Third District Court of Appeal

State of Florida 

Opinion filed May 22, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-181

Lower Tribunal No. 17-22854

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Florida Power & Light Company,

Appellant,

vs.

Heydi Velez, et al.,

Appellees.

An appeal from a non-final order from the Circuit Court for Miami-Dade 

County, David C. Miller, Judge.

Heise Suarez Melville, P.A., Luis E. Suarez, Patricia Melville, Mark J.

Heise, Dorian Daggs, Thomas S. Ward, Joseph Ianno, Jr., (Juno Beach),

Squire Patton Boggs, (US) LLP, Alvin B. Davis, Digna B. French, Boies, 

Schiller & Flexner LLP, Stuart H. Singer, Sashi C. Bach, and Pascual Oliu

(Fort Lauderdale), for appellant.

Armas Bertran Zincone, J. Alfredo Armas, Eduardo E. Bertran,

Francesco A. Zincone, III, Acosta Law Firm, Julio C. Acosta, Simeon 

Genadiev, MSP Recovery Law Firm, John H. Ruiz, Alexis Fernandez, and

Dorta Law, and Gonzalo R. Dorta, for appellees.
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Shutts & Bowen LLP, Ricky L. Polston, Daniel E. Nordby

(Tallahassee), Michael P. Silver, and Alyssa L. Cory (Tampa), for Tampa 

Electric Company and Duke Energy Florida, LLC, as amici curiae.

Before LINDSEY, MILLER, and BOKOR, JJ. 

MILLER, J.

Upon consideration of the motion for rehearing en banc or clarification, 

the response thereto, supplemental briefing, and the parties’ oral arguments, 

the court grants rehearing, withdraws the opinion filed March 22, 2023, and 

substitutes the following opinion in its place.1 See Romero v. State, 870 So. 

2d 816, 818 (Fla. 2004) (treating motion for rehearing en banc as including 

motion for rehearing because doing so “adheres to the spirit of Florida Rule 

of Appellate Procedure 9.040(d)”).

INTRODUCTION

Appellant, Florida Power & Light Company (“FPL”), appeals from a 

non-final order certifying a class in an action seeking damages resulting from 

Hurricane Irma-related service interruptions. After a panel of this court 

affirmed the class certification on direct appeal, FPL sought rehearing en 

banc or clarification. While the motion was pending, the Florida Legislature 

enacted section 366.98, Florida Statutes (2023). The parties presented 

1 We express no opinion as to the viability of the class because any cause 

of action is not yet ripe. 
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supplemental briefing, and FPL argued, among other grounds, that, by

exercise of legislative prerogative, the exclusive jurisdiction to determine 

threshold issues relating to disaster preparedness now lies with the Public 

Service Commission (the “PSC”). We agree.

ANALYSIS

Bearing the title “Public utility liability arising out of emergencies and 

disasters,” section 366.98, Florida Statutes was enacted effective July 1, 

2023. The statute contains two distinct provisions. Because it is dispositive, 

we confine our analysis to that portion of the statute expanding the 

jurisdiction of the PSC. 

Section 366.98(1) provides, in pertinent part: “Consistent with the 

commission’s jurisdiction over public utility rates and service, issues relating 

to the sufficiency of a public utility’s disaster preparedness and response 

shall be resolved by the commission.” § 366.98(1), Fla. Stat. As with any 

statutory analysis, we begin with the plain language of the provision, and, in 

the absence of ambiguity, we end there, as well. See Sch. Bd. of MiamiDade Cnty. v. Fla. Dep’t of Health, 329 So. 3d 784, 787 (Fla. 3d DCA 2021). 

In performing this task, we construe words of common usage in their plain 

and ordinary sense. See Metropolitan Dade County. v. Milton, 707 So. 2d 

913, 915 (Fla. 3d DCA 1998).
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A plain reading of this provision yields the conclusion that the tribunal 

now charged with resolving “issues relating to the sufficiency of a public 

utility's disaster preparedness and response” is the PSC. § 366.98(1), Fla. 

Stat. As evidenced by the phrase “shall be resolved,” this shift in jurisdiction 

from the courts to the PSC is not permissive, but instead mandatory.2 See

Steinbrecher v. Better Constr. Co., 587 So. 2d 492, 494 (Fla. 1st DCA 1991) 

(“[T]he use of the term ‘shall’ in a statute normally has a mandatory

connotation.”).

“[J]urisdictional statutes ‘speak to the power of the court rather than to 

the rights or obligations of the parties.’” Landgraf v. USI Film Prods., 511 

2 Prior to the enactment of section 366.98, Florida Statutes, courts had 

jurisdiction over tort claims and the PSC had “limited authority to conduct 

administrative fact-finding regarding billing disputes and rates for electric 

power,” which did “not preclude a trial court’s adjudication of a gross 

negligence claim for compensatory damages based on the totality of FPL’s 

conduct regarding its customer.” Ramos v. Fla. Power & Light Co., 21 So. 

3d 91, 92 (Fla. 3d DCA 2009) (emphasis added); see also Fla. Power & Light 

Co. v. Albert Litter Studios, Inc., 896 So. 2d 891, 896 (Fla. 3d DCA 2005) 

(“The essence of the purported class-action claim against [FPL] is a refund 

of money customers paid [FPL] for electricity they did not actually use. 

Jurisdiction for actions such as this properly resides in the [PSC].”); Fla. 

Power & Light Co. v. Velez, 257 So. 3d 1176, 1177 (Fla. 3d DCA 2018) 

(“[C]ourts are the appropriate forum for determining whether FPL’s alleged 

past conduct constituted a breach of contract or gross negligence, and the 

mere fact that such claims may involve questions of whether FPL failed to 

meet certain standards established by the PSC does not divest the trial court 

of its jurisdiction, or vest exclusive jurisdiction in the PSC, to resolve such 

issues.”). 
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U.S. 244, 274 (1994) (quoting Republic Nat’l Bank of Mia. v. United States, 

506 U.S. 80, 100 (1992) (Thomas, J., concurring in part)); see also Love v. 

State, 286 So. 3d 177, 187 (Fla. 2019). Hence, “unlike other intervening 

changes in the law, a jurisdiction-conferring or jurisdiction-stripping statute 

usually ‘takes away no substantive right but simply changes the tribunal that 

is to hear the case.’” Hamdan v. Rumsfeld, 548 U.S. 557, 576–77 (2006) 

(quoting Hallowell v. Commons, 239 U.S. 506, 508 (1916)). 

Consistent with these principles, application is presumed to apply 

retroactively. See Landgraf, 511 U.S. at 274–75 (explaining jurisdictional 

changes are procedural and that “[c]hanges in procedural rules may often be 

applied in suits arising before their enactment without raising concerns about

retroactivity”). The instant dispute centers around service interruptions 

suffered by consumers in the wake of a natural disaster. Accordingly, the 

PSC has the exclusive jurisdiction to determine preliminary liability relating 

to the sufficiency of FPL’s disaster preparedness. 

We are therefore constrained to reverse the order under review and 

remand with instructions to stay the proceedings below pending the 

resolution of the threshold issues. See Pub. Serv. Comm’n v. Fuller, 551 So.

2d 1210, 1213 (Fla. 1989). 

Reversed and remanded.