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Cleco Corp. v. Johnson9/18/2001
recover from the construction company personal injury and unspecified special damages, not merely property damages. In addition, Istre used very broad language in allowing such recovery, such as the "predictability of widespread effect and delays in restoring power." It is one thing to expand recovery to a situation where a Cleco customer's electrical equipment that is physically connected to Cleco's lines or poles is damaged by a surge caused by the defendant's vehicle hitting a pole; it is quite another to seemingly approve of recovery for personal injuries and other unspecified "special damages" when there is no such physical connection between the plaintiff and his or her property and the affected damaged electric line, and the plaintiff is not a primary or secondary victim, but a tertiary victim. In my view, the damages in both this case and Istre fall into the type not recoverable under PPG Industries, and the Court should not be indicating approval of a case that goes far beyond the instant case.
Finally, the majority errs on the subrogation issue. Cleco's petition merely alleges that "it has paid in its own name the damages . . . to its customers and has been subrogated to their rights against defendants herein." This is a legal conclusion, not an allegation of fact, and is not admitted as true for the purposes of an exception of no cause of action. Cleco has not alleged it obtained a conventional subrogation, and has no legal subrogation because, under the facts alleged, it was not liable for its customers' property damage because it was not negligent. La. C.C. art. 1829. Thus, because Cleco was not liable with defendants for the damage to Cleco's customers' property, absent a conventional subrogation, it has no cause of action against defendants even if its customers do.
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