Indiana Business Lawyer Blog

Many co-ops use outside companies for pole testing and inspection. These companies often propose a form agreement with “standard” terms. Pricing is sometimes addressed in a separate letter with the base agreement remaining in effect for years.

Beware of standard terms proposed by some companies. For example, the contract utilized by one prominent company requires the utility to give it written notice within thirty days of any incident resulting in the breakage of a pole. Also the utility is required to retain the pole in storage for inspection by the company. Should the notice not be given or the pole not be preserved and the inspection company would later be sued on some theory, the contract requires the utility to bear the company’s defense costs and any liability that might result.

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Indiana utility lawyers took note on June 9, 2011, when the Indiana Court of Appeals issued a decision in United States Steel Corporation versus Northern Indiana Public Service Company (NIPSCO) addressing the issue of when a company becomes a public utility.¹ The dispute arose after ArcelorMittal acquired property within U.S. Steel’s large-scale northern Indiana operation and began to purchase certain utilities from U.S. Steel, namely electricity and gas.

Continue reading "Indiana Utility Law: When Does a Company Become a Public Utility?" »

Hallmark of Jeffersonville, L.P. is a developer of multi-family apartment buildings. In 2006, Hallmark planned to develop three multi-family apartment buildings in the City of Jeffersonville (the “City”). Two of the three buildings were to include twenty-four units and the other one was to include thirty-two units. Hallmark inquired with the City as to the cost of the necessary permits. The City informed Hallmark, on December 28, 2006, that it owed the City a total of $120,000, or $1,500 per unit, in order to connect to the City’s sewer system (this fee is known as a “tap-in” fee). Hallmark submitted the $120,000 tap-in fee by January 5, 2007 and the City agreed to connect Hallmark’s development to the sewer system. After Hallmark’s submission of its payment, it realized that it may have paid more than what was necessary under the City’s sewer tap fee ordinance and believed that it had been overcharged.

Continue reading "Indiana Utility Law and Indiana Municipal Law: City of Jeffersonville v. Hallmark at Jeffersonville, L.P. 937 N.E.2d 402 (Ind. Ct. App. 2010)" »

In November 2010, the Court of Appeals of Indiana rejected a claim that a developer voluntarily overpaid a sewer tap-in fee that was incorrectly calculated by the City of Jeffersonville.

In City of Jeffersonville v. Hallmark at Jeffersonville, the Court held that the voluntary payment doctrine did not preclude the developer from receiving a refund of approximately $105,000. In this case, Hallmark, the developer, was constructing three buildings which included a total of eighty units. In order to obtain the proper permits, Hallmark was required to pay a sewer tap-in fee under the City’s ordinance related to sewer services. Hallmark paid that fee, which was assessed by the city engineer to be $1,500 per unit, for a total of $120,000.

Continue reading " Indiana Utility Law and Indiana Municipal Law - Indiana Court of Appeals Affirms Ruling that Developer’s Overpayment of Sewer Tap-In Fee Based on City’s Miscalculation Was Not an Unrefundable Voluntary Overpayment " »

‘The Commission finds that debris associated with routine maintenance, in a maintained area, should be removed in a timely manner. Generally, absent intervening inclement weather that may pull crews from maintenance activities, it is reasonable to expect normal maintenance trimming debris will be promptly removed within three calendar days. … The Commission views standard trimming practices differently from restoration of service following storm damage. Utilities, and ultimately ratepayers, should not have to pay for the cost of vegetation removal necessitated by storm damage. … Accordingly, we find that it is not appropriate to require the removal of storm-related debris. It is reasonable for the property owners to remain responsible for such debris and for utilities to remain responsible for debris resulting only from routine vegetation management.” (pages 104-105)

Continue reading "IURC Tree Trimming Order (Part 4)" »

When discussing standard clearances, the Commission stated: “Simply put, a "one-size-fits-all" approach is not appropriate. Furthermore, the record demonstrates that there already are nationally recognized industry standards and best practice vegetation management standards and practices for tree trimming which the Respondents follow. …The record also establishes that the adoption of a uniform statewide minimum clearance distance would increase costs and threaten reliability. … Line clearances should continue to take into consideration the characteristics of the locality, the electric facility and the health of the tree, along with the other pertinent factors identified by Respondents. However, it is imperative that the utilities actually consider and apply these factors in determining the appropriate clearance for a given tree or line. The record is replete with customer complaints that strong, healthy, mature trees were trimmed as aggressively as trees posing bigger risks to reliability. …If existing easements or rights of way are insufficient, utilities either need to obtain such additional easements as necessary from the property owner, or obtain the consent of the property owner prior to trimming vegetation outside of the easement or right of way. Second, as noted above, the ANSI standard leaves substantial judgment in the hands of the utility in determining how a tree will be trimmed. We find that if a tree would have more than 25% of its canopy removed, the utility must obtain consent from the property owner. If a property owner does not consent, and the owner and the utility are unable to mutually agree on how the tree can be trimmed to provide sufficient clearance in order to maintain reliable electric service, the utility shall consider removing the tree, at the utility's expense, as long as it has secured the requisite easements to allow its personnel onto the owner's property, or inform the customer that it will need to make non-ANSI standard cuts in order to provide clearance. ¹³ To the extent removal is required, the rulemaking discussed below in Paragraph 7(D) will also address a tree replacement program.” (pages 99-100)

Continue reading "IURC Tree Trimming Order (Part 3)" »

Here are some of the key comments and statements contained in the Order:

“…we find that vegetation management plays a key role in keeping lines and facilities clear of trees and brush, and helps to reduce the number of service interruptions to Indiana consumers. We find Respondents understand and have incorporated this goal into their respective VMPs. We further find that utilities must be able to respond quickly to vegetation issues before they turn into reliability problems and that utilities must not be unreasonably delayed in performing vegetation management work by burdensome regulations or a lack of access to their facilities.” (page 95)

Continue reading "IURC Tree Trimming Order (Part 2)" »

On November 30, 2010, the IURC issued its 111 page tree trimming order in cause number 43663. Some of the mandates of the Order apply to all regulated utilities, including the regulated REMCs and other portions which are referred to a rule making do not apply directly. It is clear from the Order that the Commission carefully considered the testimony presented by the REMCs and for the most part agreed with what you said. Even though these provisions do not apply directly to the unregulated REMCs, they are likely to become the de facto standard that many members will expect the unregulated REMCs to meet. Here are the highlights:

Continue reading "IURC Tree Trimming Order (Part 1)" »

Experience has shown that motor vehicles occasionally collide with utility poles located along roads and highways. Causes can include driver error, icy road conditions, animal dart out, and collisions with other vehicles. Bodily injury sometimes results and that brings the prospect of litigation.

Those injured may look to the utility for potential recovery. Electric cooperatives must be prepared to investigate and defend claims that may be brought even up to two years after the accident.

Electric cooperatives, like other utilities, typically have the authority to locate poles and structures in the road right-of-way. Often the available right-of-way is limited, resulting in the pole being close to the road’s edge. Some traffic safety engineers contend that utility poles (as well as mailboxes, bridge culverts, fences, trees, etc.) should be further from the roadway. A few of those safety engineers will testify against utilities in litigation..

Continue reading "Vehicular Collisions with Utility Poles – Actions Coops Should Take" »