Szeto v. Aps

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHAO XIE SZETO, et al., Plaintiffs/Appellants,
v.
ARIZONA PUBLIC SERVICE COMPANY, Defendant/Appellee.
No. 1 CA-CV 20-0609
FILED 11-30-2021
Appeal from the Superior Court in Maricopa County
No. CV2017-011033
CV2017-056792
CV2018-004433
The Honorable Christopher A. Coury, Judge
REVERSED AND REMANDED
COUNSEL
Merlin Law Group, P.A., Phoenix
By Michael Ponzo
Counsel for Plaintiffs/Appellants
Gaona Law Firm, Phoenix
By David F. Gaona
Counsel for Defendant/Appellee
SZETO, et al. v. APS
Opinion of the Court
OPINION
Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Plaintiffs Chao Xie Szeto, Yit Kiu Szeto, and Lydia Briones
appeal from the superior court’s summary judgment for Defendant
Arizona Public Service Company (“APS”). We hold the superior court erred
by ruling that APS’s tariff bars a claim for property damage caused by a fire
allegedly resulting from negligent maintenance of the utility’s power lines.
We, therefore, reverse the judgment and remand for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
¶2 In August 2020, a fire destroyed two homes, one owned by
the Szetos and occupied by Briones. Briones testified that she saw loose
power lines dancing and sparking on the utility pole between her home and
the house next door just before the fire. Briones and her son fled to the street
in front of their home, where she heard an explosion from the backyard.
Besides destroying the home, the fire also damaged Briones’ personal
property. A fire investigator found that arcing in the overhead electrical
wires on the utility pole between the two homes caused the fire.
¶3 The Szetos and Briones sued APS, alleging that APS
negligently maintained the power lines, causing the fire. APS moved for
summary judgment, asserting that its public utility tariff exempted it from
liability for ordinary negligence. The relevant section of the tariff provides:
5.3 Service Interruptions: Limitations on Liability of
Company
5.3.1 Company shall not be liable to the customer
for any damages occasioned by Load Serving
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Opinion of the Court
ESP’s1 equipment or failure to perform,
fluctuations, interruptions or curtailment of
electric service, except where due to
Company’s willful misconduct or gross
negligence. Company may, without incurring
any liability therefore, suspend the customer’s
electric service for periods reasonably
required to permit Company to accomplish
repairs to or changes in any of Company’s
facilities. The customer needs to protect their
own sensitive equipment from harm caused
by variations or interruptions in power
supply.
¶4 Focusing on the exculpatory clause’s reference to a “failure to
perform,” the superior court found that APS could be liable in connection
with providing electric service only if it committed willful misconduct or
gross negligence. As a result, the court entered summary judgment against
the Szetos and Briones, who had alleged mere negligence on the part of
APS. The Szetos and Briones appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(1).
DISCUSSION
¶5 On appeal from a summary judgment, we view the facts in
the light most favorable to the party against whom judgment was granted,
Riley, Hoggatt & Suagee, P.C. v. English, 177 Ariz. 10, 12 (1993), and
“determine de novo whether there are any genuine issues of material fact
and whether the trial court erred in its application of the law,” Sign Here
Petitions LLC v. Chavez, 243 Ariz. 99, 104, ¶ 13 (App. 2017) (quoting L. Harvey
Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App. 1997)).
A. A Tariff Approved by the Corporation Commission is Binding on a
Public Service Corporation’s Customers and May Limit Certain
Liabilities.
¶6 Article 15, Section 3 of the Arizona Constitution authorizes
the Corporation Commission to “prescribe just and reasonable . . . rates
1 APS acknowledged during argument in the superior court,
“Load-Serving ESP” does not refer to APS. ESPs are companies that supply
electricity in competition with APS under Ariz. Admin. Code R14-2-1601
to -1618. See ¶ 11 infra.
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Opinion of the Court
and charges to be made and collected[] by public service corporations
within the state for services rendered therein.” Under this authority, the
Commission requires electric public service corporations to file proposed
tariffs that “list the services and products offered by the utility and which
set forth the terms and conditions and a schedule of the rates and charges,
for those services and products.” Ariz. Admin. Code (“A.A.C.”)
