her first case call the doctor today wednesday march sixteenth two thousand and eleven is agenda number six states number one one zero one six six scheffler vs commonwealth edison company counsel dismissed by the trial court and leave to file a fourth amended complaint was denied when the matter reached the first district appellate court the first district spread the gate great deal of time on the question of the two six one one motion to dismiss which was raised by the defendant in the case but which never argued never argued at all the first district did say of course that anything that's a basis of a decision in the record could be considered by the court and they went to great lengths to explain the question of where the jurisdiction is or where it is not the first district basically said you cannot be before the circuit court you have to be before the illinois congressman mission the illinois commerce commission has exclusive jurisdiction the second district appellate court differed in their opinion kind of split the baby and said well for the question of damages you can be before the circuit court but for questions for refunds reparations or matters such as that indeed you should be in front of the illinois commerce commission when the case was remanded a motion for excuse me a motion for reconsider was filed in the second district which was denied and when the case was remanded to the crowd  first district excuse me the second district opinion and also the supplemental thin by the say second district indeed stated that they should refer the case this trial court referred the case to the commerce commission for those issues which aided in the opinion those issues which they felt should properly be before the congress commission but also they noted in their decision that after that review by the commerce commission the other remaining matters such as damages would go back to the trial court in the circuit court of of lake county so the issue isn't that difficult one appellate district says you should be in the commerce commission the second district says you can be in in both places but what does the law say the law i think is clear on the question if you're asking for refunds if you're asking for reparations then you go to you and i kind of mission if you're seeking damages which we are seeking then you go to the circuit court you know our case the circuit court of cook county the post the third amended complaint in the fourth and then to complaint which we were not granted lea the file is explicit in the allegations and we are seeking damages due to the flooding of homes throughout the county on august twenty third two thousand and seven and we asked that the people be compensated for those damages the trial court twenty one like combined statute five dash two a one that you can perceive for actual damages before the circuit court can get actual damages it's clear and it's unequivocal and for whatever reason the lower court said no and at one point the lower court said that it's ludicrous you must be before the commerce commission you could also get under five to will want exemplary damages if it turns out that the actions of the  another statutory provision which has been argued and is disputed at least by the the apple e two twenty it when they combine statute sixteen dash one twenty five heat best supervision where if there's a continuous interruption affecting thirty thousand people or more for four hours or more whereby there is less than fifty percent of the standard voltage provided to the customers subsection h states  provided for under this section may be sought and exclusively through the illinois commerce commission per the act and the utility may request the waiver but subsection i wish the trial court and the first district  court glanced over state's provisions of this section that's sixteen dash one twenty five he or replace other civil or administrative remedies available to a customer or a class of customers cases filed as a putative class action obviously we never got that because it was dismissed on a two six one five motion to dismiss the operative words in h r that they may have exclusive jurisdiction may so if a customer chooses not to proceed before the illinois commerce commission mate says to me n he said that's ludicrous it's poorly written words to that effect and it must mean that you have to go before the commerce commission to adjudicate your rights let's just step back for one moment  of cook county of its ability to hear cases for damages because the cases are clear that if they are going to divest the court of jurisdiction they have to specifically say so in the nineteen right if we were going to proceed in the circuit court we would present evidence that would demonstrate that i know about august twenty third of two thousand and seven there was a major storm and as a result of that storm there was considerable damages to people's homes bad fails to respond failed to respond to that storm and basically did nothing and left people in a in a state where their property was damaged perishable goods were damaged and most unfortunately as in the the registry and whether or not it should be given any priority and said call back later she couldn't get any help at all so far the proof that we show is that they provided nothing but sub standard performance and we have pled in a number of counts the basis of that sub standard performance and what they sailed to do this is this a duty  and there's an interruption for four or my hours and what the standard voltage is less than fifty percent then you may proceed and you may get the averages as a result of that so justice garments question and duty i just want to understand it with respect to this registry are you alleging that and is it your is it your position that you to everybody on the registry to restore power because of the medical nature the medical problems related to those individuals what i'm saying your honor his that having a life support aid to those who are ill in an emergency situation is basically a useless statute and less people in need are provided with the service that