Miami County Board of Commissioners v. US Specialty Insurance Company…

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

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