South Eastern Indiana Natural Gas Co. v. Ingram

617 N.E.2d 943, 1993 Ind. App. LEXIS 846, 1993 WL 264578

• Court: Indiana Court of Appeals
• Decided: July 19, 1993
• Docket: 69A01-9208-CV-263
• Status: Published

Opinions

ROBERTSON, Judge.

South Eastern Indiana Natural Gas Co., Inc. (hereinafter referred to as South Eastern) brings this interlocutory appeal from an order denying its motion for judgment on the pleadings in an action for negligence brought by Frank and Donna Ingram (In-grams).

We affirm.

The Ingrams allege in their complaint that, on January 10, 1982, South Eastern, a utility which supplied gas to them, experienced a partial interruption of service to its customers in the form of a reduction in line pressure.¹ Employees of South Eastern spent the early hours of January 10, 1982 responding to calls; however, at no time did South Eastern attempt to advise the Ingrams to switch to an emergency source of heat. The reduction in line pressure caused a loss of heat in the Ingrams' greenhouse which was not discovered by the Ingrams until 5:00 a.m. at which time the temperature in the greenhouse was zero degrees and the contents then'a total loss. The Ingrams allege that South East ern's negligence in not warning them to switch to an emergency source of heat was the proximate cause of their damages, including loss of inventory, profits, customers, labor, interest on borrowed money, and other damages.

In its motion for judgment on the pleadings, South Eastern contended both that the trial court lacked subject matter jurisdiction to hear the Ingrams' complaint because the Ingrams had failed to exhaust administrative remedies and that the legislature had vested exclusive jurisdiction to consider the Ingrams' claim in the Indiana Utility Regulatory Commission (IURC). In addition, South Eastern argued that the Ingrams had failed to state a claim upon which relief could be granted. The In-grams moved to have their depositions published and urged the trial court to consider South Eastern's motion under Ind.Trial Rule 56. South Eastern objected. The court did not consider the depositions when ruling upon the motion for judgment on the pleadings.

Accordingly, the standard for review of South Eastern's motion is the same as that applied to an Ind. Trial Rule 12(B)(6) motion made solely on the pleadings. The motion tests the sufficiency of the complaint to state a redressable claim, not the facts to support it. Anderson v. Anderson (1979), Ind.App., 399 N.E.2d 391, 405-6. The test to be applied is whether, in the light most favorable to the nonmovants and with every intendment regarded in their favor, the complaint is sufficient to constitute any valid claim. Id. (citing State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604). The movant admits the facts pleaded. Anderson, 399 N.E.2d at 405-6.

At this late date, there can be no serious dispute that an Indiana circuit court has original subject matter jurisdiction to hear a claim sounding in negligence. See Ind. Code 38-4-4-8 ("The circuit court has original jurisdiction in all civil cases ... except where exclusive jurisdiction is conferred by law upon other courts of the same territorial jurisdiction"); State v. Schuetter (1987), Ind.App., 503 N.E.2d 418, 420. This grant of jurisdiction notwithstanding, South Eastern's position is that by granting the IURC the authority to investigate any "practice or act whatsoever affecting or relating to the service of any public utility" or a complaint that any service "is in any respect unreasonable, ... insufficient ... or inadequate," I.C. 8-1-2-54, and to issue an order "fix[ing] just and reasonable measurements, regulations, acts, practices or service to be furnished, imposed, observed and followed in the future in lieu of those found to be unjust ...," 1.G. 8-1-2-69, the legislature has precluded an exercise of jurisdiction over the Ingrams' complaint by an Indiana trial court, requiring dismissal. South Eastern's contention raises two considerations: first, which if any of the legal or factual questions posed by the Ingrams' complaint are within the IURC's "exclusive" grant of authority, and second, does the existence of a collateral issue within the IURC's jurisdiction require the courts to defer consideration of the entire matter until the IURC has acted.

