Development Recovery Co., LLC v. Public Service Company of Colorado

Citations

• 2017 COA 86
• 410 P.3d 1264

Syllabus

Public Utility—Subject Matter Jurisdiction—Enforcement of Tariffs—Common Law Claims. The Public Service Company of Colorado, d/b/a Xcel Energy Co. (Xcel), is a utility company regulated by the Colorado Public Utilities Commission (PUC). Development Recovery Company, LLC (DRC) was the assignee of claims from real estate developers who entered into extension agreements (agreements) with Xcel for the construction of distribution facilities to provide gas or electric service for homes in new developments. The agreements specified that they were governed by the PUC's rules and regulations and referred several times to Xcel's extension policies. The extension policies on file with the PUC are referred to as tariffs and provide that extension contracts are based on the estimate of the cost to construct and install the necessary facilities to provide the requested service. The tariffs explain in detail how construction costs and payments are to be handled. DRC filed a complaint against Xcel alleging various common law claims and violation of CRS § 40-7-102, related to an unspecified number of agreements between developers and Xcel over the course of 18 years. Xcel moved to dismiss, arguing that this matter was within the exclusive jurisdiction of the PUC or, alternatively, if the PUC did not have exclusive jurisdiction, the court should nevertheless refer the matter to the PUC under the primary jurisdiction doctrine. The district court agreed with Xcel on both grounds and dismissed the complaint. On appeal, DRC argued that the district court has exclusive subject matter jurisdiction over DRC's common law claims, asserting that the trial court erred in concluding that the substance of its claims is merely the enforcement of tariffs. The Court of Appeals noted that the PUC has exclusive jurisdiction in its constituted field, including enforcement of tariffs. The Court concluded that all of DRC's claims substantively involved enforcement of the tariffs (essentially, how costs