Opinion
Docket No. 67193.
Decided September 28, 1983. Leave to appeal applied for.
George H. Krause, P.C. (by George H. Krause), for plaintiff.
Foster, Swift, Collins Coey, P.C. (by Deborah A. Deprez and William G. Lavery), for defendant.
The trial court granted accelerated judgment, GCR 1963, 116.1(2), in favor of defendant, finding that subject matter jurisdiction over plaintiff's claims rested exclusively with the Michigan Public Service Commission. Plaintiff appeals as of right from this judgment.
Plaintiff's complaint alleged that at some time prior to February 20, 1980, plaintiff made arrangements with defendant for a new telephone number. Concurrently, plaintiff arranged for defendant to place an "intercept" on its former telephone number so that business calls would be referred to its new number. Plaintiff's agents at one time tested the intercept and found it to be operational. Plaintiff alleges, however, that shortly thereafter defendant discontinued the intercept service and that persons calling plaintiff's old number were informed that no new telephone number existed for plaintiff's business. The complaint further alleged that due to defendant's negligence in failing to maintain the intercept service, plaintiff suffered a significant loss of business.
Defendant filed a motion for summary judgment under GCR 1963, 117.2(1), arguing that limitations on defendant's liability contained in Michigan Public Service Commission Tariff No. 7, Sixth Revised Sheet, effective July 22, 1980, legally eliminated plaintiff's cause of action. Defendant subsequently filed its accelerated judgment motion. The trial court granted the latter motion, making no ruling as to the former.
In judging the merits of defendant's accelerated judgment motion, the trial court opined that the decision of this Court in John Cannon Agency v Michigan Bell Telephone Co (Docket No. 52283, released May 28, 1981 [unreported]), was "controlling". We remind members of the bench and bar that unpublished opinions of this Court are without precedential value. Moultrie v Detroit Automobile Inter-Ins Exchange, 123 Mich. App. 403, 407-408; 333 N.W.2d 298 (1983); Borgess Hospital v Berrien County, 114 Mich. App. 385, 386, fn 1; 319 N.W.2d 354 (1982), lv den 417 Mich. 865 (1983). Moreover, neither the reasoning nor the result in the unpublished John Cannon Agency case supported a conclusion that the trial court lacked jurisdiction in this matter.
The case of John Cannon Agency v Michigan Bell Telephone Co was decided by the Court of Appeals on May 28, 1981. It was a per curiam opinion, publication of which was not requested by any of the judges on the panel. Publication of the opinion was authorized on September 8, 1983, and the opinion now appears at 128 Mich. App. 472; 341 N.W.2d 115 (1983). — REPORTER.
We reverse the judgment of the trial court and remand for a trial on the merits of plaintiff's negligence claim. While the Public Service Commission has jurisdiction over contract actions, claims sounding in tort against a telephone company are properly maintained in circuit court. Valentine v Michigan Bell Telephone Co, 388 Mich. 19; 199 N.W.2d 182 (1972). Plaintiff's complaint in this case sounds in negligence even though the duty alleged to have been breached arose out of a contractual relationship. Compare Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich. 472; 65 N.W.2d 748 (1954) (improper assignment of a telephone number), Thomas v General Telephone Directory Co, 127 Mich. App. 788; 339 N.W.2d 257. (1983), B W Rustproofing v Michigan Bell Telephone Co, 88 Mich. App. 242; 276 N.W.2d 572 (1979) (erroneous listing in telephone directory), and Hunter v General Telephone Co, 121 Mich. App. 411; 328 N.W.2d 648 (1982) (failure of directory assistance to give out correct number of business).
Contrary to defendant's contention on appeal, plaintiff's complaint sets forth sufficient factual allegations to state an action in negligence. We conclude that the circuit court had jurisdiction to hear the case.
Defendant's alternative reliance upon the regulations and tariffs of the Public Service Commission is misplaced. The limitations on liability set forth therein have no application in a tort action against a telephone company properly brought in a court of general jurisdiction. Thomas, supra; Hunter, supra, pp 419-420.
Reversed.