March 11, 2014

Notices to Obtain Tax Deed Found Sufficient

In a March 2014 decision, the Indiana Court of Appeals found an individual complied with Indiana’s statutory notice requirements to properly obtain a tax deed by sending notices by certified mail1, even though signature upon delivery was not requested, return receipt was not requested, and there was no evidence that delivery of the notice was tracked or verified. Gupta v. Busan, No. 87A01-1307-MI-340, 2014 WL 880697, at *4 (Ind. Ct. App. March 6, 2014). The Court also determined that the notice provided had been reasonably calculated to inform the property owner of the tax sale and petition for tax deed. Id.

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January 14, 2014

WHO SAYS FARMERS DON’T NEED WORKER’S COMP INSURANCE?

Despite efforts to provide a safer work place on the farm, history has shown that agricultural activities are still among the most dangerous in terms of job-related injuries. Indiana law requires most employers to provide worker’s compensation insurance coverage for the benefit of employees. That insurance pays for necessary medical care, lost wages, and permanent impairment from injuries arising out of the employment. It also pays the employer’s costs of investigating and defending the worker’s comp claim, which itself can be expensive.

Disputes often arise as to the nature and extent of an employee’s claimed injury, its cause and whether it actually arose out of the employment. Those issues can be thorny, but this article focuses on whether farm or agricultural employers should have worker’s comp coverage.

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November 19, 2013

In re: Carroll County 2012 Tax Sale (Indiana Utility Law)

An Indiana appellate court has recently upheld the judgment of a trial court, holding that a sewer lien could not be enforced by selling a property at a tax sale when that lien was the only lien that existed on the property.

In In re: Carroll County 2012 Tax Sale, 993 N.E.2d 635 (Ind. Ct. App. 2013), a regional sewer district (“SD”) serviced an area within which the property owners (“Owners”) possessed property. When the Owners did not pay their sewer bills on time, SD perfected a lien against the property and certified those liens to the county auditor and treasurer for collection with the property tax bill. The auditor and treasurer then applied for a judgment and order of sale for the property in the trial court due to satisfy unpaid property taxes and special assessments (the sewer bills). Soon after, the Owners paid the outstanding property taxes, leaving the only lien on the property to be the sewer lien.

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June 17, 2013

Indiana Utility Law - Municipal Eminent Domain and Condemnation of a Utilities Company: Utility Center, Inc. v. City of Fort Wayne, 985 N.E.2d 731 (Ind. 2013)

The Indiana Supreme Court recently reversed the judgment of a trial court which had granted a city’s motion to strike the jury trial request of a utility companies and the city’s motion for partial judgment on the pleadings in a case where the utility company challenged the compensation amount awarded for condemnation of its property by a city’s board of public works under an eminent domain statute.

In Utility Center, Inc. v. City of Fort Wayne, 985 N.E.2d 731 (Ind. 2013), the City of Fort Wayne (“the City”) through its Board of Public Works (“the Board”) passed a resolution appropriating and condemning a fraction of water and sewer facilities owned by Aqua Indiana, Utility Center, Inc. (“Utility Center”) that served approximately 12,000 customers. In 2003, the Board assessed damages of $17,202,499.50, but then adjusted them to $14,759,500.00 in 2004. Utility Center then challenged the condemnation by alleging that the City failed to follow proper eminent domain or condemnation statutes.

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June 12, 2013

Indiana Contract Law: Carmeuse Lime & Stone v. Illini State Trucking, Inc., 986 N.E.2d 271 (Ind. Ct. App. 2013)

An Indiana appellate court recently affirmed a trial court’s decision to dismiss a limestone manufacturer’s complaint seeking indemnity from a trucking company after a complaint by the trucking company subcontractor’s employee was brought against it.

In Carmeuse Lime & Stone v. Illini State Trucking, Inc., 986 N.E.2d 271 (Ind. Ct. App. 2013), an employee of a subcontractor of Illini State Trucking (“Illini”) was injured on Carmeuse Lime & Stone’s (“Carmeuse”) premises after he drove a truck into a ditch to avoid equipment on the opposite side of the road. When he got out of the truck his legs got burnt from lime and other chemicals. He then filed a complaint against Carmeuse alleging premises liability. In response to the employee’s complaint, Carmeuse filed a third party complaint against Illini alleging that at the time of the accident there was a valid contract between Illini and Carmeuse that indemnified Carmeuse from any potential employee injuries resulting from their own negligent acts.

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June 6, 2013

Indiana Municipal Law: Town of Cedar Lake v. Alessia, 985 N.E.2d 55 (Ind. Ct. App. 2013)

The Indiana Court of Appeals reversed and remanded a trial courts grant of summary judgment for the Parks and Recreation Board Members who alleged that the Town of Cedar Lake had improperly removed their positions by dissolving the Parks and Recreation Department.

In Town of Cedar Lake v. Alessia, 985 N.E.2d 55 (Ind. Ct. App. 2013), the Town of Cedar Lake (the “Town”) dissolved the Parks and Recreation Department (the “Parks Department”) and eliminated the Board Members positions by voting in new members under Ordinance 1129 (the “Ordinance”). Under Indiana’s Home Rule Act, an Ordinance is valid unless it is prohibited by the Indiana Code or the Indiana Constitution. Generally, a unit has broad powers of local government, unless it is explicitly denied that power, or it has been exclusively granted to another entity.

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May 24, 2013

Indiana Utility Law and Indiana Water Utility Law: Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447 (Ind. Ct. App. 2012)

An Indiana appellate court recently affirmed a trial court’s decision to dismiss a plaintiff’s complaint for damages, attorney’s fees and an injunction for lack of jurisdiction and the plaintiff’s failure to exhaust administrative remedies prior to filing suit.

In Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447 (Ind. Ct. App. 2012), Veolia turned off Bridges’ water for nonpayment. Bridges then attempted to file a class action lawsuit for breach of contract, seeking a return of her $25 reconnection fee, other unspecified damages, attorney’s fees, and an injunction. Veolia is an independent contractor that managed and operated water treatment and distribution facilities owned by the Department of Waterworks. It moved to dismiss Bridges’ complaint and argued that the trial court lacked subject matter jurisdiction over the matter because she failed to exhaust the administrative remedies available to her at the Indiana Utility Regulatory Commission (“IURC”). The trial court agreed with Veolia and dismissed the complaint for those reasons. Bridges then appealed.

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May 20, 2013

Indemnification Clause Indiana Law: L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031 (Ind. Ct. App. 2012)

An Indiana appellate court reversed the judgment of a trial court which had ruled in favor of a conveyor contractor. While it was an electrical subcontractor that initially brought an action against a conveyor contractor, the contractor filed multiple cross-claims against the subcontractor which resulted in trial court granting the contractor more than a $1.4 million judgment for lost profits and attorney’s fees.

In L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031 (Ind. Ct. App. 2012), Honda contracted with Custom Conveyor, Incorporated (“CCI”) to install conveyor systems for a new factory Honda constructed. Subsequently, CCI subcontracted some of the project to L.H. Controls, Inc. (“LH”), including computer programming and electrical control boxes for some conveyor lines. Soon after, problems and delays arose, which lead to LH falling behind its schedule in completion. This caused Honda to withhold progress payments to CCI. While it took three months longer to install the conveyor system, this did not cause a delay in the ultimate opening of the Honda factory.

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May 16, 2013

Renewable Energy Law: Muscarello v. Winnebago County Board, Case No. 11-2332 (7th Cir. 2012)

A federal appeals court recently affirmed a lower court’s dismissal of a lawsuit where the plaintiff alleged a taking under the federal and Illinois state constitutions, as well as nuisance claims, and procedural challenges to an amendment of a county ordinance in regard to a renewable energy wind project.

In Muscarello v. Winnebago County Board, the plaintiff, a landowner with multiple agriculturally-zoned tracts, filed a lawsuit against the Winnebago County Board (the “County”) on the basis of 2009 amendment to the County’s zoning ordinance that made it easier for an owner of agriculturally-zoned land to obtain permission to build a wind farm. Although no one had yet applied for a zoning clearance or building permit for a wind farm in the County and no wind farm has actually been built anywhere therein, the plaintiff worried that a wind farm on a property adjacent to hers would cause substantial damage including noise, radar and cell phone interference and stray voltage among other colorful claims. While the United States Court of Appeals for the Seventh Circuit acknowledged that some of the plaintiff’s concerns may be speculative, the injury “need be neither certain nor great to confer standing under Article III of the Constitution.”

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May 6, 2013

Indiana Utility Law: Duke Energy Indiana, Inc. v. Office of Utility Consumer Counselor, 983 N.E.2d 160 (Ind. Ct. App. 2012)

The Indiana Court of Appeals affirmed an order from the Indiana Utility Regulatory Commission which denied an electric utility company’s petition to seek deferred-accounting treatment for storm-operating expenses.

In Duke Energy Indiana, Inc. v. Office of Utility Consumer Counselor, 983 N.E.2d 160 (Ind. Ct. App. 2012), a southern Indiana wind storm in September 2008 and an ice storm in January 2009 caused approximately $32 million in damage to Duke Energy Indiana, Inc.’s (“Duke”) electrical system. Duke filed a petition with the Indiana Utility Regulatory Commission (IURC) which sought deferred-accounting treatment for $11.6 million. The Office of Utility Consumer Counselor (OUCC), a state agency charged with representing the interests of ratepayers, consumers, opposed Duke’s petition. It contended that Duke’s proposal constituted single-issue ratemaking and retroactive ratemaking, both of which are generally prohibited.

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April 29, 2013

Indiana Utility Law: Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363 (Ind. Ct. App. 2012)

The Indiana Court of Appeals recently affirmed a trial court’s refusal to set aside an agreement that was entered into by a non-for-profit utility—West Boggs Sewer District (“West Boggs”) and a group of Amish neighbors. The Court also affirmed the trial court’s decision in refusing to award attorney’s fees to West Boggs against most of the Amish parties.

In Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363 (Ind. Ct. App. 2012), West Boggs installed a sanitary sewer structure adjacent to parcels of property owned by a group of individual members of the Old Amish Order community (“Wagler” or “the members”). A state statute allows a utility like West Boggs to compel connection to the sewer system if it is within three hundred feet of an individual’s property line. Because the sewer system came within the statutory requirements, West Boggs sent letters to the members notifying them of the operational availability of the system and that “connection should be made by [these properties] to West Boggs’ system” on or before a certain date.

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March 11, 2013

EEOC Renders Guidance on Use of Arrest and Conviction Records in Employment Decisions

The U.S. Equal Employment Opportunity Commission (the “Commission”), the office which enforces Title VII of the Civil Rights Act of 1964 (“Title VII”), has released guidance this year on the consideration of arrest and conviction records in employment decisions.1 Title VII, as most employers are aware, prohibits employment discrimination based upon race, color, religion, sex, or national origin.

In some instances, an employer’s use of an individual’s arrest record or criminal history in making employment decisions may constitute employment discrimination under Title VII. There are two main ways this can occur. First, if an employer treats criminal information differently for different applicants or employees based upon race, color, religion, sex, or national origin, discrimination may be found based upon disparate treatment. Second, even a neutral employer policy may violate Title VII if it disproportionately impacts individuals protected by Title VII and may be illegal if not related and consistent with a business necessity.

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