We begin our discussion with the basic proposition that the IURC derives its power solely from the legislature; if the power to act has not been conferred by statute, it does not exist. The legislature does not intend to grant other and greater authority than it has itself seen fit to exercise. Citizens Action Coalition v. Northern Indiana Public Service Co. (1985), Ind., 485 N.E.2d 610, 612, cert. denied, 476 U.S. 1137, 106 S.Ct. 2239, 90 L.Ed.2d 687; Chicago & E.I.R. Co. v. Public Service Commission (1943), 221 Ind. 592, 594, 49 N.E.2d 141, 341-2. Accordingly, any doubt about the existence of authority must be resolved against a finding of authority. United Rural Electric v. Ind. & Michigan Electric Co. (1990), Ind., 549 N.E.2d 1019, 1021.

Had the legislature explicitly stated that it intended to modify the common law of negligence and expressly provided that the existence and scope of a utility's duty in tort to private citizens is to be determined exclusively by the Public Service Commission Act as implemented by the IURC, the present dispute would not be before us. It has not so stated. Therefore, we must determine the legislature's intent from the specific grants of authority contained in Title 8 and the Act as a whole.

Indiana Code 8-1-2-107 provides a statutory remedy for injury sustained as a consequence of a neglect or violation of the regulatory scheme by a utility. This court has held that an action brought pursuant to this section for damages sustained as a result of a utility's discrimination in service or unreasonable preference must be preceded by a determination by the IURC that the utility's conduct is unlawful. Indiana Bell Telephone Co. v. Friedland (1978), 175 Ind.App. 622, 654, 373 N.E.2d 344, 352, cert. denied, 440 U.S. 916, 99 S.Ct. 1233, 59 L3Ed.2d 465. But, neither I.C. 8-1-2-107 nor Friedland speaks to the violation of common law duties by a public utility. The Indiana Supreme Court has held that the legislature did not intend to displace the common law with respect to duties by enacting the predecessor to this section. Trustees of Jennie De Pauw Memorial Methodist Episcopal Church v. New Albany Waterworks (1923), 193 Ind. 368, 140 N.E. 540. Indiana Code 8-1-2-107 therefore grants the IURC no authority to determine the underlying facts or liability of a utility to a private litigant in a dispute which does not involve a neglect or violation of the regulatory scheme.

The legislature has explicitly given the IURC the authority, upon its own motion, I.C. 8-1-2-58, or when the issue is otherwise properly presented to it, to investigate into the "service" provided by a regulated utility, to find facts based upon the evidence before it, and to prospectively rectify any perceived inadequacies in the utility's practices or the regulatory scheme. 1.C. 8-1-2-54, 69. Inherent in this grant of power is the implicit power and authority to do that which is necessary to effectuate the regulatory scheme. Northern Indiana Public Service Co. v. Citizens Action Coalition (1989), Ind., 548 N.E.2d 153, 158, cert. denied, 476 U.S. 1137, 106 S.Ct. 2239, 90 L.Ed.2d 687.

The courts of this state have already concluded that the IURC does not possess the power to make declaratory rulings in the manner contemplated by the Declaratory Judgment Act. U.S. Steel Corp. v. Northern Indiana Public Service Co. (1985), Ind.App., 482 N.E.2d 501, 506, trans. denied. The TURC's duty is to enter orders based upon impartial findings of fact. It has not been empowered to enter judgments which determine the parties' rights, status or legal relationship, even when the subject matter of the determination appears to fall within the IURC's broad grant of authority. National Rural Utilities Cooperative Finance Corp. v. Public Service Commission of Indiana (1990), Ind., 552 N.E.2d 23, 25 (summarily affirming National Rural Utilities Cooperative Finance Corp. v. Public Service Commission of Indiana (1988), Ind.App., 528 N.E.2d 95, 98); Office of Utility Consumer Counselor v. Northern Indiana Public Service Co. (1989), Ind.App., 538 N.E.2d 957, 959, trans. denied; Kentucky-Indiana Municipal Power Association v. Public Service Commission of Indiana (1979), 181 Ind.App. 639, 645, 393 N.E.2d 776, 780. Neither the Ingrams nor South Eastern could therefore file a petition under 1.C. 8-1-2-54 to obtain a declaration of South Eastern's liability to the Ingrams.

Nonetheless, by empowering the IURC to determine the reasonableness and adequacy of South Eastern's service to its customers, the IURC appears to possess the inherent authority to investigate into whether South Eastern used reasonable care in the provision of service and whether some other action was warranted under the circumstances. While an inquiry into the reasonableness of the service provided by South Eastern ultimately may be necessary to effectuate the regulatory scheme, the results of such an investigation can have no binding effect upon the judiciary. The IURC possesses only such power as the legislature can constitutionally confer upon it.

