20070607Affidavit of Stanley J. Tharp in support.pdf

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Stanley J. Tharp, ISB No. 3883
EBERLE, BERLIN, KADING, TURNBOW,
McKL VEEN & JONES, CHARTERED
1111 W. Jefferson, Suite 530
P. O. Box 1368
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
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Attorneys for Petitioner
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JERRENE PHILLIPS
Case No. IPC-07-
Petitioner
vs.
AFFIDAVIT OF STANLEY J. THARP
IN SUPPORT OF PETITIONER'
MOTION TO DISMISS
IDAHO POWER COMPANY
Respondent.
STATE OF IDAHO
:ss
County of Ada
STANLEY J. THARP, being first duly sworn upon oath, deposes and says:
I am an attorney with the law firm of Eberle, Berlin, Kading, Turnbow, McKlveen
& Jones, Chartered, attorneys of record for the Petitioner in the above-captioned matter. As such
I am familiar with the facts of this case and make this affidavit based on my own knowledge and
belief.
Attached hereto as Exhibit "A" is a true and correct copy of a December 8, 2006
letter from Lisa Nordstrom at Idaho Power to Stanley J. Tharp.
AFFIDAVIT OF STANLEY J. THARP IN SUPPORT OF PETITIONER'S MOTION TO DISMISS - 1
00149662
Attached hereto as Exhibit "B" is a true and correct copy of the Formal Complaint
filed by Petitioner on January 11, 2007.
Attached hereto as Exhibit "C" is a true and correct copy of the Answer of Idaho
Power Company dated February 7 2007.
Attached hereto as Exhibit "D" is a true and correct copy of Idaho Power
Company s Response to Petitioner s First Set of Interrogatories, Requests for Production of
Documents and Requests for Admission.
Attached hereto as Exhibit "E" is a true and correct copy of Idaho Power
responses to Petitioner s Second Set of Interrogatories and Requests for Production of
Documents.
Attached hereto as Exhibit "F" is a true and correct copy of the Decision on
Motion to Dismiss in John P. March v. Ford Motor Co., et ai.Case No. CV OC 95-05974.
FURTHER YOUR AFFIANT SA YETH NAUGHT.
Stanl
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SUBSCRIBED AND SWORN to before me this -2 day of June, 2007.
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Notary Pu i for Idaho
My Commission Expires: 10/13/10
AFFIDAVIT OF STANLEY J. THARP IN SUPPORT OF PETITIONER'S MOTION TO DISMISS - 2
00149662
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this Lf\ay of June, 2007, a true and correct copy of the
foregoing document was served by first-class mail, postage prepaid, and addressed to; by fax
transmission to; by overnight delivery to; or by personally delivering to or leaving with a person
in charge of the office as indicated below:
Tammie Estberg
Idaho Public Utilities Commission
O. Box 83720
Boise, ID 83720-0074
( J u.S. Mail
( J Fax:
( 1 Overnight De1ivery
(Xl. Messenger Delivery
Lisa Nordstrom
IDAHO POWER CONW ANY
1221 W. Idaho
O. Box 70
Boise, ID 83707
( J u.S. Mail
( J Fax: [phone]
( J Overnight Delivery
('8- Messenger Delivery
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STANLEYalTHARP
AFFIDAVIT OF STANLEY J. THARP IN SUPPORT OF PETITIONER'S MOTION TO DISMISS - 3
00149662
IDAHO
POWE R CB)
Lisa Nordstrom
Attorney
An IDACORP Company
December 8 , 2006
VIA CMRRR (7000 0520 0024 9023 5205)
Stanley J. Tharp
Eberle, Berlin , Kading, Turnbow, McKlveen
& Jones, Chtd.
Capitol Park Plaza
300 N. Sixth Street
O. Box 1368
Boise , Idaho 83701
Re:Jerrene Phillips
Dear Mr. Tharp:
Idaho Power has reviewed your November 28 2006 letter requesting meter
information for Jerrene Phillips' residence. Given the nature of your request and use of
terms like "claim" and "negligence " Idaho Power wishes to make clear that the Idaho
Public Utilities Commission has jurisdiction over the billing disputes of its regulated
utilities pursuant to Idaho Code 9961-503, 61-641 , and 61-642. The Commission sets
forth its customer complaint procedure in Utility Customer Relations Rules 401 through
404 (IDAPA 31.21.01.401 - .404). Utility Customer Relations Rule 204 (IDAPA
31.21.01 ~204) specifically governs situations where public utilities inaccurately bill
service or fail to bill for service.
With this in mind , Idaho Power provides the following responses to your
information requests:
REQUEST NO.1: The initial date upon which the CTs were sealed.
REQUEST NO.2: The initial date upon which the meter was sealed.
RESPONSES TO REQUEST NOS. 1 AND 2: Current transformers , when
installed on underground service , are provided to the customer s electrician to
install on the service wire during construction prior to the meter being installed.
This causes the current transformer installation date record to show that they
were installed prior to the meter (see Documents 2 and 3 provided in Response
3). Current transformer enclosures are then sealed by Idaho Power at the time
of meter installation. Both the current transformers and the meter were sealed
on January 24, 1994 (See Document 1 provided in Response 3). '2. \ \J '2.~ ~ c
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Telephone [phone] Fax [phone] E-mail LNordstrom~idahopower.
Stanley J. Tharp
December 8 , 2006
Page 2
REQUEST NO.3: Please produce copies of any and all documents with regards
to the meter or the CTs , including any notations by a meter reader or meter
technician if either the meter or the CTs were unsealed at any time , dating back
to its original installation.
RESPONSE TO REQUEST NO.
Document #1 -- CASMETER archive system report: Shows meter serial #
62128615 was installed on 1/24/94. Sealing the meter and enclosure
which contains the current transformers at the time of the installation is
and always has been , standard operating procedure.
Document #2 -- Meter Management Subsystem report: Shows current
transformer serial #6317544 was installed in 1993, after 11/19/93.
Document #3 -- Meter Management Subsystem report: Shows current
transformer serial #6318185 was installed in 1993 , after 11/19/93.
Document #4 -- Meter Management Subsystem report. Page 1 shows
meter serial # 62128615 was removed on 3/26/06. This was a planned
maintenance exchange and test for that meter. Page 2 shows install and
removal test results for meter #62128615.
Document #5 -- Meter Management Subsystem report. Page 1 shows
meter #92265314 was installed on 3/26/06 and removed on 11/7/06.
Page 2 shows test results for meter #92265314 prior to installation and
after removal.
Document #6 -- Meter Management Subsystem report. Page 1 shows
meter serial #2026405 was installed on 11/7/06. Page 2 shows test
results for meter serial #2026405 prior to installation.
Document #7 -- Customer Information System report. Pages 1-3 show
the meter reading history from 9/30/99 to 11/3/06. Unsealed meters would
be reported with trouble codes under the Column Heading "REPORT
CD" or "REPORT 2 CD." As the report shows , no trouble codes have
been reported for this account.
Document #8 -- Customer Information System - Archive Information on
Microfiche. Pages 1 - 11 show Jerrene Phillips' account history including
meter number and meter constant from 4/30/95 through 3/29/2000. This
information is from Idaho Power s old Customer Information System
(a.a. Legacy System), which was replaced in 2000.
Stanley J. Tharp
December 8 2006
Page 3
REQUEST NO.4: The name of the manufacturer of the CTs and the meter.
RESPONSE TO REQUEST NO.4: The manufacturer information for the current
transformers installed at 16625 Basin Way Boise ID is:
Manufacturer: General Electric
Model: JCWO
Ratio: 400/5
The manufacturer information for the meters that have been installed at 16625
Basin Way Boise , ID is:
SN 62128615
Manufacturer: General Electric
Model: 150S
SN 92265314
Manufacturer: General Electric
Model: 170S
SN 2026405
Manufacturer: Elster
Model: A1T-
If you have questions regarding these responses or the documents provided
please contact me at 208-388-5825.
Very truly yours
~~
1L Lisa Nordstrom
LN/sh
Enclosures
Cc:Beverly Barker, Idaho Public Utilities Commission
Tammie Estberg, Idaho Public Utilities Commission
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StanJI1ey J. TJb1aIrJP~ ISB No. 3883
EJBERLE~ BERLIN~ KAJDING~ TURNBOW
McKL VEEN & JONJES~ CJH!ARTERED
300 North 6th Street
P. O. Box 1368
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
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BEFORE TJH!E IDAJHIO PUBLIC UTILITIES COMMISSION
JERENE PHILLIPS
Case No.
Petitioner
FORMAL COMPLAINT
vs.
IDAHO POWER COMP ANY
Respondent.
COMES NOW the Petitioner, JERENE PHILLIPS, by and through her attorneys of
record, Eberle, Berlin, Kading, Turnbow, McKlveen & Jones, Chartered, and pursuant to IDAPA
31.01.01.054 hereby files this Formal Complaint against the Respondent, Idaho Power Company
(hereinafter "Idaho Power
LISTED REPRESENTATIVE:Stanley J. Tharp
Eberle, Berlin, Kading, Turnbow, McKlveen & Jones
Chartered
300 North Sixth Street, 2nd Floor
O. Box 1368
Boise, ID 83701-1368
[phone]
[phone] (facsimile)
Mail: stharp~.eberle.com
FORiVIAL CO;\IPLAJJ:='iT - 1
00142562
PE'HTIONER:J erene Phillips
16625 Basin Way
Boise, ill 83714
[phone]
RESPONDENT:Idaho Power Company
c/o its Registered Agent, Patrick Harrington
1220 West Idaho Street
Boise, ill 83702
COMMON ALLEGATIONS
The Petitioner, Jerene Phillips , is a customer of the Respondent, Idaho Power.
From January 1994 through March of 2006 Idaho Power was billing the
Petitioner at the home address identified as "16625 Basin Way, Boise, Idaho 83714" (hereinafter
the "Premises
Idaho Power installed CTs and meter at the Premises on or about January 24
1994. The CTs and meter installed by Idaho Power at all times functioned properly, and the
meter installed never failed to function.
Thereafter, Idaho Power billed the Petitioner for correct readings from the
installed meter. All bills received by Petitioner from January 1994 through March of 2006 were
paid when received.
On March 26 2006 as part of a planned maintenance exchange, a different meter
was installed. Shortly thereafter, the Petitioner noticed a huge increase in her electricity bills and
after further inquiry it was discovered that the incorrect CTs were installed by Idaho Power back
in 1994. In fact, the multiplier should have been a 40; however the meter and CTs that were
installed had a multiplier of 20.
