Commonwealth Edison Co. v. Illinois Commerce Comm'n ( 2014 )

Illinois Official Reports
Appellate Court
Commonwealth Edison Co. v. Illinois Commerce Comm’n,
2014 IL App (1st ) 132011
Appellate Court COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS
Caption COMMERCE COMMISSION; CITIZENS UTILITY BOARD; THE
CITY OF CHICAGO; and THE PEOPLE OF THE STATE OF
ILLINOIS, Respondents.
District & No. First District, Fourth Division
Docket Nos. 1-13-2011, 1-13-2012 cons.
Filed July 31, 2014
Held In an action arising from a dispute over the interpretation of section
(Note: This syllabus 16-125(e) of the Public Utilities Act providing that an electric utility
constitutes no part of the may be liable for damages suffered by customers when more than
opinion of the court but 30,000 customers are subjected to a continuous power interruption of
has been prepared by the four hours or more, the appellate court concluded that the statute is
Reporter of Decisions ambiguous and accepted, as a reasonable and permissible construction
for the convenience of of the statute, the Illinois Commerce Commission’s interpretation of
the reader.) section 16-125(e) as applying when 30,000 or more customers have
their service interrupted during the same four-hour period and rejected
the petitioning utility’s contention that the statute applied only to
single discrete interruptions that continuously interrupt power to over
30,000 of the same customers for the same four-hour period, and for
purposes of the interruptions resulting from a storm that occurred on
July 11, 2011, the utility was not entitled to a full waiver of liability
pursuant to the exception allowed under section 16-125(e) for
“unpreventable damage due to weather events or conditions,” because
the utility failed to meet its burden of establishing that the damages
were unpreventable under the four decisional criteria advanced by the
Commission.
Decision Under Petition for review of orders of the Illinois Commerce Commission,
Review Nos. 11-0588, 11-0662.
Judgment Appeal No. 1-13-2011, Affirmed.
Appeal No. 1-13-2012, Dismissed.
Counsel on Thomas S. O’Neill, of Commonwealth Edison Company, Deborah
Appeal Decker, of Exelon Company, John J. Hamill, Kathryn Hunt Muse, and
Daniel T. Fenski, all of Jenner & Block, and E. Glenn Rippie, of
Rooney Rippie & Ratnaswamy LLP, all of Chicago, for petitioner.
Lisa Madigan, Attorney General, of Chicago (John P. Kelliher,
Special Assistant Attorney General, of counsel), for respondent
Illinois Commerce Commission.
Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Solicitor General, and Evan Siegel, Assistant Attorney General, of
counsel), for the People.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice Lavin concurred in the judgment
and opinion.
OPINION
¶1 In this consolidated appeal, petitioner Commonwealth Edison (ComEd), challenges two
orders of respondent, the Illinois Commerce Commission (the Commission) interpreting and
applying section 16-125(e) of the Public Utilities Act (220 ILCS 5/16-125(e) (West 2010)) (the
Act) to power interruptions that resulted from a series of severe storm systems that hit northern
Illinois in 2011 and caused damage to ComEd’s electric delivery system. The Commission
concluded that, pursuant to the language of section 16-125(e), ComEd was liable for damages
to the affected consumers. However, with the exception of the storm that occurred on July 11,
2011, the Commission granted ComEd a waiver of liability under section 16-125(e)(1) of the
Act where the power interruption resulted from “[u]npreventable damage due to weather
events or conditions.” 220 ILCS 5/16-125(e)(1) (West 2010).
¶2 ComEd now contends that the statute only applies where there is a continuous power
outage caused by a single event that interrupts power to over 30,000 of the same customers for
the same four-hour period and that the Commission erred in deciding that section 16-125(e)(1)
applied to the “numerous dispersed and discrete interruptions at different times, in different
places, and for different reasons.” ComEd further contends that it is entitled to a full waiver of
liability for the July 11, 2011 storm. ComEd also argues that the Commission unlawfully
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precluded ComEd from recovering its cost of providing notice to the customers. For the
reasons that follow, we dismiss appeal No. 1-13-2012 and affirm the Commission’s decision in
appeal No. 1-13-2011.
¶3 BACKGROUND
¶4 Several storm systems struck northern Illinois in 2011 causing significant damage to
thousands of ComEd’s customers. One of the storms occurred on February 1, 2011 (Winter
2011 Storm). Six storms occurred in the summer of 2011 (Summer 2011 Storms), specifically
on June 8, June 21, June 30, July 11, July 22, and July 27, 2011. More than 2 million of
ComEd’s customers experienced a power interruption. After some customers made claims for
damages resulting from the power outages, ComEd filed two verified petitions before the
Commission. Docket No. 11-0588 was filed on August 18, 2011 and involved the Summer
2011 Storms. Docket No. 11-0662 was filed on September 29, 2011 and involved the Winter
2011 Storm. ComEd sought a determination of the applicability of section 16-125(e) of the
Act, which provided, in pertinent part:
“(e) In the event that more than *** 30,000 *** customers *** of an electric utility
are subjected to a continuous power interruption of 4 hours or more that results in the
transmission of power at less than 50% of the standard voltage, or that results in the
total loss of power transmission, the utility shall be responsible for compensating
customers affected by that interruption for 4 hours or more for all actual damages,
which shall not include consequential damages, suffered as a result of the power
interruption. *** A waiver of the requirements of this subsection may be granted by the
Commission in instances in which the utility can show that the power interruption was
a result of any one or more of the following causes:
(1) Unpreventable damage due to weather events or conditions.” 220 ILCS
5/16-125(e) (West 2010).
ComEd sought a ruling that section 16-125(e) did not apply to the outages at issue because no
one single interruption left 30,000 customers without electricity at the same time. In the
alternative, ComEd argued that, even if the statute applies, any liability should be waived
pursuant to subsection 16-125(e)(1) because the interruptions were “[u]npreventable damage
due to weather events or conditions.”
