ILLINOIS OFFICIAL REPORTS

Supreme Court

Sheffler v. Commonwealth Edison Co., 2011 IL 110166

Caption in Supreme

Court:

FRANCIS SHEFFLER et al., Appellants, v. COMMONWEALTH

EDISON COMPANY, Appellee.

 

Docket No. 110166

Filed

Rehearing denied

June 16, 2011

September 26, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where a plaintiff’s complaint is based upon allegations concerning a

utility’s infrastructure and its provision of electrical services and seeks

relief based upon systemic defects in the provision of electrical services

or the repair of those services when a power outage occurs, that complaint

seeks reparations and is within the exclusive jurisdiction of the Illinois

Commerce Commission under section 16-125 of the Public Utilities Act;

additionally, section 8-101 of the Act does not require an electrical utility

to assign priority in power restoration to those households listed on the

utility’s life-support registry.

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that court

on appeal from the Circuit Court of Cook County, the Hon. Rita M.

Novak, Judge, presiding.

Judgment Appellate court judgment affirmed.
Counsel on

Appeal

Larry D. Drury, Ilan J. Chorowsky, John H. Alexander and Robert A.

Langendorf, all of Chicago, for appellants.

John Joseph Hamill, Erinn L. Wehrman, Elizabeth L. Liebschutz and

Nangah N. Tabah, of Jenner & Block LLP, of Chicago, for appellee.

Peter D. Coblentz, of Rosenthal, Murphey, Coblentz & Donahue, and

Norman T. Finkel and Richard M. Goldwasser, of Schoenberg Finkel

Newman & Rosenberg LLC, all of Chicago, for amicus curiae Village of

Deerfield.

Michael M. Conway, Theodore T. Eidukas, Katherine E. Licup and

Jonathan W. Garlough, of Foley & Lardner LLP, of Chicago, for amici

curiae The Peoples Gas Light & Coke Company et al.

Justices JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, Frances Sheffler, Mark Resnik, and Debra Sloan, individually and on behalf

of Jason Sloan, filed a complaint on behalf of a putative class against defendant,

Commonwealth Edison Company(ComEd), seeking damages and injunctive relieffor power

outages to their homes following severe storms. Plaintiffs filed an initial complaint, followed

by a first, second and third amended complaint. The circuit court dismissed plaintiffs’ third

amended complaint with prejudice, and denied plaintiffs leave to file a fourth amended

complaint. On appeal, the Appellate Court, First District, affirmed. 399 Ill. App. 3d 51.

¶ 2 This court granted plaintiffs’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,

2010). In addition, pursuant to Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010), we

allowed the Village of Deerfield to file a brief amicus curiae on behalf of plaintiffs. We also

permitted the Peoples Gas Light and Coke Company, North Shore Gas Company and

Northern Illinois Gas Company, d/b/a Nicor Gas Company, to file a brief amici curiae on

behalf of defendant.

¶ 3 BACKGROUND

¶ 4 On August 23, 2007, severe storm systems affected the Chicago area, resulting in the loss

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of electrical power to many of ComEd’s customers, including plaintiffs. As a result of the

power outages, plaintiffs filed their complaint and amended complaints. The original

complaint was filed on August 28, 2007. That complaint was filed by plaintiffs Sheffler and

Resnik as a class action complaint.

¶ 5 Count I of the original complaint was brought under the Public Utilities Act (the Act)

(220 ILCS 5/5-101 et seq. (West 2006)) and alleged that ComEd had a duty to act as a

reasonably careful public utility to provide continuous power to plaintiffs and the putative

class members. Plaintiffs alleged that ComEd was negligent in that it failed to provide

continuous, adequate, efficient and reliable power to plaintiffs and the putative class, failed

to provide adequate warning prior to the power outage, and failed to adequately maintain its

facilities to provide continuous, adequate, efficient and reliable powerto plaintiffs and to the

putative class. Plaintiffs alleged that ComEd breached its duties because its company-wide

manpower planning process is inadequate, its distribution system did not keep pace with

system growth and the need for refurbishment, and the distribution system became

excessively loaded and did not adequately allow for contingencies for a failure. Plaintiffs

contended that ComEd’s negligence and failure to act directly and proximately caused the

power outages, and caused plaintiffs and the putative class members to suffer property

damage and other financial damages. Plaintiffs requested a temporary restraining order

and/or a preliminary injunction “enjoining COMED from its practice of attempting to

unilaterally settle the claims such as herein and requiring the Plaintiffs and the class to sign

a release of all said claims with respect thereto.”

¶ 6 Count II of the original complaint was for breach of contract implied in law or fact.

Plaintiffs alleged that ComEd impliedly agreed to provide continuous, adequate, efficient and

reliable electric service to plaintiffs and the class, that plaintiffs and the class paid ComEd

for their electric service, but ComEd breached the contract implied in law or fact by failing

to provide such electric service.

¶ 7 On September 19, 2007, plaintiffs were given leave to file an amended class action

complaint, which also added plaintiff Debra Sloan, individually and as legal guardian of

Jason Sloan. The first amended complaint contained four counts. Count I was again brought

under the Act seeking a temporary restraining order and/or preliminaryinjunction, and added

claims that ComEd was negligent in failing to provide priority to disabled persons in

restoring their power after a power outage or interruption, and in failing to establish and

provide priority power to persons registered in ComEd’s life support registry (see 220 ILCS

5/8-204 (West 2006)). Count II again alleged a breach of contract implied in law or fact.

¶ 8 Count III of the first amended complaint sought an injunction on behalf of the Sloan

class. Count III alleged that plaintiff Sloan was the parent and legal guardian of Jason Sloan,

a disabled adult, who required the use of a ventilator to breathe 24 hours a day, and who

required pacemakers in both his lungs and his heart. Plaintiffs alleged that Sloan was

registered in ComEd’s life support registry and that Sloan lost her electrical power on August

23, 2007. Sloan connected her son to a temporary generator and telephoned ComEd about

the loss of power. Plaintiffs alleged that the ComEd representative was rude and dismissive.

Moreover, due to the power outage, Sloan’s basement flooded, causing her back-up generator

to fail.