In June of 2006 Idaho Po\ver sent Petitioner a bill for three (3) years of additional
electricity in the amount of $6,359.44. Petitioner has disputed this bill ever since and in fact
fOR."KAL CO;\-IPJLAI:'i'T -
001-12562
approached Idaho Power in an attempt to compromise this matter; however, Idaho Power rejected
Petitioner s offer to compromise.
A true and accurate copy of the bill is attached hereto as Exhibit "A" and
incorporated herein by reference.
Originally, the basis and claim of the additional charges by Idaho Power was that
the CTs and meter previously installed in 1994 were not properly functioning and as a result, the
billings did not accurately reflect the services received by the Petitioner.
At no time in the past twelve (12) years did the meter and CTs installed by Idaho
Power fail or malfunction. In fact, upon the removal and testing of the meter by Idaho Power it
was found to be one-hundred percent (100%) accurate and fully functional.
COUNT ONE
10.Petitioner restates and realleges the common allegations contained in paragraphs
through 9.
11.Under IDAP A 31.21.01.204, a utility may file a corrected billing only
( w Jhenever the billing for utility service was not accurately determined because the meter
malfunctioned or failed, bills were estimated, or bills were inaccurately prepared, the utility shall
prepare a corrected billing. If the utility has failed to bill a customer for service, the utility shall
prepare a bill for the period during which no bill was provided.
12.Because the basis of the billing was that Idaho Power had installed the wrong CTs
and meter, as opposed to an allegation that the meter failed or malfunctioned, Idaho Power lacks
any legal authority to rebill the Petitioner for the months of April 2003, through March 2006.
fOR'IAIL CO:.uPIL..\I:.'iT - 3
OOI4~56~
COUNT TWO
13.Petitioner restates and realleges the common allegations contained in paragraphs
through 12.
14.The Idaho Public Utilities Commission (hereinafter "IPUC") jurisdiction
limited and has to be found entirely within the enabling statutes. Afton Energy, Inc. v. Idaho
Power Co.111 Idaho 925 , 729 P.2d 400 (1986); Washington Water Power Co, v. Kootenai
Environmental Land 99 Idaho 875 , 591 P.2d 122 (1979). An administrative regulation cannot
exceed the bounds of authority granted to it by the legislature. Curtis v. Canyon Highway
District No.122 Idaho 73, 831 P.2d 541 (1992) (overruled on other grounds).
15.Idaho Power s billing authority is limited via statute and its authority cannot
exceed the bounds of the statute.
16.Idaho Power s interpretation of IDAPA Rule 31.21.01.204 is not consistent with
Idaho Code 9 61-642. Idaho Code 9 61-642 does not allow Idaho Power to back bill the
Petitioner for three (3) years as alleged by Idaho Power pursuant to IDAP A 31.21.01.204.
COUNT THREE
17.Petitioner restates and realleges the common allegations contained in paragraphs
through 16.
18.Idaho Power s interpretation ofIDAPA 31.21.01.204 and Idaho Code 9 61-642 is
arbitrary and capricious and not in accordance with law.
19.The IPUC should not enforce Idaho Power arbitrary and capnclOus
interpretation of IDAP A and the Idaho Code.
FOR."L-\L CO:\IPLAINT - 4
00142562
COUNT FOUR
20.Petitioner restates and realleges the common allegations contained in paragraphs
through 19.
21.The principles of equity are applicable in proceedings before administrative
bodies. Duggan v. Potlatch Forests Inc.92 Idaho 262 , 441 P.2d 172 (1968).
22.Over the past twelve (12) years the Petitioner has in good standing, paid the bills
sent to her by Idaho Power.Idaho Power s current attempt to back bill the Petitioner is
inequitable because if she had known the true amount of her power consumption over the years
she could have taken measures to budget and conserve even more. However, Idaho Power
installation of the wrong CTs prevented her from taking that opportunity.
RIGHT TO AMEND
23.Petitioner reserves the right to amend this Formal Complaint in any respect as
motion practice and discovery proceeds in this matter.
WHEREFORE, Petitioner asks for the following relief:
The IPUC declare that the Respondent had no basis to charge the Petitioner for the
additional amounts claimed.
The IPUC declare that the billing received by Petitioner from the Respondent
from April 7, 2003 to March 26, 2006, including any late charges, is paid in full.
To the extent authorized by law, that the IPUC award the Petitioner its reasonable
attorneys' fees and costs; and
For such other and further relief as the IPUC may deem just and equitable.
fORMAl. COMPLAINT -
00142562
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DATED this day of January, 2007.
EBERLE, BERLIN, KADING, TURNBOW
McKLVEEN & JONES CHARTERED
By:
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Stanleyl:Tharp
Attorneys for Petitioner
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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that on this -'-L day of January, 2007, a true and correct copy of
the foregoing document was served by first-class mail, postage prepaid, and addressed to; by fax
transmission to; by overnight delivery to; or by personally delivering to or leaving with a person
in charge of the office as indicated below:
Tammie Estberg
Idaho Public Utilities Commission
O. Box 83720
Boise, ill 83720-0074
( J u.S. Mail
( J Fax:
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Page 1 of J
An tOACORP Company
Questions? Contact us at:
PO BOX 70, Boise 1083707.
Or call [phone] (Treasure Valley),
Se habla espana!.
For faster service please call
Tuesday. Friday, 7:30 a,m, to 6:30 p,
Customer Name:
Account Number:
Billing Date:
Print Date:
JERRENE PHilLIPS
9796216346
08/08/2006
08/08/2006www.idahopower.com
Due Date
08/23/2006
Please Pay
613.
Account
Activity
Previous Balance
....,........................................,.............,........,........,........
Payments. Thank You
...............................................,...........................,...
Balance Forward
...................,.......,....,....,......,........,..,...,........,..................
Total Adjustments... ..... ......,... ...............,..... ..... ................. .'" ...... ....
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Current Charges
........................................................................................
Account Balance
$2,606.
$245.44 CF
361.
$1.M-~J 4
$307.4
...l6.61%.7 9
Please Note: Any unpaid balances will be assessed a monthly charge of one percent (1%) for Idaho customers, Returned checks mav be
resubmitted electronically fer payment. Checks remaining unpaid will be charged a $20 fee.
The amount due includes a past due balance. If you have already remitted payment'
thank you. If not, please remit payment to ensure it is received by the due date. THank
you.
Learn about your home s energy use and tips on how to save energy. Become your OW? Account
Manager with ENERGY Tools now available at the E-services area of 'INIW.ldahopowef.com.
etach and return the pbrti.on below:with' yel:lf payment Please biing entire bill when paying ala paystation.
374.
Aug-05 Sep-OS Oct-
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EXHIBIT
An 'DACORP Company
Questions? Con)act us at:
PO BOX 70, Boise, 10 83707
Or call [phone] (Treasure Valley),
Se habla espana!.
For faster service please call
Tuesday - Friday, 7:30 a,m, to 6:30 p,
Customer Name: JERKENE PHilLIPS
Account Number: 9796216346
Billing Date: 08/08/2006
Print Date: 08/08/2006
IDtH)
POVVER.
lNWW.idahopower.com
Service Agreemen~ No: 4520711845
Service Location: 16625 BASIN WAY/BOISE , 10
Next Read Date: 09/05/2006
Meter Service Period Number Reading Meter Readings Meter kWh
Number From of Days Type Previous Current Constant Used
003C92265314 07/06/06 08/04/06 Regular 432 568 5440
-v-
Residential
Rate Schedule
101
07/06/2006 08/04/2006 29 days
Service Charge
...........................,....,..................................................
Summer Energy Charge 0-300 kWh ~ $0.054251 per kWh
.........".........
Summer Energy Charge Over 300 kWh ~ $0.06106 per kWh .....,........."
PCA
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$0.003689 per kWh ..,...............................................
:.............
Conservation Program Funding Charge
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F:::d~ft:J C~!urnbi3 River 8enefits Supplied by BPA
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Current Charges" Electric Service
$4.
$16.
$313.
$20.07 CR
$1.
$8.36 CR
$307.
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. $675.
L $315,
$116.51CR
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$366.84';'
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$123.~fCR
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~ IMHO
POWER"
Questions? Contact us at:
PO BOX 70. Boise. ID 83707,
Or call [phone] (Treasure Valley),
Se habla espana!.
For faster service please call
Tuesday - Friday, 7:30 a,m. to 6:30 p,
An IDACORP Company
www.idahopower.com
CanceliRebilled Bill Segment
CanceliRebilled Bill Segment
CanceliRebilied Bill Segment
Cancel/Rebilled Bill Segment
Cancel/Rebilled Bill Segment
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Page 3 of 3
Customer Name: JERRENE PHILLIPS
Account Number: 9796216346
Billing Date 08/08/2006
Print Date: 08/08/2006
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$302,
$118.17 CR
$251.
$130.96 CR
$204.
$118.32 CR
$343.60 CR
$287.06 CR
:$164.
$339.22 CR
$293.
$569.
$190.68 CR
$94.76 CR
$230.
$87.58 CR
$152.69 CR
$127.41 CR
:$242.
$201.
.,$258.
$477.
$172,
$234.
$682.
$231.
$147.83 CR
$102.32 CR
$191.
$154.12 CR
$3,945.
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Current Adjustments
= Credit kWh = Kilowatt-hour PCA = Power Cost Adjustment kW = Kilowatt BLC = Basic Load Capacity = Generation
374,
Aug-OS Sep-OS Oct-OS Nov-OS Dee-OS Jan-06 Feb-06 Mar-06 Apr-06 May-06 Jun-06 Jul-06 Aug-
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LISA D. NORDSTROM ISB #5733
BARTON L. KLINE ISB #1526
Idaho Power Company
P. O. Box 70
Boise, Idaho 83707
Telephone No. [phone]
FAX Telephone No. [phone]
E-mail: Inordstrom
(g)
idahopower.com
Attorneys for Idaho Power Company
Street Address for Express Mail
1221 West Idaho Street
Boise , Idaho 83702
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JERENE PHilLIPS
Respondent.
) CASE NO. IPC-07-
) ANSWER OF IDAHO POWER
) COMPANY
Petitioner
IDAHO POWER COMPANY
COMES NOW Idaho Power Company ("Idaho Power" or the "Company
and , in accordance with IPUC R.P. 057, hereby submits this Answer to the
Formal Complaint submitted on January 11 , 2007 by Jerene Phillips ("Ms.
Phillips ), the Petitioner in the above-entitled matter. Idaho Power hereby denies
all of the material allegations contained in Ms. Phillips' Complaint except as
specifically admitted by Idaho Power in this Answer. Pursuant to Idaho Public
Utilities Commission ("IPUC") Rule of Procedure 057.02(a), any material
RECEIVED
FEB
ANSWER OF IDAHO POWER COMPANY. 1
allegation not specifically admitted in this Answer shall be considered by the
Commission to be denied.
