KISSIMMEE UTILITY AUTHORITY, PETITIONER,
v.
BETTER PLASTICS, INC., RESPONDENTS

Fla. | 1988-05-26
No. 71073
McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT and GRIMES, JJ., concur.
526 So. 2d 46 Florida Supreme Court (1988) Positive Treatment
Cited by 33 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida Supreme Court held that regulated public utilities in Florida are liable for prejudgment interest on overcharge refunds to customers, even when their governing rules do not explicitly authorize such interest. The court relied on the principle that prejudgment interest is an element of damages necessary to fully compensate a plaintiff for the wrongful deprivation of property.


Holding

A regulated public utility in Florida has a legal obligation to pay prejudgment interest on overcharge refunds. Once liability and the amount of damages are determined, prejudgment interest is an element of those damages as a matter of law, and the plaintiff must be made whole from the date of loss, regardless of whether the utility's regulatory rules explicitly authorize the interest payment.


Headnotes

[1] A regulated public utility in Florida is liable to customers for prejudgment interest on overcharge refunds.

[2] Prejudgment interest is considered a component of pecuniary damages, and its award is necessary to fully compensate a plaintiff for the loss of use of money.

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Key Quotes

“prejudgment interest is merely another element of pecuniary damages. For a plaintiff to be fully compensated, the award must include damages suffered from the loss of the use of the money because 'the loss itself is a wrongful deprivation by the defendant of the plaintiffs property.'”

Establishes the fundamental principle that prejudgment interest is necessary to fully compensate plaintiffs and is an element of damages, not merely discretionary

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Facts & Procedural History

Kissimmee Utility Authority, a municipal utility, overcharged Better Plastics for electrical service from 1972 through 1985 by using an incorrect mult…

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Opinion of the Court
KOGAN, Justice.

KOGAN, Justice.

Pursuant to article V, section 3(b)(4) of the Florida Constitution, we review Better Plastics, Inc. v. Kissimmee Utility Authority, 511 So. 2d 402 (Fla. 5th DCA 1987), to answer the following question certified as one of great public importance: IS A REGULATED PUBLIC UTILITY IN FLORIDA LIABLE TO CUSTOMERS FOR PREJUDGMENT INTEREST ON OVERCHARGE REFUNDS?

On the authority of Argonaut Insurance Company v. May Plumbing Co., 474 So. 2d 212 (Fla.1985), we answer the question in the affirmative and approve the decision of the district court.

Kissimmee Utility Authority (Authority), a municipal utility, provides electrical service to Better Plastics, Inc. (Better Plastics). For the period of 1972 through 1985, the Authority overcharged Better Plastics in the amount of $107,674.17 for electrical service by using a multiplier of 80 when it should have been 60.

On February 27, 1986, the Authority acknowledged the overcharge and issued a check for the overcharge amount to Better Plastics.

On March 5, 1986, Better Plastics filed suit against the Authority, alleging the Authority was liable for interest on the overcharge amount. The Authority denied it owed any interest on the overcharge refund, asserting that as a regulated public utility it is governed by Florida Administrative Code Rule 25-6.106(2),1 which does not permit or authorize the payment of interest to a customer as a result of overbilling for energy.2

Both parties moved for summary judgment, asserting that there were no disputed issues of material fact.

On October 20, 1986, the trial court granted summary judgment in favor of the Authority. Better Plastics appealed, and the Fifth District Court of Appeal reversed and remanded, finding that a regulated public utility has the legal obligation to pay prejudgment interest on overcharge refunds under section 687.01, Florida Statutes (1986), and Argonaut Insurance Company v. May Plumbing Co. Even though rule 25-6.106(2) does not specifically authorize the payment of prejudgment interest as part of the overcharge refund due a customer, we agree with the district court that a regulated public utility has the legal obligation to pay interest on overcharge refunds.

In light of our decision in Argonaut, it is unnecessary for the Public Service Commission to specifically refer to prejudgment interest in its rules to assure utility customers are fully compensated in the event of an overbilling.3

In Argonaut we reaffirmed the longstanding principle in Florida that prejudgment interest is merely another element of pecuniary damages. For a plaintiff to be fully compensated, the award must include damages suffered from the loss of the use of the money because “the loss itself is a wrongful deprivation by the defendant of the plaintiffs property.” 474 So. 2d at 215. Once liability has been determined and the amount of damages set, it is merely a ministerial duty to add the appropriate amount of interest to the principal amount of damages awarded. Id. Whether an award of prejudgment interest is appropriate in this case does not turn on the Authority’s status as a regulated public utility. In Florida once damages are liquidated, prejudgment interest is considered an element of those damages as a matter of law, and the plaintiff is to be made whole from the date of the loss. Id.

