Valentine v. Michigan Bell Tel. Co., Docket No. 9113

• Decision Date: 19 February 1971
• Docket Number: No. 2,Docket No. 9113,2
• Citation: 31 Mich.App. 18,187 N.W.2d 249
• Parties: , 89 P.U.R.3d 414 Stephen K. VALENTINE, Jr. and Frances M. Valentine, Plaintiffs-Appellants, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 249

187 N.W.2d 249

31 Mich.App. 18, 89 P.U.R.3d 414

Stephen K. VALENTINE, Jr. and Frances M. Valentine Plaintiffs-Appellants, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation Defendant-Appellee.

Docket No. 9113.

Court of Appeals of Michigan, Division No. 2.

Feb. 19, 1971.

Released for Publication June 8, 1971.

Stephen K. Valentine, Jr., Orchard Lake, for plaintiffs-appellants.

Hartman, Beier, Howlett, McConnell & Googasian, Pontiac, for defendant-appellee.

Before QUINN, P.J., and BRONSON and O'HARA, ^* JJ.

QUINN, Presiding Judge.

Plaintiffs' complaint and amended complaints filed in Oakland county circuit court sought money damages from defendant and a court order requiring defendant to provide adequate telephone service to plaintiffs. As finally amended, their complaint contained a count for breach of warranty, a count charging defendant with gross negligence, counts charging defendant with fraud and misrepresentation with respect to services and with respect to equipment, and a fifth count which combines charges of gross negligence, fraud, and misrepresentation. Regardless of the several theories pleaded, the basis for each was that defendant furnished plaintiffs with inadequate service and equipment. Defendant moved for accelerated judgment (GCR 1963, 116) on the basis that the court lacked jurisdiction because the doctrine of primary jurisdiction required that the regulatory body (MPSC) determine the issues raised in the first instance and because another action was pending between the same parties involving the same claim, namely: a complaint before MPSC. In addition, defendant moved for summary judgment (GCR 1963, 117) for the reason that the complaint failed to state a claim upon which relief could be granted due to the limitation of liability provisions of defendant's tariff and the Michigan Administrative Code. The trial court determined that 'neither the complaint nor any amendment thereto set forth a cause of action cognizable by this court' and dismissed the action without prejudice. Plaintiffs appeal contending that the MPSC has no authority to award them damages for losses already incurred and that it was error for the trial court to dismiss their action.

We have reviewed the many authorities cited by the parties in support of their positions and find that the only case factually applicable is Grevers v. Michigan Bell Telephone Company (1969), 18 Mich.App. 422, 171 N.W.2d 476. For that reason, we only discuss Grevers.

This Court recognized in Grevers that MPSC had primary jurisdiction over issues of inadequate service and equipment under the provisions of M.C.L.A. §§ 484.103 and 484.111 (Stat.Ann. 1970 Rev. §§ 22.1443 and 22.1451). However, because MPSC could not award the relief sought by plaintiff, namely: damages for losses already incurred, the Grevers court stayed the trial court proceedings pending a determination by MPSC on remand to that body by the trial court.

We agree with Grevers, supra, that primary jurisdiction over issues of inadequate service and equipment lies with MPSC. We do not agree with the stay procedure adopted in Grevers. We...