Hurricane season has come to a close, but for Florida Power & Light Co., the legal defense work is just beginning.
FPL’s attorneys have filed fiery motions to dismiss South Florida cases that accuse the company of causing discomfort and death in the wake of Hurricane Irma. Plaintiffs always pop up after power outages to pursue a payout from the nation’s third-largest utility, but Florida law protects utilities from ”storm-chaser” court challenges, FPL’s attorneys argue.
“The notion that these people who filed a complaint a half-hour after the lights went on have any basis for asserting that their problems were caused by something FPL did is without any foundation whatsoever,” said Alvin Davis of Squire Patton Boggs in Miami, who has represented FPL for four decades.
Meanwhile, plaintiffs argue lawsuits are needed to hold FPL accountable for poorly maintained electrical poles, untrimmed vegetation and other issues that left some waiting for more than a week to get power back after the September hurricane.
The company tapped Davis to handle power outage disputes in Miami-Dade Circuit Court, which include two customer class actions and a nondamages-seeking complaint from the city of Coral Gables. A Boies Schiller Flexner team led by Stuart Singer is defending FPL against lawsuits related to resident deaths at the Rehabilitation Center at Hollywood Hills, where the temperature spiked after the air conditioning shut off during Irma.
The allegations in the cases vary, but defense lawyers argue it all boils down to one point: The law protects utilities from being sued by everyone who lost power during a hurricane, otherwise rates would skyrocket. People with complaints can take them up with Florida’s Public Service Commission.
“Over many years, Florida has thoughtfully considered and determined to the point of absolute clarity that there should be limitations on liability for its regulated utilities after an interruption of electric service,” Singer wrote in a Nov. 15 motion to dismiss. “Florida has repeatedly affirmed that the public benefits by not making its utilities ‘insurers’ of power outage damages.”
In three Broward County cases in which FPL is a co-defendant with the nursing home, plaintiffs attorneys from Silva/Silva in Coral Gables argue FPL breached its duty of care to the general public. The company was negligent by not having an “appropriate plan” for a hurricane, the lawsuits claim.
But FPL’s tariff limits liability when it comes to “acts of God” such as a hurricane, Boies Schiller argues. The tariff includes the utility’s rates, rules and regulations and is considered law after approval by the Public Service Commission.
The defense also argues utilities have no general duty of care to the public. That’s why state courts have tossed cases claiming FPL should pay for car crash damages when a traffic light is on the fritz, argued Singer, who referred an interview request to FPL spokesman Rob Gould. Gould declined to comment.
Coral Gables also does not believe the Public Service Commission is the right body to hear its complaint, which asks the judge to order FPL to properly maintain easements and maintain or replace old transformers and electrical poles, Coral Gables City Attorney Miriam Ramos said. The case was filed by Kozyak Tropin Throckmorton in Coral Gables.
“The complaint that we filed is based on a franchise agreement that FPL has with the city,” said Ramos, who took over the office after her predecessor, Craig Leen, was hired by the U.S. Department of Labor last month. “It’s basically a contract dispute.”
Davis argues the number of agreements with municipalities is “the reason you have a Public Service Commission.”
“You can’t have every municipality in the state that’s serviced by FPL directing FPL how to manage the utility, which is what they’re seeking to do,” he said. “If Coral Gables wants poles this way, and Pinecrest wants poles another way, and Miami wants them another way, is FPL supposed to respond to each of those?”
The attorneys behind the two class actions also claim a breach of contract. FPL promised its rate plan would support modernized power plant systems and resilience, alleged a class action filed by attorney Julio Acosta of Acosta Law in Coral Gables, who did not respond to an interview request.
“FPL’s repeated claims regarding rates were fraudulent,” the lawsuit claims. “Most of Florida’s power grids went dead after Hurricane Irma, because FPL had not improved its power grids and distribution facilities after the last storm even though it had agreed to do so in consideration for the storm restoration monthly fee that each member of the class paid.”
Davis argues the lawsuits are “a fleeting public relations platform for the [storm] ‘chasers’” that “wastes the court’s time and resources.”
“The statute provides that the Public Service Commission has exclusive jurisdiction over FPL’s service and rates, and these lawsuits are challenging their service and their rates,” Davis said. “They can try to characterize them any way they want, but what the court looks at is ‘What are they challenging?’ Not to mention that their underlying facts are completely erroneous … FPL has spent $3 billion so far hardening the systems, just as they agreed they would.”
The frenzy to file “I’m mad and I’m not going to take it anymore” lawsuits after a hurricane rarely bears fruit, Davis said.
Indeed, some planned litigation announced soon after Irma has yet to be pursued. Pinecrest’s village commission voted to consider a lawsuit but did not file any complaint. Aventura attorney Allison Friedman, who filed a lawsuit against FPL on her own behalf after her power was out for days, has not yet served the lawsuit after more than two months.