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Judge says Hurricane Irma outages qualify for class-action lawsuit against FPL

a man stands among downed branches in coral gables after hurricane irma in 2017.
Roberto Koltun
/
Miami Herald
Downed trees and branches, like these in Coral Gables, delayed the restoration of power after Hurricane Irma.

More than four years after Hurricane Irma plowed through the state, a judge has cleared the way for a class-action lawsuit against Florida Power & Light because of customers’ electricity getting knocked out.

Miami-Dade County Circuit Judge David C. Miller late Friday issued a 24-page order granting a motion to certify the long-running lawsuit as a class action. Plaintiffs contend that the utility did not meet obligations to help prevent power outages, such as carrying out a storm “hardening” plan, replacing aging poles and adequately clearing vegetation near lines.

“This action is predicated on a common contract with nonnegotiable terms that permeates class wide, giving rise to uniform rights and obligations,” Miller wrote. “FPL contractually undertook to use reasonable due diligence at all times to provide its customers continuous service even during foreseeable wind events because of its storm hardening improvements.”

The lawsuit, filed in 2017, includes six named plaintiffs, but class certification could open it to millions of FPL customers. Irma made landfall in Monroe County as a Category 4 hurricane and then caused widespread damage and power outages as it traveled up the state.

FPL has vehemently fought the lawsuit, with issues twice already going to the 3rd District Court of Appeal. Among other things, FPL has contended that disputes about its storm hardening efforts should go before the Florida Public Service Commission.

“FPL has at all times been in full compliance with the requirements of the PSC for vegetation management, pole inspections and replacement, and for all other elements of storm hardening as established by the state agency with the exclusive jurisdiction to establish, monitor and enforce such requirements,” the utility’s attorneys wrote in a 2018 court document. “Accordingly, there can be no basis for the imposition of liability against FPL on the bases asserted in the amended complaint (the lawsuit).”

But 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.

“This case arises from acts and damages that are above and beyond disappointed expectations of the benefit of the bargain,” the lawsuit said. “Specifically, the nature of relief sought by plaintiffs flow from FPL’s gross negligence and breach of contractual undertaking to replace defective equipment and clear vegetation overgrowth.”

Miller held a three-day hearing last month before issuing the formal order Friday to certify the lawsuit as a class action. The class certification does not resolve the underlying disputes in the case.

“Plaintiffs are not claiming that FPL is an insurer against hurricanes, nor will class status produce that result,” Miller wrote. “Instead, plaintiffs seek class wide management over a basic contractual issue of whether FPL breached its contractual obligation to honor its promise to use reasonable diligence at all times to provide continuous service or did FPL somehow commit gross negligence in performing its duties under its tariff (a type of required utility document). These issues are best suited for class wide treatment.”