Miami County Board of Commissioners v. US Specialty Insurance Company as Subrogee of the City of Peru, Indiana

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Liberty L. Roberts Stacy J. Vasilak
Church Church Hittle + Antrim Merrillville, Indiana
Noblesville, Indiana FILED
Oct 16 2020, 8:34 am
Kaitlyn E. Collyer
Church Church Hittle + Antrim CLERK
Indiana Supreme Court
Fishers, Indiana Court of Appeals
and Tax Court
IN THE
COURT OF APPEALS OF INDIANA
Miami County Board of October 16, 2020
Commissioners, Court of Appeals Case No.
Appellant-Defendant, 20A-CT-953
Appeal from the Miami Circuit
v. Court
The Honorable William C.
US Specialty Insurance Menges, Jr., Special Judge
Company as Subrogee of the Trial Court Cause No.
City of Peru, Indiana, 52C01-1801-CT-23
Appellees-Plaintiffs
Weissmann, Judge.
Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 1 of 14
[1] Employees of the Miami County Board of Commissioners (the County)
deployed a homemade, 800-pound device to break up a logjam on the Wabash
River in Peru (the City). The County employees were aware that there were
City water lines under the river in that area but did not request a map or precise
information about the location of the water lines. When a County employee set
the device on the riverbed, one of the water lines broke and caused damage
totaling over $100,000.
[2] The City and its insurer, US Specialty Insurance Company (the Insurer), filed a
common law negligence claim against the County. Following a bench trial, the
trial court entered judgment in favor of the City. The County appeals, arguing
that the Indiana Damage to Underground Facilities Act (DUFA) 1 abrogated
common law negligence in this area and that the City is not entitled to relief
under DUFA. Finding that DUFA did not abrogate common law for situations
that do not fall under DUFA’s purview and that the trial court did not err by
finding that the City proved its negligence claim, we affirm.
Facts
[3] In January 2016, a logjam on the Wabash River in the City was putting
pressure on one of the piers supporting the Wayne Street Bridge. County
employees developed a plan to move the logs off the pile and allow the logs to
float down the river. They made a device that repurposed a rotor from a
1
Ind. Code ch. 8-1-26.
Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 2 of 14
combine, welding pieces of metal to the bottom of the rotor to act as fingers to
hook onto the logs. The rotor was about 12 feet long and weighed 800 to 1000
pounds. The rotor was hooked to a cable, which was attached to the arm of an
excavator. The excavator was parked on the bridge, the arm of the excavator
was extended over the side of the bridge, and the rotor was lowered to the
logjam, where it was placed on the log pile to move logs off the pile and into the
water.
[4] About two years earlier, County employees had intended to dismantle the
logjam by using a backhoe in the river. A City Utilities employee showed a
map to County employee Randy Heilman. The map indicated that there were
two water lines on the east side of the bridge, and the City employee told
Heilman that the backhoe ran the risk of hitting the water lines. Therefore, the
County employees stopped their work.
[5] On January 26, 2016, County Highway Department employees went to the
bridge with the excavator they planned to use to remove the logjam to
determine if the arm of the equipment would be close enough to overhead
powerlines that it would need to be wrapped with safety material. While they
were on the bridge, City of Peru Utilities employees approached them and
learned about the plan to remove the logjam. The City employees advised the
County employees, including Heilman, that there were two water lines near the
bridge—one was about thirty-six feet away from the bridge and the other was
between the first water line and the bridge. The second water line is buried
under the riverbed; the first is above the riverbed and is exposed and visible
Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 3 of 14
when the river level is low enough. The County employees did not ask for a
map, ask that the waterlines be marked, request a locate of the precise location
of the waterlines, or tell the City when the work would be performed.
[6] Two days later, on January 28, 2016, the County set up the excavator on the
bridge, lowered the rotor to the logjam, and began moving logs off the pile.
After moving approximately ten to fifteen logs, the employees took a break.
The excavator operator could not see over the side of the bridge and wanted to
exit the excavator to look at the pile; therefore, he lowered the rotor and set it
on the riverbed. Tension was kept on the cable, so the full weight of the rotor
was not placed on the riverbed. Nonetheless, when the rotor was set down,
water began bubbling up from the river, indicating that one of the waterlines
had broken. The County employees did not contact the City to report the
damage.