Notwithstanding the rule that a plaintiff be fully compensated from the date of the loss, the Authority argues that if Florida law requires payment of prejudgment interest on overcharge refunds, then a portion of Better Plastics’ claim and the interest thereon is barred by the statute of limitations, section 95.11, Florida Statutes (1986).

The Authority admits in its initial brief on the merits that it was aware of the time bar argument it now asserts; however, the Authority claims this defense was not raised because the Authority chose to defend the action on the ground that rule 25-6.106 was a clear and lawful limitation on its duty to pay prejudgment interest on overcharge refunds. We decline to address this issue because the statute of limitations is an affirmative defense that must be pleaded at trial. Fla.R.Civ.P. 1.110(d). “Failure to raise an affirmative defense prior to a plaintiffs motion for summary judgment constitutes a waiver of that defense.” Wyman v. Robbins, 513 So. 2d 230 (Fla. 1st DCA 1987).

The Authority waived the statute of limitations defense by electing not to plead it even though the Authority claims to have been aware the defense was available. The Authority's failure to plead the statute of limitations below bars it from raising the issue for the first time on appeal. Dober v. Worrell, 401 So. 2d 1322 (Fla.1981).

Therefore, the Authority is required to pay prejudgment interest at the statutory rate in effect for each year from 1972 through 1985. The amount of prejudgment interest to be paid absent a controlling contractual provision has been set by the legislature.4

Because our decision in Argonaut Insurance Company v. May Plumbing Co. is controlling, we answer the certified question in the affirmative and approve the decision of the Fifth District Court of Appeal.

It is so ordered.

McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT and GRIMES, JJ., concur. .Florida Administrative Code Rule 25-6.106(2) provides:

In the event of other overbillings not provided for in Rule 25-6.103, the utility shall refund the overcharge to the customer for the period during which the overcharge occurred based on available records. If commencement of the overcharging cannot be fixed, then a reasonable estimate of the overcharge shall be made and refunded to the customer. The amount and period of the adjustment shall be based on the available records. The refund shall not include any part of a minimum charge.

. Interestingly, at oral argument the Public Service Commission, appearing as intervenor, asserted for the first time in this appeal that its regulatory powers do not extend to the Authority because the Authority is a municipally owned utility. Our decision in Argonaut is controlling regardless of the Authority’s status as a "regulated public utility.”

. At oral argument the Public Service Commission stated that utility customers are routinely granted interest on overcharge refunds, but the issue is not commonly raised because it is settled before litigation.

. Section 687.01, Florida Statutes contains the statutory interest rate set by the legislature that controls prejudgement interest. Periodically, this rate has been changed to reflect current market conditions. The interest rate in effect for the particular year in question shall be applied when figuring the interest owed on the overcharge amount for that year.


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Citator

Cited By (18 total)

  • Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001)
    …of limitations can be waived. Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right. See, e.g., Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So. 2d 46, 48 (Fla.1988) ("The Authority waived the statute of limitations defense by electing not to plead it even though the Authority claims to have been aware the defense was available.”). . See, e.g., Branca v. City of Miramar, 634 So. 2d 604 (Fla. 1994…
  • Broward Cnty. v. Finlayson, 555 So. 2d 1211 (Fla. 1990)
    …ward County should be required to pay prejudgment interest in these circumstances and, if so, whether the amount should date back to when the wages accrued or to when the first claim was made. In Kissimmee Utility Authority v. Better Plastics, Inc., 526 So. 2d 46 (Fla.1988), we reaffirmed our decision in Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985), and stated the general rule concerning the payment of prejudgment interest: “[Ojnce damages are liquidated, prejudgment interest is cons…
  • Lawton Chiles v. United Faculty OF Florida, 615 So. 2d 671 (Fla. 1993)
    …nor its word in a contractual setting. As to the specific matter of prejudgment interest, this Court summarized the applicable law in Broward County v. Finlayson, 555 So. 2d 1211 (Fla.1990): In Kissimmee Utility Authority v. Better Plastics, Inc., 526 So. 2d 46 (Fla.1988), we reaffirmed our decision in Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985), and stated the general rule concerning the payment of prejudgment interest: “Once damages are liquidated, the prejudgment interest is co…
    1 / 2

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