Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 12-09-2022
Case Style:
Joseph M. Koncilla v. Southwest Power Pool, Inc. et al.
Case Number:
Judge: John W. Broomes
Court: United States District Court for the District of Kansas (Sedgwick County)
Plaintiff's Attorney:
Click Here to Watch How To Find A Lawyer by Kent Morlan
Click Here For The Best Wichitaw Personal Injury Lawyer Directory
If no lawyer is listed, call 918-582-6422 and MoreLaw will help you find a lawyer.
Defendant's Attorney: Not Available
Description: Wichita, Kansas personal injury lawyer represented Plaintiff, who sued Defendant on a negligence theory claiming to have suffered more than $75,000 in injuries and/or damages as a direct result of an accident.
MoreLaw Legal News For Wichita
On March 23, 2020, Plaintiff Joseph Koncilia was working at the Strother Sub-Station, a power station in Winfield, Kansas. (Doc. 1-2 at 5.) At that time, he was employed by Electrical Reliability Services, Inc., and performing work on a transformer at the power station. Defendant Gillett was also working at the station and employed by Defendant City of Winfield, Kansas (“Winfield”). Gillett was tasked with opening the transmission lines to ensure that the breaker was de-energized so that Plaintiff could perform his work safely. Gillett allegedly told Plaintiff that the system was de-energized but he had actually failed to “open” necessary switches. As a result, Plaintiff was electrocuted and suffered severe injuries. (Id. at 7.)
Plaintiff filed a petition in state court alleging claims of negligence and premises liability against Gillett, Winfield, Gridliance High Plains LLC[1], Kansas Power Pool, and Southwest Power Pool, Inc. (“SPP”). Plaintiff alleges that Defendants were negligent by failing to take several actions with respect to the power station including failing to open the circuits, failing to properly inspect the system, failing to implement a proper switching order, failing to place proper warnings, and failing to monitor the project. (Id.) Plaintiff further alleges that the property and power generation facilities were in a dangerous and defective condition for the work Plaintiff was tasked to perform by Defendants. (Id. at 8.)
With respect to the operation of the power station, Plaintiff alleges that Kansas Power Pool transferred functional control of Winfield's power generation facilities to the SPP, including the Strother Sub-Station, in 2011. (Id. at 3.) SPP is a regional transmission organization registered to do business in Kansas but is an Arkansas corporation with its principal place of business in Little Rock, Arkansas. Defendant Kansas Power Pool is a municipal energy agency formed in 2005 in Kansas with its principal place of business in Wichita, Kansas.
Plaintiff alleges that Defendant SPP is liable because it had maintained functional operational control or a joint right of control over the Strother Sub-Station at the time of the events in the petition. Plaintiff further alleges that this right of control was taken pursuant to “agreements and/or joint venture arrangements.” (Id. at 2.)
Defendant SPP removed the case to this court with permission of the other Defendants and alleged that this court has subject matter jurisdiction under 28 U.S.C. § 1331.[2] (Doc 1 at 4.) SPP's notice of removal alleges that removal is proper because this action arises under the Federal Power Act, 16 U.S.C. § 825p and SPP's Membership Agreement, which is a part of SPP's tariff. (Doc. 1 at 4-5.) SPP further alleges that Plaintiff's claims are predicated on a duty allegedly contained in the Membership Agreement governing the relationship between SPP and its members, including Kansas Power Pool, or that the Membership Agreement created the alleged joint venture. SPP further alleges that its tariff (including the Membership Agreement) has the force and effect of federal law and this court will be required to interpret and construe the FERC approved tariff in evaluating Plaintiff's claims. (Id. at 5.) SPP also cites to a clause in the tariff providing immunity for damages to it if those damages arise out of services provided under the tariff when the damages occurred as a result of conditions beyond the control of the transmission provider. (Id.) After removing this action, SPP filed a motion to dismiss asserting that Plaintiff failed to state a claim and also asserting that amendment would be futile because it is immune from damages under the provisions in the tariff. (Doc. 11.)
Plaintiff now moves to remand this action to state court, arguing that this court lacks subject matter jurisdiction. In response, SPP argues that Plaintiff is relying on SPP's federally regulated tariff to establish that it owed a duty to Plaintiff. As such, SPP asserts that there is a substantial federal question that must be resolved by the court and jurisdiction is proper. Because the court finds that remand is required as this court lacks jurisdiction, it will not evaluate the merits of the motion to dismiss.