[7] City employees immediately noticed a problem when the pressure in the water
lines dropped suddenly from sixty-five pounds to forty-five pounds. Initially,
they believed that they had lost a pump, but a City employee saw a County
vehicle driving away and discerned what had happened.
[8] The City went to shut down the broken water line, but it was too late. The City
had to enact a citywide boil order, requiring City employees from multiple
departments to go door to door to inform all residents. The employees worked
around the clock for a couple of days while the repairs to the damaged water
Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 4 of 14
line were underway. The City’s Insurer paid $103,370.94 for the repairs and
the City paid a $1,000 deductible.
[9] On January 23, 2018, the City and the Insurer filed a complaint against the
County, alleging that they had sustained damages as a proximate result of the
County’s negligent and careless misconduct. A bench trial was held on
November 26, 2019. On March 27, 2020, the trial court entered judgment in
favor of the City and the Insurer, finding, in pertinent part, as follows:
5. Randy Heilman was familiar with the requirements of
[DUFA], and had previously made formal location
request[s] under the Act for other excavation projects on
behalf of the Highway Department.
6. Neither Randy Heilman, or any other person, on behalf of
Miami County made a formal locate call pursuant to the
terms of DUFA prior to attempting to remove the log jam
from the Wayne Street bridge pier.
***
Conclusions of Law
***
2. The County had a duty to exercise reasonable care under
the circumstances to prevent harm to those water lines.
3. The County breached its duty of reasonable care by failing
to either request a locate, obtain a map, or otherwise take
Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 5 of 14
reasonable precautions to determine the precise location of
the lines to prevent harm to the City’s water lines.
***
5. DUFA applies to protect underground facilities from
damage due to excavation [or] d[e]molition.
***
10. If DUFA is applicable the County was required to request
a formal locate and otherwise comply with DUFA, which
the County failed to do.
***
12. Under either the common law, or DUFA, the Plaintiffs are
entitled to judgement against the Defendant.
Appealed Order p. 2-3. The trial court ordered the County to pay total
damages of $104,370.94. The County now appeals.
Discussion and Decision
[10] The County raises the following arguments on appeal: (1) DUFA abrogated
common law negligence; (2) under DUFA, the County was not required to
request a locate because it was not engaging in excavation or demolition; and
(3) if common law negligence applies, the trial court erroneously found that the
County acted negligently.
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I. DUFA
A. How Much Common Law Did DUFA Abrogate?
[11] What we must first determine is to what extent DUFA has abrogated common
law negligence. The County argues that DUFA has abrogated all common law
negligence claims related to work near underground utilities; the City disagrees;
the trial court did not squarely answer the question.
[12] The County directs our attention to City of Fort Wayne v. Northern Indiana Public
Service Company in support of its argument that DUFA has abrogated a broad
swath of common law negligence. 2 N.E.3d 60 (Ind. Ct. App. 2014). We find
that Fort Wayne compels the opposite result. In that case, Northern Indiana
Public Service Company (NIPSCO) was performing work that included
excavation and construction of an underground monolith. NIPSCO requested
a locate of underground facilities operated by the City in the area; the City
provided the information, but it was inaccurate; damage and flooding resulted.
The City filed a lawsuit against NIPSCO. On appeal, this Court found that
DUFA applied and that the City had failed to comply with its requirements. Id.
at 63-64.
[13] The City argued that notwithstanding DUFA, it still had a common law
negligence claim against NIPSCO. This Court disagreed, observing as follows:
DUFA governs the relationship between and responsibilities of
operators of underground facilities and those who wish to
excavate or build in the vicinity of those facilities. Most
significantly for this case, DUFA provides a cause of action for
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operators who suffer a pecuniary loss due to a violation of
DUFA, allowing the operator to recover actual damages, costs,
attorney’s fees, and possible punitive damages. The General
Assembly also saw fit to provide a defense to that action in case
the operator failed to discharge its duties imposed by DUFA.
We doubt very seriously that the General Assembly intended that
an operator who lost his cause of action pursuant to DUFA
would still be able to recover under another theory.
Id. at 64 (internal citation omitted). In other words, where DUFA applies and
offers a potential remedy for damages stemming from excavation or demolition
in the vicinity of underground facilities, the damaged party’s only possible
recourse is DUFA.
