we represent mr moody and i mr michael texas and mr dix this is a make work estimate mr texas has filed suit against knight corps complaining that in january february and march of two thousand and eight my court failed to read they built him or all of the gas the difference between the december reading and the april reading which included april and the underestimated charges for the three prior months a los it's based on first the fact that nec or substantially underestimated his use through the winter months when i think it would be fair to assume that the history is going to be higher and  by the fact that the price of energy gas went up dramatically from december through january february and march so by the time he got to april he was paying the higher april price for literally the u were for reparations and that for damages and this is the single most important issue before the court today is this a claim for reparations or as a claim for damages a claim for reparations falls within the i c c is explicit jurisdiction and  whereas a claim for damages can be brought in either the circuit court or before the i c c now the parties have spent a great deal of time in their briefs arguing over whether is this a claim for refiners a claim for damages is that reparation deceptively deceptive right that's the principal difference between the thrasher case which the lower court will write and which not court relied on which i read so many times i can almost say that and what was critical in a case judge well as the thresher court saying there are no allegations of fraud in this compound in this complaint and they did that in the context of distinguishing the case of the plain of cited in that case where the because they could have fixed the problem in april there was no reason that they had to charge a higher price in april or january and february at energy use that was a decision that they made whether they made it deliberately whether they made  negligently doesn't matter they had the power and the ability to fix it they chose not to fix it they charged a higher price in april when they didn't have to not as the priest pointed out this case was filed twice once on behalf of alan texas and it was dismissed on the grounds that were before you there was a great deal of effort made to get the i c c interested in the case they never expressed any interest in powering up the only evidence in the record on the act that i can point to judge is the matter and at the time i got that letter it was eighteen months old there was no response attached to it i believe it's a fair assumption that there has been no response there's been no follow up so this leads me to my final point ladies and gentlemen if i cor charged his winter gas usage at the higher spring rate over charges are themselves rates within the meaning of the public utilities act and rates are within the exclusive jurisdiction of the only commerce commission second the overcharges here relate to how a night or measured the quantity of the services provided mr dix is says that night or underestimated his when winter gas usage it mismeasured that usage measurement claims like this park has rejected both of those arguments finally mr dix argues that even if his claim is within the exclusive jurisdiction of the i c c that he should be excused for failing to bring his claim there first because doing so would have been futile he's wrong this court has repeatedly rejected utility arguments in cases like this one and in any event there is no evidence to suggest that the i c c would not have heard before entry on your honor your honors i would like to respond specifically to a couple of the points that mr texas attorney just made first one of the final points he made in response to justice lambkins question no mr never filed a claim complaint before the i c c and i'll address that again later in my argument second mr dix this is attorney says that this is not a reparations case because it was done deceptively and that's what makes it different between that that's the difference between this case and thrasher but there's no scheme here this was this happened because of human error and finally in response to what mr dix this is attorney when this happens it's because a human being didn't go back and and charge the earlier months charges at the earlier months rates and when that happens or corrects the problem when it's over charges are rates within the meaning of the public utilities act the acts defines the word trade to include those every individual or joint rates bear toll charge rental or other compensation of any public utility and any rule regulation charge practice or contract relating there to that section three dash one one six of the act the acts defines the term rate very broadly it includes not just the price this argues to the contrary that the i c c has jurisdiction over rates is narrow but for example in bloom township high school this court found that a right or a utility terra was a rate under the act even though the tariff addressed more than just the price of electricity the case that case was about whether kombat was entitled to assess penalties against the customers who were the plaintiffs in that case and the court found that  there i believe the copy that i have is going to be identical to yours it looks like it says average daily perhaps usage but i can't tell that last word and than two thousand a day right now i can't read it would depend very much on what the evidence showed with respect to the intentionality of the utilities actions or what gives the utility as to hades usage this would at equal or almost equal to what it was a year ago this that set of facts and i i think it's possible and i am so i'm speculating a little bit i apologize and try to get into the head of my opponents here your honor but i'm not sure that what they're saying is i don't think that what they're saying is that knight corps built the january usage at just for simplicity sake ten cents a barrel in two thousand and seven and they're billing it at five cents a barrel in two thousand and eight i think what they're saying and perhaps i'm wrong later you made up the difference but you made up the difference it more prefer that you should be headed your great writers with your theory but i don't know that that has anything to do with the difference between the price per therm and two thousand and seven and the price for therm  fact that they estimated that we'll write that for three months that indicates that the what they're able to do exactly it's that it's it's the difference between the price for the estimated number of firms at whatever the rate was january march and the price in april scheme i'm i'm in agreement with your justice that there i don't believe there is there is no scheme in this case returning to the the case law on this how this court has defined a rate in the case of shepler vs commonwealth edison this court found that the plaintiffs level of service claims were rates because requiring combat to change its level of service was the same as requiring it to change its rates which is something that only the i c c is authorized to do and i want to point out to the court that shepler is on appeal right now to the illinois supreme court there's tension between this court's ruling and scheffler and the second district's decision in deerfield vs bad both cases involved claims are raising arising out of the same storm related power outages in august of two thousand and seven unlike scheffler the deerfield court held that it had jurisdiction over the claims but then referred those claims to the i c c under the doctrine of primary jurisdiction but to be clear the circuit court decision and mr dick says this case does not go as far as the shuffler decision and scheffler the plaintiffs allege consequential damages for food spoilage water damage repairs to furniture and other property those are the types of ordinary common law damages that you might expect a court to address here by contrast mr dix says makes no claims for consequential damages he only seeks reparations for an overcharge scheffler was somewhat something of a difficult case but even under deerfield mr dix this is claims should be dismissed this court has held squarely and rasher an evergreen are that reparations for overcharges are within the exclusive jurisdiction of the i c c and mr texas case controlled by those decisions mr dicks this is overcharge claim also really relates to how a night or measured the quantity of the services it provided and measurement claims like this are also within the exclusive jurisdiction of the c he complains about my course estimates as to matter one way of measuring the quality of service provided and in this regard this case is just like the cases in thrasher and evergreen park the plaintiffs in those cases i complained that com ed overcharge for electricity by failing to take into account burned out street light bulbs and street lamps that were no longer in service and in response to your honest question about the street lamps  you count to start at a zero zero eight your honor of the complaint if i recall correctly the the only facts alleged in support of this claim in the complaint are that unlike nyc or peoples gas has automated meters that read the meters without an actual person having to go to the residence and look at the meter and the fact that night court doesn't have those say to this court that it was deliberate but i can say is that it's so far away from actual that it would support a finding at least of reckless that would support the consumer fraud claim in fact out so that quirk admitted