Coral Gables can't force Florida Power & Light to upgrade infrastructure and trim trees around power lines ahead of hurricane season, but the city can seek monetary damages for the utility's response to power outages following Hurricane Irma.
That was the decision a Miami-Dade Circuit Court judge reached on Monday in dismissing three arguments in Coral Gables' lawsuit against FPL and allowing the city to proceed on a fourth issue, breach of contract. The case will now go to mediation.
The court decision is the latest development in a battle between Coral Gables and FPL over who is responsible for delays in turning the lights back on after Hurricane Irma. Although the utility had set an initial target deadline of Sept. 17 for restoring power to the Gables, electricity wasn't fully restored until about two weeks after the hurricane made landfall in South Florida on Sept. 10.
The City Commission blamed FPL for the delays, while the utility argued that it was prepared for the storm, but that the city had neglected its responsibility to keep the trees trimmed. Some trees fell on power lines during the hurricane, which made it more difficult for the utility to restore power. Coral Gables fined FPL more than $60,000 last September for missing the initial deadline. The following month, the City Commission voted to file a lawsuit.
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In its complaint, Coral Gables argued that FPL breached its franchise agreement to provide power to the city by not trimming trees near power lines and by failing to maintain electric poles and replace or repair transformers. As a result, according to the city, residents "experienced widespread and unreasonably prolonged power outages" even though the strength of the hurricane when it hit Miami-Dade County "was considerably less powerful than had been predicted."
Coral Gables had hoped the court would force FPL to upgrade its infrastructure and make sure trees are trimmed around power lines, but Judge Michael Hanzman ruled that the city has other available legal remedies including ending its contract with FPL. He said it would be "wholly impracticable" for the court to issue such an order, which would require the court to perform "ongoing monitoring and supervision" of the utility's efforts.
Now that the lawsuit has been limited to breach of contract, the city must shift its focus to seeking economic damages.
"We would have liked the court to force FPL to do certain things, but in keeping the case alive we're hoping that it provides an opportunity for further discussions to protect the city and its residents during the upcoming hurricane season," said city attorney Miriam Ramos.
Ramos added that other agreements with FPL could be reached during mediation, which the judge ordered take place within 60 days. "In a mediation parties can agree to anything so it's a good avenue for us to have a conversation with FPL," she said.
In its motion to dismiss the suit, FPL argued that Florida's Public Service Commission should handle the case, rather than Miami-Dade Circuit Court, and that the city had failed to identify any economic damages. The utility also said the city had brought the suit not to remedy legal issues, but because Coral Gables felt it was not being "respected" and wanted to "receive FPL's attention."
Bill Orlove, a spokesman for FPL, told the Miami Herald the judge had "correctly acknowledged" in his ruling that the Public Service Commission had already set standards for maintaining FPL facilities and equipment, including vegetation trimming and electric pole inspections.
"Importantly, FPL has been in compliance with these standards at all times, including during the aftermath of Hurricane Irma, and in all parts of its 35-county service area, including the city of Coral Gables," he said in an e-mail. "The company welcomes the opportunity to demonstrate its strong record of compliance as the case proceeds."
Hanzman's ruling appears to have cleared up any questions over who is responsible for trimming vegetation near power lines.
The city had asked the court to declare that FPL has full responsibility, but Hanzman dismissed this request because he said FPL had acknowledged during oral arguments that it was responsible for trimming vegetation near electrical poles and lines and maintaining its plants and equipment.
In public statements shortly after the hurricane, FPL blamed Coral Gables' "irresponsibly managed tree program" for the delays in restoring power and referred to city commissioners as "self-entitled politicians."
"The fact is the city of Coral Gables has for many years resisted FPL’s well-documented efforts to trim trees and harden our electric system," the utility said in a September statement. "Unfortunately for our customers in that area, they are now paying the price in terms of extended outages due to hundreds of trees that have fallen into our lines."
FPL's attorney, Alvin Davis, later apologized for some of the strong language. “I think it's clear that hurricanes don't bring out the best in our diplomacy," he said at a commission meeting last fall.