2020 Ohio 250
Ohio Ct. App.2020Background
- Pacific Indemnity (insurer) paid $71,880.78 to its insureds, the Cicalas, after a tree on neighbor Dorothy Deems' property fell in a storm and damaged the Cicalas' yard and AEP/OPC power lines; Pacific subrogated to the Cicalas' rights.
- AEP (substituted by Ohio Power Company, OPC) and contractor Asplundh responded to the fallen tree and, according to Pacific, caused additional landscaping and sprinkler damage during removal.
- Pacific sued Deems, AEP/OPC, and Asplundh in Franklin County Common Pleas alleging negligence; OPC and Asplundh moved to dismiss for lack of subject-matter jurisdiction because the Public Utilities Commission of Ohio (PUCO) has exclusive jurisdiction over service-related vegetation-management disputes.
- The trial court granted the Civ.R. 12(B)(1) motion and dismissed the complaint, concluding the dispute involved vegetation-management and emergency restoration practices within PUCO's exclusive jurisdiction.
- On appeal Pacific argued the claim is a common-law tort (and a subrogation claim) not requiring PUCO expertise and that Asplundh, a non-utility contractor, is not subject to PUCO jurisdiction.
- The Tenth District affirmed, applying the Allstate/Corrigan two-part test and holding PUCO expertise was required and the challenged acts constituted practices normally authorized by the utility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PUCO has exclusive jurisdiction over the negligence claims arising from tree assessment and removal (vegetation management and emergency restoration). | Pacific: This is a common-law tort/subrogation claim; PUCO expertise is not required and the court of common pleas has jurisdiction. | OPC/Asplundh: R.C. 4905.26 and related regulations give PUCO exclusive jurisdiction over service-related vegetation-management and restoration practices; administrative expertise is required. | The court held PUCO has exclusive jurisdiction: under the Allstate/Corrigan test PUCO expertise was required and the acts constituted practices normally authorized by the utility. |
| Whether a non-utility contractor (Asplundh) acting for the utility falls outside PUCO jurisdiction. | Pacific: Asplundh is not a public utility, so PUCO lacks authority over it. | OPC/Asplundh: R.C. 4905.55 imputes acts of an agent/contractor to the public utility; courts treat contractor acts for utilities as subject to PUCO. | The court held contractor acts performed on behalf of the utility fall within PUCO's exclusive jurisdiction; dismissal affirmed. |
Key Cases Cited
- Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301 (Ohio 2008) (adopted the two-part test for PUCO exclusivity and analyzed subrogation vs. service-related claims)
- Corrigan v. Illum. Co., 122 Ohio St.3d 265 (Ohio 2009) (held vegetation-management decisions and tree removal are service-related and governed by PUCO)
- State ex rel. Ohio Edison Co. v. Shaker, 68 Ohio St.3d 209 (Ohio 1994) (discussed PUCO's broad jurisdiction over service-related matters)
- Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211 (Ohio 1976) (trial courts may consider materials beyond the complaint when resolving subject-matter jurisdiction)
- Higgins v. Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198 (Ohio Ct. App. 2000) (casting allegations as tort/contract does not avoid PUCO exclusivity when the basic claim is service-related)