§§ R14-2-201.4.42, R14-2-212(F); A.R.S. § 40-365. Once approved by the
Commission, a tariff governs the relationship between the public service
corporation and its customers. US Airways, Inc. v. Qwest Corp., 238 Ariz. 413,
416, ¶ 11 (App. 2015), aff’d and ordered depublished in part, 241 Ariz. 182(2016). The tariff becomes a binding contract between the utility and its
customers. Sommer v. Mountain States Tel. & Tel. Co., 21 Ariz. App. 385,
387-88 (1974).
¶7 Our constitution does not expressly authorize the
Commission to limit the liability of public service corporations. But the
rate-setting process requires the Commission to consider a utility’s
liabilities, so the Commission necessarily has the authority to limit certain
liabilities. See Qwest Corp. v. Kelly, 204 Ariz. 25, 30, ¶ 13 (App. 2002) (“[T]he
[C]ommission’s power goes beyond strictly setting rates and extends to
enactment of the rules and regulations that are reasonably necessary steps
in ratemaking.”) (quoting State ex rel. Corbin v. Ariz. Corp. Comm’n, 174 Ariz.
216, 218 (App. 1992)). Thus, the Commission may limit a utility’s liability
for economic damages resulting from service interruptions, which are
appropriately considered in ratemaking decisions because of their
contractual nature and potential magnitude, but may not limit liability for
personal injury and property damages, which are not. See Pub. Serv. Comm’n
v. Mo. Gas Energy, 388 S.W.3d 221, 231–32 (Mo. App. 2012) (Missouri Public
Service Commission acted beyond its authority by limiting a public utility’s
liability for personal injury and property damages because “limitations of
liability involving economic damages are the types of limitations that
would be involved in establishing a utility company’s rates[, but the] same
cannot be said of limitations of liabilities in a negligence action involving
personal injury or property damage.”).
B. The Tariff Does Not Preclude APS’s Liability for Property Damage
Resulting from a Breach of its Duty to Exercise the Highest Degree of
Skill and Care for the Protection of Life and Property in the
Generation and Distribution of Electricity from its Plant to its Patrons.
¶8 In determining APS’s liability, the superior court relied on the
first clause of § 5.3.1, focusing specifically on the term “failure to perform.”
The court read this provision as eliminating liability for APS’s failure to
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Opinion of the Court
perform its obligations to transmit and distribute electricity safely. But as
noted below, “failure to perform” refers only to a failure to perform by
third-party companies called “Load Serving ESPs,” not to any failure to
perform by APS.
¶9 Tariff interpretation generally presents a question of law
which we review de novo. Harby v. Saadeh, 816 F.2d 436, 439 (9th Cir. 1987)
(Tariff interpretation presents a question of law.). We use contract
principles to construe tariffs and look first to the tariff’s plain meaning to
determine its intended effect. 73B C.J.S. Public Utilities § 7 (2021). In
addition, “[w]ords are to be given the meaning that proper grammar and
usage would assign them.” Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts, at 140 (2012). Grammar is not “a category of
indication separate from textual meaning.” Id. at 141. It is one of the ways
the sense of a statute is conveyed. Id.; see also Brett M. Kavanaugh, Fixing
Statutory Interpretation, 129 Harv. L. Rev. 2118, 2144 (2016) (book review)
(“First, courts could determine the best reading of the text of the statute by
interpreting the words of the statute, taking account of the context of the
whole statute, and applying any other appropriate semantic canons of
construction.”).
¶10 The first sentence of § 5.3.1 states:
Company shall not be liable to the customer for any
damages occasioned by Load Serving ESP’s equipment or
failure to perform, fluctuations, interruptions or
curtailment of electric service, except where due to
Company’s willful misconduct or gross negligence.
Usually, one applies a prepositive modifier to each element of a list
possessing a straightforward parallel construction. Scalia, supra, at 147–51.
For example, in the phrase “charitable institutions or societies,”
“charitable” applies to both “institutions” and “societies.” Id. at 147. We
refer to this canon of construction as the series-qualifier canon. Id.
¶11 And though the series at issue is less straightforward than the
example, we apply the canon to each sublist in the series. Because there is a
conjunction rather than a comma between “equipment” and “failure to
perform,” the two terms make up a single compound item in the series—a
sort of list within the list. See Scalia, supra, at 161 (“Punctuation is a
permissible indicator of meaning.”). In the context of the whole series, the
punctuation means that “Load Serving ESP’s” modifies both “equipment”
and “failure to perform,” so that the liability limitation applies to a “Load
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Opinion of the Court
Serving ESP’s equipment” and a “Load Serving ESP’s failure to perform.”
And, as APS concedes, there is no question that “Load Serving ESP” does
not refer to APS. The tariff always calls APS the “Company,” and A.A.C.
R14-2-1601 defines “ESPs” as “Electric Service Providers,” which are
companies that supply the electricity in competition with APS under A.A.C.
R14-2-1601 to -1618. Giving the provision its fair meaning, we conclude the
tariff eliminates APS’s liability for damages caused by Load Serving ESP’s
equipment or failure to perform but does not apply to a failure to perform
by APS itself.
¶12 Although the superior court relied only on the term “failure
to perform,” APS argues that the provision’s reference to “fluctuations”
also disclaims liability in this case. But this argument fails because arcing
along a service line is not a fluctuation in electric service. By disclaiming
liability for damages occasioned by a fluctuation in electric service, the tariff
eliminates liability for economic damages incurred when a customer
receives voltage that is too high or too low to serve its purpose. But it does
not eliminate liability for a fire caused by arcing on a service line.
¶13 This interpretation also tracks the title of the subsection in
which the provision is found, “Service Interruptions: Limitations on
Liability of Company.” And though APS argues that the title of the heading
is not part of the term itself, “we consider a provision’s meaning in the
context of the entire contract.” Terrell v. Torres, 248 Ariz. 47, 50, ¶ 14 (2020).
Of course, we recognize that titles do not constitute part of the law when
interpreting statutes because A.R.S. § 1-212 provides as much. Still, in the
context of a public utility tariff, we will not ignore a subsection’s title in
determining the meaning of the subsection.
¶14 In addition, the policy supporting the limitation of liability for
economic damages caused by service interruptions does not support
eliminating liability for damages to property caused directly by unsafe
transmission lines. In US Airways, we articulated the policy considerations
at issue. 238 Ariz. at 417, ¶ 12. Like other jurisdictions, we recognized that
defining and limiting a public utility’s liability allows it to provide service
at reasonable rates. Id. at 417, ¶ 12 (App. 2015); see also In re Ill. Bell Switching
Station Litig., 641 N.E.2d 440, 446 (1994) (speculating that the plaintiffs
might well end up owning the telephone company if unlimited liability for
economic damages were allowed to flow from a major utility outage). But
while policy favors limiting liability for damages resulting from service
interruptions that can have far-reaching effects, no such policy
consideration supports eliminating liability when a public utility
company’s negligence causes property damage or a personal injury.
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Opinion of the Court
¶15 Thus, § 5.3 of the tariff does not disclaim APS’s liability for
property damage caused by a breach of its duty to exercise the highest
degree of skill and care to protect life and property in the generation and
distribution of electricity from its plant to patrons. See Phoenix Light & Fuel
Co. v. Bennett, 8 Ariz. 314, 322 (1903) (defining a utility’s standard of care).
Thus, the superior court erred by reading the tariff as disclaiming APS’s
liability for fire damage to property caused by mere negligence in
maintaining its service lines.
¶16 As noted in the section that follows, our interpretation avoids
a constitutional issue that would arise if the tariff were read as eliminating
the Szetos’ and Briones’ right to bring a negligence claim in this case. See
Smith v. Ariz. Bd. of Regents, 195 Ariz. 214, 219, ¶¶ 9, 24 (App. 1999)
(construing a statute strictly “to avoid any overbroad statutory
interpretation that would give unintended immunity and take away a right
of action” and declining to address a constitutional argument because the
statute as strictly interpreted did not apply); see also Hayes v. Cont’l Ins. Co.,
178 Ariz. 264, 273 (1994) (We favor a construction that allows us “to avoid
unnecessary resolution of constitutional issues.”).
C. The Question of Liability Here Cannot Be Determined Through a
Direct Application of US Airways. If Interpreted as Disclaiming
APS’s Liability for Property Damage Caused by its Ordinary
Negligence, the Tariff Would Implicate the Anti-Abrogation Clause.