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¶ 9 Count III further alleged that ComEd refused to give any priority to restoring power to

Sloan’s residence, refused any assistance to Sloan, and would not give Sloan an anticipated

time that her power would be restored. Plaintiffs further alleged that ComEd, in breach of

its duty of care to plaintiff and its other customers on the life support registry, failed to warn

that in the event of an outage, ComEd would not act to restore power to sustain their life

support systems. Plaintiffs sought a temporary restraining order and/or a preliminary

injunction enjoining ComEd from refusing to respond on a priority basis to immediately

restore power, and from refusing to offer assistance to persons registered in their life support

registry. Count IV of plaintiffs’ complaint sought a declaratory judgment on behalf of the

Sloan class.

¶ 10 ComEd thereafter filed a motion to dismiss the first amended complaint pursuant to

section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2006)).

On November 8, 2007, the circuit court dismissed counts III and IV of the first amended

complaint, and struck counts I and II, with leave to replead.

¶ 11 Plaintiffs filed their second amended complaint on December 6, 2007. The second

amended complaint contained five counts. Count I alleged negligence, claiming that ComEd

had a duty to act as a reasonably careful public utility to provide continuous power to

plaintiffs and the putative class members, to prevent controllable interruptions or loss of

power, to provide adequate, efficient, reliable, just, reasonable and environmentally safe

service, to promote the safety, health, comfort and convenience of its customers, and to

properly maintain and publicize a life support registry. Plaintiffs alleged that ComEd

wantonly, carelessly and negligently acted or failed to act in breach of its duties. Plaintiffs

alleged that, as a result of ComEd’s negligence, they sustained damages in the form of

spoiled food, water damage to walls, furniture, fixtures, appliances, furnace and water

heaters, medical and electrical equipment, and repair costs.

¶ 12 Count II of the second amended complaint was brought under the Act, and again sought

a temporary restraining order and/or a preliminary injunction enjoining ComEd from its

“practice and policy of unilaterally settling claims and requiring the Plaintiffs and the Class

members to sign a release of all claims, demands and causes of action with respect to the

power outage of August 23, 2007 and thereafter, as alleged herein.” Count III again alleged

a breach of contract implied in law or fact, and count IV sought an injunction, enjoining

ComEd “from its practice of refusing to respond on a priority basis to immediately restore

power, refusing to offer assistance to persons registered in their Life Support Registry, or,

minimally, providing persons registered in their Life Support Registry regular and frequent

updates as to when it is anticipated that power will be restored, if at all.”

¶ 13 Finally, count V of the second amended complaint sought a declaratory judgment

determining the rights of the parties “including without limitation as to the propriety of

ComEd’s alleged refusal to respond on a priority basis to immediately (or otherwise) restore

power, refusal to offer assistance to persons registered in their Life Support Registry, failure

to provide persons registered in their Life Support Registry regular and frequent updates as

to when it is anticipated that power will be restored, if at all, publication of the Life Support

Registry, and sharing of the Life Support Registry with rescue/emergency response

authorities.” Plaintiffs also sought a declaratory judgment concerning ComEd’s obligations

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to repair and maintain power and related equipment, and to plan for and respond to outages.

¶ 14 ComEd filed a motion to dismiss the second amended complaint pursuant to section 2-

615. The circuit court struck counts I, II and III of plaintiff’s second amended complaint,

with leave to replead. The circuit court dismissed counts IV and V without leave to replead.

¶ 15 On August 4, 2008, plaintiffs filed their third amended complaint, the complaint at issue

in this case. The third amended complaint contained five counts. Count I alleged negligence,

count II alleged a violation of the Act, count III alleged breach of contract implied in

law/fact, count IV sought an injunction, and count V alleged a violation of the Consumer

Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq.

(West 2006)). The relevant allegations of the third amended complaint are discussed infra.

¶ 16 ComEd moved to dismiss plaintiffs’ third amended complaint pursuant to sections 2-615

and 2-619 of the Code. The circuit court granted ComEd’s motion to dismiss plaintiffs’ third

amended complaint in its entirety with prejudice pursuant to section 2-615. The circuit court

stated that:

“what is actually at issue here is that what this lawsuit is about and what the

plaintiffs’ theory of the case is is [sic] that they are actually seeking relief based on

systematic defects in the provision of the electrical services or in the repair of those

services once an outage occurs. And in the Court’s view, these are the type of broadbased allegations and claims that can’t survive as a matter of law. *** [T]he

allegations at their core are verymuch like the allegations in the Lewis E. v. Spagnolo

case [186 Ill. 2d 198 (1999)]. *** The complaint is really looking for relief that

whether it’s characterized as damages relief or there is a count for injunctive or

declaratory relief or an action under the Consumer Fraud Act, the bottom line is that

the plaintiffs’ allegations go to the wayCommonwealth Edison provides services and

the adequacy of its response when those services fail for whatever multitude of

reasons may exist. I don’t think the law provides a relief for the kinds of claims that

are stated ***.”

¶ 17 In affirming the circuit court, the appellate court first addressed the propriety of the

circuit court’s order dismissing the portions of plaintiffs’ complaint seeking injunctive relief.

The appellate court held that plaintiffs’ complaint clearlysought an adjudication of ComEd’s

level of service and its response to a power outage when an outage occurs. 399 Ill. App. 3d

at 66. The appellate court held that the injunctive relief requested by plaintiffs was properly

addressed by the IllinoisCommerce Commission (the Commission) and not the circuit court.

Id. at 67. Further, even if those claims were properly before the circuit court, the circuit court

did not err in dismissing those claims pursuant to Lewis E. v. Spagnolo, 186 Ill. 2d 198

(1999). As in Spagnolo, plaintiffs’ requests for injunctive relief sought to prevent some

unspecified injuries or damages to them that had not occurred and might never occur. 399

Ill. App. 3d at 67.

¶ 18 With regard to plaintiffs’ claims for legal relief, the appellate court held that the relief

sought by plaintiffs implicated rates, as those claims related directly to the Commission’s

rate-setting functions for electrical powerservices. 399 Ill. App. 3d at 69. The appellate court

concluded that plaintiffs’ prayer for relief pertaining to damages was predicated on

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allegations that ComEd was not providing adequate service under the Act. Id. at 70. If those

claims were allowed to proceed in the circuit court, the circuit court would be placed in the

position of assessing what constitutes adequate service and whether ComEd fulfilled its

responsibility of providing adequate services. Id. Noting that it could affirm the circuit

court’s dismissal on any basis in the record, the appellate court held that plaintiffs’ complaint

was properly dismissed because the circuit court did not have jurisdiction of the complaint,

which is a ground for dismissal under section 2-619(a)(1) of the Code.

