Sheffler v. Commonwealth Edison Company

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-0849 Rel

Case Date: 02/26/2010

Preview:SIXTH DIVISION February 26, 2010

No. 1-09-0849 FRANCES SHEFFLER, MARK RESNIK, and DEBRA L. SLOAN, Individually and on Behalf of JASON SLOAN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, an Illinois Corporation, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 07 CH 23615

Honorable Rita M. Novak, Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court: Plaintiffs, Frances Sheffler, Mark Resnik, and Debra Sloan, individually and on behalf of Jason Sloan, appeal the dismissal of their complaint, framed as a class action, against defendant, Commonwealth Edison Company (ComEd), a public utility, and the trial court's denial of their motion for leave to file a fourth amended complaint, also framed as a class action. On August 23, 2007, the Chicago area was affected by severe storm systems, resulting in the loss of electrical power to many ComEd customers, including plaintiffs. Following the storms, plaintiffs filed this lawsuit seeking legal and equitable relief against ComEd. The operative third amended complaint, which was dismissed in its entirety with prejudice, contained five counts as a class action. Count I, entitled "Negligence," alleges that ComEd negligently failed to prevent the power outages, failed to provide adequate warning to plaintiffs and those similarly situated prior to the power

No. 1-09-0849 outages, and failed to timely restore power to plaintiffs and the purported class following the power outages. Count II, entitled "Public Utilities Act," alleges the existence of a statutory duty and a violation of that duty. Specifically, count II of plaintiffs' complaint alleges that ComEd violated sections 8-101, 8-401, and 16-125(e) and (f) of the Illinois Public Utilities Act (Act) (220 ILCS 5/1-101 et seq. (West 2006)), as well as Illinois Commerce Commission Rule 411.100. Count III, entitled "Breach of Contract Implied in Law/Fact," alleges that ComEd accepted payment for and impliedly agreed to provide plaintiffs and the purported class with "adequate, efficient and reliable electric services," and failed to do so. Count IV, entitled "Injunction," sought to enjoin ComEd "from its practice of refusing to have in place infrastructure and planning, that, by design, cannot prevent controllable interruptions of power," and "cannot permit ComEd to timely respond" to a power interruption. Count V, entitled "Illinois Consumer Fraud Act," alleges that ComEd engaged in unfair business practices by "pay[ing] its managers and employees bonuses or compensation to spend less on repair for the benefit of [ComEd's] Illinois customers." The complaint's prayer for relief requests class-action certification for "[a]ny and all persons and entities located in the State of Illinois that suffered damages as a result of electric power outages or interruptions for August 23, 2007, through the date of judgment." The complaint alleges that plaintiffs and purported class members suffered "personal injur[ies], property damage and other financial damages, including loss of use of property, and costs of repair or replacement of property as a result of the sudden and

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No. 1-09-0849 dangerous power outages or interruptions." The complaint further alleges that plaintiffs "sustained at least the following damages as a result of ComEd's acts and conduct: spoiled food, water damage to walls, furniture, fixtures, appliances, furnace and water heaters, and medical and electrical equipment." As relief, the complaint seeks legal and injunctive relief, attorney fees and costs, and any other relief the circuit court finds proper. As part of the injunctive relief sought, the complaint seeks to "enjoin[] ComEd and its agents, employees, and all persons acting in concert or cooperation with [ComEd] *** from its practice of refusing to have in place infrastructure and planning, that, by design, cannot prevent controllable interruptions of power," and "cannot permit ComEd to timely respond to a power interruption." ComEd filed a motion under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)), to dismiss plaintiffs' complaint for failure to state a cause of action. Relying on Lewis E. v. Spagnolo, 186 Ill. 2d 198 (1999), the trial court dismissed the complaint, with prejudice, concluding that the complaint failed to sufficiently state a cause of action. In Spagnolo, our Illinois Supreme Court affirmed the dismissal of a complaint seeking a sweeping mandatory injunction to correct allegedly deplorable conditions at a school, finding that the "plaintiffs allege merely that the defendants have violated `common law duties,' without specifying what those duties are or what acts or omissions of the defendants breached those duties." Spagnolo, 186 Ill. 2d at 233. Further, the court found that the issue raised in the plaintiff's complaint was a nonjusticiable political question and the redress sought by the plaintiffs was appropriately