FACTUAL BACKGROUND
Jerene Phillips is an Idaho Power customer and has taken continuous
service at 16625 Basin Way in Boise since it was constructed in 1994. Given the
service requirements of her all-electric home, the construction plan called for a
Current Transformer (CT) installation, thus requiring a meter multiplier (a.
meter constant) to calculate the actual kWhs for billing. On March 26, 2006
during a periodic test Idaho Power visually inspected the CT wiring and
exchanged the meter at Ms. Phillips' address for testing as part of a planned
maintenance meter exchange. When processing the exchange order, the new
meter information and the correct multiplier of 40 were entered into the billing
software system.
Idaho Power sent the old meter to its Meter Test Facility and determined
that it accurately performed its role towards recording energy usage. After Ms.
Phillips called Idaho Power on June 13, 2006 regarding the high energy use on
her bill, Idaho Power scheduled an appointment with Ms. Phillips on June 22nd at
the premises to help determine why her energy usage had doubled. On June
23rd it was determined a meter error had occurred when a multiplier of 20 rather
than 40 had been erroneously inputted into Idaho Power s billing system in 1994
when Ms. Phillips' service was initially established. As a result, Ms. Phillips was
charged for only half of her electric usage during the subsequent 12 years.
ANSWER OF IDAHO POWER COMPANY - 2
Later that same day on June 23 , the Company advised Ms. Phillips of the
error and that an Idaho Power employee would return to the premises to verify
that the multiplier of 40 was correct before a corrected billing would be sent.
Idaho Power confirmed that the CTs are the correct size , are installed correctly
and are still installed at the premises.
On July 12, 2006, an Idaho Power representative called Ms. Phillips to
explain that the under-billed usage for the three-year period between April 2003
and March 2006 would be included on her August 8th bil1.1 The representative
also explained that payment arrangement options were available, including
increased payments over 36 months to pay the re-billed amount.
Ms. Phillips contested the amount of the corrected billing and attempts to
settle the matter were not successful. Idaho Power representatives have visited
with Ms. Phillips several times to help her better understand her power
consumption. The Company also conducted an energy audit of her home and
installed a survey meter that records 15-minute intervals to better identify areas
in which energy savings can be achieved. Idaho Power has visited the residence
several times to confirm the amount of energy the premises is using and provide
information promoting energy saving opportunities.
In the fall of 2006, Idaho Power investigated the root causes of incorrect
multipliers like the one used on Ms. Phillips' account. Idaho Power reviewed the
system data for all transformer rated metering installations (approximately
1 The August 8, 2006 bill attached as Exhibit IliA" to the Complaint reflects inclusion of the
$6,306.34 re-billed amount, which can be found by subtracting the "Account Balance
minus "Current Charges" (6613.79 - 307.45 = 6306.34). The $307.45 represents the cost
of current use from meter readings 07/06/2006 through 08/04/2006.
ANSWER OF IDAHO POWER COMPANY - 3
19,000) and identified nearly 500 installations with questionable meter multipliers
for which field verification orders were produced. The results of these field
inspections yielded nine (9) accounts with billing errors due to incorrect
multipliers and four (4) accounts with billing errors due to wiring installation
problems. As a result of this investigation , Idaho Power has corrected these
errors and changed its reporting and monitoring processes to improve billing
accuracy. In addition , Idaho Power is presently conducting field inspections to
independently verify that 62 previously un-inspected installations are receiving a
correct bill.
RESPONSE TO ALLEGATIONS
Except as specifically admitted by Idaho Power in this Answer, Idaho
Power Company hereby denies all of the material allegations contained in Ms.
Phillips' Complaint filed with the Commission on January 11 2007. The numbers
listed in the following paragraphs correspond to numbering used by Ms. Phillips
in her Formal Complaint.
Idaho Power admits the allegations contained in Paragraphs 1 , 2 , 3 , 4, 7
and 9 of the Complaint.
II.
Idaho Power denies allegations in Paragraphs 5, 8 , 12 and 22 that the
Company installed the wrong CT and meter at Ms. Phillips' residence as well as
any claims that its equipment malfunctioned. In 1994 Idaho Power Company
installed the appropriate CTs and meter to serve Ms. Phillips' energy needs and
ANSWER OF IDAHO POWER COMPANY - 4
this equipment functioned properly.However, Idaho Power admits that an
incorrect multiplier of 20 was inadvertently entered into the Company s billing
system. As a result Idaho Power inaccurately prepared Ms. Phillips' bills, thus
billing her for only half of her actual usage since the account was opened in
1994.
III.
Idaho Power neither admits nor denies Paragraphs 11 , 14 and 21 of the
Complaint.The statutes , rules and cases referred to therein speak for
themselves.
IV.
Idaho Power denies allegations in Paragraphs 12 and 15 that it lacks
authority to issue a corrected billing to Ms. Phillips for the months of April 2003
through March 2006. The Company billing practices are governed by the
Commission and its Rules , specifically Utility Customer Relations Rules 204 and
313 (IDAPA 31.21.01.204 and -313), which the Commission promulgated
pursuant to the legislative authority vested in it by Idaho Code ~61-507. Idaho
Power s actions are in keeping with these Rules and established Commission
practice. See Order Nos. 28212 and 28298 (finding Avista properly back billed
customers for the maximum three year period after use of an incorrect multiplier
was discovered).Accordingly, Idaho Power likewise denies the allegations
contained in Paragraphs 16, 18 and 19 of the Complaint.
ANSWER OF IDAHO POWER COMPANY. 5
CONCLUSION
Idaho Power respectfully requests that Ms. Phillips' Complaint be
dismissed and that, pursuant to the provisions of the Commission Utility
Customer Relations Rules 204.03 and 313, Ms. Phillips be ordered to pay Idaho
Power Company $6306.34 for electrical seNice received for the three-year
period between April 2003 and March 2006.
RESPECTFULLY SUBMITTED this ih day of February 2007.
~~L6Isa Nordstrom
""-,
ANSWER OF IDAHO POWER COMPANY - 6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7th day of February 2007, I served a true
and correct copy of the within and foregoing Answer of Idaho Power Company
upon the following party by the methods indicated below and addressed to the
following:
Stanley J. Tharp
Eberle , Berlin, Kading, Turnbow
McKlveen & Jones , Chartered
O. Box 1368
Boise, ID 83701
Hand Delivered
L U.S. Mail
Overnight Mail
Electronic Mail
FAX
Jerene Phillips
16625 Basin Way
Boise, ID 83714
Hand Delivered
-X- U.S. Mail
Overnight Mail
Electronic Mail
FAX
Cecelia A. Gassner
Deputy Attorney General
Idaho Public Utilities Commission
O. Box 83720
Boise, ID 83720-0074
'I Hand Delivered
S. Mail
Overnight Mail.l Electronic Mail
FAX
WI. rI.d
Lisa Nord trom
ANSWER OF IDAHO POWER COMPANY - 7
LISA D. NORDSTROM ISB #5733
BARTON L. KLINE ISB #1526Idaho Power Company
P. O. Box 70
Boise , Idaho 83707
Telephone No. [phone]FAX Telephone No. [phone]
E-mail: Inordstrom(g)idahopower.com
Attorneys for Idaho Power Company
Street Address for Express Mail
1221 West Idaho Street
Boise , Idaho 83702
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JERENE PHILLIPS
Petitioner
) CASE NO. IPC-07-
IDAHO POWER COMPANY'
) RESPONSE TO PETITIONER'
FIRST SET OF INTERROGATORIES
) REQUESTS FOR PRODUCTION OF
) DOCUMENTS AND REQUESTS FOR) ADMISSION
IDAHO POWER COMPANY
Respondent.
TO:PETITIONER AND HER ATTORNEY OF RECORD:
COMES NOW Idaho Power Company ("Idaho Power
" or the "Company ) by andthrough its attorneys of record and responds and objects to Petitioner
s First set of
Interrogatories , requests for Production of Documents and Requests for Admission as
follows:
This response is qualified by virtue of the fact that discovery is not yet complete
in this matter. Other pertinent facts and witnesses on which Respondent may rely
during the Course of the matter may be discovered and Respondent reserves the right
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGAREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION -
to supplement this response to set forth such facts and
witnesses, It is premature torequire a full and complete response to this discovery and a
limited objection is madeon that basis.
Petitioner interrogatories and document requests are objectionable to theextent that they seek or may be deemed to seek
information which is protected from
disclosure by attorney-client or other privilege , as attorney work-product, or ascontaining mental Impressions. conclusions. opinions , or legal theories of one or more
of Respondent's attorneys.
Petitioner s interrogatories are objectionable to
the extent that they are overly
broad . general interrogatories such as those that ask defendant to state all facts onwhich a contention is based.
Documents will be produced at a time and place mutually convenient to counsel
for the parties, and/or reasonable under the circumstances.
Confidential information wili be produced only subject to entry of an
appropriateprotective order.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION
- 2
INTERROGATORIES
INTERROGATORY NO.Please identify all persons answering these
interrogatories.
RESPONSE TO INTERROGATORY NO.: The response to this request and
those that follow were prepared by Mark Heintzelman, Delivery Services Leader, Idaho
Power Company and/or Bill Homan, Delivery Services Representative , Idaho Power
Company, in consultation with Lisa Nordstrom, Attorney II , Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 3
INTERROGATORY NO.Please set forth in detail the complete circumstances
of how the Company determined that it was utilizing the wrong multiplier for the
Petitioner s residence.
RESPONSE TO INTERROGATORY NO.As previously explained in Idaho
Power s Answer filed February 7 , 2007 , Jerene Phillips has taken continuous service at
16625 Basin Way in Boise since it was constructed in 1994. Given the service
requirements of her all-electric home, the construction plan called for a Current
Transformer (CT) installation, thus requiring a meter multiplier (a.a. meter constant) to
calculate the actual kWhs for billing.
On March 26, 2006 during a periodic test Idaho Power visually inspected the CT
wiring and exchanged the meter at Ms. Phillips ' address for testing as part of a planned
maintenance meter exchange. When processing the exchange order, the new meter
information and the correct multiplier of 40 were entered into the billing software system.