Outcome: Plaintiff's motion to remand granted.
Plaintiff's Experts:
Defendant's Experts:
Comments:
Defendant's Attorney: Not Available
Description: Wichita, Kansas personal injury lawyer represented Plaintiff, who sued Defendant on a negligence theory claiming to have suffered more than $75,000 in injuries and/or damages as a direct result of an accident.
On March 23, 2020, Plaintiff Joseph Koncilia was working at the Strother Sub-Station, a power station in Winfield, Kansas. (Doc. 1-2 at 5.) At that time, he was employed by Electrical Reliability Services, Inc., and performing work on a transformer at the power station. Defendant Gillett was also working at the station and employed by Defendant City of Winfield, Kansas (“Winfield”). Gillett was tasked with opening the transmission lines to ensure that the breaker was de-energized so that Plaintiff could perform his work safely. Gillett allegedly told Plaintiff that the system was de-energized but he had actually failed to “open” necessary switches. As a result, Plaintiff was electrocuted and suffered severe injuries. (Id. at 7.)
Plaintiff filed a petition in state court alleging claims of negligence and premises liability against Gillett, Winfield, Gridliance High Plains LLC[1], Kansas Power Pool, and Southwest Power Pool, Inc. (“SPP”). Plaintiff alleges that Defendants were negligent by failing to take several actions with respect to the power station including failing to open the circuits, failing to properly inspect the system, failing to implement a proper switching order, failing to place proper warnings, and failing to monitor the project. (Id.) Plaintiff further alleges that the property and power generation facilities were in a dangerous and defective condition for the work Plaintiff was tasked to perform by Defendants. (Id. at 8.)
With respect to the operation of the power station, Plaintiff alleges that Kansas Power Pool transferred functional control of Winfield's power generation facilities to the SPP, including the Strother Sub-Station, in 2011. (Id. at 3.) SPP is a regional transmission organization registered to do business in Kansas but is an Arkansas corporation with its principal place of business in Little Rock, Arkansas. Defendant Kansas Power Pool is a municipal energy agency formed in 2005 in Kansas with its principal place of business in Wichita, Kansas.
Plaintiff alleges that Defendant SPP is liable because it had maintained functional operational control or a joint right of control over the Strother Sub-Station at the time of the events in the petition. Plaintiff further alleges that this right of control was taken pursuant to “agreements and/or joint venture arrangements.” (Id. at 2.)
Defendant SPP removed the case to this court with permission of the other Defendants and alleged that this court has subject matter jurisdiction under 28 U.S.C. § 1331.[2] (Doc 1 at 4.) SPP's notice of removal alleges that removal is proper because this action arises under the Federal Power Act, 16 U.S.C. § 825p and SPP's Membership Agreement, which is a part of SPP's tariff. (Doc. 1 at 4-5.) SPP further alleges that Plaintiff's claims are predicated on a duty allegedly contained in the Membership Agreement governing the relationship between SPP and its members, including Kansas Power Pool, or that the Membership Agreement created the alleged joint venture. SPP further alleges that its tariff (including the Membership Agreement) has the force and effect of federal law and this court will be required to interpret and construe the FERC approved tariff in evaluating Plaintiff's claims. (Id. at 5.) SPP also cites to a clause in the tariff providing immunity for damages to it if those damages arise out of services provided under the tariff when the damages occurred as a result of conditions beyond the control of the transmission provider. (Id.) After removing this action, SPP filed a motion to dismiss asserting that Plaintiff failed to state a claim and also asserting that amendment would be futile because it is immune from damages under the provisions in the tariff. (Doc. 11.)
Plaintiff now moves to remand this action to state court, arguing that this court lacks subject matter jurisdiction. In response, SPP argues that Plaintiff is relying on SPP's federally regulated tariff to establish that it owed a duty to Plaintiff. As such, SPP asserts that there is a substantial federal question that must be resolved by the court and jurisdiction is proper. Because the court finds that remand is required as this court lacks jurisdiction, it will not evaluate the merits of the motion to dismiss.
Outcome: Plaintiff's motion to remand granted.
Plaintiff's Experts:
Defendant's Experts:
Comments: