observing that “courts have generally upheld tariff liability limitations for ordinary negligence within a regulatory agency’s authority” but “overwhelmingly reject attempts to limit liability either by contract or by tariff for gross negligence, willful misconduct, and fraud” and holding that tariff was unenforceable to the extent it limited liability for fraud
How later courts described this case
- observing that “courts have generally upheld tariff liability limitations for ordinary negligence within a regulatory agency’s authority” but “overwhelmingly reject attempts to limit liability either by contract or by tariff for gross negligence, willful misconduct, and fraud” and holding that tariff was unenforceable to the extent it limited liability for fraud
- noting that “[a] presumption favors the preservation of common-law rights” and that courts should look at whether the state legislature has expressed an intent, “either explicitly or implicitly, that the policies supporting a state rate tariff doctrine were intended to abolish a common law ... claim”
- refusing to decide whether to adopt a state version of the federal filed rate doctrine for tariffs filed with the Oklahoma Corporation Commission, but holding that even if the doctrine were to be adopted it would not bar a claim for common-law fraud
- finding that, because the defendant was required to file its 12 tariffs with state commission, “the federal filed tariff doctrine is not controlling in this 13 appeal”
Written by the judges who cited it.
The opinion
BOUDREAU, J.,
concurring in result:
¶ 1 I concur in the result reached by the majority opinion. I write separately only because I would expressly adopt the filed *591 tariff doctrine (also known as the filed rate doctrine) in Oklahoma and then recognize the fraud exception to the doctrine.
If 2 Satellite Systems, Inc. (SSI) sued Birch Telecom of Oklahoma, Inc. (Birch). SSI asserted two theories of liability, breach of contract and fraudulent inducement. Birch moved to dismiss both theories on the ground that both are precluded by the filed tariff doctrine. The trial court agreed that the breach of contract theory is precluded by the filed tariff doctrine but allowed the fraud theory to go forward.
¶ 3 The trial court certified for appeal its interlocutory order denying Birch’s motion to dismiss the fraud theory. The majority opinion affirms the trial court, holding that “even if a state filed rate doctrine has been adopted in Oklahoma, it does not bar a common law fraud claim.”'
¶4 The majority opinion neither adopts nor rejects the filed tariff doctrine. Rather, it creates an exception to a doctrine it has not adopted. Without this court explicitly adopting the doctrine, the question of whether to create an exception to the doctrine is purely hypothetical.
¶ 5 It has long been the rule that we do not give advisory opinions or answer hypothetical questions. Dank v. Benson, 2000 OK 40 , 5 P.3d 1088, 1091 ; Keating v. Johnson, 1996 OK 61 , 918 P.2d 51, 61 ; Application of Fun Country Development Authority, 1977 OK 138 , 566 P.2d 1167 ; City of Shawnee v. Taylor, 1943 OK 11 , 132 P.2d 950 ; Shinn v. Oklahoma City, 1939 OK 29 , 87 P.2d 136 (1939). For this reason, I would expressly adopt the filed tariff doctrine and then recognize the fraud exception to the doctrine.