Idaho Power sent the old meter to its Meter Test Facility and determined that it
accurately performed its role towards recording energy usage. After Ms. Phillips called
Idaho Power on June 13, 2006 regarding the high energy use on her bill , Idaho ' Power
scheduled an appointment with Ms. Phillips on June 22nd at the premises to help
determine why her energy usage had doubled. On June 23rd it was determined a
billing error had occurred when a multiplier of 20 rather than 40 had been erroneously
inputted into Idaho Power s billing system in 1994 when Ms. Phillips' service was initially
established. As a result, Ms. Phillips was charged for only half of her electric usage
during the subsequent 12 years.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 4
Later that same day on June 23 , the Company advised Ms. Phillips of the error
and that an Idaho Power employee would return to the premises to verify that the
multiplier of 40 was correct before a corrected billing would be sent. Idaho Power
confirmed that the CTs are the correct size , are installed correctly and are still installed
at the premises.
On July 12 , 2006 , an Idaho Power representative called Ms. Phillips to explain
that the under-billed usage for the three-year period between April 2003 and March
2006 would be included on her August 8th bill. The representative also explained that
payment arrangement options were available , including increased payments over 36
months to pay the re-billed amount.
Ms. Phillips contested the amount of the corrected billing and attempts to settle
the matter were not successful. Idaho Power representatives have visited with Ms.
Phillips several times to help her better understand her power consumption. The
Company also conducted an energy audit of her home and installed a survey meter that
records 15-minute intervals to better identify areas in which energy savings can be
achieved. Idaho Power has visited the residence several times to confirm the amount of
energy used at the premises and provide information promoting energy saving
opportunities.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader , Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 5
INTERROGATORY NO.Please identify the nine (9) accounts with billing
account errors due to incorrect multipliers referenced in your Answer to the Complaint
including how each one was resolved.
RESPONSE TO INTERROGATORY NO.Idaho Power objects on the
grounds that the information requested involves confidential customer account
information and is not relevant to the subject matter of this complaint.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 6
INTERROGATORY NO.Please identify the four (4) accounts with billing
errors due to the wire installation problems referenced in your Answer to the Complaint
including how each one was resolved.
RESPONSE TO INTERROGATORY NO.Idaho Power objects on the
grounds that the information requested involves confidential customer account
information and is not relevant to the subject matter of this complaint.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative, Idaho Power Company, in consultation with Lisa Nordstrom, Attorney /I
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 7
INTERROGATORY NO.Please provide in detail the current status of the
other "62 previously uninspected installations " referenced in your Answer to the
Complaint.
RESPONSE TO INTERROGATORY NO.Idaho Power objects on the
grounds that the information requested involves confidential customer account
information and is not relevant to the subject matter of this complaint.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 8
INTERROGATORY NO.Please identify each and every person known to you
or your attorney who has any knowledge of, or who purports to have any knowledge of
any of the facts of this matter. Please also state the following:
(a)The relevant facts which you understand to be within the knowledge of
such person; and
(b)The substance of any testimony expected to be elicited from such person
at the hearing, if any, of this matter.
RESPONSE TO INTERROGATORY NO.Idaho Power objects on the
grounds that the request is overly broad and burdensome. Furthermore , the Company
cannot ascertain which witnesses Idaho Power will present, or the substance of
testimony expected to be elicited at hearing, until Ms. Phillips prefiles direct testimony.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 9
INTERROGATORY NO.: Please state whether you are aware of or obtained
any admissions of Petitioner, if any, including the content of said admissions.
RESPONSE TO INTERROGATORY NO.To better assist Ms. Phillips in
lowering her future electric bills , Bill Homan made site visits to the Phillips residence to
monitor energy usage. On August 3 , 2006 , Mr. Homan called Ms. Phillips to advise that
high energy consumption (over 5000 kWh) continued and would be reflected in the
7/6/06 to 8/4/06 billing. Mr. Homan recommended adjusting thermostat and closing all
window coverings to help increase energy savings. Ms. Phillips returned Bill Homan
call , indicating that she understood but couldn t make adjustments as she was
McCall and planned to remain there until the mosquito abatement ended. Ms. Phillips
also made oral admissions to Bill Homan on or about August 18 , 2006 concerning her
willingness and intent to make usage changes necessary to reduce her energy
consumption and future billings.Other than documents filed by Petitioner legal
counsel in this matter, the only written communication Idaho Power has received from
Ms. Phillips was a settlement offer letter dated October 26 2006.
The response to this request was prepared by Bill Homan , Delivery Services
Representative, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 10
INTERROGATORY NO.Please identify in detail the types of meters normally
installed when Idaho Power is using a meter multiplier of 20.
RESPONSE TO INTERROGATORY NO.Electrical meters are identified by
American National Standard Institute s "Form " designations. The industry designation
for the single-phase, transformer rated , three wire, 120/240 volt service meter is Form
3S. Form 3S meters from any manufacturer are physically and electrically the same.
Idaho Power uses Form 3S meters for all single-phase, transformer rated , three wire
120/240 volt services. Form 3S meters are designed and wired such that the meter
multiplier is equal to 1/2 times the ratio of the current transformers applied. Thus , a
meter multiplier of 20 would be appropriate for a Form 3S meter if 200/5 ratio current
transformers were installed.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION -
INTERROGATORY NO.: Please identify in detail the types of meters normally
installed when Idaho Power is using a multiplier of 40.
RESPONSE TO INTERROGATORY NO.: As explained in the response to
Interrogatory No., electrical meters are identified by standard "Form" designation. The
industry designation for the single-phase , transformer rated, three wire , 120/240 volt
service meter is Form 3S. Form 3S meters from any manufacturer are physically and
electrically the same. Idaho Power uses Form 3S meters for all single-phase
transformer rated , three wire , 120/240 volt services. Form 3S meters are designed and
wired such that the meter multiplier is equal to 1/2 times the ratio of the current
transformers applied. Thus , a meter multiplier of 40 would be appropriate for a Form 3S
meter if 400/5 ratio current transformers were installed.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 12
INTERROGATORY NO. 10 Please set forth in detail the difference in the types
of meters installed when using a multiplier of 20 versus a multiplier of 40.
RESPONSE TO INTERROGATORY NO. 10:For single-phase , transformer
rated , three wire , 120/240 volt service , Idaho Power uses the Form 3S meter. Although
each meter manufacturer has their own model designations , the form number identifies
the meter type and application. The multiplier is not built into the meter; the number is
manually added to the Company s billing system when a current transformer is used to
properly account for the reduced current value recorded by the meter.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAH.o P.oWER C.oMPANY'S RESP.oNSE TO PETITI.oNER'S FIRST SET .oF INTERR.oGATORIESREQUESTS F.oR PRODUCTION OF D.oCUMENTS AND REQUESTS FOR ADMISSI.oN - 13
INTERROGATORY NO. Please identify what types of meters identified in
either Interrogatory No.8 or 9 were installed at the Residence in 1994 and in 2006.
RESPONSE TO INTERROGATORY NO. 11:All meters installed at the
Residence were Form 3S. From 1994 to March of 2006 the meter installed was a Form
3S General Electric model 150S. The meter installed from March 2006 until October
2006 was a Form 3S General Electric model 170S. In October at the request of Ms.
Phillips and the Idaho Public Utilities Commission Staff, Idaho Power installed a Form
3S meter with load recording capabilities. That meter is a Form 3S Elster model A1T-
the L designates load recording capabilities.
The response to this request was prepared by Mark Heintzelman, Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 14
INTERROGATORY NO. 12 Please identify the Idaho Power employee who first
installed Meter No. 62128615 at the Residence.
RESPONSE TO INTERROGATORY NO. 12 Idaho Power is unable to identify
the Idaho Power employee who first installed Meter No. 62128615 at the Petitioner
residence in 1994.
The response to this request was prepared by Bill Homan , Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 15
INTERROGATORY NO. 13:Please identify the specific training the Idaho
Power employee received as to the installation of Meter No. 62128615 at the
Residence.
RESPONSE TO INTERROGATORY NO. 13:At the time the meter was
installed , Idaho Power required a Journeyman Meterman to install transformer rated
meters. Meterman must complete a four-year apprenticeship that includes classroom
and on the job training. Installation of transformer rated metering is covered
classroom and on the job training. Idaho Power training materials have been produced
in response to Production Request No.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 16
INTERROGATORY NO. 14 Please identify the Idaho Power employee who
contacted Jerene Phillips in approximately July of 2006 , and informed her that Idaho
Power had installed a meter with a 20 multiplier.
RESPONSE TO INTERROGATORY NO. 14:Bill Homan , Delivery Services
Representative, contacted Jerene Phillips in July 2006 to inform her of the billing error.
The response to this request was prepared by Bill Homan , Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 17
INTERROGATORY NO. 15:Please identify each Idaho Power employee or
person who inspected and tested Meter No. 62128615.
RESPONSE TO INTERROGATORY NO. 15: The transformer rated meter site
was inspected at the residence by Journeyman Meterman William Harshman on March
, 2006 as part of Idaho Power periodic meter maintenance program.Meter
62128615 was removed from service at that time and delivered to the Meter Test
Facility for testing. Meter 62128615 was subsequently tested on March 28 , 2006 by
Meter Tester II Lewis McKillop in the Idaho Power Meter Test Facility.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 18
INTERROGATORY NO. 16:Please identify the individual who put the new
meter information of the multiplier of 40 into Idaho Power s billing software system.
RESPONSE TO INTERROGATORY NO. 16:Meter Service Coordinator
Christine Anderson completed the periodic test meter exchange order online in the CIS+
billing system for the meter exchange that took place on March 26, 2006. The meter
multiplier entered at that time was 40.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 19
INTERROGATORY NO. 17:Do you plan on putting on evidence , either
testimony or through documentation.If so , please state the witness , substance of
testimony and produce the documentation.
RESPONSE TO INTERROGATORY NO. 17:Idaho Power objects on the
grounds that the Company cannot ascertain what evidence Idaho Power will present , or
the substance of testimony expected to be elicited at hearing, until Ms. Phillips prefiles
direct testimony.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 20
INTERROGATORY NO. 18 : Please identify each matter where Idaho Power or
any other utility s request for back billing has been denied or refused by the Idaho Public
Utilities Commission.
RESPONSE TO INTERROGATORY NO. 18 : Idaho Power objects on the
grounds that the interrogatory seeks information that is publicly available to the extent
that it exists and is no more burdensome for the Petitioner to locate than it is for Idaho
Power.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION -
INTERROGATORY NO. 19 : Please explain why an Idaho Power employee was
required to return to the Residence on June 23 , 2006 to verify that the multiplier of 40
was correct.
RESPONSE TO INTERROGATORY NO. 19: Out of an abundance of caution
Delivery Services Representative Bill Homan requested that a second meter technician
verify the multiplier of 40 was correct before a large corrected billing was sent to the
Petitioner.
The response to this request was prepared by Bill Homan , Delivery Services
Representative, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 22
INTERROGATORY NO. 20:Please identify the person who was originally
responsible for the improper use of the 20 multiplier at the Petitioner s Residence.
RESPONSE TO INTERROGATORY NO. 20 Idaho Power is unable to identify
the Idaho Power employee originally responsible for the improper use of the 20
multiplier at the Petitioner s residence. The multiplier was either 1) written on the field
order as 20 in error , or 2) inputted into the billing system as 20 in error. Idaho Power
did not retain the 1994 field order in the ordinary course of business.
The response to this request was prepared by Bill Homan , Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 23
INTERROGATORY NO. 21:Please explain in detail what "field verification
means as referenced in your Answer to the Complaint.
RESPONSE TO INTERROGATORY NO. 21:Field Verification" refers to a
qualified person performing a "Meter Site Verification" in accordance with the "Meter
Site Verification Criteria " documented in the Meter Quality Manual MQM-1. In the case
of transformer rated metering, a journeyman meter technician is qualified to perform
field verifications.The Meter Site Verification Criteria is provided in Production
Response No.
The response to this request was prepared by Mark Heintzelman, Delivery
Services Leader , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION. 24
INTERROGATORY NO. 22 Please explain why if it was merely an office billing
error that Idaho Power conducted a field verification on 500 installations to review meter
multipliers.
RESPONSE TO INTERROGATORY NO. 22 Idaho Power has historically found
few instances where the wrong multiplier was used. When Jerene Phillips ' multiplier
was found to be incorrect , Idaho Power took the precaution of checking all similar meter
installations to ensure the correct multiplier had been entered in the billing system
based on the metering equipment installed at each site.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 25
INTERROGATORY NO. 23 Please identify the circumstances under which a
multiplier of 20 versus a multiplier of 40 is used.
RESPONSE TO INTERROGATORY NO. 23: Idaho Power uses the Form 3S
meter for single-phase , transformer rated , three wire, 120/240 volt service. If 200/5 ratio
current transformers are installed , the correct multiplier would be 20 (Yz the current
transformer ratio). If 400/5 ratio current transformers are installed , then the correct
multiplier would be 40 (Yz the current transformer ratio).
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 26
INTERROGATORY NO. 24:Please identify whether a meter or current
transformers have an internal multiplier of 20 or 40.
RESPONSE TO INTERROGATORY NO. 24: Current transformers have fixed
primary to secondary turns ratios; the current in the secondary circuit is equal to the
current in the primary circuit divided by the turns ratio. Form 3S meters can be
purchased with special registers that reverse the effect of specifically applied current
transformer ratios , such meters are considered direct read meters and would have a
multiplier of 1 in the billing system. Meter No. 62128615 was not equipped with a
special register.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 27
INTERROGATORY NO. 25 Please identify the head of the Meter Department
at Idaho Power.
RESPONSE TO INTERROGATORY NO. 25:Duane Van Patten is Idaho
Power s Manager of Metering.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
. Representative, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 28
REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO.Please produce a copy of each and
every document identified in or related in any way to your answers to the
Interrogatories.
RESPONSE TO REQUEST FOR PRODUCTION NO.the extent
documents have not been provided in response to Production Requests 2 and 5 , Idaho
Power provides the following documents:
a. Settlement Letter referenced in Interrogatory Response 7 , provided in response
to Production Requests 1 , 5 and 8;
b. Meterman Training Materials reference in Interrogatory Response 13 , provided in
response to Production Requests 1 and 9;
c. Meter Location History and Meter Test History reports referenced
Interrogatories 11 and 15, provided in response to Production Requests 1 2 and
d. CASMETER archive system report for 1994 meter installation referenced
Interrogatory 15, provided in response to Production Requests 1 , 2 and 5;
e. Meter Quality System Account Reports referenced in Interrogatory 14 , provided
in response to Production Requests 1 and 5;
f. Meter Site Verification Criteria MQM-1 referenced in Interrogatory 21 , provided
in response to Production Request 1;
g.
Meter test results referenced in Interrogatory 15 , provided in response to
Production Requests 1 , 2 and 5;
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 29
h. Emails re: multiplier verification referenced in response to Interrogatory 15
provided in response Production Requests 1 2 and 5;
i. Screen shots of completed orders related to Jerene Phillips ' account referenced
in response to Interrogatory 14 , provided in response to Production Requests
and 5;
Periodic Meter Test Order containing notes of Journeyman Meterman Bill
Harshman when he removed Meter No. 62128615 for testing on March 26, 2006
referenced in response to Interrogatory 15, provided in response to Production
Requests 1 , 2 and 5; and
k. Screen shots of completed meter exchange order with correct multiplier of 40 as
entered into billing system on March 26, 2006 by Meter Service Coordinator
Christine Anderson (User I.D. CXA5195 on the meter exchange entry audit trail)
referenced in Interrogatories 11 and 16 , provided in response to Production
Requests 1 , 2 and 5.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 30
REQUEST FOR PRODUCTION NO.: Please produce any and all documents
relating to the inspection and testing of Meter No. 62128615.
RESPONSE TO REQUEST FOR PRODUCTION NO.the extent
documents have not already been provided in response to Production Requests 1 and
, Idaho Power provides the following:
I. 1994 and 2006 Periodic Meter Test History for Meter No. 62128615; and
m. Screen shots detailing meter testing results and retirement due to obsolescence.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION -
REQUEST FOR PRODUCTION NO.Please produce the actual Meter No.
62128615.
RESPONSE TO REQUEST FOR PRODUCTION NO.3: Meter No. 62128615
was retired and disposed of on March 28, 2006 after it was tested and the results were
recorded. This meter was purchased in 1976 and had gone through one periodic
maintenance cycle prior to being installed at the Petitioner s residence in 1994. It was
retired based on purchase year and model criteria. Documents detailing these events
have been provided in response to Production Requests 1 and 2.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 32
REQUEST FOR PRODUCTION NO.Please produce the multiplier tags that
were attached to Meter No. 62128615.
RESPONSE TO REQUEST FOR PRODUCTION NO.
4: Meter No. 62128615
was retired and disposed of on March 28 , 2006 after it was tested and the results were
recorded. To the extent that multiplier tags for Meter No. 62128615 existed , they are no
longer within Idaho Power s possession or control.
The response to this request was prepared by Mark Heintzelman
, Delivery
Services Leader, Idaho Power Company in consultation with Lisa Nordstrom , Attorney
, Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 33
REQUEST FOR PRODUCTION NO.Please produce any and all documents
relating to Jerene Phillips account for the residence located at
16625 Basin Way, Boise
Idaho 83714. '
RESPONSE TO REQUEST FOR PRODUCTION NO.To the extent
documents have not already been provided in response to Production Requests 1 and
, Idaho Power provides the following:
n. Phillips energy usage data 2004-2006;
o. Phillips Account Information before and after the billing correction;
p. Customer Contact Log for Phillips account (both screen shots and print out);
q.
Raw 15-minute interval graphs and data for Phillips account;
r. Phillips billing and energy usage from July 1995 to present showing rebilled
amounts (with and without degree day data);
s. Bill Homan s investigation notes written on service order initiated when Jerene
Phillips called Idaho Power with high bill concerns;
t. Meter Management Subsystem reports for current transformer serial #6317544
and #6318185 installed in 1993 after 11/19/93;
u. Customer Information System report showing meter reading history from 9/30/99
to 11/3/06. No trouble codes reported for this account;
v. Customer Information System archived information on microfiche showing
account history from 4/30/95 through 3/29/2000; and
w. Idaho Power response to Jerene Phillips ' settlement offer.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 34
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 35
REQUEST FOR PRODUCTION NO.Please produce a copy of each and
every document , diagram , sketch , photograph or other items of tangible physical
evidence which you might use as an exhibit at a hearing.
RESPONSE TO REQUEST FOR PRODUCTION NO.Idaho Power
objects on the grounds that the Company cannot ascertain what evidence Idaho Power
will present, or the substance of testimony expected to be elicited at hearing, until Ms.
Phillips prefiles direct testimony.
The response to this request was prepared by Mark Heintzelman, Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 36
REQUEST FOR PRODUCTION NO.Please produce copies of any Idaho
Public Utilities Commission Orders where back billing has been denied or refused.
RESPONSE TO REQUEST FOR PRODUCTION NO.Idaho Power
objects on the grounds that the interrogatory seeks information that is publicly available
to the extent that it exists and is no more burdensome for the Petitioner to locate than it
is for Idaho Power.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader , Idaho Power Company and Bill Homan Delivery Services
Representative, Idaho Power Company, in consultation with Lisa Nordstrom, Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIES
REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 37
REQUEST FOR PRODUCTION NO.Please produce copies of any written
statements given by the Petitioner in this matter.
RESPONSE TO REQUEST FOR PRODUCTION NO.Other than
documents filed by Petitioner legal counsel in this matter, the only written
communication Idaho Power has received from Ms. Phillips was a settlement offer letter
dated October 26 , 2006.The settlement offer letter was produced in response to
Production Request No.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 38
REQUEST FOR PRODUCTION NO.Please produce the written training
manual and materials provided to employees on the correct installation of meters back in
1994.
RESPONSE TO REQUEST FOR PRODUCTION NO.the time the
meter was installed , Idaho Power required a Journeyman Meterman to install
transformer rated meters. A Meterman must complete a four-year apprenticeship that
includes classroom and on the job training. Installation of transformer rated metering is
covered in classroom and on the job training. Idaho Power training materials have been
produced in response to Production Request No.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRS! SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 39
REQUESTS FOR ADMISSION
REQUEST FOR ADMISSION NO.: Please admit that Jerene Phillips was denied
the opportunity to implement conservation measures to reduce consumption of power over
the three (3) years that she is now being back billed for.
RESPONSE TO ADMISSION NO.Idaho Power denies that Jerene Phillips
was denied the opportunity to implement conservation measures to reduce her power
consumption. All customers have the opportunity to conserve energy and have been
frequently encouraged to do so by Idaho Power and the Idaho Public Utilities
Commission.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader , Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 40
REQUEST FOR ADMISSION NO.: Please admit that Jerene Phillips promptly
paid her monthly account with Idaho Power from 1994 until the current dispute arose.
RESPONSE TO ADMISSION NO.According to Idaho Power s records
Jerene Phillips has promptly paid her Idaho Power account from 1994 until this billing
dispute arose in 2006.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION -
REQUEST FOR ADMISSION NO.Please admit that the error in utilizing the
incorrect multiplier was solely that of Idaho Power and not as a result of anything that
Jerene Phillips did or did not do.
RESPONSE TO ADMISSION NO.Idaho Power admits that the error in
utilizing the incorrect multiplier was solely its own and not that of Jerene Phillips.