¶17 The Szetos and Briones argue on appeal that the superior
court’s interpretation of the tariff violates the anti-abrogation clause of the
Arizona Constitution. Under Article 18, Section 6 of the Arizona
Constitution, “[t]he right of action to recover damages for injuries shall
never be abrogated, and the amount recovered shall not be subject to any
statutory limitation.” The provision preserves “the ability to invoke judicial
remedies for those wrongs traditionally recognized at common law,”
Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17 (1986), and protects claims
that evolved from common law antecedents. Hazine v. Montgomery Elevator
Co., 176 Ariz. 340, 344 (1993). In addition, protection under the provision “is
not limited to those elements and concepts of particular actions which were
defined in our pre-statehood case law.” Boswell, 152 Ariz. at 18.
¶18 A statute that effectively deprives a claimant of the ability to
bring an action protected by the anti-abrogation clause violates the
constitution. Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz.
101, 106 (1984). And as is relevant here, a statute is unconstitutional if it
requires a plaintiff suing for negligence to show that the defendant engaged
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Opinion of the Court
in conduct more culpable than ordinary negligence. See Young ex rel. Young
v. DFW Corp., 184 Ariz. 187, 190 (App. 1995) (holding statute
unconstitutional under the anti-abrogation clause because it eliminated
dram shop liability except when a driver is obviously intoxicated, and
thereby deprived plaintiffs injured by intoxicated drivers of a reasonable
alternative to the general negligence action for dram shop liability).
¶19 The anti-abrogation clause does not prevent parties to a
contract from waiving a cause of action. Lindsay v. Cave Creek Outfitters,
L.L.C., 207 Ariz. 487, 494, ¶ 24 (App. 2003) (“The law allows a party to
voluntarily enter into a contract releasing another party of liability.”). But
no law may require such a waiver. The anti-abrogation clause “was
intended to take the right to seek justice out of executive and legislative
control, preserving the ability to invoke judicial remedies for those wrongs
traditionally recognized at common law.” Boswell, 152 Ariz. at 17; see also
Hayes, 178 Ariz. at 272 (Under the Arizona Constitution, the right to pursue
common law damage remedies is protected explicitly from legislative or
executive abrogation.).
¶20 The anti-abrogation clause applies to utility tariffs because
they carry the force of law. See US Airways, 238 Ariz. at 416, ¶ 11; see also US
W. Commc’ns, Inc., 131 P.U.R.4th 4862 (Ariz. Corp. Comm’n Mar. 27, 1992)
(“Once the tariff is accepted by the [C]ommission, the tariff, including the
limitation of liability provision, takes on the force and effect of law and
governs every aspect of the utility’s rates and practices. Neither the utility
nor the customer may depart from that tariff’s measure of compensation, or
the standard of liability contained therein.”).
¶21 Although we have upheld tariffs limiting purely economic
damages incurred when a public service corporation’s ordinary negligence
causes an interruption in service, we have never considered whether a tariff
can disclaim a public service corporation’s liability for personal injury or
property damage caused by negligence. And while the constitutionality of
the tariff was not raised before the superior court, we exercise our discretion
and consider the anti-abrogation clause’s effect on the tariff provision,
given that it shapes our de novo review of the tariff itself. State v. Boteo-Flores,
230 Ariz. 551, 553, ¶ 7 (App. 2012) (“[W]aiver is a procedural concept that
we do not rigidly employ in a mechanical fashion, and we may use our
2 Decision may also be found at US W. Commc’ns, Inc., Decision No.
57794 at 56 (April 2, 1992),
https://docket.images.azcc.gov/H000000728.pdf?i=1637175913318.
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discretion in determining whether to address issues not raised below.”)
(citations omitted).
