September 22, 2023

Appeals court allows lawsuit to go ahead over FPL outages during Hurricane Irma

TALLAHASSEE — An appeals court said Wednesday that Florida Power & Light can face a class-action lawsuit stemming from power outages in Hurricane Irma, which barreled up the state in 2017.

A three-judge panel of the 3rd District Court of Appeal upheld a Miami-Dade County circuit judge’s decision that certified the 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.

The appeals court said nine plaintiffs named in the lawsuit lost power for an “extended period” after Hurricane Irma. The panel said Circuit Judge David C. Miller “accurately noted that there were potentially millions of prospective class members and that their small, individual economic claims were not large enough to justify each individual plaintiff filing a separate action.”

Wednesday’s ruling said FPL contended that “individual issues predominate in this case, and a class action is not manageable or superior to other forms of resolving this controversy.”

But Chief Judge Ivan Fernandez, in a decision joined by Judges Norma Lindsey and Eric Hendon rejected that argument and pointed to what is known in the utility industry as a “tariff,” which outlines customer charges and other issues.

“The record supports the trial court’s conclusion that plaintiffs established that common questions of law and fact predominate over individual plaintiff issues,” Fernandez wrote in the 17-page ruling. “FPL’s tariff is a form document, and FPL admitted it applies to all plaintiffs and class members.”

The underlying lawsuit, filed in 2017, has largely been on hold in Miami-Dade circuit court while the appeal played out on the class-action issue. But Miller has scheduled a trial to start Nov. 27, according to a document filed last week.

Irma made landfall in Monroe County as a Category 4 hurricane and caused widespread damage and power outages as it traveled up the state.

FPL has vehemently fought the lawsuit, including unsuccessfully arguing that disputes about its storm-hardening efforts should go before the Florida Public Service Commission. The Miami-based appeals court rejected that argument in 2018.

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.”

But in a 2018 court document, FPL disputed the allegations.

“FPL has at all times been in full compliance with the requirements of the PSC (Public Service Commission) 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 the document. “Accordingly, there can be no basis for the imposition of liability against FPL on the bases asserted in the amended complaint (the lawsuit).”

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