The response to this request was prepared by Mark Heintzelman , Delivery
Services Leader, Idaho Power Company and Bill Homan Delivery Services
Representative , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II
Idaho Power Company.
t."'-
RESPECTFULLY SUBMITTED this day of March 2007.
~~,
ffJ-,~Lisa D. Nordstro
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 42
CERTIFICATE OF SERVICE
1~~I HEREBY CERTIFY that on this day of March 2007 , I served a true andcorrect copy of the within and foregoing upon the following party by the methodsindicated below and addressed to the following:
Stanley J. Tharp
Eberle, Berlin, Kading, Turnbow
McKlveen & Jones, Chartered
O. Box 1368
Boise , ID 83701
----:i.- Hand Delivered
S. Mail
Overnight Mail
Electronic Mail
FAX
Jerene Phillips
16625 Basin Way
Boise, ID 83714
Hand Delivered
~ U.S. Mail
Overnight Mail
Electronic Mail
FAX
Cecelia A. Gassner
Deputy Attorney General
Idaho Public Utilities Commission
O. Box 83720
Boise , ID 83720-0074
Hand Delivered
S. Mail
Overnight Mail
Electronic Mail
FAX
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S FIRST SET OF INTERROGATORIESREQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION - 43
LISA D. NORDSTROM ISB #5733
BARTON L. KLINE ISB #1526
Idaho Power Company
P. O. Box 70
Boise, Idaho 83707
Telephone No. [phone]
FAX Telephone No. [phone]
E-mail: Inordstrom
(?)
idahopower.com
Attorneys for Idaho Power Company
Street Address for Express Mail
1221 West Idaho Street
. Boise , Idaho 83702
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JERENE PHILLIPS CASE NO. IPC-07-
Petitioner IDAHO POWER COMPANY'
RESPONSE TO PETITIONER'
IDAHO POWER COMPANY SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION
Respondent.OF DOCUMENTS
TO:PETITIONER AND HER ATTORNEY OF RECORD:
COMES NOW Idaho Power Company ("Idaho Power" or the "Company ) by and
through its attorneys of record and responds and objects to Petitioner s Second set of
Interrogatories and Requests for Production of Documents as follows:
This response is qualified by virtue of the fact that discovery is not yet complete
in this matter. Other pertinent facts and witnesses on which Respondent may rely
during the course of the matter may be discovered and Respondent reserves the right
to supplement this response to set forth such facts and witnesses. It is premature to
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTE
AND REQUESTS FOR PRODUCTION OF DOCUMENTS -
require a full and complete response to this discovery and a limited objection is made
on that basis.
Petitioner interrogatories and document requests are objectionable to the
extent that they seek or may be deemed to seek information which is protected from
disclosure by attorney-client or other privilege , as attorney work-product , or as
containing mental impressions , conclusions , opinions, or legal theories of one or more
of Respondent's attorneys.
Petitioner s interrogatories are objectionable to the extent that they are overly
broad , general interrogatories such as those that ask defendant to state all facts on
which a contention is based.
Documents will be produced at a time and place mutually convenient to counsel
for the parties , and/or reasonable under the circumstances.
Confidential information will be produced only subject to entry of an appropriate
protective order.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 2
INTERROGATORIES
INTERROGATORY NO. 26:Please identify whether Idaho Power has ever
allowed a customer to pay less than the full amount of a back billing which arose from a
billing error.
RESPONSE TO INTERROGATORY NO. 26:
Idaho Power objects to the extent the Interrogatory is not limited to any stated
period of time or relates to a 90+ year time period that is longer than is relevant for
purposes of the issues in this docket; such discovery is overly broad and unduly
burdensome.Without waiving this objection , Idaho Power attempts to apply a
consistent interpretation of the Corrected Billings section of Rule G -- Billings and Utility
Customer Relations Rule 204.02 -- Corrections (IDAPA 31.21.01.204.02) when sending
corrected billings to customers.
Idaho Power Company current managers responsible for Metering and
Customer SeNice are not aware of any instance in the last five (5) years , in which a
customer with a Current Transformer (CT) installation involved in a billing error due to
an incorrect meter multiplier (meter constant) was allowed to pay less than the full back-
billed amount resulting from the billing error en accurate meter data existed.
Idaho Power Company current managers responsible for Metering and
Customer SeNice are aware of one instance in the last five (5) years , in which a
customer was allowed to pay less than the full back-billed amount resulting from a
billing error due to a mix-up in premises locations for a new tenant sign-up. In deviation
from the Company s general practice, regional metering representatives made an
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIESAND REQUESTS FOR PRODUCTION OF DOCUMENTS - 3
inappropriate field decision in January 2006 to reverse (forgive) the re-billing charges
($315.79) for the elderly woman living at the premises during the 4-month period a
different individual was erroneously identified as the customer of record for that location
and received her bills.The Company did not seek further payment because the
decision to reverse the charges had already been communicated to the customer.
ensure future billing errors would be handled properly, the Idaho Power Manager of
Customer Service instituted a multi-department management review of the statutes and
rules governing billing to ensure future billing error situations would be handled
accordance with rules and statues.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service , Idaho Power Company, in consultation with Duane Van Patten , Manager
Metering, Idaho Power Company, and Lisa Nordstrom, Attorney II , Idaho Power
Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 4
INTERROGATORY NO. 27 : Please identify whether Idaho Power, within the last
five years , has allowed a customer to pay less than the full amount of a back billing, as
a compromise of a disputed bill.
RESPONSE TO INTERROGATORY NO. 27:
As stated in its Response to Interrogatory No. 26 , Idaho Power attempts to apply
a consistent interpretation of the Corrected Billings section of Rule G -- Billings and
Utility Customer Relations Rule 204.02 -- Corrections (IDAPA 31.21.01.204.02) when
sending corrected billings to customers. Idaho Power Company s current managers
responsible for Metering and Customer Service are aware of only the instance
described in the Response to Interrogatory No. 26, in the last five (5) years in which it
allowed a customer to pay less than the full back-billed amount resulting from a billing
error when accurate meter data existed.
Idaho Power Company has , on occasion, adjusted a back-billed amount
compr?miSA of a diS(;)lltArl bill in ~irc staDc~s whe1.8 accurate meter data d!d not exist.
These situations typically involve a lllet8r th~J fails t.9 r.egister oJ. an ullavC3.ilable meter
reading for a specific date on which a change in premises occupants is to be fJ,vcessed.
The Company determines the service delivered and the energy consumed in these
situations on the basis of the best available data and creates estimated and/or prorated
billings. The Company is willing to revisit these estimated and/or prorated billings when
the usages upon which the billings are based are disputed by the customers. Where
the dispute is resolved in the customer s favor , the charges associated with the disputed
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 5
amounts plus any associated late payment charges are deleted from the Customer
account.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service, Idaho Power Company, in consultation with Duane Van Patten , Manager
Metering, and Lisa Nordstrom , Attorney II , Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 6
INTERROGATORY NO. 28 : Is it Idaho Power s policy not to accept anything but
the full amount of the back billed amount?
RESPONSE TO INTERROGATORY NO. 28:
Idaho Power is required to follow the Utility Customer Relation Rules (UCRR)
and utility tariffs on file with the Idaho Public Utilities Commission. Their purpose is to
provide a set of fair, just, reasonable and non~discriminatory rules to address recurring
areas of disagreement between utilities and customers such as billing. Although it has
no written "policy" on this issue, Idaho Power has attempted to apply consistent
interpretation of Corrected Billings section of Rule G -- Billings and Utility Customer
Relations Rule 204.02 -- Corrections (IDAPA 31.21.01.204.02) when sending corrected
billings to customers. It is Idaho Power s practice to accept for payment nothing less
than the full back-billed amount resulting from a billing error when accurate meter data
existed.
The response to this request was prepared by Toby Clayton , Manager, Customer
SeNice , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II , Idaho
Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 7
INTERROGATORY NO. 29:If your answer to the proceeding Interrogatory is in
the affirmative , please identify the date that the Company policy was first adopted along
with the name of the individual responsible for instituting said policy.
RESPONSE TO INTERROGATORY NO. 29:
As explained in the response to Interrogatory No. 28 , Idaho Power does not have
a written policy on this matter.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service , Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II , Idaho
Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIESAND REQUESTS FOR PRODUCTION OF DOCUMENTS - 8
INTERROGATORY NO. : Please identify the basis upon which Idaho Power
maintains that it does not have any discretion in reducing the amount of a back bill.
RESPONSE TO INTERROGATORY NO. 30:
Idaho Power Company applies billing corrections as required by the Utility
Customer Relations Rules (IDAPA 31.21.01). Utility Customer Relations Rule 204.02 --
Corrections (IDAPA 31.21.01.204.02) does not leave the amount of the back bill to the
utility s discretion; it states that if the time when the "error or failure to bill began can be
reasonably determined , the corrected billings shall go back to that time, but not to
exceed the time provided by Section 61-642 , Idaho Code , (three (3) years)." (Emphasis
added).
Idaho Code ~ 61-313 provides that no public utility shall "collect or receive a
greater or less or different compensation" for any service rendered to the public than the
charges applicable to such service as specified in its tariffs on file with the Commission
and in effect at the time. As explained in greater detail by Commission Order No. 28329
and the U.S. Supreme Court cases referenced therein , the policy of non-discriminatory
rates is violated when similarly situated customers are allowed to pay different rates for
the same services.
The Company is also bound by the Idaho Code ~ 61-315 prohibition against
offering preferential rates or treatment to any customer. The practice of rebilling the full
underpaid amounJ back three years was upheld by Commission Order Nos. 28212 and
28298 after an incorrect multiplier insufficiently billed customers for actual usage. The
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 9
Commission explained that the customers' requested relief from paying the back billed
amount constituted preferential treatment prohibited by Idaho Code ~ 61-315.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II , Idaho
Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 10
INTERROGATORY NO. 31 Please provide a graph , spreadsheet or breakdown
of the power usage at Petitioner s Residence from March 1 , 2005 to the present.
RESPONSE TO INTERROGATORY NO. 31:
See Premise Billing History dated 5/11/07 provided in response to Production
Request No.1 O.Energy usage information was also provided in Idaho Power
Response to Request for Production No.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service, Idaho Power Company, in consultation with Lisa Nordstrom, Attorney II , Idaho
Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS -
REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO.1 0: Please produce any and all documents
identified in or relating in any way to your answers to Petitioner s Second Set
Interrogatories and Requests for Production of Documents.
