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Lawyers for FPL customers seeking another look in Irma case

Image of hurricanes Katia, Irma and Jose captured September 8, 2017.
Image of hurricanes Katia, Irma and Jose captured September 8, 2017.

TALLAHASSEE — Attorneys for Florida Power & Light customers have asked an appeals court to reconsider a ruling that dealt a blow to a lawsuit alleging the utility did not meet obligations to help prevent power outages during Hurricane Irma.

In a 43-page motion, the attorneys sought a rehearing at the 3rd District Court of Appeal — or possibly for the Miami-based appeals court to send the dispute to the Florida Supreme Court.

The motion came after a three-judge panel of the appeals court on May 22 backed FPL’s arguments that the state Public Service Commission has authority to determine whether the utility met obligations during the hurricane.

The panel reversed decisions that said customers could pursue a class-action lawsuit against FPL. The panel sent the case back to Miami-Dade County circuit court and ordered a judge to stay the lawsuit while “threshold issues” are resolved.

Another panel of the appeals court in March 2023 upheld a circuit judge’s certification of a class action. But a little more than a month later, the Legislature passed a measure that gave the Public Service Commission authority to resolve issues about disaster preparedness and response.

After Gov. Ron DeSantis signed the law, FPL renewed efforts at the appeals court to block the class action. The panel’s May 22 ruling did not end the lawsuit but would lead to the issues going to the Public Service Commission.

“The … dispute centers around service interruptions suffered by consumers in the wake of a natural disaster,” the May decision, written by Judge Bronwyn Miller and joined by Judges Norma Lindsey and Alexander Bokor, said. “Accordingly, the PSC (Public Service Commission) has the exclusive jurisdiction to determine preliminary liability relating to the sufficiency of FPL’s disaster preparedness.”

But in the motion filed late Thursday, the plaintiffs’ attorneys raised a series of arguments seeking reconsideration of the ruling. As an example, the motion said the panel interpreted the 2023 law “as an unprecedented expansion (of) the PSC’s jurisdiction, and tacitly holds that the Legislature — without an express statement of its intent to do so — abrogated long-standing Supreme Court precedent … on the limited scope of PSC jurisdiction.”

“The panel’s opinion has statewide implications and risks impacting every consumer of public utility services in Florida,” the motion said. “And any person who suffers damages as a result of a public utility’s negligent failures may be denied his or her fundamental right of access to the courts to redress his or her injuries to the extent the acts or omissions in question relate to ‘the sufficiency of a public utility’s disaster preparedness and response’ — an undeniably broad category of any public utility’s obligations in this state.”

Also, the motion contended that the 2023 law could not be applied retroactively to the lawsuit, which was filed in 2017.

The motion suggested a rehearing before the full appeals court. As an alternative, it said the appeals court could send the issue to the Supreme Court, a move known as certifying a question to the high court.

The lawsuit alleges that FPL did not meet obligations such as carrying out a storm-hardening plan, replacing aging poles and adequately clearing vegetation near lines. Irma made landfall in September 2017 in Monroe County as a Category 4 storm and caused widespread damage and power outages as it barreled up the state.

The plaintiffs’ attorneys argued in the lawsuit that FPL was “grossly unprepared” for the hurricane and that customers who lost power suffered damages such as lost profits and lost perishable goods and faced expenses. The lawsuit said FPL had collected money from customers to strengthen the power system.

But FPL has disputed the allegations and long contended that the issues should be addressed at the Public Service Commission. Tampa Electric Co. and Duke Energy Florida also filed a friend-of-the-court brief in April in support of FPL.

During a hearing in August, Stuart Singer, an attorney for FPL, argued that the case should be decertified as a class action and dismissed or stayed at the circuit court “until the plaintiffs comply with the new Florida law that requires them to obtain a ruling from the Public Service Commission on whether or not FPL failed with respect to deployment of its approved storm-hardening plans during Hurricane Irma.”
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