they need to get right now the only record so feyerick in the court is that when there is an emergency they'll go to a hospital police fire situations such as that but the people such as this is sloan are registered and they need to have some type of a priority list or a way of contacting these people because you'll note in the pleading judge that they are required under the registration under the registry act life support act two red tag the meters all the persons who have filed as the need of a life support system so i had argued with all when the court had asked a similar question the police could no kind that could know and they could get they get a better take some precautions or maybe you have to leave and go to an area were hours maybe you have to go to the hospital whatever well we didn't get to the point in this case whether or not they won but i'm just trying to understand provide as quickly as possible for people on the registry that they had some type of duty to to get the electricity running through those individuals trying to understand what the dood well the answer to your first question is i believe that they not warn people when this happened because that was evident when sloan my client called they said call back some other time now what should they have done they should have made some type of a contact  by phone it was a phone a cell phone if they have a number through the police and let these people know that there's a serious situation going on or provide an accommodation why do they have to list your honour's what good is the list if they're going to leave with no collar so yes as a matter of fact with the commentary had to do more so with with the damages i'm sorry they did they need to provide some way under this legislation to go about contacting people they need to have liability if they don't well the purpose of this legislation would be to give people in need some type of a priority if they are life support system such as the sloan these people as opposed to somebody who is healthy and doesn't have a  being needed immediate attention particularly under the circumstances that if you're without polling and out electricity your life support systems won't function and you could die it's very very serious and they need to do more about this situation other than getting somebody on the phone who says well call back later and that's how they left it before submitting complaint was to die denied leave to decided this question of court needs to consider the two statutory provisions that i cited because my argument in five to one and sixteen dash one twenty five and those two statutory provisions make it clear that for the purposes of damages for one seeking damages that the circuit courts of cook county lake county to page county whatever county head jurisdiction to provide a remedy for people who are seeking damages now wh quote can do in that i was thinking about this last night is made affect with the court would take the position of the second district where they said part to the circuit court and prior to the commerce commission i would advocate that the circuit court the circuit court should be the one to make the initial determination of what is staying in that court with respect to the question of damages rather than send it to the is i don't believe so and i don't believe so because the on the right bill switching case at least to the extent where they talk about the test having a limitation of liability in that case it's not an issue that's before the court but the only dell case also didn't mention that if there's a duty a preacher duty and and proximate cause that you could have a claim for damages and for relief so i don't i limited liability or consider the idea of the limitation i believe based on the tariffs that's right that's right out of but the appellate court i believe was correct in saying that that would be applicable to the situation in this case first of all that it's not the based on responsibility for damages caused by the interruption of the supply of electricity but that test goes back to say here but if but for if this willful or negligence so the wrong with respect to your claim for money damages when they held i believe that it pertained to rates because the complaint count concerned claims that comment provided inadequate and unreliable electrical services t under the umbrella of rates because one we're not asking for a refund two we're not asking for reparations three what we're asking for is damages we're not asking the court to monitor or supervise the adequa or the level of services of commonwealth that is somewhat what we are asking is is for relief by the way of damages for the substandard performance and breach of duties there thank you thank you mr  and john hammel behalf of com that's the company i want to make two main points and in so doing hopefully i'll address each of the questions that's been asked so far and then time permitting there might be a couple of other issues we can get to the first point that i want to get to is we recognise that the most likely reason the court took this petition for leave to appeal was because there are some differences between the first district in the second district but there are differences there is some tension in how they get to the main issues but what i want to leave the court with is this there is far more agreement between the districts on the key issues here and disagree and all explain what that means second point whatever way the court chooses to address those differences between the first and the second districts the bottom line judgments here in this case of the courts below it's affirmed it's the bottom line and then some of the other issues that we can certainly get to go there is no real disagreement among the courts follow on on some of the other issues for example by the very thing so that first point is that there is more agreement than disagreement among the courts but well all of the to the first the second district our view is that the first district got it more right and i choose the word more because there's stuff in the second district