Steury v. Northern Indiana Public Service Co.

520 N.E.2d 1280, 1988 Ind. App. LEXIS 170, 1988 WL 27567

Opinions

ON REHEARING

BUCHANAN, Judge.

NIPSCO seeks rehearing from our decision in Steury v. Northern Indiana Pub. Serv. Co. (1987), Ind.App., 510 N.E.2d 213. In our opinion, we concluded that summary judgment was inappropriate because a contractor, under certain factual cireumstance-es, could be subrogated to the rights of the homeowners in a negligence action against NIPSCO when the home was damaged by an explosion allegedly due to a gas line fracture.

NIPSCO argues on rehearing that the right of subrogation does not arise unless the claim of the homeowners is entirely paid. Assuming that payment is required, our reversal of summary judgment for NIPSCO stands because the facts do not completely resolve this issue. See Creighton v. Caylor-Nickel Hosp. (1985), Ind. App., 484 N.E.2d 1303, trans. denied; Stuteville v. Downing (1979), 181 Ind.App. 197, 391 N.E.2d 629. An inference arises from the facts before us, albeit conflicting, that Steury may have rebuilt or reconstructed the Worls's home in satisfaction of their claim. So, if doubt remains as to the existence of this material fact, or if inferences are conflicting, it must be resolved against NIPSCO, the moving party. See Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc. (1984), Ind.App., 458 N.E.2d 291, trans. denied.

Rehearing denied.

MILLER, P.J., concurs. SULLIVAN, J., concurs with separate opinion.