The Indiana Constitution expressly reposes the power to find facts in the jury and guarantees in Art. I, § 20 that "[iJn all civil cases, the right of trial by jury shall remain inviolate.² Schembri v. Shearer (1935), 208 Ind. 97, 194 N.E. 615. The constitutional provision means that the substantial elements and incidents, which pertained to a trial by jury at common law, shall not be altered or changed by the legislature or the courts and are preserved in substance as they existed at common law. Hayworth v. Bromwell (1959), 239 Ind. 430, 437, 158 N.E.2d 285, 288. Analogously, the Seventh Amendment of the federal Constitution prevents Congress from depriving a litigant of a jury trial in a legal action before a tribunal customarily utilizing a jury as its fact-finding arm. Atlas Roofing Co. v. Occupational Safety & Health Review Commission (1977), 430 U.S. 442, 451, 458-9 n. 7, 97 S.Ct. 1261, 1267, 1267 n. 7, 51 LEd.2d 464. Hence, just as the General Assembly may not directly withdraw the right to a jury in the present cause by legislation, Schembri, 208 , 194 N.E. 615; Hiott, 284 N.E.2d at 844, it may not impair the right by substituting the IURC for the jury as the court's fact-finding arm.

Plainly, the legislature never intended an unconstitutional delegation of power. Whatever the factual overlap between an investigation into the reasonableness and adequacy of a particular utility's service and proof of the breach of a common law duty, the IURC is not empowered to make factual findings and rulings which are ultimately binding upon a jury. This want of power means that the issue of duty is never "exclusively" before the IURC, when the utility is alleged to have neglected to act as required of it by the common law rather than the Act or its implementing regulations, because the issues of breach of duty, proximate cause and damages are not ever directly before the IURC.

Nonetheless, the operative facts presented by the Ingrams' complaint do show a basis for an exercise of the IURC's investigatory jurisdiction. We therefore come to the second question referred to earlier: mindful of the fact that the IURC can, upon its own motion, exercise its jurisdiction and investigate into the service provided by South Eastern, must the judiciary dismiss the complaint because the Ingrams did not go first to the IURC for a ruling upon the collateral matter of the adequacy of South Eastern's service? We addressed this precise question last in Public Service Indiana, Inc. v. Nichols, 494 N.E.2d 349, in which we held that a plaintiff raising a common law negligence claim need not exhaust administrative remedies.³ See also, Indiana Telephone Corp. v. Indiana Bell Telephone Co. (1976), 171 Ind. App. 616, 858 N.E.2d 218, modified, 171 Ind.App. 616, 360 N.E.2d 610 (construction of and breach of contract claims proper matters for judicial determination without resort to administrative agency); Citizens Gas & Coke Utility v. Sloan (1964), 186 Ind.App. 297, 196 N.E.2d 290 (fraud and rescission of contracts proper for judicial branch of government). The Michols court's analysis and application of the exhaustion of remedies doctrine to negligence and strict liability claims against a public utility governs this case. We would add to the rationale of Nichols the following points.

First, our case law dictates deference to the jurisdiction of the IURC only where a remedy is available from the IURC which contemplates the determination of the precise issue upon which further relief in the trial court depends, not the determination of collateral issues. See Friedland, 175 Ind.App. at 654, 373 N.E.2d at 352.⁴ This basic principle distinguishes all three of the decisions relied upon by South Eastern, Haggard v. PSI Energy, Inc. (1991), Ind.App., 575 N.E.2d 687, trans. dismissed; Indiana Forge and Machine Co., Inc. v. Northern Indiana Public Service Co., 396 N.E.2d 910 (1979), and Friedland, 373 N.E.2d 344, in support of its assertion that the IURC must first be given an opportunity to investigate and provide a remedy. These cases involve, at least in part, claims for damages arising out of and dependent upon the validity and application of rules contained in the utilities' tariffs, the approval and regulation of which is within the exclusive jurisdiction of the IURC. See Haggard, 575 NE.2d at 687 (State law claims arising out of denial of service pursuant to retail tariff); Indiana Forge, 396 N.E.2d 910 (Consolidated appeal. of orders on emergency petitions and complaint for declaratory and injunctive relief and damages caused by implementation of allegedly unreasonable and arbitrary containment policy); Friedland, 378 N.E.2d 344 (Class action for declaratory and injunctive relief and damages based upon claims discrimination in rate tariff arbitrary and unreasonable, applied in arbitrary and discriminatory manner or wrongfully applied). The Ingrams make no challenge to any provision in South Eastern's tariff. Indeed, there is no indication in the record that any provision in the tariff or even an IURC regulation is applicable to South Eastern's allegedly negligent practice.