¶ 19 The appellate court also held that plaintiffs’ claim for damages was barred by the

decision in In re Illinois Bell Switching Station Litigation, 161 Ill. 2d 233 (1994). 399 Ill.

App. 3d at 70. As in that case, the plaintiffs’ claims were barred by ComEd’s tariff, so that

the circuit court did not have jurisdiction over those claims. Id. at 73.

¶ 20 Finally, the appellate court held that the circuit court did not abuse its discretion in

denying plaintiffs leave to file a fourth amended complaint. 399 Ill. App. 3d at 76. The

proposed fourth amended complaint contained one count alleging that ComEd violated

section 16-125 of the Act (220 ILCS 5/16-125 (West 2006)). The appellate court found that

jurisdiction over the damage remedies under section 16-125 is in the Commission and not

the circuit court. Id.

¶ 21 ANALYSIS

¶ 22 On appeal, plaintiffs challenge the appellate court’s decision affirming the circuit court’s

dismissal of plaintiffs’ third amended complaint and the circuit court’s denial of plaintiffs’

motion for leave to file a fourth amended complaint. Specifically, plaintiffs argue that the

appellate court erred in finding that their claims for money damages fell within the

Commission’s jurisdiction. Plaintiffs also argue that the lower courts erred in finding that

their allegations concerning the life support registry did not state a claim. Finally, plaintiffs

argue that the circuit court abused its discretion in denying them leave to file their fourth

amended complaint. Plaintiffs do not challenge the dismissal of their claims for injunctive

relief.

¶ 23 We first address plaintiffs’ claim that the appellate court erred in finding that plaintiffs’

third amended complaint was properly dismissed because the circuit court did not have

jurisdiction to hear plaintiffs’ case. This court reviews decisions granting motions to dismiss

pursuant to section 2-619 de novo. Solaia Technology, LLC v. Specialty Publishing Co., 221

Ill. 2d 558, 579 (2006).

¶ 24 With regard to plaintiffs’ legal claims, the appellate court held that the portion of

plaintiffs’ complaint seeking money damages in essence alleged that ComEd’s level of

service and restoration efforts following a power outage are substandard. 399 Ill. App. 3d at

69. The appellate court held that those claims directly related to the Commission’s ratesetting functions for electrical power services, fundamentally alleging that ComEd should

provide its customers a greater level of service, which raised a regulatory question of how

ComEd should recover the costs of raising the level of service it provides. Id. The appellate

court concluded that questions of how ComEd should effectuate an improvement in service

and whether ComEd’s customers should pay more for the electrical services provided by

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ComEd fell squarely within the Commission’s jurisdiction over rates. Id.

¶ 25 In so holding, the appellate court noted that ComEd’s filed tariffspecifically stated “that

when ‘larger, more, or different’ services or facilities are requested, the Commission must

determine whetherthe improvements would be ‘reasonablyand technicallyfeasible’ without

having a significant adverse impact on the reliability and efficiency of ComEd’s overall

system.” 399 Ill. App. 3d at 70 (quoting Ill. Com. Comm’n No. 10, Orig. Sheet No. 20).

Allowing plaintiffs’ claims to proceed would place the circuit court in the position of having

to determine what constitutes adequate service, as well as whether ComEd fulfilled its

responsibilities of providing adequate service, a determination within the Commission’s

jurisdiction pertaining to rates. 399 Ill. App. 3d at 70.

¶ 26 Finally, the appellate court held that plaintiffs’ claims for damages were barred by the

decision in Illinois Bell Switching Station, 161 Ill. 2d 233, where the court held that the

plaintiffs’ lawsuit was barred by the defendant’s tariff. 399 Ill. App. 3d at 70. The appellate

court found that, like the Illinois Bell Switching Station case, the plaintiffs’ claims in this

case were barred by ComEd’s tariff, which limited ComEd’s liability for any failure to

supply electricity, or for interruption or reversal of the supply of electricity. Id. at 73.

¶ 27 In this court, plaintiffs argue that the lower courts have now held that virtually any

challenge to ComEd’s services that result in damages is automatically deemed a challenge

to the way that ComEd does business, so that those claims must be adjudicated by the

Commission. Plaintiffs maintain, however, that suits for compensatorydamages are properly

brought in the circuit court.

¶ 28 As noted, in addition to finding that plaintiffs’ legal claims fell within the Commission’s

jurisdiction over rates, the appellate court also found that plaintiffs’ legal claims were barred

by ComEd’s tariff. Setting utility rates is a legislative function. People ex rel. Hartigan v.

Illinois CommerceComm’n, 117 Ill. 2d 120, 142 (1987). A tariffis a public document setting

forth services being offered, the rates and charges with respect to services, and the governing

rules, regulations, and practices relating to those services. Adams v. Northern Illinois Gas

Co., 211 Ill. 2d 32, 55 (2004). Section 9-102 of the Act requires public utilities such as

ComEd to file tariffs with the Commission. 220 ILCS 5/9-102 (West 2006). Generally a

tariff is drafted by the regulated utility, but when the tariffis duly filed with the Commission,

the tariff binds the utility and the customer, and governs their relationship. Adams, 211 Ill.

2d at 55. Once the Commission approves a tariff, the tariff “ ‘is a law, not a contract, and has

the force and effect of a statute.’ ” Id. (quoting Illinois Central Gulf R.R. Co. v. Sankey

Brothers, Inc., 67 Ill. App. 3d 435, 439 (1978)).

¶ 29 Tariff provisions are usually referred to as liability limitations, which reflect the status

of public utilities as regulated monopolies whose operations are subject to extensive

restrictions, the requirements of uniform, nondiscriminatory rates, and the goal of universal

service, achieved through the preservation of utility prices that virtually all customers can

afford. Adams, 211 Ill. 2d at 56-57. The theory underlying liability limitations is because a

public utility is strictly regulated, its liability should be defined and limited so that it may be

able to provide service at reasonable rates, and reasonable rates depend in part on a rule

limiting liability. Id. at 57.