RESPONSE TO REQUEST FOR PRODUCTION NO. 10:
With the exception of the confidential customer information pertaining to a
specific billing incident referenced in Interrogatory Nos. 26 & 27 the above-referenced
documents are attached as follows:
a. Idaho Power Company Tariff No.1 01 , Rule G - Billings;
b. Utility Customer Relations Rules;
c. Idaho Code 99 61-313
, -
315, and -642;
d. Idaho Public Utilities Commission Order Nos. 28212 , 28298 and 28329; and
e. Premise Billing History provided in response to Interrogatory No. 31 and
Production Request No. 11.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service , Idaho Power Company, in consultation with Lisa Nordstrom, Attorney II , Idaho
Power Company.
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 12
REQUEST FOR PRODUCTION NO. 11:Please produce the graph
spreadsheet or breakdown identified in your Answer to Interrogatory No. 31.
RESPONSE TO REQUEST FOR PRODUCTION NO. 11:
See Premise Billing History dated 5/11/07 for Jerene Phillips' account provided in
Response to Request for Production No.1 O. This information was also provided in
Idaho Power s Response to Request for Production No.
The response to this request was prepared by Toby Clayton , Manager, Customer
Service, Idaho Power Company, in consultation with Lisa Nordstrom , Attorney II , Idaho
Power Company.
.It.
RESPECTFULLY SUBMITTED this 11- day of May 2007.
Lisa D. Nordstro
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS - 13
CERTIFICATE OF SERVICE
1!t-
I HEREBY CERTIFY that on this day of May 2007, I served a true andcorrect copy of the within and foregoing upon the following party by the methodsindicated below and addressed to the following:
Stanley J. Tharp
Eberle, Berlin , Kading, Turnbow
McKlveen & Jones, Chartered
O. Box 1368
Boise, ID 83701
Hand Delivered
-X- U.S. Mail
Overnight Mail
Electronic Mail
FAX
Jerene Phillips
16625 Basin Way
Boise, ID 83714
Hand Delivered
1- U.S. Mail
Overnight Mail
Electronic Mail
FAX
Donovan Walker
Deputy Attorney General
Idaho Public Utilities Commission
O. Box 83720
Boise , ID 83720-0074
-L Hand Delivered
S. Mail
Overnight Mail
Electronic Mail
FAX
IDAHO POWER COMPANY'S RESPONSE TO PETITIONER'S SECOND SET OF INTERROGATORIESAND REQUESTS FOR PRODUCTION OF DOCUMENTS - 14
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NAVA ~fi(
~~ / ,
P:/
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
Plaintiff,
) DECISION ON MOTION TO DISMISS
Case No. CV OC 95-05974
JOHN P. M1L~CH,
-"\-"
FOPD MOTOR COMPillrl and BOB
RICE FORi), INC.
Defendants.
------
The motion to dismiss filed by the defendant Ford !'-lotor
Company (l'l-erein "Ford"",as heard on F€Jbruary 6, 1.997. Ford was
represented by Thomas B. Humphrey i the defendant Bob Rice Ford,
I.:1c., (herein );Bob Rice II tolaS represented by Patrick J. Inglis; and
the plaintiff Jor.tJ1 P - March (herein HHr. March II) was represented by
Stephen W. Beane.
o~ October 4 :993, Mr. March took delive~y of a new 1994
F-150 Ford pickup Hhich he had purchased from Bob Rice.
September 28 1994 the pickup caught fire and burned up. Mr.
I'1arcD. was im::,I.n~ed by ITT Hartford. It paid t1r. March for his loss
and 'Cook contr'Jl of the pickup. On October 13, 1.994.. ITT Hartford
hired S:D.a.ne Eartgrove to e..."'Caw.ine the pic:Jcup to determine the cause
of tfl2 fire. jVlr. EartgTove inspected the pickup and concluded that
the fire W~S caused by a short in the ignition switch. On J~nuary
DECISION ON i-10TION TO DIS!'HSS - Page l
.,.
2, 1995, I'IT Hartford ,,'rote to Ford demanding that it reimburse IT!'
Hartfo:r:'d for the loss.. and four day!'? late~r ITT Hartford had the
pickup destroyed.
On December 1995,Mr.March commenced this action to
recover under the theories of strict liability, breach of warranty,
negligence r and Idaho'lemon 1a\o1 With the exception of M!:'-
March's deductible and any treble damages he may be awarded under
Idaho's lemon law , ITT Hartford is the real party in interest in
this litigation.
Ford and Bob Rice have moved to dismiss this action because
ITT Hartford destroyed evidence (the pickup) critical to their
being able to defend this case. Al though Idaho appellate courts
have not addressed this issue, various courts have held that atrial court has inhereAlt pow~r to impose sa~ctions including
dismissal of the lawsuit, where the plaintiff has destroyed key
evidence. Jll,lstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804 nth
Cir. 1995); Dillon v. Nis8~D Motor Co.Ltd., 986 F.2d 263 (8th
Cir. 1993) j Unigard Securit:y Ins. Co. v. Lakewood Eng'&: Mfg.
Corp, 982 F.2d 363 (9th Cir. 2992); Headley v. Chrysler Moto;:
Corp., 141 F.D. 362 (D. Mass. 1991); Americ~) F~~ily Ins. Co.
Village Pontiac CHCf Inc., 585 N.2d 1115 (Ill Ct. App. :'992);
Graves v. Daley, 526 N.2d 679 (Ill. Ct. App. 1988); Ries
OlJT~ian , Inc., 747 P.2d 910 (Nev. 1987).
When deciding whether to impose a sanction, and what sanctionto impose, the Court should consider: (1) the degree of
culpability in the destruction of the evidence; (2) the prejudice
to the opposing party; aD.(3) what sanction is appropriate. Each
of these factors w'ill be discussed se;parately.
(1. )The _degree~u2.pability in the ~uctio.ll-of the
~~TiQ2J.i.~ .
DECISION OH MOTION TO DISMISS - Pa,ge 2
In this case, the pickup was intc:ntionally destroyed at the
direction of ITT Hartford. This is not a situatio~ in which the
evidence ""as simply lost somehow . or in \o;hich it was inadvertently
or negligently destroyed.
When it had the evidence destroyed, ITT Hartford knew that it
"'las necessary to preserve the pickup in order to evaluate the cause
of the fire. Within one week of the fire, ITT Hartford's records
show that it decided to investigate the cause of the fire in order
to deteru~ne whether Ford or Bob Rice could be _iable , and that it
was necessary- to preserve the pickup in order to conduct that
investigation. The activity log comments by lIT Hartford personnel
include the following:
09/30/94 8/\'1 ADJUSTEP. FROM IDAHO INTERMOUNTAIN. HE SAID
ACTL K~1 Ty~Y TRUCK IS BURNT TO A CRSP YOU CANNOT EVEN GET
Y...-rF. VIN, i'HERE I S NO WAY TO DETERMINE WF..AT THE
~~USE OF LOSS IS.
1 n
.j."-.
-I
r:r.TST IvTI'vIT
10/04/94
ACYL t-WfT
/04/94
INS"~ r01T
KRISTJ: - PLEASE FIND OUT IF INSD CAN DOCUMRL'IT W.illI.
WAS REPAIRED BY PROVIDING COPIES OF T::E REPAIR
ORDERS , ETC
HA\~ HIM GIVE US THE N~~ / ADDRESS / CONTACT INFO
FOR THE DEALERSHIP WHICH DID THE WORK M"TI WE'
CONTACT THE!V1 AND PlJT 'rHEf'." ON NOTICE OF SUBRO
THNX
A 1994 VEHICLE SHOurhDN'T BE JUST UP MID BURN"ING TO
THE GROlRID FOUND o~r HOW TO PUT FORD MOTOR COMPANY
ON NOTICE TO, AND SEE IF THEY ~lILL SEND Sm.maNE OUT
TO Il-iVESTIGATg
HE'LL NEED TO PRESERVE THE SALVAGE
'1 ill-TX
CHERYL - INSD STATES HE HAS HAD THIS 1994 PICKUP
\~ORKED ON AT THE DEALERSHIP 3 TIMES BECAUSE HE
3NELLED BURN"BD SMELL UNDER DASH. THEY DID SOME
REPAIRS, Abu ENGINEER ISOLATED CIRCUITS APPARENTLY,
AND THOUGHT NOTHING WAS WROI\TG. THE PICKUP Th'"EN
BTJRNED TO Th"E GROtIN!) ON THE ABOVE DATE
I~~ERESTING ON 7/22/93 THE INSl~ HAD A 1993 FOP~
DECISION ON MOTION TO DISNISS - Page 3
PICi\~P BURN TO THE GROUND. OUR INITIAL POLICY
PERIOD IS 9/22/93 - 94 SO THIS IS FIRST RENEWi\L FOR
INSD .
FEEL, ~~E SHOULD GET A CAUSE/ORGIN EXPERT OUT IN
OREGON TO DETEF~INE IF THERE IS ANY WAY TO SPECIFY
C~USE OF LOSS. VEHICLE BADLY B~bD, INSD STATES
IT STARTED UNDER DASH
1~OROUGH REVIEW WOULD IND I CATS WHETHER
INvENDIARY SOlmCR ST,ARTED THE FIRE, ETC
PLEASE ADVISE
THNX
Because ITT Hartford knew that it was necessary to preserve the
pickup in order for its investigator to determine the cause of the
fi-e r it: also knew tt,at ~leither Ford nor Bob Rice CO1ild investigate
the cause of the fire without also being able to inspect the
pic;,-up.
(2) TI~ejudice t~ the QPposin9-P~~.
Ford and Bob Rice were prejudiced by the destruction of the
remains of the pickup.The investigator hired by ITI Hartford
testified that it \-,as necessary to inspect the vehicle in order to
render ar'l opinion about the cause of the fire. He testified that
if he was working for either Ford or Bob Rire, he -auld want to
inspect the pickup in order to render an opinion, and that it would
be necessa:r:y to do so in order to arrive at the best opinion
possible.(Hartgrove Depo. p. 35, L. 23, to p. 36, L.
Ford and Bob Rice are now in a position in which they c~~ot
have their experts inspect the pickup to determine if there
evidence of another cause for the fire.The suspicion that there
could be evidence of same other cause is not groundless. This \'las
the third successive pickup mmed by Mr. March which had electrical
Droblems - Mr - March previously owned a 1993 Pord F-150 pickup,
\,J.hich burned up in July 1994 because of an app?J.rent electrical
DECISION ON MOTION TO DISMISS - Page 4
~\1In;!"1liiP'
fire; and ;.: 1991 Ford F-150 pich.-u.p which had electrical problems
but did not catch fire. He installed a wiring harness on each of
the three pickups, he used each of the pickups to pull the same
boat trailer , and each pickup had similar electrical problems.
r-lr. March had brought the pickup involved in this case into
Bob Rice sever'al times complaiT'..ing of the electrical problems. BobRice ,-Jas unable to locate '::'11.::/ ~~oblem in the pich.-up 1 s wiring 1 and
suggested that the problem may he in the wiring on the boat
trailer. Bob Rice peraOnl1el asked Mr. March to bring the trailer
in to have it checked , but he declined to do so. He has since soldit. According to Bob Rice's records, Mr. March had also installed
improper fuses in the pickup, although he denies doing so. M
Narch told Bob Rice personnel that the pickup had been blowing
fuses for the tail lights 3.nd dash lights. Those are or. a
different circuit than the ignition swi tch.