decision that frankly makes sense about the proper role of the owner commerce commission i think the first district got it more right because they go to some of the questions that were asked justice thomas question i do think that ultimately this case comes down to rates the heart of both decisions first and the second district is that the fundamental issues here in justice thomas your questions went to what's the duty what's the scope what does it mean how do you resolve why ability those questions in both courts approaches go to the illinois commerce commission where they whitely along the courts have some differences in how those issues get to the commerce commission whether it's exclusive or think actually the  words original jurisdiction that the first district use or primary jurisdiction that the second district use either way questions as to what is the duty what is the statutory duty what is the regulatory duty what is the duty to comment goes that gets decided by the commerce commission and with great respect and admiration to the circuit courts not by the twenty three circuit courts across the state tom it's not the only utility in the state there are twenty three circuit courts and if we were to say here that the circuit course get to decide what constitutes the adequacy of utility systems we would have a very complicated regime the place to start  seeing why the two districts were right and were more in agreement the disagreement is the request for relief in the third amended complaint here which was the operative complaint by the time we got to the first district and i'm going to read just a second here from the complaint this is had left sixty nine it's in the first district opinion is quoted at page seven of the slip opinion here's what the request for really was point to request in interruptions of power could timely restore power could do all the things that the plaintiffs are saying were done wrong so it's it's a little bit creatively phrase but it's a mandatory injunction asking the circuit court to stop  having better systems in place that is squarely the function of the and why commerce commission and despite many many requests allowed there was never a better articulation from the plaintiffs of what they were alleging com ed should have done now we all know that under the public utilities act general supervision under section for one on one the public utilities act along two reasons why they should have been allowed to file the fourth amended complaint in one speech generally to damages question and the other speaks to the particular statutory provision they were citing but on the damages question and the first district saw this quite clearly and so did judge nowak below getting to the liability standard were to acquire the identical questions at the circuit court that will be required for the injunction request so let's put it this way we put out in page sixteen and seventeen of our brief some questions that sometimes i think sound melodramatic but they're they're real and they're not rhetorical and what those questions say is what should have been done differently on liability not even getting to damages yet the actual calculation of damages on liability would happen no riaa billeted before we could get the damages what should comment have done we have three or four players one family three or four plaintiffs here from three different towns north of chicago one lives in grandview one lives in dust plains one lives alone that should the circuit court say well as to the plaintiff in one view there should have been buried power lines violated that is incorrect that is if you are correct that is his position that is incorrect as to what the statute does what sixteen one twenty five does is it sets up a special system for certain kinds of power outages now let's just assume i'm sorry i'm sorry for certain types of power outages are really big once single ones now justice thomas i don't believe and we've argued that that provision applies here at all because of the type of outage that was a latch a but let's just assume for argument's sake that it did what sixteen one twenty five says is if you've got this type of really big power outage then you can get these types of damages actual damages if you bring a claim before the commission and built into the statute is a weaver proceeding that the utility can file with the commission within thirty days and the statue slightly changed over the course of this case says some of the procedural issues but a waiver provision and that the utility can file with the commission when it claim waiver gets granted under the very terms the liability terms of the statute if the damage was caused by rather on preventable damage due to weather conditions so right away as soon as a claim  brought under sixteen one twenty five at the commission there's a proceeding not only to adjudicate that claim but also to determine the same kinds of questions we're talking about here that's in the liability operative part of sixteen one twenty five b and e want then we travel down sixteen one twenty five a bit and there's a provision in there which says these remedies the ones that mr drury wants to invoke explicitly otherwise there's no meaning to the word exclusively that the words are may be sought exclusively at the commission meaning no one is telling the customer that he or she has to bring a claim but if a claim  brought it has to go to the commission and again let's just imagine a scenario where such a claim were were attempted in court the first thing that's going to happen is there's going to be a motion to get the case out of court and into the commerce commission because of the waiver claim it's built in their top to bottom well really i think mr drury is arguing is that somehow the standards for the type of power outage that trigger sixteen one twenty five set up some kind of normative standard for what constitutes a really big out and he's saying somehow that provision can be the strapped into other provisions of the act but it doesn't work that way it's a specific standalone unique remedy that doesn't really apply here