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¶ 30 As noted, in holding that plaintiffs’ claims for damages in this case were barred by

ComEd’s tariff, the appellate court found the decision in Illinois Bell Switching Station, 161

Ill. 2d 233, controlling. In that case, a telephone switching station caught fire, and plaintiffs

alleged that the fire was due to the negligent or willful failure of Illinois Bell to take fire

prevention measures. As a result of the fire, many Illinois Bell customers were without

telephone service for approximately a month. Consequently, the customers filed a class

action complaint seeking to recover economic losses incurred due to the loss of telephone

service, pursuant to section 5-201 of the Act (220 ILCS 5/5-201 (West 1992)). Illinois Bell

argued that its filed tariff defined the limits of its liability for interruptions in service, while

the plaintiffs argued that the tariff should not bar their claims because the tariff was against

public policy and conflicted with provisions of the Act. Illinois Bell Switching Station, 161

Ill. 2d at 242-43.

¶ 31 In rejecting the plaintiffs’ argument, the Illinois Bell Switching Station court noted that

Illinois Bell’s tarifflisted among its general regulations a service interruption exclusion. The

exclusion provided that:

“ ‘The liability of the Company for damages arising out of mistakes, omissions,

interruptions, delays, errors or defects in transmission occurring in the course of

furnishing service *** shall in no event exceed an amount equivalent to the

proportionate charge to the customer for the period of service during which such

mistake, omission, interruption, delay, error or defect in transmission occurs. No

other liability shall in any case attach to the Company.’ Illinois Bell Telephone

Company Tariff, Illinois Commerce Commission, No. 5, pt. 1, § 5, par. 3.1.” Illinois

Bell Switching Station, 161 Ill. 2d at 242.

¶ 32 The plaintiffs argued that the tariff’s exculpatory clause barring recovery for

consequential damages due to interruptions in service was against public policy. The court

rejected that claim, noting that:

“Bell [was] nowhere charged with the duty to provide completely uninterrupted

service. Rather, it is required to provide ‘service and facilities which are in all

respects adequate, efficient, reliable and environmentally safe and which ***

constitute the least-cost means of meeting the utility’s service obligations.’ (220

ILCS 5/8-401 (West 1992).) Adequate, efficient and reliable service is not

tantamount to infallible service. Temporary disruptions may occur without reducing

Bell’s service to a level less than adequate, efficient or reliable. Thus, the tariff’s

provision which limits Bell’s liability in the event such a disruption in service occurs

is not contrary to the Act or the rules.” Id. at 243-44.

Therefore, the Illinois Bell Switching Station court held that the exculpatory language in

Illinois Bell’s tariff properly limited claims from disruption of service to a rebate of the costs

for the missed service, and was not in contravention of the Act, the rules of the Commission,

or against public policy. Id. at 244.

¶ 33 In this case, the appellate court noted that at the time of the August 2007 storms at issue,

ComEd’s tariff on file with the Commission provided, inter alia, that:

“The Company [ComEd] shall not be responsible in damages for any failure to

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supply or deliver electricity, or for interruption, or reversal of the supply or delivery,

if such failure, interruption, or reversal is without willful default or negligence on its

part, nor for interruptions, by underfrequency relays or otherwise, to preserve the

integrity of the Company’s system or interconnected systems.

The Customer will be entitled to a reduction in charges for service equal to the

Monthly Customer Charge for any billing month in which service to the customer is

interrupted for a period of 12 consecutive hours or more due to any of the following

conditions: (i) Company equipment malfunction not caused by weather; (ii)

Commonwealth Edison employee or its contractor error; (iii) accident involving

Commonwealth Edition employee or its contractor; (iv) damage to company

equipment caused by Commonwealth Edison employee or its contractor; or (v)

overloaded Company distribution equipment not caused by Customer negligence.”

Ill. Com. Comm’n No. 4, 10th Revised Sheet No. 56.

¶ 34 Based upon Illinois Bell Switching Station and the above tariff, the appellate court in this

case held that plaintiffs’ claims were barred by the tariff. We agree. Like the telephone utility

in Illinois Bell Switching Station, ComEd also is required to provide “service and facilities

which are in all respects adequate, efficient, reliable and environmentally safe and which,

consistent with these obligations, constitute the least-cost means of meeting the utility’s

service obligations.” 220 ILCS 5/8-401 (West 2006). As Illinois Bell Switching Station

recognized, adequate, efficient and reliable service is not tantamount to infallible service.

Thus, temporary disruptions may occur without reducing ComEd’s service to a level less

than adequate, efficient or reliable.

¶ 35 Further, Illinois courts have recognized that where a utilitytariffspeaks to a specific duty,

the tariff may be controlling, but where the tariff does not address a particular situation, the

common law applies and a common law duty analysis must be applied. Adams, 211 Ill. 2d

at 60-61. Here, ComEd’s tariffspeaks to its duty to supply electricity, specifically providing

that ComEd shall not be responsible in damages for any failure to supply electricity or for

interruption if the failure, interruption or reversal is without willful default or negligence.

The tariff furtherstates that a customer will be entitled to a reduction in charges if his service

is interrupted for a period of 12 consecutive hours or more if ComEd’s equipment

malfunction was not caused by the weather. Because the tariffspeaks to power interruptions

and failure, and equipment malfunction, the tariff controls.

¶ 36 At oral argument, however, plaintiffs’ counsel argued that the tariff does not apply to

plaintiffs’ negligence claims, as the tariff specifically states that its liability is limited only

if the failure or interruption is without willful default or negligence. Plaintiffs’ counsel

agreed that willful default was not at issue, as the complaint did not allege willful default.

It is clear, however, that even though couched in terms of negligence, the basis for the

entiretyof plaintiffs’ complaint, including the negligence claim, is an equipment malfunction

causing a power outage that was precipitated by the weather. Plaintiffs’ complaint contains

the following factual allegations:

“1. *** [O]n or about August 23, 2007 and thereafter, COMED failed to provide,

and to timely restore power to Plaintiffs and other customers in Illinois including

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Cook County; in total, on information and belief more than 30,000 ComEd customers

in Illinois, including Plaintiffs, in the wake of the August 2007 storm ***;

* * *

7. On or about August 23, 2007, a storm–which was, incidentally, reasonably

predictable and foreseeable–affected parts of Illinois including Cook County and

those parts where Plaintiffs reside.

* * *

12. The storms of August 2007 precipitated an interruption of power in excess

of 30,000 ComEd customers, including Plaintiffs[,] and ComEd did not restore their

power within 24 hours.

