Class action complaint against power company ruled insufficient

Jessica M. Karmasek Jun. 28, 2011, 3:30pm


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court has upheld a lower court's decision to dismiss a third amended complaint by a class of plaintiffs against power company Commonwealth Edison Company.

The Court, in its unanimous ruling, also upheld a court's decision to deny the plaintiffs leave to file a fourth amended complaint.

Plaintiffs Frances Sheffler, Mark Resnik and Debra Sloan, individually and on behalf of Jason Sloan, filed a complaint on behalf of a putative class against defendant ComEd, seeking damages and injunctive relief for power outages to their homes.

On Aug. 23, 2007, severe storm systems affected much of the Chicago area, resulting in the loss of electrical power to many of ComEd's customers, including the plaintiffs.

The original complaint was filed on Aug. 28, 2007, by plaintiffs Sheffler and Resnick as a class action complaint.

That complaint was followed by a first, second and third amended complaint.

Among the plaintiffs' many claims: that ComEd was negligent in failing to provide priority to disabled persons in restoring their power and in failing to establish and provide priority power to persons registered in the power company's life support registry.

A circuit court dismissed the plaintiffs' third amended complaint with prejudice, and denied plaintiffs leave to file a fourth amended complaint.

On appeal, Illinois' First District Appellate Court affirmed.

The state's high court granted the plaintiffs' petition for leave to appeal and affirmed the appellate court's ruling. Justice Robert R. Thomas authored the Court's opinion, filed June 16.

"Although plaintiffs use the words 'immoral, unethical, oppressive, unjust, unconscionable and unscrupulous' to describe ComEd's conduct, plaintiffs have not and cannot allege a deceptive
act or practice, or unfair conduct, by ComEd," he wrote for the Court.

"Plaintiffs argue that they have alleged unfairness because ComEd's practices offend public policy. Specifically, plaintiffs argue that ComEd was obligated pursuant to section 8-101 of the (Consumer Fraud) Act to promote the safety and health of its patrons per the public policy of the state and, presumably, violated that obligation in failing to give restoration priority to customers in the life support registry."

The Court said there is no merit to this claim.

"Section 8-101 provides that a public utility 'shall furnish, provide, and maintain such service instrumentalities, equipment, and facilities as shall promote the safety, health, comfort, and convenience of its patrons, employees, and public and as shall be in all respects adequate, efficient, just, and reasonable.'

"This broad public policy, however, does not impose a duty on ComEd to assign priority in power restoration to those listed on the life support registry."

The Court also said the circuit court had no jurisdiction over the plaintiffs' proposed fourth amended complaint. The damage remedies should have been sought through the Illinois Commerce Commission, it said.

The proposed fourth amendment would not cure the "defective pleading," the Court wrote.

"The appellate court thus correctly held that the circuit court did not abuse its discretion in denying plaintiffs' motion to file a fourth amended complaint seeking damage."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

More News