but if it did we'd be in the congress from which you remember the purpose of the tariff which gets filed in approved the commerce commission the tax has a provision in it that says we're going to tag which these days i think it's all done electronically but we tag the meters of people on the registry and that tagging gives chama the ability to reach out to those people when there is going to be a purposeful power outage not something caused by brother or some other events but where there's a purposeful power outage to warn those people as to what is going to happen and that's in the statute in the tariff i forget the exact words but it but that's what it's there for now it can't be it's never been and can't be interpreted to somehow set some priorit of of restoration and there is actually some evidence in this on the record even though we were on a six fifteen there were some teodoro proceedings and in the t o proceedings com had submitted some affidavits that pointed out that there are four thousand nine hundred at least at the time approximately people on this registry and they're spread out throughout comments territory which covers all or part of three appellate districts it's not like they're all in one place and comment could say what would turn on this person's power and that person's power and that person's power can't work like that when you've got only so many resources to devote to restoration you've got to pry our ties and evidence here gets to the other question that you asked mr drury which was is this kate case really about rates and ultimately it is and it has to be and this is where as between the first and the second districts we said that that the first district got things more right because all the kinds of things that are being talked about in this case which going back to the request for relief is a broad requests for truly the courts to step into the i c c he's the commission's shoes were the commission has to do and it's this court's decision apple whatever that sets out the balance is the commission has to establish a balance it's very purpose is that to maintain that balance between rates and services they are flip sides of the same coin when you get a case of this type seeking broad relief across the whole of comment systems that is a claim that that com should have been doing more or should be doing more with the rates that it is receive so when we look to the works that have considered that question balancing rates vs services we find some clear recognition not only from the first district but from other courts as well that those two things race and services are two sides of the same coin the most thoughtful expression outside of the first district's decision below and this court's pronouncement in apple whoever really comes from some federal courts which and i'll say uncle to the second district i know that those decisions are not binding on that services have gone out in the bastion case it was a claim that cellular phone systems were up to par there weren't enough cells or towers or those sorts of things and the seventh circu a claim that the form carrier is getting too much in its rates where it's not doing what is supposed to be done with the reverse and so you have to go to the agency to get relief and the public utilities act does it does provide the plaintiffs with a remedy no one is saying here that these plaintiffs are without a remedy they're just in the wrong place they could bring this claim they haven't i don't know why but they could bring this claim could have brought this claim at the commerce commission under the public utilities act and gotten the commerce commission to hear their broad based attack and they do have a remedy at the commerce commission under section nine to fifty two of the public utilities act they can get the word in the statute is damages but yes it is a form of great reparations it is monetary relief in which the claim would be we've been paying and not getting what we are supposed to be pay that's where again we depart from the first and second district on what's precisely the right way to go though also again i don't want to criticize the second district too much because ultimately that court correctly recognize that things like adequacy of services all the sorts of questions my steel paul barry powerline examples those kinds of things go before the c they've got just a minute or two left here the one thing i would say about the second district's opinion on primary jurisdiction even though i think there's much careful thought there the problem with primary jurisdiction at least as articulated by the second district is it doesn't leave at least at one glance enough of a command to the circuit court that you have to defer to what the commerce commission is doing here because the commerce commission has to look at not only will met in glenview and that's plains but it has to look at springfield and champaign urbana in peoria in carbondale and so forth so the commerce commission's views on these things are really important and they're subject to court review of course this question of divesting the courts of jurisdiction the courts get a say in all this the courts of their own review that's a critical part of the function of administrative review comes straight from the constitution that that courts have administrative review powers but that's the role and that's where we differ between the two courts i think justice garment asked the question as to whether the switching station case was dispositive here and i think it is in two respects it says as your honor asked there is no rule of infallible service and the key point about the tariff ruling in the switching station case from this court is the case recognize not only that there is no one follicle service but also that there is a regulatory thank you i noted in counsel's argument that he was very careful not to mention sixteen  or administrative remedies available to a customer or class of customers i also heard mr hamel say that it would be too complicated if we went to the trial court first and then you have to go back to the commission i don't