¶5 An administrative law judge (ALJ) held evidentiary hearings in July 2012. ComEd, the
Commission’s staff, and the office of the Illinois Attorney General (Attorney General)
presented evidence. Respondents, City of Chicago and Citizens Utility Board, also appeared at
the hearings.
¶6 The Commission issued its ruling in both cases on June 5, 2013. In two separate orders, the
Commission determined that, by its plain and unambiguous language, section 16-125(e)
applied to the outages related to the Summer 2011 Storms, as well as the Winter 2011 Storm.
The Commission specifically found that “[s]ection 16-125(e) applies when 30,000 or more of
ComEd’s customers have their service interrupted during the same four-hour period.”
Commonwealth Edison Co., Ill. Com. Comm’n Docket 11-0588, at 16 (Order June 5, 2013);
Commonwealth Edison Co., Ill. Com. Comm’n Docket 11-0662, at 18 (Order June 5, 2013).
The Commission rejected ComEd’s argument that the General Assembly intended section
16-125(e) to apply only to single discrete interruptions that continuously interrupt power to
over 30,000 of the same customers for the same four-hour period.
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¶7 In the Winter 2011 Storm case, docket No. 11-0662, the Commission further determined
that ComEd was entitled to a waiver of liability under section 16-125(e)(1) where the evidence
demonstrated that the great majority of the power interruptions that occurred were the result of
“unpreventable damage due to weather events or conditions.” (Internal quotation marks
omitted.) Commonwealth Edison Co., Ill. Com. Comm’n Docket 11-0662, at 23 (Order June 5,
2013). The Commission made a similar determination in the Summer 2011 Storms case,
docket No. 11-0588, with the exception of the July 11, 2011 storm. Further, the Commission
found that the 34,559 customers affected by the July 11, 2011 storm, as well as the
municipalities in which the affected customers resided, were entitled to file for compensation
under the Act. ComEd was directed to file a confidential document with the Commission
identifying the customers or areas that would be entitled to file a claim. The Commission also
required ComEd to work with the Commission’s consumer services division in drafting, within
60 days, written notice to the affected customers informing them that they were entitled to seek
damages. The Commission further concluded that the “[c]osts incurred in providing such
notice, and all associated costs, shall not be included in rate base or treated as allowable
expenses for purposes of determining the rates to be charged by the public utility.”
¶8 On June 27, 2013, the Commission denied ComEd’s petitions for rehearing in both cases.
ComEd promptly appealed. ComEd filed an appeal (No. 1-13-2011) from the Commission’s
order pertaining to the Summer 2011 Storms in docket No. 11-0588; ComEd filed an appeal
(No. 1-13-2012) from the Commission’s order pertaining to the Winter 2011 Storm in docket
No. 11-0662.
¶9 On July 29, 2013, the Commission filed a motion to dismiss individual appeal No.
1-13-2012, which pertained to docket No. 11-0662 and the Winter 2011 Storm. On August 6,
2013, this court entered an order stating that the motion would be taken with the case; on the
same day the court allowed ComEd’s motion to consolidate the two appeals.
¶ 10 MOTION TO DISMISS APPEAL NO. 1-13-2012
¶ 11 We first address the Commission’s motion to dismiss appeal No. 1-13-2012, which we
took with the case. The Commission, relying on well-established precedent, argues that the
appeal must be dismissed because, in the underlying decision in docket No. 11-0662 (Winter
2011 Storm), ComEd was the prevailing party and received complete relief when the
Commission granted ComEd’s alternative request for a waiver of liability under section
16-125(e)(1) of the Act for “[u]npreventable damage due to weather events or conditions.” In
response, ComEd contends that a 1942 Illinois Supreme Court case, Inter-State Water Co. v.
City of Danville, 379 Ill. 41 (1942), trumps all of the case law relied upon by the Commission
and stands for the proposition that a party can appeal a Commission decision if the party is
“affected” by the decision, even if not “aggrieved” by the decision. We disagree.
¶ 12 It is well established that “[c]ourts of review will not decide moot or abstract questions,
will not review cases merely to establish precedent, and will not render advisory opinions.”
Condon v. American Telephone & Telegraph Co., 136 Ill. 2d 95, 99-100 (1990) (concluding
that issue of whether statute was unconstitutional was rendered moot by trial court’s directed
verdict in appellant’s favor on issue of whether personnel guide was an implied contract). “The
courts of Illinois do not issue advisory opinions to guide future litigation, and this court has
adhered to this rule with few exceptions.” Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d
456, 469 (2003). “Where a decision reached on the merits would render wholly ineffective
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relief to the prevailing party, the court, in effect, has rendered an advisory opinion.”
Schweickart v. Powers, 245 Ill. App. 3d 281, 287-88 (1993). “It is fundamental that the forum
of courts of appeal should not be afforded to successful parties who may not agree with the
reasons, conclusion or findings below.” Illinois Bell Telephone Co. v. Illinois Commerce
Comm’n, 414 Ill. 275, 282-83 (1953) (explaining that if court determined that the appellant city
was not adversely affected by the Commission’s order it would have no appealable interest);
see also Geer v. Kadera, 173 Ill. 2d 398, 414 (1996); Strategic Energy, LLC v. Illinois
Commerce Comm’n, 369 Ill. App. 3d 238, 245 (2006); Argonaut-Midwest Insurance Co. v.
E.W. Corrigan Construction Co., 338 Ill. App. 3d 423, 427 (2003). “A party cannot complain
of error which does not prejudicially affect it, and one who has obtained by judgment all that
has been asked for *** cannot appeal from the judgment.” Material Service Corp. v.