';'1=
..:..~
this case ',.;ent trial,Ford and Bob Rice would be
relegated to the position of trying to challenge the opinions of
the expert hired by ITT Ha~tford without being able to have their
own experts examine the pickup to see if they could find evidenceof ar..other cause of the fire. They would be at a distinctdisadvantage. It: is not sufficient merely to say the Ford and Bob
Rice could hire experts to revie~T the findings made by IITHartford's expert, and to ~xamine the wires he retrieved frcm the
pickup and the photographs he tool,::. ITT Hartford! s expert onlyretrieved the ,..ires he concluded .supported his opinion. The
defendant s would not have any opportunity to inspect the pickup to
deternuDe if there is evidence of some oth2r cause. .r1..merican
Fami.ly Tns. Co. v. ViLlage Pontiac GMC, Ine., supra at 1119. Notonly 'tv-QuId Ford.' s and Bob Rice' e)...'"Perts be precluded from
exa:.mining the pickup to look for evidence of another cause, but it:
'i'2culd. be difficult to overcome the argument that ~ecause theplaintiff! s e:--;:pert, actually examined the pickup 1 his opinion should
DECISION ON NOTION TO DISMISS - Page 5
be more persuasive that the opinions of experts who did not do so.
B~l t.he intentiO1lal actions of ITT Hartford, Ford and Bob Rice
have been deprivdd of an opportunity to review relevant evidence.
Th2t prejudice caIh~ot be cured, and the evidence which ITT Hartford
had destroyed w'as crucial to the case a.gainst the defendants.
(3) What saDcti~ is appropriate
In this case, the appropriate sanction for the destruction of
the evidence is dismissal of the lawsuit. The cause of the fire is
the central issue involved in this lawsuit.The destnlction of the
pickup has deprived the defendants of any realistic opportunity to
develop evidence regarding that cause.
In s;)me instances the appropria:ce sa.!1ction for the
destruction of evidence is to exclude testimony regarding the
.....idence destroyed. For example ,one option would be to exclude
the ~estimony of plaintiff I s expert so that both parties are in an
e~Jal pos~tion regarding the inspection of the pickup. Doing so
~ould not eliminate the prejudice to the defendants, however, Mr.
Narch! s testimony could still establish a prima facie case that the
pickup was defective" Murray v. Fanners Ins. Co., lI8 Idaho 224
796 P. 2d 101 (1990); Fouche "IT. Chrysler Motors Corp., 107 Idaho
701, 692 P.2 345 (1984). The defendants would still be unable to
effectively challenge that testimony because of their inability to
have the pickup examined to determine if there was evidence that
the fire resul Led from a cause not attributable to the defendants.
Under 1:he circumstances of this case, the only way to
eliminate the prejudice to the defendants would be to bar all
evidence , direct and circumstantial , concerning the cause of the
f:i.:t e 'Doing so, howev2r \'lould in effect resul t in thE: dismissalthe plaintiff! claim.Therefore.instead of barring the
evidence , and then dismissing the claim due to the plaintiff I s lack
DECISION ON MOTION TO DISMISS - Page 6
of evidence, the Court \"ill simply dismiss the claim.
ITT H.'l:ctford argues that it destroyed the pickup simply to
save the expense of storing it, and that the defendants had
sufficient time to e:...:amine the pic:cup before it was destroyed.':;hthin a week after the fire, Mr. t'1arch corr.plained about the fireto Bob Rice, and on October 10, 1994, he mailed a letter to the
customer service division of Ford in Englewood, Colorado, demanding
payment for both of his pickups. The Court: does not find this
argument persuasive.
As shoW"r- by the activity log comments, by October 5, 1994, ITI
Hartford had decid'2d to inspect the pickup to dt=termine whethr2r it
had a subrogation claim against either Ford or Bob Rice.
10/05/94
INST cr~s
MIKE QUESTION IS: IS THERE ENOUGH OF THE IV LEFTTO HAVE AN El\JGINEER LOOK AT? MAY NOT BE. SUGGESTNE FIND OUT ALL WE CAN ABOUT TIrE DEALER AND GETI!~OICES FOR ALL THAT WORK.
(UNLESS YOU -'lliREADY HAVE I DIDN~T CHECK ENTIREACTL) I THIN"'J.'C yiE rvlIGHT HJ:I~VE SUBRO OPPORTUNITY WITHTHEM OR THE MFG. APPEARS StffiRO SOMEPLACEHOPEFG~LY ~fE OL~ PINPOI~~ ~~BRE.
In the activity log comments dated October 6, 1994 , ITT Hartfordpersoilllel also discussed contacting Bob Rice and Ford, noting that
Ford may also vlant to inspect the pickup.
10/06/94
INST lVL1V/f
YRISTI - PLR~SE C~L THE riA IN OREGON AND FI~ID OUTIF THEY KNOW OF .A CJ\USE/ORIGIN EXPERT WHO WILl. AFFORDABLE. IF SO LET'S HAVE THEM SEE Trill IV. AHEAD A.."ID F /U ON J...LL THE P.2liIERWORK INSD CAN COME UPWITh ON REPAIRS
~~
LET' S CON~ACT THAT FACILI1li ANDTHE l'1ANUFACTURER - FORD NAY WANT. TO INSPECT ALSO
The activity log indicates that by mid-Nove~ber 1994 , I'rr Hartford
had decided to pursue a subrogation claim, at least against Forc.
11/16/94 w~ S&~TTLE OFFICE 1-800-262-2255 206-587-2600
DECISION ON IvJOTION TO DISMISS - Page
l\CTL K1.,1'-1 ADDRESS: P.O. BOX 240111 SEATTLE WA9611 RESP PARTY FORD MOTOR
9817
-: .
11/16/94
INST KLM
CORRINE - PII E?-.7ER INTO SUBRO SEE DOCUMENTATION
BELOI-Y THANKS
ITT Hartford did not attempt to notify either of the
defendants of its claimed subrogation interest until it sent the
Jetter to Ford on January 2, 1995. Neither r'1r. March's oral
statements to Bob Rice personnel shortly after the fire, nor his
letter to ?ord on October 4 , 1994, nor ITT Hartford I s letter to
Ford 071 January~ :2 1995, notified anyone that the pickup was going
to be destroyed. If ITT Hartford "las concerned about its storage
costs, there were cert~inly options available other than si~ly
destroying crucial 8vidence \.;rithout notice to the prospect:_
defendants of such impending destruction.
Even assuming that Mr. March! s actions put Bob Rice and pord
on notice that litigation would ensue, ArrJerican Family Ins. Ce.
l.7il.Iage Pontiac G?lC, Inc., supra (an angry telephone call to the
car dealer from the owner of a car which burned was not notice of
pending litigation) neither defendant was put on notice that
crucial evidence Vias about to be destroyed by ITT Hartford. Even
\-fhen litigation is commenced, the parties defending that litigation
assume that crucial evidence will not be destroyed by the party
bringing the litigation, at least without prior notice. Once it
decided that it no longer -1eeded the pickt:p, ITT Hartford could
have notified 3ob Rice 2nd Ford that it was going to pursue a
subrogation claim against them and that they could inspect or take
possession of the pickup by a specified date, after \"hich the
pickv.p would be destroyed.
is the only appropriate remedy
destroying crucial evidence.
for ITT Hartford'conduct
Under the circura..'3tances of this case, dismissal of the action
DECISION ON MOTION ~O DISMISS - Page 8
There is one ot~er issue to discuss. The pickup was destroyed
':It the direction of lIT Hartford. It had no subrogation interest
in the treble damages claimed by Nr. March under Idaho Code ~ ~8-908. Therefore, !-!r. lv!arch could argue that he should not be
punished for the ~onduct of his insurer.
Courts have imposed sanctions for the destructioJ:2 of evidence,
eveD when the plaintiff ..;as not directly responsible for such
des'::rllction. S'ipe v. Ford Motor Co., supra, (after accident,
allegedly defective product was repaired by governmental agency
over which plaintiff had no con~rol); Fire Ins. Exchange v. Zeni th
Radio Corp.
, :.,
upra (allegealy defective product nlo8t" by expert
retained by insurer); Stubli v. Big D Int '1 Trucks, supra,
(evidence destroyed by expert retained by in.surer upon suggestion
of insurer) s counsel).
ven absent the destruction of the evidence in this case, Mr.
March could not recover treble damages under Idahv Code 3 48-908
To recover treble damages Mr - f'.1arch iTlust recover pursuant to Idahr)
CodE:: ~ 48-904. He cannot recover under that statute, however, j.1:he has failed to resort to Ford'informal dispute resolution
settlement pro.:edure. I. C. 5 48-906. It is undisputed that Ford,had established the appropriate informal dispute resolution
settlement prOCed1.1re a:ud that fv!r. March failed to resort to that
proced~re. Therefore, he cannot recover under Idaho's lemon law.
For the above reaSOliS: this action will be dismissed.
Dated:February 21 r 1997
Signed:
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::Jistri.ct Judge
DBCI83.:0N ON 0~OTION TO DIS~'lISS - Page 9
I certify that a copy hereof was thiL date mailed to each of thefollowing:
S!ephcl1 W. !kan't
AHomey ;a L.'\w
P. O. Box 2694
Boise. 1d4h(\ 83701-:r.W4
Com:.sd f()r plainn:fJ John March
Bru~.(;' C. J,)l!J:S
ThOil~ B. Humphrey
EV ANS, KEANE LLP
O. BQX 959
Bois.e, I~o 83701-0059
COllnsel for dif~..,..donl
ConlfXU1'j
Fora M ().(.Q r
P2trick J. Inglis
HAMLIN & SASSER
O. Box \6488
Boire, Idaho 83715
Cmmsd for difer.dan1 Bob Rice Ford.
Inc.
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Dated: --(~L?~
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Si . ed~~ij;?6t'.t . c". l'(:t:rh'.://?~
Deputy ClerJ.:
~3CISION ON M~TION 'l~ DISMISS - Page 10
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