But, more precisely, the action brought by the Ingrams ultimately "does not turn on a determination of the reasonableness of a challenged industry practice-a determination that could be facilitated by an informed evaluation of the economics or technology of the regulated industry," Nader v. Allegheny Airlines, Inc. (1976), 426 U.S. 290, 306, 96 S.Ct. 1978, 1988, 48 L.Ed.2d 643, but upon the test of reasonable care arising from common law-a wholly distinct standard dependent largely upon the circumstances of the case and upon what a jury may decide a reasonably prudent person would have done under the cireum-stances.

It takes no special expertise to resolve the negligence question. To the contrary, questions of duty, breach of duty, causation, and injury have traditionally fallen within the competence of the judiciary and its fact-finding jury. The law is the province of the judiciary under our constitutional system of government. Board of Trustees of PERF v. Miller (1988), Ind., 519 N.E.2d 732, 733. Deference is not granted the agency's legal conclusion. Id. An IURC determination of "the adequacy of service" is thus unnecessary because it is not the question the court or jury must address and because, regardless of the facts and law found by the agency, neither the jury nor the court will be bound by the IURC's determinations.

Second, neither the prospective discretionary "fixing" authorized by 1.C. 8-1-2-69 nor the internal complaint procedure offered by the IURC can provide the In-grams any relief, The "remedy" is no remedy at all for a common law tort and in this respect, it is plainly inadequate. Cf. McCarthy v. Madigan, (1992), - U.S. -, 112 S.Ct. 1081, 117 LEd.2d 291 (federal prisoner need not resort to internal grievance procedure before he may initiate Bivens suit for damages; all justices concur, fact that grievance procedure cannot provide award of damages means administrative remedy furnishes no effective remedy at all).

Third, a statutory procedure for review excludes common law remedies only to the extent that the statutory provisions are adequate to protect and preserve substantive rights guaranteed by the Constitution, statute or general principles of law. Public Service Commission v. City of Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; Indiana Forge & Machine Co. v. Northern Indiana Public Service Co. (1979), Ind.App., 396 N.E.2d 910, 913. Ultimately, if the jury is not permitted to reject the IURC's determination and factual findings on the reasonableness and adequacy of South Eastern's service, the very substance of the right to jury trial protected by the Indiana Constitution will have been impaired. Cf. Johnson v. St. Vincent's Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585 (Opinion of medical review panel only evidence). This concern is not illusory. See e.g. Whitley County Rural Electric Membership Corp. v. Lippincott (1986), Ind.App., 493 N.E.2d 1323.

For these reasons, we conclude that the trial court correctly determined that the IURC did not have exclusive jurisdiction over the issues raised by the Ingrams' complaint. Dismissal of the complaint was not warranted because of the Ingrams' purported failure to exhaust administrative remedies.

Alternatively, South Eastern argues that the Ingrams have failed to state a claim upon which relief can be granted because it owed the Ingrams no duty of reasonable care under the cireum-stances. In analyzing this issue, we may be concerned only with the sufficiency of the complaint to state a claim, not the facts which support it. Only where it appears to a certainty from the face of the complaint that under no set of facts could the plaintiff be granted relief is dismissal appropriate. Rankin, 294 N.E.2d 604, 606. Notice pleading means that a plaintiff essentially need plead only the operative facts involved in the litigation. Id. Again, the Ingrams allege that the proximate cause of their injury was South Eastern's negligence in not warning them to switch to an emergency source of heat.