* * *

30. Plaintiff Resnick was without power for several days following the August

23, 2007 Chicago area storm where, in Wilmette, Illinois literally dozens of

inadequately maintained power lines were damaged ***.”

¶ 37 In addition, plaintiffs define the putative class as “Any and all persons and entities

located in the State of Illinois, that suffered damages as a result of electric power outages or

interruptions from August 23, 2007 through the date of judgment.”

¶ 38 The tariff specifically exempts from damage claims equipment malfunctions caused by

weather. As noted, although plaintiffs attempt to state a claim for negligence, their claims are

entirely based upon equipment malfunctions caused by weather. Because plaintiffs’

complaint implicates the provision of ComEd’s tariff, the tariff controls according to its

terms and bars plaintiffs’ third amended complaint. Therefore, the appellate court properly

affirmed the dismissal of that complaint with prejudice.

¶ 39 Even assuming, arguendo, that plaintiffs’ negligence claim was not barred by ComEd’s

tariff, the appellate court correctly held that the claim was properly dismissed because

jurisdiction of the complaint lies in the Commission and not the circuit court.

¶ 40 Our determination of whether the appellate court properly held that the Commission had

jurisdiction over plaintiffs’ third amended complaint requires an examination of the role of

the Commission with regard to public utilities. The Commission exists to maintain a balance

between the rates charged by utilities and the services performed. Village of Apple River v.

Illinois Commerce Comm’n, 18 Ill. 2d 518, 523 (1960). It has long been recognized that “in

matters relating to services and rates of utilities technical data and expert opinion, as well as

complex technological and scientific data, make it essential that the matter be considered by

a tribunal that is itself capable of passing upon complex data.” Id. The Commission is to

determine that a utility’s rates are just and reasonable and that its services are adequate. Id.

Thus, the legislature has given the Commission broad powers, so that the Commission on

its own initiative can promulgate orders, rules or regulations fixing adequate service

standards and requiring adequate facilities. Id.

¶ 41 The Commission’s exclusive jurisdiction over rates is set forth in section 9-252 of the

Act, which provides:

“When complaint is made to the Commission concerning any rate or other charge of

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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 for the payment of money shall be filed in the proper

court within one year from the date of the order ***.” 220 ILCS 5/9-252 (West

2006).

It has long been recognized that the “evident intent and purpose of the legislature in

providing a method by which reparation may be recovered and in requiring that an

application therefor shall be first made to the commission, precludes an action at law for such

reparation until the commission has heard a claim therefor.” Terminal R.R. Ass’n of St. Louis

v. Public Utilities Comm’n, 304 Ill. 312, 317 (1922).

¶ 42 As the appellate court noted, if a claim is for reparations, jurisdiction is in the

Commission, while jurisdiction of an action for civil damages lies in the circuit court. 399

Ill. App. 3d at 68. Our appellate court has explained that a claim is for reparations when the

essence of the claim is that a utility has charged too much for a service, while a claim is for

civil damages when the essence of the complaint is that the utility has done something else

to wrong the plaintiff. Flournoy v. Ameritech, 351 Ill. App. 3d 583, 585 (2004).

¶ 43 In contrast to the Commission’s jurisdiction, the jurisdiction of the circuit courts for

violations of the Act is set forth in section 5-201 of the Act, which states that:

“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.” 220 ILCS 5/5-201 (West 2006).

¶ 44 Plaintiffs characterize their complaint as a suit for compensatorydamages that is properly

brought in the circuit court pursuant to section 5-201. Plaintiffs point to the damages alleged

in their complaint, that plaintiffs and putative class members suffered personal injury,

property damage and financial damages, including the loss of use of property, and costs of

repair and replacement of property. Plaintiffs alleged that plaintiffs Resnick and Sheffler

suffered damage to their basement and personal property, house, appliances, and food, had

to seek alternative living arrangements, and had to hire someone to repair the damage.

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Consequently, plaintiffs contend that their claims seeking legal damages were properly

before the circuit court pursuant to section 5-201.

¶ 45 In support, plaintiffs note that in a similar case, Village of Deerfield v. Commonwealth

Edison Co., 399 Ill. App. 3d 84, 89 (2009), the Appellate Court, Second District, held that

the circuit court did have jurisdiction over the plaintiff’s claims because the complaint did

not allege excessive or discriminatory rates, but rather alleged deficient performance by

ComEd, which the plaintiff attacked through a number of theories, including contract, tort

and violation of the Public Utilities Act.

¶ 46 At issue in the Village of Deerfield case were two counts of the plaintiff Village of

Deerfield’s complaint against ComEd: count I, titled “Breach of Contract,” which alleged

that chronic electrical outages occurred within the village as a result of various breaches of

ComEd’s duties under a franchise agreement; and count III, titled “Civil Damages for

Violation of Public Utilities Act,” which alleged the existence of a statutory duty and a

willful violation of that duty. Id. at 85. Count III sought class certification for all ComEd

customers in the village, and alleged that potential class customers 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.’ ” Id. at

85-86.

¶ 47 The circuit court in Village of Deerfield dismissed the plaintiffs’ complaint with

prejudice, finding that the Commission had exclusive jurisdiction over the dispute, and that

the third count of plaintiff’s complaint was barred by Moorman Manufacturing Co. v.

National Tank Co., 91 Ill. 2d 69 (1982). Village of Deerfield, 399 Ill. App. 3d at 86.

¶ 48 Upon review, the appellate court noted that the question of jurisdiction generally turns

on the nature of the relief sought, so if a plaintiff seeks ordinary civil damages, the court

system has subject matter jurisdiction. Id. at 89. In contrast, the Commission has exclusive

jurisdiction over claims that rates are excessive or discriminatory. Id. at 87. The appellate

court held that the circuit court did have jurisdiction over the Village of Deerfield’s

complaint, as the complaint did not allege excessive or discriminatory rates, but rather

alleged deficient performance by ComEd. Id. at 89. The court held, however, that even

though the circuit court had original jurisdiction of the plaintiff’s complaint, the Commission

had primary jurisdiction. Id. at 93. Therefore, the appellate court held that the circuit court

should stay further proceedings, while retaining jurisdiction, so that the Commission could

consider the case. Id.