[14] When considering whether a statute has abrogated the common law, “[w]e
presume that the legislature does not intend by the enactment of a statute to
make any changes in the common law beyond what it declares, either in
express terms or by unmistakable implication.” Rocca v. S. Hills Counseling Ctr.,
Inc., 671 N.E.2d 913, 920 (Ind. Ct. App. 1996). Here, the General Assembly
did not, either in express terms or by unmistakable implication, extend the
application of DUFA beyond the precise situations described therein.
[15] The County argues that DUFA “governs the rights and responsibilities for work
near, and damage to, underground utilities,” such that all common law related
to work near underground utilities has been abrogated by DUFA. Appellant’s
Br. p. 11. The County paints with too broad a brush. As noted by the Fort
Wayne Court, DUFA governs the relationship between “operators of
underground facilities and those who wish to excavate or build in the vicinity of
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those facilities.” Fort Wayne, 2 N.E.3d at 64 (emphasis added). Therefore,
DUFA does not apply to situations, such as the one at issue in this appeal, that
do not involve excavation or demolition (or, per Fort Wayne, building) in the
vicinity of underground facilities. Concomitantly, DUFA has not abrogated the
common law for situations that do not fall under its purview.
[16] What we must determine, therefore, is whether DUFA applies to this case. If it
does, no common law negligence claim is available to the City. If it does not,
we must consider whether the City made its case for common law negligence.
B. Does DUFA Apply?
[17] The relevant provision of DUFA provides that “a person may not excavate real
property or demolish a structure that is served or was previously served by an
underground facility without first ascertaining . . . the location of all
underground facilities in the area affected by the proposed excavation or
demolition.” Ind. Code § 8-1-26-14. It is undisputed that the County did not
ascertain the location of the water lines before beginning the log removal
operation.
[18] As noted above, DUFA’s locate requirement applies to (1) the excavation of
real property and (2) the demolition of a structure served by an underground
facility.
[19] Turning first to excavation, we note that “excavate” is defined as “an operation
for the movement, placement, or removal of earth, rock, or other materials in or
on the ground by use of tools or mechanized equipment or by discharge of
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explosives . . . .” I.C. § 8-1-26-6 (emphasis added). Here, clearly, the operation
at issue was for the movement or removal of logs (“other materials”) by use of
mechanized equipment. But the logs were not “in or on the ground,” as
required by the statute. Instead, they were piled up to six feet above and on the
surface of the Wabash River. As such, the work at issue here did not fall within
the relevant definition of “excavate.”
[20] Next, with respect to demolition, the term “demolish” is defined as “an
operation in which a structure or mass of material is wrecked, raised, rendered,
moved, or removed by means of tools, equipment, or discharge of explosives.”
I.C. § 8-1-26-5. That definition is slightly narrowed by the locate requirement
provision, which states that it applies to a person who seeks to “demolish a
structure” that is or was served by an underground facility. I.C. § 8-1-26-14
(emphasis added). Here, while the work at issue would arguably have fallen
within the more expansive definition of “demolish,” we can only find that the
demolition at issue did not occur to “a structure.” See Black’s Law Dictionary
(11th ed. 2019) (defining “structure” as “[a]ny construction, production, or
piece of work artificially built up or composed of parts purposefully joined
together”). Instead, the work was performed on a large, naturally occurring pile
of logs floating in a river. As the work at issue was neither a project to excavate
nor to demolish a structure, DUFA and its requirements do not apply.
[21] Because DUFA does not apply, the City was not foreclosed from bringing a
general negligence claim. Therefore, we turn next to the substance of that
claim.
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II. Negligence
[22] The County argues that even if a negligence claim is permitted in this case, the
trial court erred by finding that the County acted negligently. The trial court
entered findings following a bench trial, and our standard of review in that
situation is well settled:
“First, we determine whether the evidence supports the findings
and second, whether the findings support the judgment. In
deference to the trial court’s proximity to the issues, we disturb
the judgment only where there is no evidence supporting the
findings or the findings fail to support the judgment. We do not
reweigh the evidence, but consider only the evidence favorable to
the trial court’s judgment. Challengers must establish that the
trial court’s findings are clearly erroneous. Findings are clearly
erroneous when a review of the record leaves us firmly convinced
a mistake has been made. However, while we defer substantially
to findings of fact, we do not do so to conclusions of law.