Department of Revenue, 98 Ill. 2d 382, 386 (1983); accord Powell v. Dean Foods Co., 2012 IL
111714, ¶ 36. “The general rule is that the successful party cannot appeal from those parts of a
decree that are in its favor in order to reverse other aspects of the decree.” Strategic Energy,
369 Ill. App. 3d at 245.
¶ 13 Inter-State Water Co., cited by ComEd, is distinguishable and limited to its facts. There,
the utility, a water company, sought permission from the Commission to increase its rates. The
utility prevailed, i.e., an increase in rates was granted. The Commission had authorized only an
increase in the domestic and industrial rates of the consumers and did not authorize an increase
in the rates for water service furnished the appellant, the city of Danville. Inter-State Water
Co., 379 Ill. at 44. However, even though the appellant city was not directly impacted, it sought
to appeal this adverse order. Inter-State Water Co. did not involve any issue as to whether the
utility as the prevailing party could appeal from the order (which was not adverse to the
utility). Rather, the issue on appeal was somewhat analogous to a question of standing in that
“[t]he single question presented” was whether “the appellant, the city of Danville, had the legal
and statutory right to appeal from the order of the Commerce Commission authorizing an
increase in the domestic and industrial rates of the consumers of the appellee, the Inter-State
Water Company, within the city.” Id. The court determined that the appellant city was a “party
affected” by the application for an increase of rates of a public utility within the city, and the
interest did not terminate upon the entry of an order adverse to city’s residents but favorable to
the city itself, particularly where the resident consumers were not parties before the Commerce
Commission. Id. at 48. Therefore, the city could appeal from such order. Id. at 51.
¶ 14 ComEd’s position that Inter-State Water Co. stands for the proposition that a party can
appeal a Commission decision if the party is “affected” by the decision, even if not
“aggrieved” by the decision, is an inaccurate oversimplification of the holding. In the instant
case, the Commission’s determination that section 16-125(e) applied is more properly
characterized as its “reasoning” and not an adverse “result.” ComEd cannot appeal from the
order in its favor in order to reverse other aspects of the order. Thus, appeal No. 1-13-2012
must be dismissed.
¶ 15 ANALYSIS
¶ 16 Turning now to appeal No. 1-13-2011, ComEd raises three arguments: (1) the Commission
misinterpreted the statute as applying to an aggregate of customers affected by numerous
distinct power interruptions and thereby erred in reaching the 30,000 customer threshold
required under section 16-125(e); (2) the Commission erred in denying ComEd a full waiver of
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liability under section 16-125(e)(1) for the July 11, 2011 customer outages; and (3) the
Commission erred by prohibiting ComEd from recovering the costs of providing notice to
customers. The Attorney General has filed a response brief in which it agrees with the
Commission’s liability determination. The Attorney General asserts that the Commission
correctly interpreted the plain language of section 16-125(e) to find that ComEd was liable for
the power outages, but takes no position on the issue of whether ComEd was entitled to a
waiver of liability under section 16-125(e)(1).
¶ 17 Interpretation and Application of Section 16-125(e)
¶ 18 As noted earlier, the parties disagree on the meaning of section 16-125(e). The
Commission rejected ComEd’s argument, now raised on appeal, that section 16-125(e) applies
only to single, discrete interruptions that continuously interrupt power to over 30,000 of the
same customers for the same four-hour period. The Commission and the Attorney General
contend that the Commission correctly interpreted section 16-125(e) as applying when 30,000
or more of ComEd’s customers have their service interrupted, i.e., experience a power
interruption, during the same four-hour period.
¶ 19 Courts review de novo the interpretation of a statute as a question of law. Abruzzo v. City of
Park Ridge, 231 Ill. 2d 324, 332 (2008); Harrisonville Telephone Co. v. Illinois Commerce
Comm’n, 212 Ill. 2d 237, 247 (2004). The cardinal rule of statutory construction is to ascertain
and give effect to the legislature’s intent. Rogers v. Imeri, 2013 IL 115860, ¶ 13; Harrisonville
Telephone Co., 212 Ill. 2d at 251. The best indicator of the legislature’s intent is the express
language of the statute, which should be given its plain and ordinary meaning. Id. When the
language of a statute is clear and unambiguous, it must be applied without resort to other aids
of construction. Alternate Fuels, Inc. v. Director of the Illinois Environmental Protection
Agency, 215 Ill. 2d 219, 238 (2004).
¶ 20 Where a statute is ambiguous, however, courts will give substantial weight and deference
to an interpretation by the agency charged with the administration and enforcement of the
statute. Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n, 95 Ill. 2d 142, 152
(1983); Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652, 656
(2005). “Ambiguity is, however, a prerequisite: the statute must be ambiguous.” Illinois Bell
Telephone Co., 362 Ill. App. 3d at 657. If a statute is ambiguous, “the court does not simply
impose its own construction on the statute, as would be necessary in the absence of an
administrative interpretation.” (Internal quotation marks omitted.) Id. Instead, “the question
for the court is whether the agency’s answer is based on a permissible construction of the
statute.” (Internal quotation marks omitted.) Id. “A court will not substitute its own
construction of a statutory provision for a reasonable interpretation adopted by the agency
charged with the statute’s administration.” (Internal quotation marks omitted.) Id.
¶ 21 Our threshold task is to determine whether section 16-125(e) is ambiguous. Here, neither
party contends that section 16-125(e) is ambiguous; each contends that the plain language of
the statute supports its interpretation. We are not bound by the parties’ agreement that the
statute is not ambiguous. Hyatt Corp. v. Sweet, 230 Ill. App. 3d 423, 429 (1992). Yet, a statute
is not ambiguous simply because the parties disagree as to its meaning. Kaider v. Hamos, 2012
IL App (1st) 111109, ¶ 11. A statute is ambiguous if its meaning cannot be interpreted from its
plain language or if it is capable of being understood by reasonably well-informed persons in
more than one manner. Krohe v. City of Bloomington, 204 Ill. 2d 392, 395-96 (2003); People v.
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Purcell, 201 Ill. 2d 542, 549 (2002); People v. Fort, 373 Ill. App. 3d 882, 885-86 (2007)
(“There are times when courts cannot determine the meaning of a statute by examining its plain
language or when the statute is capable of being understood by reasonably well-informed
persons in two or more different senses, thus creating statutory ambiguity.”); see also
Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 523 (2009)
(“A statute is ambiguous if it may be reasonably read as expressing multiple meanings.”).