¶ 49 In a supplemental opinion issued upon denial of rehearing, the Village of Deerfield court

acknowledged the appellate court’s decision in this case, but stated that it did not find the

appellate court’s opinion persuasive. Id. at 98. The court also questioned whether the

legislature could remove from the circuit court’s jurisdiction common law tort and contract

claims against ComEd, even if cast as a claim for reparations under the Act. Id. The appellate

court in this case likewise declined to follow the court’s analysis in Village of Deerfield,

reiterating its finding that the complaint before it implicated rates, which is within the

Commission’s jurisdiction. 399 Ill. App. 3d at 77.

¶ 50 As both the appellate court in this case and the Village of Deerfield courts recognized,

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courts focus on the nature of the relief sought rather than the basis for seeking relief in

determining whether an action falls within the jurisdiction of the Commission. 399 Ill. App.

3d at 68; Village of Deerfield, 399 Ill. App. 3d at 89. The appellate court in this case held that

the relief sought by plaintiffs was predicated on allegations that ComEd was not providing

adequate service under the Act. We agree. Although plaintiffs point to their request for

damages as evincing the fact that their complaint falls outside the Commission’s jurisdiction,

it is clear that the relief sought by plaintiffs goes directly to ComEd’s service and

infrastructure, which is within the Commission’s original jurisdiction.

¶ 51 With regard to duty, plaintiffs’ negligence claim alleged that ComEd had a duty to:

“timely restore power (e.g. within 24 hours); to prevent controllable interruptions of power;

to provide adequate, efficient, reliable, just, reasonable, and environmentally safe service;

to promote the safety, health, comfort and convenience of its customers; and to properly

maintain, record and publicize a Life Support Registry.”

¶ 52 Plaintiffs then allege that ComEd breached its duty when it negligently acted or failed to

act in that it:

“(a) failed to timely restore power to Plaintiffs and Class members homes; (b) failed

to prevent controllable interruptions of power to Plaintiffs and the members of the

Class; (c) failed to provide adequate warning to Plaintiffs and the members of the

Class prior to the power outage; (d) failed to immediately and adequately prepare

and/or maintain its facilities, personnel and back-up electric companies so as to

prevent controllable interruptions of power and timely restore power; (e) failed to

properly repair and maintain power infrastructure (e.g., lines and equipment

connected to each of Plaintiffs’ residences); (f) failed to implement an adequate

company-wide manpower planning process for outages and repair, despite knowledge

of potential for storms on a par with that of August 2007; (g) failed to adequately

maintain system growth and refurbishment of power equipment; (h) failed to provide

adequate, efficient, reliable, and environmentallysafe services and facilities; (i) failed

to promote safety, health, comfort and convenience of its patrons, customers, and the

public; and (j) failed to properly, adequately and timely restore power for persons in

the Life Support Registry, and, moreover, failed to give priority to such persons

including Plaintiffs Debra and Jason Sloan.”

¶ 53 Thus, as the appellate court held, the nature of the relief sought by plaintiffs is

compensation for ComEd’s allegedly inadequate service, which directly relates to the

Commission’s rate-setting functions for electrical powerservices. That rates and service are

inextricably tied together was recognized more than 50 years ago in Village of Apple River,

18 Ill. 2d at 523, when the court found that the Commission exists to maintain a balance

between the rates charged by utilities and the services performed. The Village of Apple River

court observed that it is essential that the Commission consider matters relating to services

and rates of utilities, given the complex data underlying those matters. Id. The court therefore

held that the Commission is to determine that a utility’s rates are just and reasonable and that

its services are adequate. Id. As the appellate court in this case recognized, allowing

plaintiffs’ claims to proceed in the circuit court would place the circuit court in the position

of assessing what constitutes adequate service, and whether ComEd has fulfilled its

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responsibility of providing adequate service. 399 Ill. App. 3d at 70.

¶ 54 As indicated, however, there is tension between the decision in this case and the Village

of Deerfield decision. The Village of Deerfield court narrowly interpreted reparations as

limited to claims of excessive or discriminatory rates, ultimately concluding that the

plaintiff’s complaint in that case did not allege excessive or discriminatory rates, but rather

deficient performance by ComEd. Village of Deerfield, 399 Ill. App. 3d at 89. The court

therefore held that the relief sought was not reparations for an illegal rate, so that the circuit

court had jurisdiction of the plaintiffs’ complaint.

¶ 55 Neither party in Village of Deerfield filed an appeal from that decision, and the decision

does not set forth in detail the specific allegations of the plaintiffs’ complaint in that case.

Therefore we will not address the appellate court’s ultimate conclusion that the Village of

Deerfield’s complaint did not seek reparations. However, we find that the Village of

Deerfield court erred in narrowlyinterpreting reparations as excluding anyclaims concerning

service. As was held in the Village of Apple River decision, the Commission “is to determine

that the rates are just and reasonable and that the services are adequate.” Village of Apple

River, 18 Ill. 2d at 523. Consequently, complaints concerning the adequacy of ComEd’s

services fall within the jurisdiction of the Commission and fall within the rubric of

“reparations.”

¶ 56 To the extent that the Village of Deerfield decision stands for the proposition that a

challenge to the adequacy of ComEd’s service can never be considered reparations, we

overrule that portion of the decision. Where, as in this case, a plaintiff’s complaint is based

upon allegations concerning ComEd’s infrastructure and its provision of electrical services,

and seeks relief based upon systemic defects in the provision of electrical services or the

repair of those services when a power outage occurs, that complaint seeks reparations and

is within the exclusive jurisdiction of the Commission.

¶ 57 Plaintiffs next argue that the lower courts erred in dismissing their claims concerning the

life support registry with prejudice, asserting that they have stated a claim pursuant to the

Consumer Fraud Act. The life support registry is set forth in section 8-204 of the Act. That

section provides:

“Every public utility company which furnishes electricity to residential customers

shall (a) maintain a registry of those individuals who are dependent on an electrically

operated respirator, dialysis machine or any other electrically operated life-support

equipment ***.” 220 ILCS 5/8-204 (West 2006).

¶ 58 Plaintiffs alleged that ComEd:

“failed to give priority to restore power of persons signed-up in its Life Support

Registry despite the fact that ComEd has conceded that the first priority in restoring

power is life safety. *** ComEd, while collecting Plaintiff Sloan’s name for the Life

Support Registry, did nothing to protect his interests or those of the Life Support

Registry Class, in that it effectively treated them, e.g., in the wake of the August 23,

2007 power outage, in materially the same manner as any other ComEd customer in

the event of an outage or otherwise.”

