Madison - St. Clair Record

Thursday, February 27, 2020

Class complaint alleges IP failed to inspect residential connections

By Steve Gonzalez | Apr 3, 2006

Three St. Clair County residents are seeking to be representatives in a class action case filed against Illinois Power Company in St. Clair Circuit Court March 13.

Robert Boze, Charles Jinkerson and Marsha Holland allege that in violation of its contractual obligations, Illinois Power (IP) fails to inspect and maintain the connections between its wires and its customers' homes at the point of delivery, creating an elevated risk of fire.

According to the complaint, IP is contractually required to perform basic inspections and maintenance activities to protect the safety of customers by minimizing known fire risks incident to the distribution of electricity.

The plaintiffs' claim due to IP's alleged breach of contract, customers have suffered damages measured by the value of the services IP failed to provide entitling them to recover from IP.

According to the complaint, the potential class would be defined as, "All residential electric customers of IP during the period from ten years before the date this complaint was filed through the date of class certification who reside in Illinois."

Any IP customers who suffered fires which originated in the meter boxes, all IP officers, directors, and attorneys', all hearing and trial judges in this case and all judges sitting on the Illinois Court of Appeals and the Illinois Supreme Court are excluded from joining the class.

The plaintiffs claim that the exact number of potential class members is unknown, but through proper investigations and discovery they believe there are more than 600,000 potential class members.

IP provides electric service to its customers pursuant to a written contract. Each contract is not individually negotiated because every customer is bound by the terms of service contained within IP's tariff, which constitutes IP's contract with each of its customers.

According to the complaint, the tariff sets forth the rates that IP may charge, but also the obligations of IP and its customers regarding the provision, inspection, and maintenance of the facilities required for electric service.

"Electricity has long been recognized as a dangerous product, and it is the fourth-most-cited cause of fires in the United States," the complaint states.

"The inspection and maintenance of these services facilities is therefore necessary not just to ensure reliable service, but also to protect the public safety."

The tariff also logically apportions the responsibility for the safe handling of electricity between IP and its customers.

The customer is responsible for electrical wiring and equipment beyond the point at which their electrical system is connected to IP's wiring.

IP is responsible for the inspection and maintenance of the electrical wiring and equipment up to and including the connection between its wires and the customers' service conductors that is located in the meter box that is attached to the home.

The plaintiffs' claim the customers pays for the inspection and maintenance service every month.

"The monthly bill sent by IP to its customers includes an "Account Charge," which is separate and apart from the charges for the actual electricity consumed by the customer," the complaint states.

They claim the "Account Charge" includes a "Facilities Charge" which compensates IP for the expense of its distribution system, including the inspection and maintenance of the system.

The plaintiffs' claim that IP's breaches have caused damages to them and the class in the amount of the value of the inspections and maintenance of the points of delivery it was required to provide each of them within the preceding 10 years.

"The value of each inspection and maintenance not performed by IP is properly measured by the cost to purchase such inspection and maintenance on the open market, estimated to be approximately $80 to $100," the complaint states.

The plaintiffs claim despite the breaches of its contracts, the contracts remain in full force and effect entitling them and the class to a judgment requiring specific performance by IP in the future of its inspection and maintenance obligations under the tariff.

"Specifically, IP should be ordered to perform the necessary inspections and any required maintenance of the points of delivery for plaintiffs and the class as soon as reasonably possible and to perform subsequent inspections and any required maintenance at regular intervals thereafter," the complaint states.

They also claim they are entitled to specific performance because damages for future breaches will be inadequate and monetary damages will not allow purchase of inspection and maintenance services from third parties because the tariff does not allow anyone other than IP to perform inspections and maintenance.

"Indeed, the meter boxes are sealed and can only be opened by IP, and without inspection and maintenance, the safety risk will continue to exist, which will render future monetary damages inadequate."

The plaintiffs' also claim the tariff is more than just the contract between IP and the class, but also constitutes the law governing the conduct of IP, entitling them to an injunction forcing IP to comply with the tariff.

The class is seeking:

  • An order determining that this action may be maintained as a class action, certifying the class, designating them as class representatives and designating plaintiffs' counsel as class counsel;

  • A judgment awarding compensatory damages in favor of them and the class against IP for all damages they sustained as a result of their breach of contract in an amount to be proven at trial, including pre and post-judgment interest;

  • A judgment awarding plaintiffs and the class their reasonable costs and expenses of this action, including counsel fees and expert fees;

  • A judgment awarding specific performance or a permanent injunction against IP requiring them to inspect and maintain the points of delivery; and

  • A judgment awarding them and the class all such other and further relief as the court may deem just and proper.

    The plaintiffs' are represented by Robert Sprague and Donald Urban of Belleville; Marc Stanley, Roger Mandell, and Martin Woodward of Stanley, Mandel & Iola of Dallas and Andrew Waters, Charles Siegel and Jay Stuemke of Waters & Kraus also in Dallas.

    06 L 174 (20th Circuit)

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