¶ 22 The term “interruption” is not defined in the statute. Although the definition of a word in
isolation is not necessarily controlling in statutory construction (Italia Foods, Inc. v. Sun
Tours, Inc., 2011 IL 110350, ¶ 12), we believe the definition of the word “interruption” is
critical to ascertaining the legislature’s intent in enacting section 16-125(e).
¶ 23 ComEd’s Interpretation of Section 16-125(e)
¶ 24 ComEd contends that the statute applies to a single interruption and the word
“interruption” refers to a single break in service and, further, that the triggering interruption
must be “continuous.” As the Commission noted below, ComEd asserts that “[w]hether
viewed individually or collectively, distinct breaks in the flow of power to customers that start
at different times, end at different times, and affect different locations and areas (even widely
different) are not continuous in any sense of the word.” In support of its argument that the
singular term “interruption” could not appropriately be used to encompass the many distinct
interruptions, ComEd argued to the Commission that “no reasonable person in Highland Park
who experiences an interruption on a stormy afternoon due to a tree limb falling on a wire can
say that their interruption started hours earlier in Rockford when lightning struck a
transformer. Nor could they say that their interruption persisted hours (or days) after their own
service was restored, when the last storm-related interruption ended and the last of the damage
was repaired.” ComEd now argues that the Commission’s determination that “multiple and
discrete breaks in electrical current can constitute the same ‘continuous interruption’ so long as
they each include at least four, common consecutive hours” is meritless based upon the plain
language of section 16-125(e) and well-established principles of statutory interpretation.
¶ 25 ComEd notes that the statute uses the singular form of the word “interruption” in support of
its position that the word refers to “a discrete event, caused by the failure of a piece of
equipment or directly connected groups of equipment.” From ComEd’s viewpoint the ordinary
meaning of “interruption” is consistent with the technical use of the term in the utility industry:
“an event on a system that causes customers to lose their connection with the integrated grid to
which generation is connected and the loss of service associated with that event.”
¶ 26 Statutes should be interpreted to avoid impractical or absurd results. Nowak v. City of
Country Club Hills, 2011 IL 111838, ¶ 21. ComEd argues that the Commission’s construction
of the Act will lead to absurd results where “only one ‘interruption’ would occur where
different customers from far distant locations within ComEd’s territory lose power during a
storm, irrespective of the divergent causes and durations of the interruptions and the different
parts of ComEd’s network serving the customers.” This interpretation presumes that the
legislature intended to use the industry definition, i.e., an event on the system that causes
customers to lose power or a single break in electric flow, when the legislature may just as well
have intended interruption to mean the customer’s loss of service.
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¶ 27 The Commission’s and the Attorney General’s
Interpretation of Section 16-125(e)
¶ 28 Although the Commission and the Attorney General agree that section 16-125(e) applies
here, they presented separate arguments in their briefs. For the sake of clarity, in this section,
we shall combine and summarize their arguments as those of “respondents.” Respondents
assert that the statute focuses on the perspective of the consumer and the consumer experience,
i.e., that the customer be subjected to “a continuous power interruption” lasting four hours or
more. The legislature used the number of customers (“30,000”) and the duration of those
customers’ interruptions (“4 hours”) as the threshold factors in order for the customer to seek
damages. 220 ILCS 5/16-125(e) (West 2010). Each of those customers must be without service
for four hours for the utility to be subject to a claim for compensation for actual damages.
Respondents assert that “[t]he power loss was continuous” for each of the customers and the
fact that the statute requires that 30,000 such customers are required to go without power for
four hours or more “does not mean that each of them did not face an uninterrupted, four-hour
blackout or significant power loss.”
¶ 29 Respondents argue that the legislature was concerned with the continuous four-hour
“interruption” experienced by the customer and that ComEd’s view of the statute required the
Commission to ignore the rules of English grammar. Respondents assert that the “customer” is
the principal subject of action in the clause and the statute applies whenever that “customer”
has lost power: (1) for four hours; (2) continuously; and (3) as part of a group larger than
30,000, all of whom were out of service during the same interval (four hours or more.) Nothing
in the statute indicates that the legislature intended it apply only when a single incident leads to
30,000 customers experiencing an interruption in service. Defining the statute to apply where
30,000 customers are simultaneously and continuously without power for more than four hours
is a reasonable interpretation of the statute. Respondents note that each customer at issue in the
July 11, 2011 storm suffered an interruption lasting four hours at a time when more than
30,000 other customers suffered an interruption. Their position is not that multiple discrete
interruptions are all the same outage or interruption but, rather, that when 30,000 customers
simultaneously suffer a continuous interruption, whether from a single cause or multiple
causes, the statute applies. Consumers, and what they experience from their perspective, is the
essential focus of section 16-125(e).
¶ 30 Respondents contend that the legislature has taken a reasonable approach to measuring the
effect of service interruptions on Illinois residents and businesses and providing an incentive to
the utility to properly maintain its system to avoid widespread power interruptions. The statute
requires that a threshold number of customers, 30,000, be affected. Once that threshold number
has been reached, and applying English grammar, the statute requires that each customer be
“subjected to a continuous power interruption.” (Emphasis added.) 220 ILCS 5/16-125(e)
(West 2010). Otherwise, if the plural form of the word “interruption” was used, i.e., if the
statute required that each customer be “subjected to continuous power interruptions,” the
statute would be internally inconsistent because a customer cannot experience more than one
“continuous” power interruption. If a customer experienced more than one power interruption,
it would not be “continuous.” Using the plural would imply that each customer could aggregate
the power interruptions that affected him to reach the four-hour threshold, while at the same
time requiring that the interruptions be “continuous.”
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¶ 31 In sum, it is clear that each side is assigning its own meaning to the term “interruption”
from two different viewpoints. ComEd views the word from the utility industry’s viewpoint;
the Commission and the Attorney General interpret the term from the customer’s viewpoint.