¶ 59 Plaintiffs’ Consumer Fraud Act claim alleged that ComEd knew or should have known

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that it failed to sufficiently establish policies and procedures to prevent controllable

interruptions of power and to timely respond to those interruptions, in order to protect the

health, safety, comfort and convenience of its customers, including those on the life support

registry. Plaintiffs claimed that ComEd’s conduct was unfair in violation of the Consumer

Fraud Act because ComEd’s conduct “offends public policy, is immoral, unethical,

oppressive, unjust, unconscionable and unscrupulous, violates public policy.” Plaintiffs

further alleged that as a direct result of its unscrupulous conduct, ComEd “has caused

Plaintiffs’ and Class members’ residences to sustain damage due to ComEd’s failure to

prevent controllable interruption of power, timely restore power to their residences (and

businesses), and/or restore power Life Support Registry customers in priority fashion.”

Plaintiffs assert that rather than invest in adequate resources to perform its duties, ComEd

enriched its principals and managers.

¶ 60 In affirming the dismissal of plaintiffs’ third amended complaint, the appellate court did

not specifically address plaintiffs’ Consumer Fraud Act claims. In this court, plaintiffs

contend that they stated a claim that the failure to restore power to life support registry

customers caused damages to the Sloan plaintiffs in violation of public policy and the

Consumer Fraud Act. Plaintiffs argue that a practice can offend public policy in violation of

the Consumer Fraud Act if the practice violates a standard of conduct set out by existing

statute or common law doctrine. Plaintiffs claim that by knowingly failing to give priority

to customers in its life support registry “in death-threatening situations,” ComEd breached

its duties under section 8-101 of the Act to promote the safety, health, comfort and

convenience of its patrons.

¶ 61 The circuit court dismissed plaintiffs’ complaint, including its Consumer Fraud Act

claim, pursuant to section 2-615 of the Code. A section 2-615 motion to dismiss challenges

the legal sufficiency of a complaint, and alleges only defects on the face of the complaint.

Board of Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186

Ill. 2d 419, 423 (1999). The critical inquiry in deciding a section 2-615 motion to dismiss is

whetherthe allegations of the complaint, considered in a light most favorable to the plaintiff,

are sufficient to state a cause of action upon which relief can be granted. Id. at 424. A cause

of action will be dismissed on the pleadings only if it clearly appears that the plaintiff cannot

prove any set of facts that will entitle it to relief. Id. This court reviews a circuit court’s ruling

on a section 2-615 motion to dismiss de novo. Id.

¶ 62 The elements of a claim under the Consumer Fraud Act are:

“(1) a deceptive act or practice by the defendant; (2) the defendant’s intent that the

plaintiff rely on the deception; and (3) the occurrence of the deception during a

course of conduct involving trade or commerce.” Robinson v. Toyota Motor Credit

Corp., 201 Ill. 2d 403, 417 (2002).

Recovery may be had for unfair as well as deceptive conduct. Id. In measuring unfairness,

courts consider “(1) whether the practice offends public policy; (2) whether it is immoral,

unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to

consumers.” Id. at 417-18.

¶ 63 Although plaintiffs use the words “immoral, unethical, oppressive, unjust,

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unconscionable and unscrupulous” to describe ComEd’s conduct, plaintiffs have not and

cannot allege a deceptive act or practice, or unfair conduct, by ComEd. Plaintiffs argue that

they have alleged unfairness because ComEd’s practices offend public policy. Specifically,

plaintiffs argue that ComEd was obligated pursuant to section 8-101 of the Act to promote

the safety and health of its patrons per the public policy of the state and, presumably, violated

that obligation in failing to give restoration priority to customers in the life support registry.

¶ 64 There is no merit to this claim. Section 8-101 provides that a public utility “shall furnish,

provide, and maintain such service instrumentalities, equipment, and facilities as shall

promote the safety, health, comfort, and convenience of its patrons, employees, and public

and as shall be in all respects adequate, efficient, just, and reasonable.” 220 ILCS 5/8-101

(West 2006). This broad public policy, however, does not impose a duty on ComEd to assign

priority in power restoration to those listed on the life support registry. Indeed, even section

8-204 of the Act, which concerns the life support registry, does not requireComEd to use the

registry to assign priority to households on the registry in its power restoration efforts.

Plaintiffs do not allege any specific public policy requiring ComEd to give priority to life

support registry households in restoring power.

¶ 65 As an aside, we note that the record in this case details the difficulty in requiring ComEd

to assign priority to life support registry households. In response to the plaintiffs’ petition for

a temporary restraining order or a preliminary injunction, ComEd submitted the affidavits

of Timothy McGuire and Phyllis Batson. McGuire’s affidavit stated that he is the vice

president of Construction and Maintenance for ComEd. McGuire testified that ComEd

prioritizes restoration with the highest priorities for restoration going to critical institutions

such as hospitals, police and fire departments, and urgent care centers, followed by senior

citizen facilities and high rise buildings. McGuire also testified that basing powerrestoration

on the life support registry would be inefficient and dangerous, as ComEd would be required

to identify the needs of many isolated individual customers across a very large geographic

area.

¶ 66 Phyllis Batson, the vice president of Customer Contact for ComEd, testified that ComEd

uses the life support registry to identify customers who are on life support systems before

their electrical services are disconnected for nonpayment, to forewarn the customers of

possible planned powerinterruptions, and to help local emergency services identify those on

life support systems. As of July 2007, there were approximately 4,900 persons throughout

ComEd’s service area who were listed on the life support registry.

¶ 67 Plaintiffs’ Consumer Fraud Act claim fails for the additional reason that plaintiffs cannot

allege that ComEd intended that plaintiffs rely on its purportedlyunfair conduct in not giving

restoration priority to those on its life support registry. In fact, it is clear from plaintiffs’

complaint that ComEd specifically notified plaintiff Sloan that her presence on the life

support registry did not give her priority in restoration services. Attached as exhibit A to

plaintiffs’ first amended complaint, which was incorporated by reference into the third

amended complaint, is a June 14, 2007, letter from ComEd to Debbie Sloan notifying her

that the addition of her account to the life support registry “Does not guarantee uninterrupted

electric service” and “Does not provide priority restoration of your electric service when an

interruption occurs.” Consequently, plaintiffs cannot allege that ComEd intended plaintiffs

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to rely on an alleged public policy to give power restoration priority to life support registry

households.