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No. 1-09-0849 addressed by the Illinois legislature. Spagnolo, 186 Ill. 2d at 205. Likening the current case to Spagnolo, the trial court specifically found that the complaint in the case at bar sought relief "for systematic defects in the provision of the electrical services or in the repair of those services once an outage occurs," which the trial court determined were of "the type of broad-based allegations and claims that cannot survive as a matter of law." The trial court concluded that "the bottom line is that *** plaintiffs' allegations go to the way [ComEd] provides services and the adequacy of its response when those services fail," and that "the law [does not] provide relief for the kinds of claims that are stated" in plaintiffs' complaint. Plaintiffs sought leave to file a fourth amended complaint to remove their allegations seeking injunctive and declaratory relief, and to seek only a damages claim, which the trial court denied. Plaintiffs timely appeal the dismissal of their class-action complaint and the denial of their motion for leave to file a fourth amended class-action complaint. We affirm. BACKGROUND Plaintiff Sheffler is a resident of Glenview, Illinois, plaintiff Resnik of Wilmette, Illinois, and plaintiff Debra Sloan, who sues individually and on behalf of her son, Jason Sloan, of Des Plaines, Illinois. Plaintiffs' complaint alleges that "on or about August 23, 2007, and thereafter, ComEd failed to provide, and timely restore power to the plaintiffs and other customers in Illinois including Cook County." The complaint further alleges that "the storm of August 2007 precipitated an interruption in excess of 30,000 ComEd

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No. 1-09-0849 customers, including plaintiffs and ComEd did not restore their power within 24 hours." The complaint seeks the appointment of plaintiffs as representatives of a statewide class of similarly situated ComEd customers. The complaint contains additional allegations concerning the Sloan plaintiffs. Jason Sloan requires a ventilator to breathe and has life-support equipment at home, where he lives with his mother Debra Sloan. The Sloan residence lost power during the August 23, 2007, storm. The complaint alleges that Debra Sloan telephoned a ComEd customer service representative for assistance and that she received "curt treatment" on the telephone. As a result of the power outage, Debra connected Jason's ventilator to a "temporary generator," contained within their residence's basement. Shortly after connecting Jason's ventilator to the "temporary generator," the Sloan's basement flooded and Debra Sloan's back-up efforts to restore power to Jason's ventilator were unsuccessful. Unable to learn when her home's electric power would be restored, Debra moved her son to an undisclosed location that apparently had electrical power. The Sloan residence appeared on a list known as the "Life Support Registry" (registry) that ComEd maintains under the Illinois Public Utilities Act (220 ILCS 5/8-204 (West 2006)), due to the presence of life-support equipment within the residence. Section 8-204 of the Act requires "[e]very public utility company which furnishes electricity to residential customers [to] *** 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). The

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No. 1-09-0849 complaint alleges that ComEd refused to use the registry to assign the Sloan residence priority in restoring electrical power. Further, the complaint alleges that "ComEd rushed to restore power of certain VIPs," rather than give priority to those customers on the lifesupport equipment registry. As noted, the trial court proceedings in the case at bar involved four filed complaints and one proposed fourth amended complaint. The procedural history leading to the operative third amended complaint and the proposed fourth amended complaint is as follows. On August 28, 2007, five days after the August 23, 2007, storms, plaintiffs Sheffler and Resnik filed a putative class-action complaint against ComEd alleging a violation of the Act and breach of an "implied contract." Two weeks later, plaintiffs moved for and obtained leave to file an amended complaint. On September 19, 2007, plaintiffs filed an "amended class action complaint." The amended complaint added the Sloan plaintiffs, repeated the original complaint's counts and added allegations concerning ComEd's life-support equipment registry. The amended complaint sought class-action certification for "[a]ny and all persons registered on [the registry] from August 23, 2007, through the date of judgment," and sought injunctive relief with respect to an unspecified obligation concerning the life-support registry, and a declaratory judgment finding that ComEd should use the registry in assigning priority in restoring power following an outage.

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No. 1-09-0849 The amended complaint alleged that the registry mandated that households appearing on the registry receive priority for power restoration following power outages. Attached to the amended complaint is a June 14, 2007, letter from ComEd addressed to Debra Sloan stating as follows: "The addition of your account to the Life Support Registry *** [d]oes not guarantee uninterrupted electrical services [and] does not provide priority restoration of your electric service when an interruption occurs." The amended complaint sought a temporary restraining order or alternatively a preliminary injunction restraining or directing ComEd: "from refusing to respond on a priority or individual basis to restore electric power or to offer assistance to persons registered in their Life Support Registry; to give persons registered in their Life Support Registry priority in restoring power after an outage; to provide persons registered in their Life Support Registry regular and frequent updates and warning as to when it is anticipated that power will be restored, if at all; and/or to clearly and conspicuously inform persons registered in their Life Support Registry what assistance [ComEd] will provide and will not provide in the event of an outage for purposes of restoring electricity." In opposition to plaintiffs' request for an injunction, ComEd submitted the affidavits of Timothy McGuire, vice president of construction and maintenance for ComEd, and Phyllis Batson, vice president of customer contact for ComEd. The affidavits asserted that the highest priority for restoration of electrical power following a