ComEd argues that singular term “interruption” in the statute could not appropriately be used
to encompass the many distinct interruptions. The Commission and the Attorney General
argue that ComEd reads the word “interruption” in isolation and “elevates its power system
and equipment to central importance.” They further assert that the plain language of the statute,
read in its entirety, bases liability on how many consumers experience a power “interruption”
(“30,000”) and for how long (“4 hours”). 220 ILCS 5/16-125(e) (West 2010). We further note
that the language “subjected to” does not help resolve the dispute because the phrase can be
interpreted as requiring that the customers be subjected to either: (1) the discrete single event
causing the loss of power (ComEd’s interpretation) or (2) the loss of the customer’s own
service itself (respondents’ interpretation).
¶ 32 Section 16-125(e) Is Ambiguous
¶ 33 As noted earlier, a statute is ambiguous if its meaning cannot be interpreted from its plain
language or if it is capable of being understood by reasonably well-informed persons in more
than one manner. Krohe v. City of Bloomington, 204 Ill. 2d at 395-96. “In determining the
plain, ordinary, and popularly understood meaning of a term, it is entirely appropriate to look
to the dictionary for a definition.” People v. Bingham, 2014 IL 115964, ¶ 55; see also
LeCompte v. Zoning Board of Appeals, 2011 IL App (1st) 100423, ¶ 29 (where a statute does
not define a term, this court will look to a dictionary to give a term its ordinary and popularly
understood meaning). This court can find dictionary definitions to support either
interpretation. For example, Webster’s defines interruption as “an act of interrupting or state of
being interrupted.” (Emphasis added.) Webster’s Third New International Dictionary 1182
(1993). The first of these supports ComEd’s interpretation and defines interruption from the
viewpoint of the utility; the second definition supports the Commission’s interpretation and
defines the term from the viewpoint of the customer. Two different definitions can also be
found in Cambridge Learner’s Dictionary, which defines interruption as “an occasion when an
action or activity is interrupted, or something that interrupts someone or something.”
(Emphasis added.) http://dictionary.cambridge.org/dictionary/learner-english/interruption.
The definition using the word “occasion” comports with the customer’s interruption, while the
phrase “something that interrupts” is consonant with the industry viewpoint of interruption as a
single, discrete event on the system. The existence of different or alternative dictionary
definitions of a word, each of which would make sense in a statute, itself indicates that the term
is ambiguous and the statute is open to interpretation. Home Star Bank & Financial Services v.
Emergency Care & Health Organization, Ltd., 2014 IL 115526, ¶ 39; accord Landis v. Marc
Realty, L.L.C., 235 Ill. 2d 1, 11 (2009); see also People v. Elliott, 2014 IL 115308, ¶ 13 (noting
that the various dictionary definitions, “[i]n short, rather than resolv[ing] the issue at hand, ***
simply underscore[d] the problem”). In the instant case, the dictionary definitions are
unhelpful to our analysis and, given the multiple definitions, lend support to our determination
that the statute is ambiguous. In sum, defining interruption as “an act of interrupting” or
“something that interrupts” supports ComEd’s interpretation while defining interruption as a
“state of being interrupted” or “an occasion when an action or activity is interrupted” supports
the Commission’s and the Attorney General’s interpretation. The word “interruption” means
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something different to a utility than it does to a customer. To the utility, an interruption is an
event on a system that causes customers to lose their connection with the integrated grid. From
the customer’s perspective, he is subjected to a power interruption when his service is in the
state of being interrupted.
¶ 34 This Court Cannot Rewrite the Statute
¶ 35 “[I]t is a cardinal rule of statutory construction that we cannot rewrite a statute, and depart
from its plain language, by reading into it exceptions, limitations or conditions not expressed
by the legislature.” (Internal quotation marks omitted.) Crittenden v. Cook County Comm’n on
Human Rights, 2012 IL App (1st) 112437, ¶ 81 (quoting People ex rel. Birkett v. Dockery, 235
Ill. 2d 73, 81 (2009)), aff’d, 2013 IL 114876. Each side here contends that the opponent(s)’
interpretation of the statute requires that it be rewritten. In sum, ComEd focuses on the
necessity of adding the word “simultaneous” to the definition of interruption because the
Commission used the word in its order.1 Respondents focus on the necessity of adding the
word “single” to the definition of interruption.
¶ 36 Respondents assert that if the legislature meant to limit liability to cases where there was a
single interruption or incident resulting in at least 30,000 customers being out of service for at
least four hours, the statute would read:
“In the event that a single continuous power interruption results in the transmission of
power at less than 50% of the standard voltage, or results in the total loss of power
transmission affecting more than 30,000 customers of an electric utility for 4 hours or
more, the utility shall be responsible for compensating customers affected by that
interruption for 4 hours or more for all actual damages.”
Respondents note that this is not the language of the statute and argue that ComEd’s
interpretation requires that the statute be rewritten.
¶ 37 ComEd argues that the Commission interpreted the statute to permit aggregation of any
interruptions that occur “continuously and simultaneously.” Again, this interpretation
presumes that the legislature intended in the first instance to use the industry definition of
interruption, i.e., an event on the system that causes customers to lose power or a single break
in electric flow, when the legislature may just as well have intended interruption to mean the
customer’s loss of service.
¶ 38 ComEd has also argued that “[a] single-interruption reading is so intuitive that this Court
previously presumed and recognized it.” In Sheffler v. Commonwealth Edison Co., 399 Ill.
App. 3d 51 (2010), aff’d, 2011 IL 110166, cited by ComEd, this court stated that “[s]ection
16-125(e) provides a series of specific circumstances under which, in the event of a single
power interruption that affects more than 30,000 customers, an affected customer that lost
power may be entitled to actual damages.” (Emphasis added.) Id. at 75. We agree with the
Commission that this statement was obiter dictum, i.e., a remark uttered “by the way” on a
collateral point not directly concerning the question before the court. Cates v. Cates, 156 Ill. 2d
76, 80 (1993). Sheffler was a class action brought against ComEd by consumers of electrical
power who sought legal and equitable relief following power outages caused by severe storm
1
The Commission did not use the word “simultaneous” in the portion of its order addressing the
applicability of section 16-215(e) but did use it in the portion of the order addressing whether it should
grant ComEd a waiver of liability under subsection 16-215(e)(1).
