VI. Statute of Limitations

Pub. Util. Code § 736 states in pertinent part:

"All complaints for damages resulting from the violation of any of the provisions of Section 494 [common carriers shall not charge other than applicable rates] or 532 [public utilities shall not charge other than rate specified in its schedules] shall either be filed with the commission, or, where concurrent jurisdiction of the cause of action is vested in the courts of this state, in any court of competent jurisdiction within three years from the time the action accrues, and not after."

Edison's Tariff Rule 17(d) is consistent with Section 736 and states in pertinent part:

"Where SCE overcharges . . . a customer as the result of a Billing Error, SCE . . . shall issue a refund or credit to the customer for the amount of the overcharge for the period of the billing error, but not exceeding three years in the case of an overcharge . . ."

When these sections are read together, a reasonable inference is that there is a three-year statute of imitations on filing a complaint for a refund, or on receiving a refund.

On January 7, 1999, District sent a fax to Edison questioning why the District was being charged for 12 kV service on its standby contract. This fax was followed up with a letter to Edison on February 25, 1999, referencing a February 10th, meeting between District and Edison in which the parties discussed the overbilling. The February 25th letter also requested that Edison propose a settlement to compensate District for the overcharge. Edison responded in a letter dated June 2, 1999, stating that any overbilling would be subject to Edison's tariff Rule 17, limiting any credit or refund to a three year period.

We agree that Edison's three-year statute of limitation applies to this matter.

The violation of a tariff constitutes a new cause of action for every day that the utility deviates from its tariff duties. Thus, when the District discovered the discrepancy between billing rates for electricity purchased and sold in early January of 1999, the statute of limits began to run. District filed its claim with the commission on October 27, 1999. The District's filing was well within the three-year statutory period.

We will apply the three-year statute of limitations in Edison's tariff Rule 17 and limit the period of time that District may seek a refund from Edison. Because the first piece of evidence of discovery we have is the January 7, 1999, fax, we will use that as the `triggering date' for purposes of establishing a date from which to apply the statute of limitations. We will allow District to seek a refund from Edison for a three-year period from January 7, 1999, back to January 7, 1996.

Finally, we note that had District used reasonable diligence, it would have discovered the discrepancy between the rates long before 1999. By the time District made its discovery, the revised rates had been in effect for almost a decade. A business enterprise should use reasonable diligence in tracking a major cost item such as the price of stand-by electric service. Had District compared its monthly billing records to determine if the charges were correct, it would have noticed the difference in billing rates between electricity sold and electricity purchased. Of particular note to the Commission is the fact that District was billed for electricity it purchased from Edison for its Palo Verde facility at the lower 66 kV rate. Again, if District had exercised reasonable diligence it could have discovered this billing discrepancy sooner and made inquiries to institute cost savings mechanisms.

As a result of its failure to use reasonable diligence, District's reparations are limited to a three-year period and not the entire period from May 1990 through January 1999.

Edison is ordered to review its billing records for that period and refund the difference between the rate District actually paid and the amount they would have paid had they selected the compensated metering option.