DALLAS (CN) - First Choice Power wants a judge to toss claims that a disabled man sustained heat exhaustion after it cut his power during a hot Texas summer.
In a March 2012 complaint, Randy Rhodes, a wheelchair-bound resident of Stephenville, claimed that the Direct Energy subsidiary cut his power on June 2, 2010, leaving him without air conditioning.
He said he promptly paid his monthly bills and that he disputed overdue past charges that First Choice generated. Rhodes said his son found him on the ground in his backyard the next day.
In motion for summary judgment, filed Tuesday with Dallas County Court Judge Carl Ginsberg, First Choice says Rhodes failed to pay his bill.
"It is undisputed that Rhodes received his bill and multiple disconnection notices before FCP turned off service," according to the motion written by Edison McDowell attorney Thomas Hetherington. "Rhodes, however, refused to pay the bill based on his contention that he had not incurred the debt - that, instead, it was his brother Ronnie Rhodes's debt. To this day, Rhodes has not provided documentation that verifies his contention."
First Choice disputes Rhodes' injuries, deeming the allegations as "dubious," based on Rhodes' deposition testimony.
"Today, by his own admission, Rhodes does not use a wheelchair," the 30-page motion states. "He can walk around, drive a car, and is capable of physical activity. And, according to Dr. Lester Ong - Rhodes's primary care physician for the last five years - that has always been the case. Dr. Ong recently testified that he has never seen Rhodes using a wheelchair and does not believe that Rhodes has ever needed to use a wheelchair."
First Choice also disputes Rhodes' claim that he informed it of his wheelchair use before his power was cut.
"FCP disputes that Rhodes ever provided such information to it," the motion states. "And, whether Rhodes actually used a wheelchair is somewhat beside the point because it is undisputed that Rhodes did not take the steps required by the [Public Utility Commission of Texas] to obtain the safeguards available to 'Critical Care Residential Customers.'"
It says the commissions defines a Critical Care Residential Customer as "a residential customer who has a person permanently residing in his or her home who has been diagnosed by a physician as being dependent upon an electric-powered medical device to sustain life."
Once a customer gets critical care status, a power company will not disconnect service based on nonpayment when the customer "establishes that disconnection of service will cause some person at that residence to become seriously ill or more seriously ill," as long as the customer's doctor submits a written statement confirming the Critical Care status and the customer enters into a deferred payment plan," it said.
First Power says Rhodes never applied for critical care status though his service agreement informed him of that right.
It also disputes the temperature on the day of the alleged heat exhaustion, arguing that the National Weather Service had not issued heat advisory at that time for Erath County.
"No heat advisory was issued in Erath County at any time in May or June 2010," the motion states. "Moreover, as Rhodes's long-time physician, Dr. Ong testified, with the average temperatures in Stephenville in the low 70s and the highs in the mid-80s at the time, there was no reason to believe that disconnection would create a dangerous condition for Rhodes or anyone else."
It adds: "There is no evidence at all about what series of events transpired between the afternoon of June 2, 2010 when Rhodes was sitting at his desk - and the afternoon of June 3, 2010 when he was allegedly found in his yard. Plainly, whatever took place, there would necessarily have been several links in the causal chain between FCP's disconnection of the electricity and Rhodes ending up on the ground in his back yard. The connection isfar too remote and attenuated, as a matter of law, to constitute proximate cause."
Despite Rhodes' failure to verify his story, First Power says it decided to reinstate his service and remove debt on the account as a "customer service gesture."
It says the PUCT later concluded that the disconnection was not improper and delivered a written reply to Rhodes, explaining that First Power had not violated any PUCT rules.
"Nonetheless, Rhodes filed this lawsuit anyway, arguing that his disconnection was improper and that he suffered personal injuries as a result," the motion states. "Rhodes asserts claims against FCP for: (1) breach of contract, (2) violation of the DTPA, (3) intentional infliction of emotional distress, and (4) negligence. However, all of his claims are legally flawed and are now ripe for determination."
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