Articles Posted in Construction Law

The Indiana General Assembly recently made changes to the Indiana Underground Plant Protection statute (Indiana Code § 8-1-26) which will take effect July 1, 2017. S.B. 472, 120th Gen. Assem., Reg. Sess. (Ind. 2017). The main change in this chapter is the creation of a new voluntary “design information notice” which applies to advance planning efforts relating to a demolition or excavation project. The amendments also establish procedures for Indiana 811 and operators once a design information notice is received.

A design engineer, consultant, or architect may voluntarily submit a design information notice to Indiana 811, which must include contact information for the person serving the notice, the person responsible for project planning activities, and the person planning to perform the excavation or demolition, if known. The notice must also include the scope and location of the proposed project and whether white lining will be performed. The person responsible for the project may not serve more than two design information notices for the same project within any 180-day period. Additionally, if the person serving the design information notice is unable to provide the physical location of the proposed excavation or demolition project with the location’s address or legal description, the person must perform white lining in the area affected by the proposed project. Indiana 811 must receive the notice at least ten working days, but not more than twenty calendar days before preliminary planning activities commence. Indiana 811 is required to adopt policies for processing design information notices, including alerting the operators of underground facilities that will be affected by the proposed project and providing this list of operators to the party serving the design information notice.

Once an operator or utility receives a design information notice, it must, within ten working days, contact the person serving the notice and inform them whether the operator has underground facilities located in the project area. If the operator does have underground facilities in the area, it must provide either a description of the location and type of facility affected by the proposed project, allow an inspection of the operator’s drawings or records for all of the operator’s underground facilities within the project area, or mark the location of the operator’s underground facilities within the project area with temporary markers. The operator must also, where applicable, provide the person serving the notice with the necessary maps or information to describe the location of all facility markers marking the underground utility. An operator may reject a design information notice where there are security considerations or the operator would be placed at a competitive disadvantage by producing the information. An operator who rejects a design information notice must provide notice to the person serving the design information notice and may request additional information.

The Indiana Supreme Court ruled evidence of more than financing alone must be presented to demonstrate that the City has engaged in a policy-oriented decision making process  in order for discretionary function immunity to apply.  Cathy Beloat sued the City of Beech Grove after breaking her leg by stepping in hole in Main Street in the City. The City of Beech Grove claimed discretionary function immunity and presented an affidavit from its Mayor and minutes of the City Council and the Board of Works and Safety. The Mayor’s affidavit was not enough to demonstrate that an official policy decision was made. The minutes of City Council and the Board of Works and Safety, while establishing that the financing was discussed and approved, did not demonstrate the cost-benefit analysis, weighing of other options, and prioritization discussions that are required to decide that the City has engaged in a policy-oriented decision making process. The Court found that while the inference could be drawn that the City Council and/or the Board of Works and Safety did engage in the policy discussion necessary, the standard of review forbids that kind of inference.

Based on the Court’s decision, evidence of financing alone is not enough to show that the City completed all that was necessary to be shielded by discretionary function immunity. Had minutes been produced that demonstrated the cost-benefit analysis, weighing of options, why specific repairs were to be made and why total reconstruction rather than piecemeal, the Court might likely have found the City was immune.

James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.

The Indiana Court of Appeals recently reversed a trial court’s grant of judgment in favor of equipment supplier where a subcontractor filed suit against that supplier to challenge the supplier’s claim under the Personal Liability Notice (PLN) Statute. In R.T. Moore Co., Inc. v. Slant/Fin Corp, 966 N.E.2d 636 (Ind. Ct. App. 2012), the materials supplier (“Slant/Fin”) provided construction materials which were ordered from a second supplier who received the original order from a subcontractor. When the second supplier failed to pay Slant/Fin for the materials, Slant Fin filed a “Notice of Personal Liability” claim pursuant to Ind. Code section 32-28-3-9 (“the PLN Statute”) against the owners of the construction project for monies it believed it was owed. To protect against the possibility of double payment, the owners withheld monies owed to the construction project participants. The subcontractor then filed suit against Slant/Fin.
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