Articles Posted in Appeals

On December 16, 2016, the Court of Appeals found that “the reasonable necessity of an intersection expansion outweighed whatever injurious effect that expansion would have on an electric utility’s enjoyment of its easement.” Duke Energy Indiana, LLC v. City of Franklin, 41A01-1607-CT-1549, at 23. Duke Energy Indiana, LLC (“Duke”) had an easement for the transmission of electrical energy in the area of the City of Franklin’s proposed traffic plan, which would connect a four-lane state road to two city streets. Duke, believing that the plan would unreasonably interfere with its easement rights, filed for a preliminary injunction. The trial court denied the request, finding that Duke failed to establish unreasonable interference, and therefore, failed to show a reasonable likelihood of success at trial. Duke asserted that the increased volume and speed of traffic proceeding past the utility pole, located adjacent to and just northwest of the proposed intersection, would increase the hazard to maintenance and repair crews. The trial court found that Duke did not show material impairment, unreasonable interference, or irreconcilable conflict. Instead, the trial court found that Duke essentially argued that to repair and maintain the utility pole and transmission lines, Duke’s crews would interfere with the public’s use of the road. While the court found this concern valid, it did not address the issue of Duke’s use, and the need for additional traffic measures was not found to equate unreasonable interference with Duke’s easement. Duke appealed.

The Court of Appeals addressed Duke’s two claims related to its contention of a reasonable likelihood of success on the merits at trial: (1) the City should not be able to expand the intersection because it does not have adequate property interests in portions of the land and (2) the proposed expansion of the intersection unreasonably burdens its rights pursuant to the easement. The Court of Appeals found that the first claim was essentially a trespass action. However, as an easement holder, Duke lacked standing to maintain an action for trespass for invasion of a right of way or easement. As for the second claim, the Court found that the proposed intersection was a reasonably necessary use of the City’s right-of-way, as it will beautify the corridor, enhance safety, and spur growth. Duke would still be able to repair and maintain the transmission lines and utility poles by simply using additional traffic measures. Ultimately, the Court of Appeals affirmed the trial court’s decision, finding that the reasonable necessity of the expansion outweighed the injury to Duke’s enjoyment of its easement.

Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse 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.

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.
Continue reading

In Dep’t of Waterworks v. Community School Corp. of Southern Hancock County, the Indiana Court of Appeals recently affirmed the trial court’s holding that a school may connect a new facility to an existing water main through the use of a service pipe instead of using a water main extension. Dep’t of Waterworks for Consol. City of Indianapolis v. Cmty. Sch. Corp. of S. Hancock County, 933 N.E.2d 880 (Ind. Ct. App. 2010). The Court of Appeals relied on the Indiana Utility Regulatory Commission’s (IURC) determination that the “the [Water Company’s departmental] rules do not preclude the School from connecting a service pipe to its new facility from an existing main.”

The Indianapolis Department of Waterworks unsuccessfully argued that the IURC’s decision was contrary to law because the School’s new facility “does not abut an existing main as required…by the rules.” The Department of Waterworks also argued against the IURC’s factual determinations concerning the economical decision by the school. According to the estimates for the project, it would have cost the School approximately $412,000 if a new main was constructed. In contract, connection of a service pipe to an existing water main would only cost the School approximately $168,000.
Continue reading

The Indiana Court of Appeals recently shed more light on what constitutes a “special relationship” necessary for a plaintiff to establish constructive fraud without proving the five traditional elements of constructive fraud. American Heritage Banco, Inc. v. Cranston, 928 N.E.2d 239 (Ind. Ct. App. 2010).

Indiana case law on constructive fraud is, quite frankly, a mess. There are at least two types of constructive fraud. One form of constructive fraud requires five elements. The five elements include:

(i) a duty owing by the party to be charged to the complaining party due to their relationship; (ii) violation of that duty by the making of deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak exists; (iii) reliance thereon by the complaining party; (iv) injury to the complaining party as a proximate result thereof; and (v) the gaining of an advantage by the party to be charged at the expense of the complaining party.
Continue reading

