Capitol Container, Inc. v. Alabama Power Co.

79 So. 3d 575, 2011 Ala. LEXIS 130, 2011 WL 3633099
CourtSupreme Court of Alabama
DecidedAugust 19, 2011
Docket1091421
StatusPublished

This text of 79 So. 3d 575 (Capitol Container, Inc. v. Alabama Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Capitol Container, Inc. v. Alabama Power Co., 79 So. 3d 575, 2011 Ala. LEXIS 130, 2011 WL 3633099 (Ala. 2011).

Opinions

MAIN, Justice.

Alabama Power Company (“Alabama Power”), the defendant in an action filed by Capitol Container, Inc. (“Capitol”), has filed a petition for a writ of mandamus, asking this Court to direct the trial court to dismiss Capitol’s claims against Alabama Power for lack of subject-matter jurisdiction. Alabama Power argues that the Alabama Public Service Commission (“the APSC”) has exclusive jurisdiction over those claims and that Capitol failed to exhaust its administrative remedies before filing the action. We grant the petition and issue the writ.

Factual Background and Procedural History

Capitol’s principal place of business is in Montgomery, and Capitol obtains its electrical power from Alabama Power. On January 7, 2010, Capitol filed a complaint in the Montgomery Circuit Court alleging that Alabama Power was refusing to refund or otherwise credit or to reimburse Capitol for overpayments Capitol had made to Alabama Power as a result of Capitol’s being on an incorrect power-rate plan.

In its complaint, Capitol alleged that it had been placed under a rate plan known as “Light and Power Time-of-Use Small” (“LPTS”) by Alabama Power. Capitol asserted that on February 5, 2009, Auditec, a utility-auditing firm, contacted Capitol and offered to evaluate Capitol’s billing records for electrical power to ascertain whether Capitol was under the appropriate rate plan for its electrical needs. Auditec determined that Capitol should be under a rate plan known as “Restricted Light & Power Service — Manufacturing” (“LPLM”). Capitol contacted Alabama Power, and, after discussion, Alabama Power changed Capitol from the LPTS rate plan to the LPLM rate plan. Capitol alleged that its monthly electrical-utility bills were reduced by approximately $3,000 and that it paid Auditec a fee for discovering that it had been being billed under an incorrect rate plan.

Capitol asserted, among other claims, negligence, wantonness, suppression, and unjust enrichment. Essentially, Capitol averred that Alabama Power was under a duty to advise it of the rate plan or classification that would be appropriate for it and had breached that duty, resulting in Capitol’s being charged a higher rate for electrical power; that Alabama Power had been unjustly enriched by the overpayment; and that Alabama Power refused to repay or to compensate Capitol for the overpayments. In three of the five counts of the complaint, Capitol alleged that Alabama Power’s actions were part of a pattern and practice of conduct as related to its commercial customers. Count one alleged in part: “Defendant has a pattern and practice of applying the wrong rate plan or classification to commercial customers and thus has overcharged and continues to overcharge numerous commercial customers.” Count two alleged in part: “Defendant has a pattern and practice of applying the wrong rate plan or classification to commercial customers and thus has in its possession money which belongs to numerous commercial customers.” Count three alleged in part: “Defendant has a pattern and practice of failing to disclose to commercial customers that Defendant is applying the wrong rate plan or classification.”

[577]*577On January 25, 2010, Alabama Power moved to dismiss Capitol’s action under Rule 12(b)(1), Ala.R.Civ.P., arguing that the trial court lacked jurisdiction over Capitol’s claims. Specifically, Alabama Power argued that the APSC has exclusive jurisdiction over the matters that are the subject of Capitol’s complaint and that Capitol had failed to exhaust its administrative remedies through the APSC before filing the complaint. With its motion and supporting brief, Alabama Power attached the affidavit of John A. Garner, an administrative law judge with the APSC. In his affidavit, Garner stated that [the APSC has general supervision of public utilities pursuant to § 87-1-32, Ala.Code 1975, and exclusive jurisdiction pursuant to § 37-1-31, Ala.Code 1975, and] that the APSC regulates Alabama Power pursuant to § 37-1-30 and § 37-4-1(7), Ala.Code 1975. Garner explained that, pursuant to assorted statutes and to rules established by the APSC, utilities must file their rates and service regulations with the APSC and must obtain prior approval of the APSC to change any of those rates or service regulations. Garner also stated:

“In addition to the General Rules of the APSC and the Alabama Power Company’s service regulations, the complaint procedures outlined in the Alabama Code and the Rules of Practice of the Alabama Public Service Commission are applicable to any complaint made to the APSC with respect to retail electric services, rates, and any related matter, and also to ‘any rates, service regulation, classification, practice or service in effect or proposed to be made effective’ with respect to Alabama Power Company’s provision of retail electric services in the State of Alabama. Alabama Code, § 37-1-83. This includes Alabama Power Company’s contracts with and service to its customers; the information its personnel discloses to or withholds from its customers or prospective customers in connection with Alabama Power Company’s retail electric service; Alabama Power Company’s rates; and all of its dealings with those persons or entities who are consumers or prospective consumers of electric services in Alabama.”

Filially, Garner stated that his review of the APSC’s records indicated that Capitol had not filed a complaint with the APSC related to Alabama Power. Alabama Power also attached to its motion to dismiss copies of the General Rules of the APSC (notably Rule 11, “Rate Schedules, Rules, and Regulations,” and Rule 15, “Overbill-ing and Underbilling”); and the Special Rules of the APSC (notably Rule E-15, “Billing Inaccuracies”).

On March 2, 2010, Alabama Power submitted supplemental authorities in support of its motion to dismiss. Alabama Power attached two orders from the APSC in other matters, which Alabama Power contended were illustrative of the APSC’s exclusive jurisdiction over rates and service regulations under § 37-1-31 and § 37-1-83.

On March 8, 2010, the trial court held a hearing on Alabama Power’s motion to dismiss. No testimony was presented, and the trial court heard argument from the parties. At the hearing, Alabama Power argued that Capitol became a commercial customer of Alabama Power in 1997 and that it was undisputed that the rate Capitol was assigned at that time was the best rate for Capitol at the time. Alabama Power asserted that, “[i]n about 2003, [Capitol] added a shift and did something different in the way it did business.” Alabama Power stated that Capitol subsequently discovered through an independent rate consultant that because of those changes it qualified for a different rate plan, one that would lower its cost of elec[578]*578tricity. According to Alabama Power, an APSC rule provides that if a customer wants a different rate than the rate the customer is assigned, it is the customer’s responsibility to initiate the rate change rather than the utility’s responsibility to bring the matter to the customer’s attention. Alabama Power asserted that the APSC has exclusive jurisdiction over rates and service regulations.

Capitol argued that the case centered around the fact that Alabama Power would not refund the money it had overcharged Capitol. According to Capitol, Alabama Power’s customer service should “be looking out for this stuff’ rather than expecting lay customers to know which rate would be most advantageous.

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Bluebook (online)
79 So. 3d 575, 2011 Ala. LEXIS 130, 2011 WL 3633099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capitol-container-inc-v-alabama-power-co-ala-2011.