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systems. The trial court dismissed the complaint, this court affirmed, and the Illinois Supreme
Court later affirmed. There was no discussion of the issue of whether the statute applied to a
“single” power interruption; there was only the one remark. We agree with the Commission
that the statement “could have been deleted without seriously impairing the analytical
foundations of the holding.” See Pajic v. Old Republic Insurance Co., 394 Ill. App. 3d 1040,
1048 (2009) (describing the term “obiter dictum”). “[B]eing peripheral, [it] may not have
received the full and careful consideration of the court that uttered it. [Citations.]” (Internal
quotation marks omitted.) Id.
¶ 39 We conclude that the statute is ambiguous. Section 16-125(e) can reasonably be construed
both in the manner that the Commission and the Attorney General propose, as well as the
manner that ComEd proposes. We believe that the Commission’s interpretation of section
16-125(e) was a reasonable and permissible construction of the statute. Unless and until the
legislature chooses to rewrite the statute in the manner suggested by either side, we will not
substitute our own construction for the reasonable interpretation adopted by the agency
charged with the statute’s administration. We affirm the Commission’s decision that section
16-125(e) applies in the instant case.
¶ 40 The Commission’s Denial of a Waiver Under Section 16-125(e)(1)
¶ 41 Having determined that the Commission did not erroneously apply section 16-125(e) to the
power interruption experienced by the more than 30,000 customers on July 11, 2011, we next
address ComEd’s argument that it was entitled2 to a full waiver of liability under subsection
16-125(a)(1) where the July 11, 2011 power interruption was due to “[u]npreventable damage
due to weather events or conditions.” ComEd argues that “the Commission imposed liability
despite making exculpatory findings that ComEd met every duty imposed on it and without
making any fact findings that ComEd did not act in accordance with good utility practice.”
¶ 42 The Commission articulated the standard for determining whether damage was
“unpreventable.” In its order, under its analysis of whether ComEd was entitled to a waiver of
liability, the Commission expressly stated that it had adopted the four decisional criteria
advanced by Commission staff. To meet its burden of proving that damage was unpreventable,
the utility must demonstrate that: “(1) the facilities involved with the interruptions were
appropriately designed, constructed and maintained; (2) the weather conditions or events in
question occurred[,] at or near outage locations[,] that exceeded the standards to which the
utility’s system were appropriately designed, constructed, and maintained; (3) the particular
outages at issue were caused by damage resulting from the weather events or conditions that
2
Both ComEd and the Commission address the issue in terms of whether ComEd was “entitled” to
a waiver. We note, however, that the statute states that “[a] waiver *** may be granted by the
Commission.” (Emphasis added.) 220 ILCS 5/16-125(e)(1) (West 2010). Legislative use of the word
“may” is generally regarded as indicating a permissive or directory reading, whereas use of the word
“shall” is generally considered to express a mandatory reading. See, e.g., People v. One 1998 GMC,
2011 IL 110236, ¶ 16. Also, section 16-125(e) contains both the word “shall” and the word “may.”
“When the legislature has used both may and shall in the same paragraph of a statute, a court infers that
the legislature acknowledged the difference and intended each word to carry its ordinary meaning.” 3
Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutory Construction § 57.3, at 22-23 (7th
ed. 2008). Since the legislature’s use of the word “may” in the statute has not been raised as an issue
here, we need not address it further.
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exceeded appropriate design standards; and (4) the utility’s restoration effort was reasonable
and did not contribute to the number or length of interruptions.”
¶ 43 On appeal, ComEd does not dispute that, as the party seeking relief from liability, it had the
burden of proof. Despite the clearly articulated standard above, ComEd now asserts that “all
parties agreed below that the essence of [the meaning of ‘unpreventable’] is a prudential and
reasonableness standard based on good utility practice.” ComEd further asserts that it showed
that damage is “unpreventable if it occurred on a system designed, constructed, and operated in
accordance with good utility practice … and with the utility’s obligation to invest and incur
operating expenses in a manner that is reasonable and prudent.” ComEd contends that this was
the standard applied in the Winter 2011 Storm case and additionally asserts that “the
Commission neither articulated nor applied a clear and consistent alternative definition of
unpreventable.” This argument ignores the express language of the Commission’s order.
¶ 44 As noted earlier, in deciding whether ComEd had met its burden of showing it was entitled
to a waiver of liability, the Commission expressly stated that it had adopted the four decisional
criteria advanced by Commission staff. The Commission further explained that the decisional
criteria had been advanced by staff “in this and several previous proceedings.”
¶ 45 Staff witness Greg Rockrohr was asked, “What factors should the Commission consider to
determine whether ComEd customers experienced interruptions as a result of unpreventable
damage from the Summer 2011 Storm Systems?” Rockrohr stated that, “In Docket No.
08-0044, Staff described four showings that a utility should make in its request for a waiver so
that the Commission can adequately evaluate the Company’s request.” Rockrohr agreed with
staff’s prior recommendation and suggested the Commission base its decision regarding
ComEd’s waiver request upon those four decisional criteria, which the Commission
subsequently adopted. In his testimony, Rockrohr also provided the rationale for each of the
four decisional criteria.
¶ 46 Regarding the first criterion, that ComEd show that “the facilities involved with the
interruptions were appropriately designed, constructed and maintained,” Rockrohr explained
that “[t]he ability of electric distribution facilities to withstand adverse weather conditions or
events is largely a function of the design and maintenance of those facilities.” He opined that
“[i]f the damage would not have occurred to facilities that were appropriately designed,
constructed and maintained, then such damage cannot be classified as unpreventable.”
