December 2, 2014

Indiana Utility Law -- Interpreting Land Development Contracts: Utility Connection Fees

The Indiana Court of Appeals recently interpreted a land developer’s contract with an Indiana town in Carroll Creek Development Company Inc. v. Town of Huntertown, 9 N.E.3d 702 (Ind. Ct. App 2014). The contract provided that the developers could recoup nearly five-hundred thousand dollars of their water main construction costs through connection charges levied against land owners in a defined “excess area” if the land owners chose to directly or indirectly connect to the water main within the subsequent fifteen years.

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October 21, 2014

Electric Utility Law -- OSHA Changes to Construction of Electrical Power Transmission Standards

OSHA’s final rule revised or implemented eleven provisions in the Construction of Electrical Power Transmission Standard, 29 CFR 1926, subpart V, including provisions regarding: (1) host employers and contractors; (2) training; (3) job briefings; (4) fall protection; (5) insulation and working on or near live parts; (6) minimum approach distances; (7) protection from electric arcs; (8) deenergizing transmission and distribution lines and equipment; (9) protective grounding; (10) operating mechanical equipment near overhead power lines; and (11) working in manholes and vaults. OSHA also adopted a new construction standard on electrical protective equipment, 29 CFR 1926.97, and revised general industry and construction sections 29 CFR 1910.137 and 1910.269 mostly to incorporate the changed standards.

The host employers and contractors provision includes requirements for host employers and contract employers to exchange information on hazards and on the conditions, characteristics, design, and operation of the host employer’s installation. It also includes a requirement for host employers and contract employers to coordinate their work rules and procedures to protect all employees.

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October 14, 2014

Interpreting Land Development Contracts: Utility Connection Fees

The Indiana Court of Appeals recently interpreted a land developer’s contract with an Indiana town in Carroll Creek Development Company Inc. v. Town of Huntertown, 9 N.E.3d 702 (Ind. Ct. App 2014). The contract provided that the developers could recoup nearly five-hundred thousand dollars of their water main construction costs through connection charges levied against land owners in a defined “excess area” if the land owners chose to directly or indirectly connect to the water main within the subsequent fifteen years.

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October 7, 2014

Drilling Down on Termination Clauses in Oils and Gas Leases
L.C. Neely Drilling, Inc. v. Hoosier Energy Rural Electrical Cooperative, Inc., 8 N.E.3d 251 (Ind. Ct. App. 2014)

The Indiana Court of Appeals recently issued an opinion explaining the difference between two common types of termination clauses in oils and gas leases. The first, known as a "drill or pay" clause, obliges the lessee to either commence production within a certain timeframe or pay advance royalties, but does not operate to automatically terminate the lease in the event of a breach. The second, called an "unless" clause, provides that the lease will automatically terminate if the conditions are not met.

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L.C. Neely Drilling, Inc. v. Hoosier Energy Rural Electrical Cooperative, Inc., 8 N.E.3d 251 (Ind. Ct. App. 2014)
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July 2, 2014

Indiana Labor Law - Do the Employee’s Online Actions Fall Within the Scope of the Act?

It is often difficult to discern whether the employee’s conduct online—whether it be posting pictures, writing comments about the work environment or the employer, will constitute protected concerted activity. This determination will determine what actions, if any, an employer may take against an employee when s/he as posted online content, and more broadly, the cases which follow can allow an employer to craft legally permissible policies and handbooks.

No protected concerted activity:

For example, in Karl Knauz Motors, Inc., 358 NLRB 164 (2012), a BMW automobile dealership (the Respondent) discharged a sales representative for photos and comments that he posted to his Facebook page. The first post was about a sales event for a new model and included sarcastic comments about the quality of the food (hot dogs, chips, and bottled water) being served at a marketing event for a luxury automobile.

The second incident involved an accident at an adjacent dealership in which a customer’s 13-year old child was sitting in a vehicle’s driver’s seat when the vehicle accelerated over the customer’s foot and into a pond while the child was inside. The employee posted photos and comments mocking the incident on his Facebook page. A competitor told the Respondent about the posts and the employee was discharged. The Board determined that these comments and photos which led to his termination did not amount to protected and concerted activity under the Act.

Additionally, in Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the employer discharged an employee for her Facebook posts regarding work. After discussing nonwork issues with a private group of 10 current and former coworkers, the employee turned to the conversation to work and wrote: “They [the employer] are full of s**t…They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F***…FIRE ME…Make my day…”

The employer found about this posting the following day. It terminated her, stating that it was “obvious” she was no longer interested in working there and the employer was concerned about having the employee work with customers given her feelings about her job. The Board held that the employee did not engage in protected concerted activity and, therefore, the employer did not violate the Act when it terminated her employment. Although the postings referenced her work situation, her comments amounted to nothing more than individual griping rather than any shared concerns about working conditions.

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June 27, 2014

Indiana Business Law - CBR Event Decorators, Inc. v. Gates

On March 3, 2014 the Indiana Court of Appeals clarified that shareholders cannot be held personally liable for attorney fees in a wrongful stop payment of a check under Indiana Code section 26–2–7–5 unless the corporate veil can be pierced. CBR Event Decorators, Inc. v. Gates, 4 N.E.3d 1210 (Ind. Ct. App. 2014). In CBR I, the court held that the corporate veil could not be pierced in this case, but created some confusion in dicta about whether the shareholders were still liable for attorney fees. 962 N.E.2d 1276 (Ind. Ct. App. 2012). The court clarified in CBR II that the shareholders are not personally liable absent successful piercing of the veil, or in cases where the shareholders have otherwise been found personally liable for the wrongful stop payment.

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.


June 21, 2014

Indiana Utility Law—Failure to Supply Accurate Location of Underground Facilities Bars Negligence Suit

In January, 2014 the Indiana Court of Appeals found that failure to supply an accurate map of underground facilities may bar negligence suits against contractors who properly file an intent to excavate with the Indiana Underground Plant Protection Service in compliance with the Indiana Damage to Underground Facilities Act (DUFA). City of Fort Wayne v. Northern Indiana Public Service Company, 2 N.E.3d 60 (Ind. Ct. App. 2014). If the contractor files the intent to excavate and obtains defective "locates" from the operator of the underground facility, then the contractor has a defense to damages claims under Indiana Code § 8-1-26-22(c).

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June 18, 2014

Indiana Utility Law: Changes to the Indiana Code for Temporary Discounts and Private Generation Projects in HEA 1423

HEA 1423 was signed into law on March 27, 2014 and it makes two important changes.

1) The new law expands the temporary discount program for companies hiring in Indiana by:

  • reducing the threshold for utility discount applications from a maximum demand of at least ten megawatts to five megawatts
  • opening the discount to prospective employers, who may be considering locating a new facility in Indiana. (Previously, the discount was available only to existing employers expanding operations.)

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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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