¶22 In US Airways, we upheld a tariff provision that limited
damages caused by a service interruption. 238 Ariz. at 419–20, ¶¶ 22–23. In
that case, a construction company informed Qwest, a telecommunications
company, of its intent to excavate in an area where Qwest had underground
cables. Id. at 415, ¶ 2. Qwest hired another company to locate and mark the
cables. Id. Because Qwest maintained inaccurate underground cable maps,
the company could not find the cables and marked the area safe for
excavation. Id. at 415, ¶ 3. The construction company then severed the cable,
causing the plaintiff, a data center, to experience a four-hour interruption
in the telecommunications services it received from a third party. Id. The
data center sued Qwest for negligence for failing to use reasonable care to
locate and mark the underground cable. Id. at ¶ 4. Qwest argued its tariff
limited damages to the actual cost of the lost service. Id. at ¶ 5. The plaintiff
countered that the tariff’s liability limitation did not apply to it because it
was not a Qwest customer and that such a restriction would violate the
anti-abrogation clause of the Arizona Constitution. Id. at 416, 418, ¶¶ 8, 17;
see also Ariz. Const. art. 18, § 6. We held that the tariff did not violate the
anti-abrogation clause because Arizona’s common law had not recognized
the duty of a public utility to exercise reasonable care in providing
uninterrupted service. Id. at 418–19, ¶ 19. Thus, the tariff properly limited
liability for damages caused by a breach of the utility’s statutorily imposed
duty to provide service. Id. at 420, ¶ 22; see also Cronin v. Sheldon, 195 Ariz.
531, 539, ¶ 37 (1999) (A tort claim alleging wrongful discharge in violation
of the Arizona Civil Rights Act did not exist at common law when Arizona
became a state, did not evolve from common-law antecedents, and was
therefore not protected by the anti-abrogation clause.).
¶23 Here, the superior court relied on US Airways to conclude that
APS was not liable for the alleged damages, but US Airways is easily
distinguished. Economic loss caused by a service interruption is
meaningfully different from property damage or personal injury caused by
the negligent maintenance of a service line.
¶24 In Arizona, we have long recognized that “economic losses
are best handled by contract law rather than tort law.” Arrow Leasing Corp.
v. Cummins Ariz. Diesel, Inc., 136 Ariz. 444, 449 (App. 1983). Commercial
losses suffered by a plaintiff when the defendant fails to provide a
contracted service are generally recoverable in a breach of contract action
as consequential damages, McAlister v. Citibank, 171 Ariz. 207, 211 (App.
1992), but are unrecoverable in a negligence action because of the economic
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loss doctrine. Flagstaff Affordable Hous. Ltd. P’ship v. Design All., Inc., 223
Ariz. 320, 323, ¶ 11, 326, ¶ 28 (2010) (“‘Economic loss,’ as we use the phrase,
refers to pecuniary or commercial damage, including any decreased value
or repair costs for a product or property that is itself the subject of a contract
between the plaintiff and defendant, and consequential damages such as
lost profits.” And a contracting party is limited to contract remedies for
purely economic loss.). Thus, an exculpatory clause that eliminates liability
for a failure to provide a contracted service generally waives only a
plaintiff’s right to seek contract damages and does not offend the traditional
notion that “[t]he law disfavors contractual provisions by which one party
seeks to immunize himself against the consequences of his own torts.” See
Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp.,
143 Ariz. 368, 383 (1984) (abrogated on other grounds).
¶25 A waiver of tort remedies provided by contract is enforceable
only when there has been “an intentional relinquishment of a known right.”
Salt River, 143 Ariz. at 385. Our supreme court has explained that even
waivers of tort remedies in commercial contracts between sophisticated
parties, which are subject to a more relaxed standard, will only be enforced
where “parties have equal bargaining positions so that the choice was freely
and fairly made and not forced by the circumstances,” and that “the parties
must have negotiated the specifications of the product and have knowingly
bargained for the waiver.” Id.; Morganteen v. Cowboy Adventures, Inc., 190
Ariz. 463, 466 (App. 1997) (Courts take the most relaxed view of tort liability
waiver when parties are business entities.). Just as express contractual
waivers of tort remedies are disfavored, such waivers are disfavored in the
context of public utility tariffs. See, e.g., Uncle Joe’s Inc. v. L.M. Berry & Co.,
156 P.3d 1113, 1119 (Alaska 2007) (“[A]ll the reasons for disfavoring
[exculpatory] clauses in contracts also apply to tariffs.”); Forte Hotels, Inc. v.
Kan. City Power & Light Co., 913 S.W.2d 803, 806 (Mo. App. 1995)
(disfavoring contract or tariff provisions that purport to absolve public
utilities from liability for negligence).
