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

• Court: Indiana Court of Appeals
• Decided: October 16, 2020
• Docket: 20A-CT-953
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 6 of 14 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

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 7 of 14 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

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 8 of 14 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 Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 9 of 14 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.

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 10 of 14 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

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 11 of 14 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

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 12 of 14 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.

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 13 of 14 [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.

Court of Appeals of Indiana | Opinion 20A-CT-953 | October 16, 2020 Page 14 of 14