from the District Court District Court, City and County of
Denver, Case No. 15CV32332 Honorable Elizabeth A. Starrs,
Attorneys for Plaintiff-Appellant: Lewis Brisbois Bisgaard
& Smith LLP Mark T. Valentine Denver, Colorado.
Attorneys for Defendant-Appellee: Cynthia H. Coffman,
Attorney General Jessica L. Lowrey, Assistant Attorney
General Denver, Colorado.
Attorneys for Intervenor-Appellee: Gordon & Rees LLP
Franz Hardy Lance J. Ream Denver, Colorado.
In 2010, Carestream Health, Inc. began purchasing gas
transportation services from Public Service Company of
Colorado. In 2013, Public Service discovered that it had
undercharged Carestream by approximately $1.26 million for
those services. When Public Service sought to recover a
portion of that amount, Carestream refused to pay.
Carestream filed a complaint with the Colorado Public
Utilities Commission, claiming that Public Service had
violated its tariff-a publicly filed document that sets forth
the rates a public utility will charge and the rules and
regulations it must follow- by failing to use "all
reasonable means" to prevent billing errors, as required
by the tariff. The Commission disagreed, and the district
court affirmed the Commission's decision.
Carestream seeks reversal of the district court's
judgment. Carestream argues that the Commission, in effect,
improperly added language to the tariff, thereby exceeding
the Commission's constitutionally and statutorily granted
authority. Specifically, Carestream contends that the
Commission added a requirement that billing errors be
foreseeable before Public Service is required to take means
to prevent them. Carestream also argues that the district
court erred when it held that Carestream lacked standing to
pursue a separate claim that Public Service violated its
tariff by recovering from its general customer base that
portion of the undercharge it was unable to recover from
We reject Carestream's arguments on both counts. First,
we conclude that determining what means are "reasonable,
" as that term is used in Public Service's tariff,
necessarily requires considering what errors are foreseeable.
We therefore hold that the Commission properly interpreted
the tariff and acted pursuant to its authority. Second, we
conclude that Carestream lacks standing to challenge Public
Service's recovery of the undercharge from its general
customer base because Carestream suffered no injury from that
action. Accordingly, we affirm the judgment of the district
Facts and Procedural History
Carestream Health, Inc. ("Carestream") is a
manufacturer of medical imaging media and equipment. The
events giving rise to this case began in 2010, when
Carestream started purchasing gas transportation services
from Public Service Company of Colorado ("Public
Carestream became a Public Service customer when it purchased
utility assets from the Eastman Kodak Company
("Kodak"), an existing Public Service customer.
However, Carestream wanted a different type of service from
the one Kodak had been receiving. Kodak was a gas sales
customer, which means it paid Public Service for both natural
gas and for pipeline services to transport the purchased gas
to its facility. Carestream wanted to be a gas transportation
customer, purchasing natural gas from a different supplier
and paying Public Service for transportation only.
This is where things went awry. Although Carestream was a new
customer, Public Service used information from Kodak's
meter to set up Carestream's account. When it did so,
Public Service miscalculated Carestream's gas
consumption, underreporting it by approximately fifteen
percent. Public Service did not discover the error
until March 2013, by which point it had undercharged
Carestream by approximately $1.26 million for the gas
Carestream had consumed in the nearly three years it had been
a Public Service customer. Public Service does not dispute
that it was responsible for the error, and Carestream
acknowledges it received the gas for which it was
After discovering the error, Public Service sought to collect
a portion of the cost from Carestream. Public Service's
tariff provides that in the event an error in billing occurs,
the utility has the right to collect from the customer the
amount of any undercharge. This right to collection is
limited to the twenty-four month period immediately preceding
the discovery of the billing error. Public Service therefore
back-billed Carestream $716, 919.71 for the period from March
2011 to March 2013. Public Service recovered the remaining
$510, 000 of the undercharge from its customer base through
the Gas Cost Adjustment ("GCA") permitted by its
tariff. The GCA allows a utility to adjust customers'
rates on an expedited basis to pass changes in gas costs
through to customers. Dep't of Regulatory Agencies Regs.
4600, 4601(m), 4 Colo. Code Regs. 723-4 (2017); Pub.
Serv. Co. of Colo. v. Pub. Utils. Comm'n, 644 P.2d
933, 935 (Colo. 1982).
Carestream refused to pay the $716, 919.71, and it filed a
formal complaint against Public Service with the Colorado
Public Utilities Commission ("the Commission").
Carestream noted that although Public Service's tariff
allows it to recover for billing errors, the tariff requires
the utility to "exercise all reasonable means to assure
accurate computation of all bills for gas service."
Carestream argued that Public Service did not exercise all
reasonable means to prevent the error that occurred in this
case, and therefore that Public Service had failed to comply
with its tariff and could not back-bill for the undercharge.
After a hearing, an administrative law judge
("ALJ") issued a decision recommending that
Carestream's complaint be denied because Carestream
failed to prove a direct violation of a tariff provision. The
ALJ found that the situation giving rise to the ...