Colorado § 40-7-102 - Liability for violations - punitive damages.

§ 40-7-102. Liability for violations - punitive damages.

(1) In case any public utility does, causes to be done, or permits to be done any act, matter, or thing prohibited, forbidden, or declared to be unlawful, or omits to do any act, matter, or thing required to be done, either by the state constitution, any law of this state, or any order or decision of the commission, such public utility shall be liable to the persons or corporations affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. If the court finds that the act or omission was willful, the court, in addition to the actual damages, may award exemplary damages. An action to recover such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.

(2) No recovery as provided in this section shall in any manner affect the recovery by the state of the penalties provided in articles 1 to 7 of this title.

Source: L. 13: p. 503, § 58. C.L. § 2967. CSA: C. 137, § 58. CRS 53: § 115-7-2. C.R.S. 1963: § 115-7-2.

ANNOTATION

Liability of public utility. In case any public utility shall do any act that is prohibited, such public utility shall be liable to the persons affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. Miller v. Bussard, 132 Colo. 478, 289 P.2d 913 (1955).

Subsection (1) creates a private cause of action to compensate with money damages the injury of any person caused by conduct of a regulated utility that violates state law or any public utilities commission order or decision. Fawn Lake Ranch Co. v. K.C. Elec. Ass'n, 700 P.2d 564 (Colo. App. 1985); City of Boulder v. Pub. Serv. Co. of Colo., 996 P.2d 198 (Colo. App. 1999).

Trial court lacked subject matter jurisdiction where action concerned the defendant utility's tariff rates and plaintiffs had not yet exhausted their administrative remedies by seeking review of such rates. City of Boulder v. Pub. Serv. Co. of Colo., 996 P.2d 198 (Colo. App. 1999); Dev. Recovery Co., LLC v. Pub. Serv. Co. of Colo., 2017 COA 86, 410 P.3d 1264.

Phrase "may be brought in any court of competent jurisdiction" in subsection (1) does not create subject matter jurisdiction in the absence of exhaustion of administrative remedies. City of Boulder v. Pub. Serv. Co. of Colo., 996 P.2d 198 (Colo. App. 1999).

A plaintiff's failure to exhaust its administrative remedies mandates dismissal of a deceptive trade practice claim concerning a utility's alleged misrepresentations about the heating content of natural gas because the commission explicitly considers the heating content of natural gas when setting rates, and thus the claim is within the commission's exclusive jurisdiction. City of Aspen v. Kinder Morgan, Inc., 143 P.3d 1076 (Colo. App. 2006).

Although the rule is that damages based upon mere speculation and conjecture are not allowable, where it has been definitely established that damages are traceable to and the direct result of a wrong, the uncertainty as to the amount thereof is a question for determination by the trier of the facts. Any other rule would result in rewarding a wrongdoer. Donahue v. Pikes Peak Auto Co., 150 Colo. 281, 372 P.2d 443 (1962).

Where the cause of the damage is established, the fact that the amount or extent of damages is uncertain is no objection. Donahue v. Pikes Peak Auto Co., 150 Colo. 281, 372 P.2d 443 (1962).

Statute imposes no requirement that an affected person or corporation also have standing to pursue the underlying administrative remedy, and therefore a former landowner had standing to bring suit against utility for failure to provide service to purchaser of land. Fawn Lake Ranch Co. v. K.C. Elec. Ass'n, 700 P.2d 564 (Colo. App. 1985).

By the enactment of this section and § 40-10-115, the state has exercised legislative jurisdiction as to certain conduct in the state. Hansemen v. Hamilton, 176 F. Supp. 371 (D. Colo. 1959).

Applied in Shoemaker v. Mtn. States Tel. & Tel. Co., 38 Colo. App. 321, 559 P.2d 721 (1976).