think it would be too complicated for the circuit court to take jurisdiction and adjudicate the questions before it with respect to damages and substandard performance  council says well it's too complicated because of the question of a waiver that's not complicated and the court as i said in my opening argument could be changed years to action make its own determination of what it wants to do and then if it feels that any of the matter should still go to the competition commission they can and the only party that could ask for the waiver is not the customer not the consumer it's the utility it's a one way street they're the ones who can do it so this question of waiver really doesn't add any substance to it to council's argument the first amended complaint is justice thomas was inquiring has specifically limited the nature of the relief sought to that under section sixteen dash one twenty five period no injunctive relief no negligence sixteen dash one twenty five unfortunately the trial court didn't consider that at all and for the reasons set forth in in the pleadings and brief said that they would not do it i was asked a question about the tariff by by the court and in looking back when i had a moment to sit down with the terror does not be applicable another matter that wasn't touched on was that the court never adjudicated or spoke to the question of the illinois consumer fraud at where we raised the question of unfairness and against public policy that wasn't adjudicated at all it was just left out we've alleged that the acts of condit were unscrupulous and they were in violation of public policy and they leave people to suffer and that was not rule appellate court or the trial court yourself as mr drury you had indicated or you you we talked about the life support registry earlier and mr hamill indicated that  under the statute there was nothing in there to create a duty or requirement or how it was to be used in the explain how did you use it to clarify for me or are you arguing that there is some kind of a duty that comet  with regard to people who are on that life's work registry there is that express statement in that stack you that states that in circumstances such as sloan that they would have to give these unfortunately their son a pay priority but the older registry prior to the other use the first your honor complicit in that statute it's a life support registry is that they have to take care of the people that need the life support that may not be an expressed words in that statute but otherwise the statute is is rendered useless now i did heard mr hamel say when they go ahead and they have a planned interruption or rolling interruption on their own and they say we're going to do this that's fine but what about when you have an unexpected winter about shin you have a life support registry how are they supposed to contact them is your question they red tag their meters if they break a leg or meters they know these people walk then they also have to send a letter to the commerce commission asking to be on that registry so they know who the people and they know who the people are because it's kind of well that isn't to ask how they are know how they get to them and how they implement this life support system it's their problem they should take care of the good otherwise the statute is useless and the way they are implementing it now obviously by their commentary and their arguments and the briefs they don't do anything about we just can't do it well just can't do it doesn't cut it let them do it better find a way but the their rights under that statute of what people should expect from commonwealth edison mr drake i don't want to make mr hamill's argument for me because i'm not positive i understood it but the terms of these questions about the registry as i understand it is whether or not that statute imposes a duty the question that was asked of mr hamel i believe his answer was really doesn't send it out but it only talks about planned interruptions and i guess i want to know in response  you agreeing or disagreeing that the statute does in fact talk about play and known advanced interruptions there is some reference to planned interruptions there is i'm not certain as i stand here whether it's in the statute or  regulation that as part of the implementation of that statute but i do know that the statute in fact says that there shall be a registry people who want to be on that registry notify commonwealth that i sent and they have to read tag their meter so that they know broad and if we just leave it at that and they do nothing yes have released indicators to people who died when their life support system went out that's in the record and comment that nothing how many more people have to die before something happens  calling the people that have people in their household that are and life support say there was a weather system coming did we don't some of these outages you know severe storms you know happened like this right i mean you know what i'm trying to few more points if i may the fourth amendment complaint is usually generally liberally construed when i leave to file a complaint is asked and counsel pointed out section nine dash two five two and it talks about talks about baskin but bastion relied on central telephone central telephone was to files a great doctor has nothing to do with with this but what counsel didn't say is that excessive and discriminatory rates at the heart of two fifty two we're not complaining about excessive or discriminatory rates we want our damages commonwealth edison needs to be held accountable and for its actions they need to be cut to the world and pay for the consequences of their actions they cannot continue to run for shelter as the enemy because pre syndicate and his comment indication is the arguments indicate let's see show fear before the commerce commission if that was the case we didn't need these other statutory provisions that say that you can be before the circuit courts you know annoying thank you thank you mr drury mr hamel for your arguments today case number one one zero one six six scheffler v