Indiana utilities and Indiana utility lawyers should be aware that the Indiana Supreme Court recently had the opportunity to consider the standard of review that courts follow in reviewing utility regulatory settlements of an administrative agency. N. Ind. Pub. Serv. Co. v. U.S. Steel, 907 N.E.2d 1012 (Ind. 2009). The case involved a dispute regarding a settlement agreement entered into between an Indiana public utility and a steel production facility. The agreement arose out of a previous dispute between the two parties, and had been submitted to the Indiana Utility Regulatory Commission (“IURC”) at the time for approval. However, years later when a provision of the agreement became effective, there was a disagreement between the parties regarding its interpretation. U.S. Steel filed a complaint with the IURC seeking to enforce its interpretation of the agreement, and the IURC ultimately granted summary judgment to U.S. Steel on this issue. Id. at 1015 However, the Indiana Court of Appeals reversed, and the Indiana Supreme Court granted transfer. Id.

In hearing the case, the Indiana Supreme Court discussed the standards of review which apply when considering decisions of administrative agencies. Id. at 1016. The Court stated that such reviews were multi-tiered, the first level of review being “whether there is substantial evidence in light of the whole record to support the Commission’s findings of basic fact.” Id. (citing Citizens Action Coalition of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610, 612 (Ind. 1985)). The Court noted that decisions of the IURC will stand under this standard “unless no substantial evidence supports it.” Id. (citing McClain v. Review Bd. of Ind. Dept. of Workforce Dev., 693 N.E.2d 1314, 1317-18 (Ind. 1998)). Under the standard, a court does not reweigh evidence or assess witness credibility but only considers evidence in a light most favorable to the IURC’s findings. Id.
Continue reading

Here is a case that could describe many farmers and other businessmen retaining independent contractors. It is summer time and paint crews travel from farm to farm offering to paint grain bins or other outbuildings. Almost every farmer owning grain bins will have had this experience and many of us have hired the crews to perform painting tasks. Do you also require the contractor to produce or sign a certificate of insurance that the contractor has insurance, including workers’ compensation insurance for their employees? My guess is that many farmers seal the deal verbally and move on after the price is agreed upon. Read on….

Indiana Supreme Court has granted transfer of a case involving Indiana’s workers’ compensation statute and a farmer’s insurance policy which aimed at excluding the farmer’s liability coverage. Everett Cash Mutual Insurance Company vs. Rick Taylor and Katrina Taylor, No. 02A03-0808-CV-386 (Ind. Ct. App. 2009), transfer granted (September 3, 2009).

In Everett, a farmer employed an independent contractor business to paint his house, grain bin, and barn. The farmer did not check to see if the business carried workers’ compensation insurance for its employees and in fact they did not. One of the business’ employees came into contact with an electrical wire while painting and was injured.

The employee initially filed a workers’ compensation claim against the independent contractor business, but he discovered the business had no such insurance. He then amended his complaint to name the farmer, alleging the farmer failed to verify whether the independent contractor business had workers’ compensation insurance pursuant to Indiana Code 22-3-2-14(b). At no time did the employee file any tort-related claims against the farmer.
Continue reading

The Indiana Court of Appeals recently reviewed the enforceability of a three-year, 50-mile radius non-compete agreement for a physician in Mercho-Roushdi-Shoemaker-Dilley Thoraco-Vascular Corporation v. Blatchford, 900 N.E.2d 786 (Ind. Ct. App. 2009). Indiana business lawyers and their clients will benefit from the clarification offered by the Court. The case is noteworthy because the court held the non-compete agreement to be unenforceable, not because of the enormous geographical area, but solely because the particular physician was uniquely qualified to provide cardiovascular services in Terre Haute and the patients in Terre Haute would be harmed if the court enforced the non-compete clause.

Mercho-Roushdi-Shoemaker-Dilley Thoraco-Vascular Corporation (“MRSD”) is a physician group practice that provides cardiovascular medical services in both Indianapolis and Terre Haute. Blatchford was a shareholder of MRSD and a cardiovascular surgeon employed by MRSD who signed non-compete agreements pursuant to both his shareholder agreement and his employment agreement. Both non-compete agreements prohibited Blatchford from competing with MRSD or performing cardiovascular medical services for three years within a 50-mile radius around Terre Haute and a 50-mile radius around Indianapolis. After a dispute arose and MRSD terminated Blatchford’s employment, MRSD brought suit to enforce the non-compete agreement and requested a preliminary injunction to prohibit Blatchford from practicing in Terre Haute.
Continue reading