Additionally, a judgment is clearly erroneous under Indiana Trial
Rule 52 if it relies on an incorrect legal standard. We evaluate
questions of law de novo and owe no deference to a trial court’s
determination of such questions.”
Blacklidge v. Blacklidge, 96 N.E.3d 108, 113 (Ind. Ct. App. 2018) (quoting Estate
of Kappel v. Kappel, 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012)). We “may
affirm a judgment on any legal theory, whether or not relied upon by the trial
court, so long as the trial court’s findings are not clearly erroneous and support
the theory adopted.” Kappel, 979 N.E.2d at 652.
[23] To recover under a theory of common law negligence, the plaintiff must prove
that there was a duty that was owed by the defendant to the plaintiff; that the
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defendant breached the duty; and that the breach of the duty proximately
caused the plaintiff’s damages. E.g., Caesars Riverboat Casino, LLC v. Kephart,
934 N.E.2d 1120, 1123 (Ind. 2010).
[24] First, as to whether a duty existed, we must examine the relationship between
the parties, the reasonable foreseeability of harm to the injured party, and public
policy concerns. Id.; see also Cooper’s Hawk Indianapolis, LLC v. Ray, 150 N.E.3d
698, 701 (Ind. Ct. App. 2020) (holding that whether a duty exists is a question
of law). The relationship between the parties was that of overlapping
municipalities. The County was aware, and had been for at least two years,
that there were two City water lines under the river near the bridge—and the
logjam. In 2014, City employees asked County employees to stop operating a
backhoe in the river for fear of damage to the water lines. Therefore, not only
was it reasonably foreseeable that major projects in this area could cause
damage to the water lines, the County was actually aware of the potential harm.
As for public policy concerns, it is good public policy to ensure that an entity
doing work near a public utility acts with reasonable care. Having considered
these three factors, we find as a matter of law that the County owed a duty to
the City to act with reasonable care in its removal of the logjam.
[25] Next, as to whether the County breached that duty, we note that whether there
has been a breach is generally a question of fact to be determined by a
factfinder. Bell v. Grandville Cooperative, Inc., 950 N.E.2d 747, 753 (Ind. Ct. App.
2011). As noted above, in considering the trial court’s conclusion that the
County breached its duty, we will neither reweigh the evidence nor assess
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witness credibility and must consider only the evidence favorable to the
judgment. Blacklidge, 96 N.E.3d at 113.
[26] Here, the County was aware of the water lines and their close proximity to the
logjam jobsite. County employees were told both two years before the water
line was damaged and two days before the damage occurred that the water lines
were in that vicinity. In 2014, County employees saw a map including the
water lines. In 2016, County employees did not see or request a map. They did
not ask that the water lines be marked or request a locate of the water lines.2
They did not even notify the City beforehand of the planned date of the project.
Then, in the middle of the project, knowing that there were water lines in the
vicinity, a County employee intentionally set down a homemade device
weighing 800 to 1000 pounds on the riverbed. Even with tension maintained
on the cable such that the full weight of the device was not placed on the
riverbed, the water line broke immediately and water began bubbling up into
the river. And although it was immediately apparent that something was
wrong, the County employees merely drove away from the project site without
informing anyone from the City that things had gone amiss. We have little
difficulty finding that based on this evidence, the trial court did not err by
concluding that the County breached its duty of reasonable care to the City.
2
The County focuses only on the City’s argument that the County should have requested a locate of the
water lines, arguing that there is no common law duty to do so. Even if we accept for argument’s sake that
the County is correct, there is a wealth of other evidence in the record supporting a conclusion that the
County’s actions (or lack thereof) amounted to a breach of its duty of reasonable care.
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[27] Finally, it is undisputed that the City and the Insurer sustained damages as a
result of the incident. Specifically, the City paid $1,000 to the Insurer as its
deductible and the Insurer paid the City’s claim in the amount of $103,370.94.
[28] In sum, we find that the trial court did not err by concluding that the City
proved all elements of its common law negligence claim. Likewise, it did not
err by ordering that the County pay damages totaling $104,370.94.
[29] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
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