¶ 47 Rockrohr also testified regarding the second criterion, i.e., ComEd’s burden to show “the
weather conditions or events in question occurred[,] at or near outage locations[,] that
exceeded the standards to which the utility’s system were appropriately designed, constructed,
and maintained.” As Rockrohr explained: “If a utility’s facilities experienced conditions or
events that exceeded the standards to which the facilities were appropriately designed,
constructed, and maintained, then damage resulting from such conditions or events could be
considered unpreventable from an engineering perspective.” “Conversely, if the utility does
not establish that its facilities were subjected to weather conditions or events that exceeded
appropriate design standards, then it has not established that the damage which occurred due to
those conditions was unpreventable.”
¶ 48 Regarding the third decisional criterion for determining whether damage was
unpreventable, namely, whether the particular outages at issue were caused by damage
resulting from the weather events or conditions that exceeded appropriate design standards,
Rockrohr testified as follows:
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“From an operating perspective, it is neither reasonable nor feasible to expect a
utility to be able to provide direct and specific evidence regarding the cause of each
interruption. That is, a utility typically obtains information about damage causing an
interruption by viewing the damage after it has already occurred. While an
after-the-fact damage assessment will sometimes allow the utility to reasonably assess
the cause of the damage (for instance, when an uprooted tree is observed on top of
downed power lines), it will sometimes be difficult to determine the exact cause of the
damage from an after-the-fact viewing of the facilities (for instance, where a line fuse
operates and there is no evidence of animal activity or tree limbs in contact with the
conductor). At a minimum, the utility should be able to make some showing that the
damage causing the interruptions was consistent with, and likely caused by, damage
from the applicable weather conditions.”
¶ 49 Lastly, Rockrohr provided an example with respect to the last criterion, whether the
utility’s restoration effort was reasonable and did not contribute to the number or length of
interruptions. As Rockrohr explained, “[if] the utility could have reasonably restored power in
10 minutes, but did not restore power for 10 hours and 10 minutes, then 10 hours of the
interruption was preventable.”
¶ 50 We conclude that the Commission articulated a standard for determining whether the July
11, 2011 continuous power interruption experienced by more than 30,000 customers was due
to “[u]npreventable damage due to weather events or conditions.” Contrary to ComEd’s
assertion, the standard was neither inconsistent nor vague. ComEd’s failure to acknowledge
the standard necessarily affects its related argument that ComEd was entitled to a waiver
because it “met every duty imposed on it.” The Commission, applying its articulated standard,
determined that ComEd was not entitled to a waiver because the July 11, 2011 interruption was
not due to “[u]npreventable damage due to weather events or conditions.” The Commission
took into account staff’s analysis of outages that used ComEd’s own outage codes and took
into account wind conditions to grant waivers for damage caused by lightning, uprooted trees,
broken tree limbs and wind/tornado when winds exceeded 60 miles per hour. As the
Commission now notes, the final number of customers experiencing simultaneous outages not
covered by a waiver was 34,559 and approximately 25,600 of these resulted from “tree
contact.”
¶ 51 ComEd also contends that, although the Commission determined that not all damage
caused by “broken tree limbs” could be prevented, the Commission “never explained” why all
damage caused by “tree contact” was preventable. We disagree. It is clear from the
Commission’s decision that it concluded that ComEd could and should have trimmed the trees
to prevent limbs from swaying into power lines.
¶ 52 ComEd had the burden of showing that the outages caused by tree contact were
unpreventable. ComEd did not meet its burden. As the Commission notes, by adopting staff’s
decisional criteria (which explained the reason for its waiver exclusions) the Commission did
in fact explain why damage caused by tree contact was preventable. Although the
Commission’s order does not explicitly discuss staff testimony rejecting waivers for damages
caused by tree contact, the Commission, in reaching its conclusions, relied on Rockrohr’s
detailed examination of the outages for which ComEd sought waivers. Rockrohr based his
analysis on data provided by ComEd and he opined that ComEd did not show that the damage
due to tree contact was unpreventable.
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¶ 53 Rockrohr was asked why he excluded outages caused by “tree contact” from the waiver he
had recommended. As he explained:
“When trimming the trees that grow adjacent to overhead distribution circuits,
electric utilities must take winds into account and adequately trim branches and limbs
so that winds do not blow limbs and branches that remain connected to the trees into the
power lines. Furthermore, the winds discussed above are typically not sustained; they
are gusts lasting only a few seconds, and I believe ComEd could and should have
trimmed trees to prevent limbs from swaying into power lines. It is my opinion that,
generally, interruptions caused by tree contacts are preventable, whereas, an
interruption caused by a properly trimmed limb that breaks off and falls into the power
lines would be unpreventable if wind speeds approach or exceed utility design
standards.”
¶ 54 As the Commission now notes, substantial evidence provided by the Commission staff
supported its decision that, even with unpreventable damage considered, there were more than
30,000 customers who suffered an interruption simultaneously and continuously for more than
four hours due to the July 11, 2011 storm. “Substantial evidence” means more than a mere
scintilla but does not have to rise to the level of a preponderance of the evidence. See, e.g.,
Pliura Intervenors v. Illinois Commerce Comm’n, 405 Ill. App. 3d 199, 207 (2010);
Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 514 (2009). It
is not the province of this court “to weigh the evidence and reach a conclusion; that is for the
Commission to do.” Baltimore & Ohio Chicago Terminal R.R. Co. v. Illinois Commerce
Comm’n, 55 Ill. App. 3d 915, 920 (1977). As noted earlier, “[t]he credibility of expert
witnesses and the weight to be given their testimony are matters for the Commission as the
finder of fact.” Apple Canyon Lake Property Owners’ Ass’n v. Illinois Commerce Comm’n,
2013 IL App (3d) 100832, ¶ 70. “Illinois courts give great deference to the Commission’s
decisions, as they are the judgments of an administrative body with tremendous expertise in the
field of public utilities and with the qualifications to interpret specialized and highly technical
evidence.” Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 343 Ill. App. 3d 249, 255
(2003). Notably, despite its burden, ComEd has not cited any contrary testimony indicating
that damage from tree contact is generally unpreventable.
