dissenting:
I most respectfully dissent.
Plaintiffs who live and/or have businesses or practice their profession in an area for which Bell is capable of processing up to 3x/2 million telephone calls per day, charge in counts I and II of their complaint that Bell violated several provisions of the Public Utilities Act (PUA) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5 — 201) and certain Illinois Commerce Commission rules which resulted in a fire that totally destroyed the Hinsdale switching station and left plaintiffs without telephone service for one full month. Count II further alleges that these violations were wilful, for which the statute explicitly provides a remedy. Count V seeks a declaratory judgment that Bell’s tariff does not bar plaintiffs’ claims.
The trial court dismissed counts I and II for failure to state a cause of action, and granted Bell summary judgment on count V. Accordingly, we must determine as a pure matter of law whether Bell’s tariff bars its liability for wilful violations of the PUA, and whether the doctrine enunciated in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, applies to private causes of action brought under the PUA.
The majority’s holding that Bell’s tariff does indeed bar its liability for the wilful and wanton wrongs it inflicts upon consumers directly contravenes the clear and express provisions of section 5 — 201 of the PUA which make Bell liable to plaintiffs for “all loss [or] damages,” caused by Bell’s violation of the PUA; and if the violation is wilful, “the court may in addition to the actual damages, award damages for the sake of example and by way of punishment.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5 — 201.) The majority holds, for all intents and purposes, that a unilateral, ministerial act of a public utility, i.e., the filing of a tariff, in combination with the passivity of the Commerce Commission, is all that is needed in Illinois in order for the regulated to become the regulators! We are accordingly treated to the unprecedented and inexplicable phenomenon of having a plain and unambiguous legislative enactment nullified by Bell’s tariff and the inscrutable administrative procedures of the Illinois Commerce Commission. And while Bell and the majority insist on labeling the provision in Bell’s tariff a “limitation” of its liability, it is impossible to regard it as anything but a complete bar, given that the “foregoing” of a charge for services not rendered can hardly be deemed a “limitation of liability” in any sense of the term. I note that the trial court also came to that conclusion.
The majority claims to find support in a statement contained in the case of Waters v. Pacific Telephone Co. (1974), 12 Cal. 3d 1, 7, 523 P.2d 1161, 1164, 114 Cal. Rptr. 753, 756, in which the California Supreme Court, with all of the aplomb of the majority in this case, adopted the utility’s “limitation” of liability canard. Yet, neither Waters, nor the majority in the case at bar enlightens us in any way as to how or why mere administrative inaction, or action, for that matter, can overcome the plain meaning of a statute.
Moreover, neither Sarelas nor Meyer is relevant to the issue involved in this case, namely, whether Bell can unilaterally exculpate itself from liability, for its wilful misconduct committed in violation of the clear and unambiguous provisions of section 5 — 201 of the PUA.
The majority’s reliance on Pielet Brothers, Red Lion Broadcasting and Hendricks County is especially inapt inasmuch as the opinions in all three cases recognize that courts give deference to an interpretation of a statute by the agency charged with its administration and enforcement only if the statute is ambiguous, which is emphatically not the case here. I respectfully submit that the majority here simply suffers from an incredible blind spot that prevents it from acknowledging that section 5 — 201 is not an ambiguous law. Our supreme court has consistently held that although “the construction placed on a statute by a departmental agency is entitled to great weight in determining its validity or invalidity[,] *** courts must not be deprived of their judicial functions, nor can we allow a governmental agency to extend the operation of a statute by administrative regulation.” (P.H. Mallen Co. v. Department of Finance (1939), 372 Ill. 598, 601. Accord Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 153-54; Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151 (“A statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder”).) And if Federal law is wanted, I refer the majority to United States v. Cartwright (1973), 411 U.S. 546, 550, 36 L. Ed. 2d 528, 533, 93 S. Ct. 1713, 1716, where it is held that administrative agency pronouncements are not binding on the courts, as the deference accorded an agency’s interpretation of a statute does not displace judicial analysis.
The majority also holds that the Moorman doctrine bars plaintiffs’ claims, noting that “Moorman is not rendered inapplicable merely because plaintiffs assert a statutory cause of action.” (234 Ill. App. 3d at 468.) Yet the legislative intent underlying section 5 — 201 of the PUA is explicitly to allow recovery for “all loss, damages or injury” caused by any wrongful act or omission on the part of a public utility. (Emphasis added.) It would be difficult to imagine how a statute could be made any clearer.
“The primary rule in the interpretation and construction of statutes is that the intention of the legislature should be ascertained and given effect. [Citation.] The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. [Citations.] It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent. [Citations.]” (Emphasis added.) (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84.)
“Although Bell acknowledges that no court has held that Moorman defeats a statutory cause of action, it nevertheless contends that the Act’s liability provisions are in derogation of the common law and, thus, common law principles, including Moorman apply. See Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.” 234 Ill. App. 3d at 467.
After a discussion of Barthel, and in reliance on it, the majority states, “While it is true that section 5 — 201 imposes liability for all loss resulting from a utility’s violation of the Act and that common law doctrines do not allow recovery for all loss, the Act must be ‘strictly construed’ in favor of Bell. (Barthel, 74 Ill. 2d at 221.) The legislature did not ‘plainly’ evidence its intent to dispose of common law principles. (See Barthel, 74 Ill. 2d at 221.)” (234 Ill. App. 3d at 468.) The Barthel court held that since section 5 — 201 of the PUA was in derogation of the common law, “tort principles limiting a plaintiff’s claims under the act will not be abrogated unless ‘it plainly appears that the intent of the statute’ is to do so.” 234 Ill. App. 3d at 467, quoting Barthel, 74 Ill. 2d at 221.
I have not the organs to perceive that existing law requires the conclusion that the majority reaches in this case: that section 5 — 201 of the PUA and Moorman combine to confer on Bell the immunity we accord only to the sovereign; for immunity is incontestably the result when our courts, in effect, refuse to entertain an action created by the legislature and relegate the plaintiffs to seeking their relief in contract, but the “remedy” in contract turns out to be an illusory one, because here the damages, as we have seen, are “limited” to no damages at all as a consequence of Bell’s nullification of section 5— 201 which is quaintly nestled in a “tariff.” Shades of the regulated becoming the regulators!
Moreover, when we consider that deterrence is indisputably an essential element of our law, whether it be tort or contract, we may very well be entitled to wonder how it is fostered or advanced by the holding of the majority. In an article published in The New York Times of February 13, 1992, under the caption of “Businesses Criticize FCC on Phone Service Disruptions,” it is reported that in the third quarter alone of 1991, there were 204 “significant switching failures” (the type of occurrence complained of by plaintiffs in this case) on the part of seven “Baby Bells,” including the parent company of Illinois Bell, the defendant herein. The article also points out that business groups complain that our regulatory agencies are “failing to protect the reliability of the nation’s telephone networks.” The source of the information was given as the Federal Communications Commission.
Bell argues, however, that to hold it liable in negligence would result in damages that could be only speculative, or unknown and unlimited in scope, and grossly disproportionate to its fault. Yet, it cannot be successfully contended that the legislature naturalized section 5 — 201 into the PUA merely as a sterile attempt at lawmaking. Surely, the General Assembly must be conclusively presumed (Certain Taxpayers, 45 Ill. 2d 75) to mean what they so plainly stated in that provision, which the majority sets forth in full in its opinion; nor can we assume that the legislature was oblivious to the prospect that the damages which could result from the remedy it was affording to the customers of public utilities could be considerable. Thus, the General Assembly made actionable all acts of commission or omission resulting in a violation of the PUA or of the rules, regulations, orders or decisions of the Illinois Commerce Commission, whether those acts be negligent or wilful, and mandated that recovery be made available “for all loss, damages or injury caused thereby or resulting therefrom” (emphasis added), including punitive damages.
Moreover, our supreme court on more than one occasion has found it necessary to remind defendants who advance the argument made by Bell here that, “it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong has created.” (Elliott v. Willis (1982), 92 Ill. 2d 530, 540-41, citing Smith v. City of Detroit (1972), 388 Mich. 637, 202 N.W.2d 300.) And in Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, 334-35, the court recalled the words of that venerable jurist, Benjamin Cardozo, in Van Beeck v. Sabine Towing Co. (1937), 300 U.S. 342, 350-51, 81 L. Ed. 685, 690, 57 S. Ct. 452, 456, that “[i]t would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.” At the very least, Bell ought not to be heard to complain about the difficulties of plaintiffs’ proof, for it is their burden, and not Bell’s, to establish the existence and extent of their damages. Besides, this case is before this court, as it was before the trial court, on motions which concede the well-pleaded fact of damages. Nor should we lose sight of the fact that it is still traditional in our law that after hearing any contrary evidence and weighing the facts, the trier of fact bears the ultimate responsibility of deciding whether to award damages.
I would reverse the judgment of the circuit court. At the very least, I would expect that we attend the result in Collins v. Reynard (1992), 154 Ill. 2d 48, presently pending on rehearing in the Illinois Supreme Court. I decline to join the majority in its prognostications as to what the court “might determine” in Collins; there are rigors enough in applying Moorman in its present state. It has not been brought to my attention that the science of hermeneutics has been extended to apply to what has yet to be revealed.
Accordingly, I dissent.