¶26 Recognizing an exception to the rule that purely economic
damages are not recoverable in tort between contracting parties, some
jurisdictions subject public utilities to tort liability for failing to provide
service. See, e.g., S. E. Ind. Nat. Gas Co. v. Ingram, 617 N.E.2d 943, 951 (Ind.
App. 1993); Floyd & Co. v. Cincinnati Gas & Elec. Co., 120 N.E.2d 596, 599
(Ohio App. 1954). Such liability is based on “the old tort duty to serve all
comers which arose as to common callings before the idea of contract had
developed.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts
662-63 (5th ed. 1984); Ingram, 617 N.E.2d at 951. But because of the “huge
magnitude of liability to which a utility might be exposed from a single
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failure to provide service that affects hundreds, thousands, or, in the case
of an electrical blackout, millions of people,” some states allow public
utilities to limit their liability for service interruptions through its tariff
using an exculpatory clause. Restatement (Third) of Torts § 42 (2012). While
there are many examples of courts upholding tariffs with provisions
limiting liability for a utility’s failure to provide service,3 it is more difficult
to find examples of tariffs that eliminate liability for a straightforward
negligence action in which personal injury or property damage was caused
by something other than an interruption in service. But see Mo. Gas Energy,
388 S.W.3d at 232, n.8 (Mo. App. 2012) (listing cases).
¶27 The Szetos and Briones seek to recover property damages
caused by APS’s negligence, not economic damages caused by a service
interruption.4 Arizona has long recognized a right of action for property
damage caused by negligence. Phoenix Light & Fuel Co., 8 Ariz. at 322
(recognizing electric company’s common law duty to exercise the highest
degree of skill and care to protect life and property in generating and
distributing electricity from its plant to its patrons). In fact, in US Airways,
we cited with approval Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 268,
¶ 11 (2010), for the proposition that “[c]ourts have not recognized a general
duty to exercise reasonable care for the purely economic well-being of
3 There is variation among the states, but exculpatory provisions in
public utility tariffs generally disclaim or limit liability for failure to furnish
service. Richard J. Pierce, Jr., Regional Transmission Organizations: Federal
Limitations Needed for Tort Liability, 23 Energy L.J. 63, 66, n.12 (2002) (citing,
inter alia, L.A. Cellular Tel. Co. v. Superior Court, 65 Cal. App. 4th 1013 (1998);
Ill. Bell Switching Station Litig., 641 N.E.2d 440, 441–45 (1994); Angelo Pavone
Enters. v. S. Cent. Bell Tel. Co., 459 So.2d 1223, 1226 (La. App. 1984); Olson v.
Mountain States Tel. & Tel. Co., 119 Ariz. 321, 323 (App. 1978); S. Bell Tel. &
Tel. Co. v. Invenchek, Inc., 204 S.E.2d 457, 460 (Ga. App. 1974); Burdick v. Sw.
Bell Tel. Co., 675 P.2d 922, 925 (Kan. App. 1984); Comput. Tool & Eng’g. Inc.
v. N. States Power Co., 453 N.W.2d 569, 573 (Minn. App. 1990); Bulbman, Inc.
v. Nev. Bell, 825 P.2d. 588, 590 (Nev. 1992); Coachlight Las Cruces, Ltd. v.
Mountain Bell Tel. Co., 664 P.2d 994, 1000 (N.M. App. 1983); Lee v. Consol.
Edison Co., 413 N.Y.S.2d 826, 823 (1978)).
4 APS argues that the status of Szetos’ and Briones’ damages as
economic is a factual issue not before the court, but the fire damaged the
Szeto’s home and Briones’ personal property. And the status of damages to
real and personal property as a category of noneconomic damages is a legal
issue properly considered in our de novo review of the summary judgment.
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others, as distinguished from their physical safety or the physical safety of their
property.” 28 Ariz. at 421, ¶ 30 (emphasis added). If the tariff disclaimed
liability for a house fire caused by APS’s failure to perform its duty to
deliver electricity safely, it would implicate the anti-abrogation clause.
CONCLUSION
¶28 We reverse and remand for further proceedings consistent
with this opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA
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