Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company v. Indiana Finance Authority and Indiana Gasification, LLC , 2012 Ind. App. LEXIS 540 ( 2012 )

ROBB, Chief Judge,

concurring in part, dissenting in part.

I concur in all but the final disposition of the well-considered opinion of the majority in this case. The majority reverses the Commission’s regulatory approval of the Contract because the definition of “retail end use customer” in the Contract deviates from the statutory definition. I do not believe reversal of the Commission’s approval of the Contract in its entirety is necessary.

The Commission has the authority to approve a final purchase contract so far as the contract comports with the statutory requirements of the SNG Act. See Ind. Code § 4-4-11.6-14. As noted by the majority, the Contract at issue does comport with the statute but for the provision which includes transportation customers within the Contract’s definition of retail end use customers. It is this inclusion which renders the Contract definition of “retail end use customers” incompatible with the statutory definition.

As a general proposition, a contract made in violation of a statute is void and unenforceable. Jaehnen v. Booker, 806 N.E.2d 31, 36 (Ind.Ct.App.2004), tram, denied. However, if a contract contains an unauthorized provision that can be eliminated without frustrating the basic purpose of the contract, the remainder of the contract may be enforced. Harbour v. Arelco, Inc., 678 N.E.2d 381, 385 (Ind.1997) (holding that if remainder of car rental contract had conformed with statutory requirements, the inclusion of a provision for recovery of attorney fees not authorized by statute would not have rendered entire contract invalid because the primary purpose of the contract would not be frustrated by eliminating that provision). Because the transportation customers are an easily identifiable group, I believe we could merely exclude that part of the Contract which includes transportation customers in the definition of retail end use customers without frustrating the primary purpose of the Contract. Accordingly, I would hold, with the exclusion of that part of the Contract definition of retail end use customers which applies to transportation customers, that the Contract was properly approved by the Commission.