Duties which may be the basis of a negligence action may arise by statute or by operation of law. State v. Morgan (1982), Ind.App., 432 N.E.2d 59, 62. Indiana Code 8-1-2-4 imposes upon South Eastern a statutory duty to furnish reasonably adequate service and facilities. See Indiana Bell Telephone Co. v. O'Bryan (1980), Ind.App., 408 N.E.2d 178, 181. But apart from this statutory duty, the courts of this state have long recognized a common law duty on the part of a public utility to conform its conduct for the benefit of the public generally, its customers, and third persons who might reasonably be foreseen to be affected by the utility's provision of service.

The parties in the present case occupy the contractual relationship of buyer and seller. All applicable law in force at the time the agreement was made impliedly forms a part of the agreement without any statement to that effect. Strauss Veal Feeds, Inc. v. Mead & Hunt, Inc. (1989), Ind.App., 538 N.E.2d 299, 302, trans. denied. Hence, South Eastern is required both by statute and by contract to provide the Ingrams with reasonably adequate service and has a duty to conform its conduct to that required of it by the IURC through its regulations.

However, the source of South Eastern's common law duty is not solely the contractual relation. , Public utilities that have received from public authorities franchises which provide for the accommodation of the general public in return owe a duty to the public as well as all individuals of that public who, in compliance with established customs or rules, make a demand for the beneficial use of the utilities' privileges and advantages. Coy v. Indianapolis Gas Co. (1897), 146 Ind. 655, 659, 46 N.E. 17, 19. Thus, it was held in Coy v. Indianapolis Gas Co. that a gas utility's failure to supply its customer with gas for fuel promptly and without reserve, gave rise to an actionable claim of breach of duty in tort, a duty imposed by law apart from and in addition to any duty under the contract. Id. at 662, 46 N.E. 17. The duty of a utility to use reasonable care in the distribution of gas is imposed by law for a second reason: the utility conveys a dangerous instrumentality. See Southern Indiana Gas Co. v. Tyner (1912), 49 Ind.App. 475, 97 N.E. 580.

Undeniably, the contours of this duty have already been shaped by the courts of this state. Coy v. Indianapolis Gas Co. holds that the nonperformance of a contract to supply by the utility is an actionable wrong. In Public Service Comm'n v. Panhandle Eastern Pipeline Co. (1947), 224 Ind. 662, 686, 71 N.E.2d 117, affirmed, 332 U.S. 507, 68 S.Ct. 190, 92 L.Ed. 128, the duty of the public utility required that it serve on reasonable terms all those who desire the service it renders. In Indiana Natural & Illuminating Gas Co. v. Long (1901), 27 Ind.App. 219, 59 N.E. 410, this court held that the common law duty of reasonable care required a gas utility to furnish natural gas to patrons for domestic use at a safe, uniform pressure, to institute and maintain an efficient system of oversight to ensure that the pressure continued to be safe and uniform, and to furnish a prompt remedy for accidents and defects.⁵ Roberts v. Indiana Gas & Water Co. (1966), 140 Ind.App. 409, 218 N.E.2d 556, on rehearing, 140 Ind.App. 409, 221 N.E.2d 698, stands for the proposition that the duty to produce and distribute gas in a reasonably safe and prudent manner required distributors to warn consumers by odorizing the gas they supply. There are many other cases recognizing and applying this duty. See also, The Richmond Gas Co. v. Baker (1897), 146 Ind. 600, 604, 45 N.E. 1049 (Gas utility owed duty to all persons who might be injured to use ordinary and adequate care in delivering substance to residence); City of Indianapolis v. Walker (1960), 132 Ind.App. 283, 168 N.E.2d 228 (Gas utility must exercise ordinary care in maintenance of line); Westfield Gas Corp. v. Hill (1960), 131 Ind.App. 558, 169 N.E.2d 726 (Duty to use reasonable care required gas utility to prevent escape of gas); Tyner, 49 Ind.App. at 484, 97 N.E. at 585 (Gas company owed duty to customers, patrons and occupants of buildings where it supplied agency to use care commensurate with danger to which it exposed persons or property).

Based upon these decisions, the allegations of the Ingrams' complaint state a claim upon which relief can be granted. The Ingrams were customers of South Eastern who relied upon it as a public utility which handles a potentially dangerous ageney to continuously supply gas at a constant pressure, exercise oversight or furnish a prompt remedy. Although the alleged consequences of South Eastern's breach of duty are not the same as in Coy, Long, or Roberts, the imposition of a duty should not depend upon the nature of damages which flow as a result of its breach. Just as much pain and anguish can result from suffering a devastating economic loss as for physical injury. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 996.

