Development Recovery Co., LLC v. Public Service Company of Colorado
2017 COA 86
| Colo. Ct. App. | 2017Background
- DRC (assignee of developers) sued Xcel alleging breach of contract, breach of implied covenant, unjust enrichment, and violation of §40-7-102 related to extension agreements for electric/gas service extensions.
- The one-page extension agreements incorporated Xcel’s Service Rules and Regulations (extension policies/tariffs) on file with the PUC.
- Tariffs set how Xcel estimates construction costs, allocates a construction allowance, calculates construction payments, and when refunds/reparations may be due.
- DRC alleged Xcel inflated estimated/actual construction costs, misapplied construction allowances, failed to refund construction payments, and included tariff-impermissible provisions.
- Xcel moved to dismiss for lack of subject matter jurisdiction (exclusive PUC jurisdiction); the district court dismissed. DRC appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court has subject-matter jurisdiction over common-law and statutory claims that implicate utility tariffs | DRC: common-law claims (breach, implied covenant, unjust enrichment) and §40-7-102 damages belong in district court | Xcel: claims seek enforcement of tariffs/rates and thus fall within PUC's exclusive jurisdiction; administrative remedies must be exhausted | Held: No. Court lacks subject-matter jurisdiction because claims are essentially enforcement of tariffs and within PUC authority |
| Whether alleged overcharges/estimates and allowance credits require PUC review | DRC: disputes over Xcel’s cost estimates and credits are contractual torts for courts | Xcel: tariffs control cost factors and classification of service; review belongs to PUC | Held: Tariffs govern those determinations; PUC has exclusive authority to assess whether charges are excessive |
| Whether §40-7-102 creates an immediate right to sue in district court without exhausting PUC remedies | DRC: §40-7-102 provides a private cause of action in court | Xcel: even if §40-7-102 permits damages, plaintiff must first exhaust administrative remedies before PUC | Held: Exhaustion required; DRC did not allege exhaustion, so district court lacked jurisdiction on that basis |
| Whether requesting damages and a jury trial vests jurisdiction in district court | DRC: only district court can award damages/jury trial | Xcel: relief form cannot confer subject-matter jurisdiction where PUC has primary authority | Held: Requesting damages or jury trial cannot confer jurisdiction; PUC may order reparations and is proper first forum |
Key Cases Cited
- AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023 (Colo. 1998) (PUC has authority over application of rates and tariffs)
- City of Aspen v. Kinder Morgan, Inc., 143 P.3d 1076 (Colo. App. 2006) (substance of claim, not labels, determines jurisdiction; PUC authority over compliance/remedies)
- City of Boulder v. Pub. Serv. Co., 996 P.2d 198 (Colo. App. 1999) (district court lacked jurisdiction where agreement incorporated PUC-approved tariff amounts)
- Peoples Nat. Gas Div. of N. Nat. Gas Co. v. Pub. Utils. Comm’n, 698 P.2d 255 (Colo. 1985) (PUC authority to award reparations for overbilling)
- Intermountain Rural Elec. Ass’n v. Colo. Cent. Power Co., 307 P.2d 1101 (Colo. 1957) (PUC is an administrative body with exclusive jurisdiction in its field)
- Monaghan Farms, Inc. v. City & Cty. of Denver, 807 P.2d 9 (Colo. 1991) (subject-matter jurisdiction defined by type of case a court is empowered to entertain)