¶ 68 Plaintiffs cannot state a claim against ComEd for violation of the Consumer Fraud Act.

Accordingly, we find that the appellate court properly affirmed the circuit court’s dismissal

of the Consumer Fraud Act claim with prejudice.

¶ 69 Finally, plaintiffs argue that the lower courts erred in denying them leave to file their

fourth amended complaint. The decision to grant a motion to amend pleadings is within the

discretion of the circuit court, and a reviewing court will not reverse the circuit court’s

decision absent an abuse of discretion. Board of Directors of Bloomfield Club, 186 Ill. 2d at

432. This court applies four factors in determining whether the circuit court properly denied

a party’s motion to amend. This court considers whether: (1) the proposed amendment would

cure the defective pleading; (2) the proposed amendment would surprise or prejudice the

opposing party; (3) the proposed amendment was timely filed; and (4) the moving party had

previous opportunities to amend. Id.

¶ 70 Plaintiffs’ proposed fourth amended class action complaint contained one count alleging

a violation of section 16-125 of the Act (220 ILCS 5/16-125 (West 2006)). The fourth

amended complaint sought damages pursuant to sections 16-125(e) and (f) of the Act.

¶ 71 The circuit court held that the legislature intended the Commission to have jurisdiction

of claims under section 16-125. The appellate court agreed, holding that “[o]ur review of

section 16-125 of the Act leads us to the conclusion that the legislature intended for the

Commission to have jurisdiction over the damages remedies under the section.” 399 Ill. App.

3d at 75.

¶ 72 Section 16-125 provides, in pertinent part:

“(e) In the event that more than 30,000 customers of an electric utility are

subjected to a continuous power interruption of 4 hours or more that results in the

transmission of power at less than 50% of the standard voltage, or that results in the

total loss of power transmission, the utility shall be responsible for compensating

customers affected by that interruption for 4 hours or more for all actual damages,

which shall not include consequential damages, suffered as a result of the power

interruption. *** A waiver of the requirements of this subsection may be granted by

the Commission in instances in which the utility can show that the powerinterruption

was a result of any one or more of the following causes:

(1) Unpreventable damage due to weather events or conditions.

* * *

(f) In the event of a power surge or other fluctuation that causes damage and

affects more than 30,000 customers, the electric utility shall pay to affected

customers the replacement value of all goods damaged as a result of the powersurge

or other fluctuation unless the utility can show that the power surge or other

fluctuation was due to one or more of the following causes:

(1) Unpreventable damage due to weather events or conditions.

* * *

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(h) Remedies provided for under this Section may be sought exclusively through

the Illinois Commerce Commission as provided under Section 10-109 of this

Act. ***

(i) The provisions of this Section shall not in any way diminish or replace other

civil or administrative remedies available to a customer or a class of customers.” 220

ILCS 5/16-125 (West 2006).

¶ 73 The appellate court noted that section 16-125(h) of the Act vests jurisdiction in the

Commission for actions seeking damage remedies under section 16-125. 399 Ill. App. 3d at

75. Accordingly, because the Commission has jurisdiction over the damages remedies

provided in section 16-125, the circuit court did not abuse its discretion in denying plaintiffs’

motion to amend their complaint to seek damages pursuant to section 16-125 of the Act. Id.

at 76.

¶ 74 On appeal, plaintiffs argue that the appellate court erred in failing to read subsection (i)

of section 16-125 along with subsection (h). Plaintiffs claim that subsection (i), which states

that the provisions of section 16-125 “shall not in any way diminish or replace other civil or

administrative remedies available,” read with subsection (h), which provides that remedies

under section 16-125 “may be sought exclusively through” the Commission, establishes that

a consumer may pursue section 16-125 relief through the Commission in addition to the

circuit court. Plaintiffs read “may” in subsection (h) as allowing a consumer to bring his

section 16-125 claim either before the Commission or the circuit court.

¶ 75 We disagree with plaintiffs’ interpretation of section 16-125. It is well settled that the

primary objective in construing a statute is to ascertain and give effect to the intent of the

legislature. JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010).

The plain language of the statute is the most reliable indication of legislative intent, and

when the language of the statute is clear, it should be applied as written without resort to aids

or tools of interpretation. Id. This court will not depart from the plain language of the statute

byreading into it exceptions, limitations or conditions that conflict with the legislative intent.

Id.

¶ 76 Here, the meaning of section 16-125 could not be more clear. Subsection (h) provides

that any remedies sought under section 16-125 are to be brought exclusively through the

Commission. Subsection (i) merely provides that if a customer has some other cause of

action against ComEd, the filing of a claim pursuant to section 16-125 does not preclude that

cause of action.

¶ 77 As ComEd argues, the word “may” in subsection (h) merely provides a customer with

the option of bringing a claim if he chooses, but does not force him to bring a claim.

Applying plaintiffs’ construction of the word “may” in subsection (h) as providing that a

customer can bring a claim before the Commission or before the circuit court would render

the word “exclusively” in subsection (h) superfluous. A statute should be construed, if

possible, so that no word is rendered meaningless or superfluous. Kean v. Wal-Mart Stores,

Inc., 235 Ill. 2d 351, 368 (2009). Further, as ComEd notes, plaintiffs’ construction of

subsection (h) would lead to an absurd result by providing that a person may seek a remedy

under section 16-125 either before the Commission or the circuit court, but if he chooses to

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seek his remedy before the Commission, he may only do so exclusively at the Commission.

A court construing the language of the statute will assume that the legislature did not intend

to produce an absurd or unjust result. Hubble v. Bi-State Development Agency of the IllinoisMissouri District, 238 Ill. 2d 262, 283 (2010).

¶ 78 As the lower courts found, remedies sought pursuant to section 16-125 must be sought

exclusivelythrough the Commission. Consequently, the circuit court had no jurisdiction over

plaintiffs’ proposed fourth amended complaint and, therefore, the proposed amendment

would not cure the defective pleading. The appellate court thus correctly held that the circuit

court did not abuse its discretion in denying plaintiffs’ motion to file a fourth amended

complaint seeking damages under section 16-125 of the Act.

¶ 79 CONCLUSION

¶ 80 For all of the foregoing reasons, we affirm the decision of the appellate court.

¶ 81 Appellate court judgment affirmed.

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