South Eastern treats the duty alleged in the Ingrams' complaint as if it poses a novel question, urging us to reevaluate its obligation under the balancing test employed by the Indiana Supreme Court in Jarvis, 575 N.E.2d 992. The dissent would adopt this approach. We are bound by the principle of stare decisis not to do so. Although the cases cited above do not explicitly weigh the three considerations Indiana law now openly recognizes factor into the legal equation of duty, cf. Gariup Construction Co. v. Foster (1988), Ind., 519 N.E.2d 1224, 1227, these holdings have implicitly balanced public policy concerns for nearly one hundred years: the interests of a customer plaintiff are entitled to legal protection against a public utility's conduct when it is reasonably foreseeable that the plaintiff will be injured by the utility's acts or omissions. We cannot simply ignore these cases or the import of their holdings.

The dissent reasons that the Ingrams' complaint does not present an independent common law negligence claim because the relationship here is that of a public utility and its customers and the IURC has not determined within its regulatory frame work that a public utility's responsibility to furnish reasonably adequate service and facilities includes a duty to warn its customers when an unexpected reduction in line pressure and interruption in service occurs. The dissent is either distinguishing a utility's duty to use reasonable care from a duty to warn or he believes that a public utility's common law duty of reasonable care is precisely co-extensive with its contractual or statutory duties.⁶ Our response is two-fold.

First, in Indiana, there are no degrees of negligence or duty. Neal v. Home Builders, Inc. (1952), 232 Ind. 160, 169, 111 N.E.2d 280, 285. The law imposes but one common law duty and that duty is to use due care. Id. (citing Union Traction Co. v. Berry (1919), 188 Ind. 514, 121 N.E. 655). The duty is the same for all relations, without regard to the facts of the case. Id. It includes the so-called duty to warn. See Union Traction Co. v. Berry, 188 Ind. 514, 121 N.E. 655 (duty of carrier to use reasonable care for the protection of its passengers includes any duty to warn of imminent danger on bridge crossing). Consequently, if a duty to use due care exists, it is for the jury to consider the conditions and circumstances disclosed by the evidence and determine the actions, precautions, or course of conduct which should have been pursued in order to measure up to the duty which the law imposes. Union Traction Co., 188 Ind. at 521, 121 N.E. at 657.

Second, the dissent points out, there are no IURC rules addressing the breach of duty alleged by the Ingrams. The contract between the utility and its consumer therefore did not constrict the utility's duty. And, while the IURC's authority is sufficiently broad to empower it to promulgate rules governing a gas utili ty's conduct in this instance, the IURC cannot relieve a utility from liability under the law of negligence as it exists in Indiana by any rule it may adopt. Indianapolis Water Co. v. Schoenemann (1939), 107 Ind.App. 308, 20 N.E.2d 671. If the utility owes a duty to the public under the common law, that duty cannot be abrogated or set aside by a regulatory order adopted by the IURC. Id. This is so because the IURC has no legislative authority. Id. But ef. Lippincott, 492 N.E.2d 1323.

Without question, the General Assembly has the power to abrogate or modify the common law of tort, Dague v. Piper Aircraft Co. (1981), 275 Ind. 520, 529, 418 N.E.2d 207, 213, but when it fails to do so either in express terms or by unmistakable implication, we must presume that the legislature is aware of the common law and does not intend any change. State Farm Fire & Casualty Co. v. Structo Division, King Seely Thermos Co. (1989), Ind., 540 N.E.2d 597, 598. The legislature's enactment of 1.0. 8-1-2-107 was not intended to supplant the common law remedy or the law governing duties but merely to codify it. New Albany Waterworks, 198 Ind. 368, 140 N.E. 540.

The trial court concluded that the In-grams had stated a claim upon which relief could be granted. We agree with this conclusion. Accordingly, we conclude that the trial court properly denied South Eastern's motion for judgment on the pleadings and affirm the judgment.

Judgment affirmed.

SHARPNACK, C.J., concurs. NAJAM, J., dissents with separate opinion.

1 . We are informed by South Eastern in its brief that "[the reduction in pressure was caused by a malfunction of a gas regulator owned by the Texas Gas Transmission Corp., a supplier of natural gas to South Eastern Gas."