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No. 1-09-0849 power outage goes to critical institutions such as hospitals, police and fire departments, and urgent care centers. According to the affidavits, the following priority is given to municipal water pumping facilities, senior citizen facilities, and high-rise buildings. The affidavits asserted that the life-support equipment registry cannot mandate priority in power restoration as persons requiring the use of life-support equipment are distributed throughout ComEd's service territory. On September 19, 2007, the trial court denied plaintiffs' injunction request. The trial court found that the relief sought was a request for the trial court to assume the role of the Illinois Commerce Commission (Commission or ICC). The trial court stated, "I don't know how I would order ComEd to do that which you propose to do *** I mean, that's what the [Commission] does." ComEd filed a motion to dismiss plaintiffs' amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)). On November 8, 2007, after hearing argument from all parties, the trial court found that plaintiffs' allegations concerning the life-support equipment registry failed to state a cause of action and dismissed those claims with prejudice. The trial court permitted plaintiffs to include the registry-related allegations in a second amended complaint, but only to preserve those allegations for appellate review. The trial court dismissed the remainder of plaintiffs' amended complaint without prejudice, finding that plaintiffs had not set forth sufficient facts alleging a specific duty that ComEd breached and that plaintiffs were damaged by any such breach. The trial

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No. 1-09-0849 court granted plaintiffs leave to file a second amended complaint to correct any defects in their complaint. Plaintiffs filed their second amended complaint, again framed as a class action, on December 6, 2007, once more seeking class-action certification of a statewide class. In their second amended complaint, the plaintiffs added a new count claiming negligence and realleged the counts claiming ComEd's violation of the Act, ComEd's breach of an implied contract, and the allegations concerning the life-support equipment registry. ComEd then moved to dismiss plaintiffs' second amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)). On June 16, 2008, the trial court granted ComEd's motion to dismiss, finding that plaintiffs failed to set forth sufficient factual allegations to state a cause of action. The trial court again dismissed the registry-related counts, without leave to replead, but allowed plaintiffs leave to amend the remaining counts. On August 4, 2008, plaintiffs filed their third amended complaint, again seeking class-action certification for a statewide class of ComEd customers who suffered damages as a result of electrical power outages or interruptions from August 23, 2007, through the date of judgment. As noted, plaintiffs' third amended complaint contains five counts. Count I asserts negligence, count II asserts violation of the Act, count III asserts breach of an implied contract, count IV seeks injunctive relief, and count V asserts violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2006)).

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No. 1-09-0849 On August 5, 2008, plaintiffs filed a second motion for a emergency temporary restraining order. According to the motion, the Sloan plaintiffs lost power in the evening of August 4, 2008, and in the early morning of August 5, 2008. The plaintiffs sought an order to have the Sloan residence's power immediately restored. The trial court denied plaintiffs' motion for a temporary restraining order, finding that it had no authority to regulate ComEd. ComEd then filed a combined section 2-619.1 motion to dismiss (735 ILCS 5/2619.1 (West 2006)), seeking dismissal of plaintiffs' complaint under both section 2-615 and 2-619 of the Code. Section 2-619.1 of the Code provides: "Motions with respect to pleadings under Section 2-615 [(735 ILCS 5/2-615)], motions for involuntary dismissal or other relief under Section 2-619 [(735 ILCS 5/2-619)], and motions for summary judgment under Section 2-1005 [(735 ILCS 5/2-1005)] may be filed together as a single motion in any combination. A combined motion, however, shall be in parts. Each part shall be limited to and shall specify that it is made under one of [the aforementioned sections]. Each part shall also clearly show the points or grounds relied upon under the Section upon which it is based." 735 ILCS 5/2-619.1 (West 2006). In its motion, ComEd argued that plaintiffs filed their third amended complaint, which was substantially similar to those already dismissed by the trial court. Further, ComEd

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No. 1-09-0849 argued that plaintiffs sought sweeping relief related to ComEd's operation and that the ICC had exclusive jurisdiction over the regulation of ComEd. On December 16, 2008, after hearing argument from all parties, the trial court granted ComEd's motion to dismiss plaintiffs' third amended complaint in its entirety with prejudice, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)). The trial court determined: "There still would have to be some additional factual allegations that would show what actions [ComEd] took or did not take vis-

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