¶ 55 ComEd has noted that the Commission granted it a full waiver in the Winter 2011 Storm
case where ComEd “was in compliance with its comprehensive vegetation management
program–which had been vetted by the Commission.” ComEd now argues that “[t]he
Commission never explained what changed with respect to ComEd’s vegetation management
in the few short months between the February blizzard and the Summer Storms.” (Emphasis
added.) Although ComEd attempts to use the Commission’s determination in February 2011 to
support an inference that ComEd was still in compliance with its vegetation management
program after spring and partial summer growing cycles, the Commission notes that in the
Winter 2011 Storm case, tree contact outages were not sufficiently numerous to bring the
preventable outage number above the 30,000 customer level. Tree contact was not an issue in
the Winter 2011 Storm case. By contrast, in the July 11, 2011 outage, there were more than
25,000 customers whose outage was caused by tree contact. It is therefore understandable and
reasonable that the Commission had not, until the Summer 2011 Storms case, needed to
address whether outages from tree contact represented a category of preventable causes. The
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Commission was entitled to rely on staff testimony in determining that tree contact outages
were preventable.
¶ 56 ComEd has also raised two constitutional arguments. The first is a due process argument
based on the Commission’s purported failure to articulate a clear standard. As noted earlier, the
Commission expressly stated that it had adopted the four decisional criteria advanced by staff,
i.e., the utility, to meet its burden of proving damage was unpreventable, must demonstrate
that: “(1) the facilities involved with the interruptions were appropriately designed,
constructed and maintained; (2) the weather conditions or events in question occurred[,] at or
near outage locations[,] that exceeded the standards to which the utility’s system were
appropriately designed, constructed, and maintained; (3) the particular outages at issue were
caused by damage resulting from the weather events or conditions that exceeded appropriate
design standards; and (4) the utility’s restoration effort was reasonable and did not contribute
to the number or length of interruptions.” We conclude that the Commission articulated a clear
standard and ComEd’s due process argument is meritless.
¶ 57 ComEd’s second constitutional argument is that the Commission’s construction of section
16-125(e) results in an unconstitutional taking of property without just compensation and due
process under the fifth and fourteenth amendments to the United States Constitution (U.S.
Const., amends. V, XIV) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 15).
ComEd asserts that the Commission determined that ComEd must pay claims for damages
even though, according to ComEd, it violated no duty imposed upon it and the costs were
prudently incurred.
¶ 58 ComEd cites Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989), for the general
proposition that “[i]f the rate [set for a public utility] does not afford sufficient compensation,
the State has taken the use of utility property without paying just compensation and so violated
the Fifth and Fourteenth Amendments.” Id. at 308. ComEd also cites Citizens Utility Board v.
Illinois Commerce Comm’n, 166 Ill. 2d 111 (1995), in which the Illinois Supreme Court noted
that a utility’s “prudently incurred operating expenses have traditionally been recoverable
from ratepayers.” Id. at 126.
¶ 59 As the Commission notes, in Illinois, the issue of unlawful taking is typically raised in the
rate setting context. See, e.g., Sprague v. Biggs, 390 Ill. 537 (1945) (holding that base rates
which do not produce income sufficient to meet the operating expenses of a public utility are
confiscatory); Monarch Gas Co. v. Illinois Commerce Comm’n, 261 Ill. App. 3d 94, 99 (1994)
(noting that a Commission order would be “confiscatory” only where it sets the base rate at
such a low level that the utility is unable to pay its operating expenses). This is not a rate case
and ComEd has cited no additional authority. More importantly, however, ComEd has failed to
show that the Commission’s order holding ComEd responsible for compensating customers
for preventable damages pursuant to section 16-125(e) amounts to an unconstitutional taking.
We reject ComEd’s argument that these damages−for the large-scale outage that was shown to
be preventable−constitute reasonably incurred costs.
¶ 60 The Commission’s Decision Prohibiting Recovery
of Costs of Customer Notice
¶ 61 ComEd also argues that it should not be required to provide notice to the affected
customers informing them that they are entitled to seek damages, without ComEd being able to
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recover its costs in providing notice. The Commission order stated that “[c]osts incurred in
providing such notice, and all associated costs, shall not be included in rate base or treated as
allowable expenses for purposes of determining the rates to be charged by the public utility.”
Commonwealth Edison Co., Ill. Com. Comm’n Docket 11-0588, at 30 (Order June 5, 2013).
ComEd contends that the Commission cited no authority to support that limitation.3 ComEd
acknowledges that section 16-125(e) provides that “[l]oss of revenue and expenses incurred in
complying with this subsection may not be recovered from ratepayers.” ComEd argues that the
only “expenses” that cannot be recovered are the “actual damages” which are mentioned in the
statute and not the “costs of providing notice” which do not appear in the statute. Apparently,
ComEd contends that any expenses it incurs in providing the notice is not an expense incurred
“in complying with this subsection [16-125(e)]” but, rather, is an expense incurred in
complying with the Commission’s order. Yet, the Commission’s order was based on its finding
that ComEd violated, i.e., failed to comply, with this subsection. We believe that any
difference between expenses incurred “in complying” and “for failing to comply” with this
subsection is a distinction without a difference. We reject ComEd’s novel argument. The
Commission’s determination that ComEd could not recover its costs incurred in providing the
notice, is consistent with the plain language in section 16-125(e) prohibiting the recovery of
losses of revenue and expenses incurred in complying with the statute.
¶ 62 CONCLUSION
¶ 63 For the foregoing reasons, we affirm the Commission’s decision in appeal No. 1-13-2011.
We grant the Commission’s motion that was taken with the case and dismiss appeal No.
1-13-2012.
¶ 64 Appeal No. 1-13-2011, Affirmed.
¶ 65 Appeal No. 1-13-2012, Dismissed.
3
ComEd does not challenge the Commission’s authority to order it to provide notice.
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