July 17, 2019

Colorado Court of Appeals: Public Utilities Commission has Exclusive Jurisdiction Over Claims for Enforcement of Tariffs

The Colorado Court of Appeals issued its opinion in Development Recovery Co., LLC v. Public Service Co. of Colorado on Thursday, June 15, 2017.

Public Utility—Subject Matter Jurisdiction—Enforcement of Tariffs—Common Law Claims.

The Public Service Company of Colorado, d/b/a Xcel Energy Co. (Xcel), is a utility company regulated by the Colorado Public Utilities Commission (PUC). Development Recovery Company, LLC (DRC) was the assignee of claims from real estate developers who entered into extension agreements (agreements) with Xcel for the construction of distribution facilities to provide gas or electric service for homes in new developments. The agreements specified that they were governed by the PUC’s rules and regulations and referred several times to Xcel’s extension policies. The extension policies on file with the PUC are referred to as tariffs and provide that extension contracts are based on the estimate of the cost to construct and install the necessary facilities to provide the requested service. The tariffs explain in detail how construction costs and payments are to be handled.

DRC filed a complaint against Xcel alleging various common law claims and violation of C.R.S. § 40-7-102, related to an unspecified number of agreements between developers and Xcel over the course of 18 years. Xcel moved to dismiss, arguing that this matter was within the exclusive jurisdiction of the PUC or, alternatively, if the PUC did not have exclusive jurisdiction, the court should nevertheless refer the matter to the PUC under the primary jurisdiction doctrine. The district court agreed with Xcel on both grounds and dismissed the complaint.

On appeal, DRC argued that the district court has exclusive subject matter jurisdiction over DRC’s common law claims, asserting that the trial court erred in concluding that the substance of its claims is merely the enforcement of tariffs. The court of appeals noted that the PUC has exclusive jurisdiction in its constituted field, including enforcement of tariffs. The court concluded that all of DRC’s claims substantively involved enforcement of the tariffs (essentially, how costs were to be calculated and paid). Further, even if DRC has a cause of action under C.R.S. § 40-7-102, exhaustion of administrative remedies before the PUC is required.

DRC also asserted that the district court must have jurisdiction because only it can award the relief sought. DRC cannot confer subject matter jurisdiction on the district court simply by requesting relief in the form of damages. Further, the PUC has authority to order reparations where excessive charges have been collected by a public utility for a product or service, which is a potential remedy in this case.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Comment Period Open for Proposed Changes to Rules of Professional Conduct and Rules of Civil Procedure

The Colorado Supreme Court has announced proposed changes to the Colorado Rules of Professional Conduct. The public comment period for proposed changes to Comment [2A] of Colo. RPC 8.4 and a proposed new Rule 8.6 is now open. Written comments should be submitted to Christopher Ryan, Clerk of the Supreme Court, no later than 5 p.m. on February 25, 2014. There will be a public hearing on these proposed changes on March 6, 2014, at 1:30 p.m. at the Colorado Supreme Court courtroom.

Proposed changes to the Colorado Rules of Civil Procedure were also announced. Changes to C.R.C.P. 54(d) and C.R.C.P. 121, § 1-22 are submitted for public comment. Comments should be submitted in writing to Christopher Ryan by 5 p.m. on April 15, 2014, and the public hearing on the proposed changes will be held on April 29, 2014, at 1:30 p.m. in the Colorado Supreme Court courtroom.

Additional changes to the Colorado Rules of Professional Conduct were also announced, concerning the repeal and readoption of Colo. RPC 1.15. Comments regarding this proposed change are due no later than 5 p.m. on Tuesday, May 20, 2014, and should be submitted in writing to Christopher Ryan. The public hearing regarding this change will be held on June 5, 2014, at 1:30 p.m. in the Colorado Supreme Court courtroom.

For more information on these proposed changes or for the address at which to submit written comments, click here.

SB 12-153: Creation of “Sunshine in Litigation Act”; Rebuttable Presumption Created that Information Must Be Disclosed in Court Action

On February 24, 2012, Sen. John Morse introduced SB 12-153 – Concerning the Creation of the “Sunshine in Litigation Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a rebuttable presumption that information concerning a public hazard must be disclosed in a court action. The bill defines “public hazard” as any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future. A party objecting to the disclosure can seek a protective order to limit disclosure if the court finds, by clear and convincing evidence, that certain factors have been met, including that the information is not relevant to the public hazard and is not useful to members of the public in protecting themselves from injury resulting from the public hazard. The bill is assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.