2 . The right to a trial by jury is fully protected in all causes where it existed in 1851 when the Constitution was adopted. Hiatt v. Yergin (1972), 152 Ind.App. 497, 514-5, 284 N.E.2d 834, 844, overruled in part, 411 N.E.2d 653. An action in tort for property damage is such a cause. City of Terre Haute v. Deckard (1962), 243 Ind. 289, 293, 183 N.E.2d 815, 817; Allen v. Anderson (1877), 57 Ind. 388, 389 (Constitution's "civil cases" means all civil actions at common law, including action on the case). Consequently, the Ingrams are entitled to a jury trial of their negligence claim if they so choose.

3 . The dissent acknowledges at least implicitly the precedential effect of Nickols, 494 N.E.2d 349, but distinguishes the Nichols' allegation that "PSI had breached its duty to provide reasonable and adequate services by permitting stray voltage to flow from PSI lines to the ground and onto the Nichols' dairy farm" on the ground that Nickols only remotely dealt with questions of adequate service because there was no question that service was provided at an adequate level. The distinction is merely one of semantics and fails to take into account the specific allegations of the Nichols' complaint or the apparent breadth of the IURC's authority. "Service' is used ... in its broadest and most inclusive sense" and includes the "accommodation afforded customers." The IURC's authority expressly extends to service which is "in any respect unreasonable, ... insufficient ... or inadequate ..." (Emphasis supplied.)

4 . The Friedland decision applies the doctrine of primary jurisdiction rather than the requirement of exhaustion of remedies as a means of analyzing the necessity for deference. The doctrine of primary jurisdiction is not well developed in Indiana, but we agree that it may be a better approach. When the doctrine of primary jurisdiction applies, the court retains jurisdiction over the action while the agency addresses the question within its jurisdiction. 2 Koch, C. Administrative Law & Practice 117 (1985). The requirement of exhaustion, on the other hand, forces a dismissal of the action. Review is circumscribed to a consideration of whether the agency acted within the scope of its authority, whether the agency's findings are supported by the evidence and whether the decision is contrary to law. Id. South Eastern argues that the exhaustion of administrative remedies requirement compels dismissal. Given the consequences of such a conclusion, we must address that argument. ©

The dissent suggests that application of the primary jurisdiction doctrine dictates a dismissal because part of the case is within the IURC's exclusive jurisdiction. However, "[oluly where the original claim as pleaded can be seen as necessarily requiring a decision by the Commission should the plaintiff be compelled to go first to the Commission. Jaffe, L., Judicial Control of Administrative Action 138 (1965). Accord Indiana Telephone Corp., 171 Ind.App. 616, 358 N.E.2d 218. A fortiori, there should not be a dismissal (if dismissal would be prejudicial) where the agency is without power to give the relief to which a party may be entitled under the law governing the cause of action." Jaffe, Judicial Control of Administrative Action 138. Assuming then that application of the primary jurisdiction doctrine points toward deference by the courts, an analysis which entails more than simply looking to see whether "any part" of an action is within the exclusive jurisdiction of the agency, cf. e.g. Nader v. Allegheny Airlines, Inc. (1976), 426 U.S. 290, 304-5, 96 S.Ct. 1978, 1987, 48 L.Ed.2d 643; Massa v. Peabody Coal Co. (S.D.Ind., 1988), 698 F.Supp. 1446, the correct result would be for the court to retain jurisdiction pending a decision by the IURC, not to dismiss the action.

5 . In a factually similar case, a municipal water utility was found to be "liable to the same extent as a private citizen for tortious injury to private rights" where the utility failed to supply water to a greenhouse at the agreed upon pressure for a number of days. City of Huntington v. Morgen (1928), 90 Ind.App. 573, 162 N.E. 255.

6 . The dissent also looks to the parties' briefs to the "fact" that the interruption in utility service was not caused by any act or omission of South Eastern to conclude that it would be incongruous to hold South Eastern to a duty to warn when, by IURC regulation, it is not responsible for variations in line pressure due to conditions beyond its control. On review of a TR. 12(B)(6) motion, we are not concerned with the facts, or defenses of third party intervention, but the sufficiency of the complaint.