ILCS 5/9-252 (West 2008)). That section provides, in pertinent part:

“When complaint is made to the Commission concerning any rate or other charge of any public utility and the Commission finds, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount.

* * *

All complaints for the recovery of damages shall be filed with the Commission within 2 years from the time the produce, commodity or service as to which complaint is made was furnished or performed, and a petition for the enforcement of an order of the Commission

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for the payment of money shall be filed in the proper court within one year from the date of the order, except that if an appeal is taken from the order of the Commission, the time from the taking of the appeal until its final adjudication shall be excluded in computing the one year allowed for filing the complaint to enforce such order.” 220 ILCS 5/9-252 (West 2008).

This provision has indeed been construed to vest the Commission with exclusive jurisdiction over claims that rates are excessive or unjustly discriminatory. Village of Roselle v. Commonwealth Edison Co., 368 Ill.App.3d 1097, 1104, 307 Ill.Dec. 1, 859 N.E.2d 1 (2006); Village of Evergreen Park, 296 Ill.App.3d at 813, 231 Ill.Dec. 220, 695 N.E.2d 1339.

Plaintiff, on the other hand, points to the following portion of section 5-201 of the Act, which states:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.” (Emphasis added.) 220 ILCS 5/5-201 (West 2008).

This provision places within the jurisdiction of the circuit court matters not pertaining to excessive or unjustly discriminatory rates, over which the Commission has exclusive jurisdiction. Village of Roselle, 368 Ill.App.3d at 1109, 307 Ill.Dec. 1, 859 N.E.2d 1.

We must therefore determine whether the trial court's characterization of plaintiff's complaint as pertaining to rates was correct. We find considerable guidance for the resolution of this issue in Flournoy v. Ameritech, 351 Ill.App.3d 583, 286 Ill.Dec. 597, 814 N.E.2d 585 (2004). In that case, the plaintiff, an inmate at the Joliet Correctional Center, sued Ameritech, alleging that the company deliberately terminated his collect calls shortly after they were accepted. Under the applicable fee structure, anyone who accepted a collect call was subject to an initial fee. Ameritech's alleged practice forced the plaintiff to make subsequent calls, which were again subject to the initial fee. His complaint alleged fraud and negligence. The Flournoy court first set forth the controlling law:

“In determining whether an action falls within the exclusive jurisdiction of the Commission, courts have consistently focused on the nature of the relief sought rather than the basis for seeking relief. [Citations.] If the plaintiff's action is for reparations, the Commission has exclusive jurisdiction. However, if the action is for civil damages, then the circuit court may hear the case. [Citations.]

A claim is for reparations when the essence of the claim is that a utility has charged too much for a service. [Citations.] In contrast, a claim is for ordinary civil damages when the essence of the claim is not that the utility has excessively charged but, rather, that the utility has done something else to wrong the plaintiff. [Citations.]”

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Flournoy, 351 Ill.App.3d at 585, 286 Ill.Dec. 597, 814 N.E.2d 585.

The court found that the plaintiff's claim was within the trial court's jurisdiction, explaining that the plaintiff did not “contest the actual rates charged as surcharges and initial calling fees, or claim those rates [were] excessive.” Flournoy, 351 Ill.App.3d at 586, 286 Ill.Dec. 597, 814 N.E.2d 585. Rather, the plaintiff's “claim is that Ameritech collected the charges multiple times due to its practice of prematurely terminating his collect calls.” Flournoy, 351 Ill.App.3d at 586, 286 Ill.Dec. 597, 814 N.E.2d 585. We note that the plaintiff's claim in Flournoy involved how Ameritech rendered services to him.

Another case we find relevant is Gowdey v. Commonwealth Edison Co., 37 Ill.App.3d 140, 345 N.E.2d 785 (1976). The Gowdey court was confronted with a situation where ComEd included within its billing to certain customers a “light bulb service.” This service was supposed to be optional, but ComEd operated upon the assumption that its residential customers wanted the service. Their bills therefore included a charge for it. ComEd moved to dismiss, arguing that the circuit court lacked jurisdiction. The appellate court began with the recognition that the...