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03/31/88 PETE H. STEURY v. NORTHERN INDIANA PUBLIC

Filed: March 31, 1988.

PETE H. STEURY, APPELLANT (PLAINTIFF),
v.
NORTHERN INDIANA PUBLIC SERVICE COMPANY, INC., APPELLEE (DEFENDANT)



APPEAL FROM THE HUNTINGTON CIRCUIT COURT, Cause No. C-83-111, The Honorable Dane Mann, Judge.

Buchanan, J. Miller P.j., Concurs. Sullivan, J. Concurring With Separate Opinion.

Author: Buchanan

ON REHEARING

BUCHANAN, J.

NIPSCO seeks rehearing from our decision in Steury v. Northern Indiana Pub. Serv. Co. (1987), Ind.App., 510 N.E.2d 213. In our opinion, we concluded that summary judgment was inappropriate because a contractor, under certain factual circumstances, could be subrogated to the rights of the homeowners in a negligence action against NIPSCO when the home was damaged by an explosion allegedly due to a gas line fracture.

NIPSCO argues on rehearing that the right of subrogation does not arise unless the claim of the homeowners is entirely paid. Assuming that payment is required, our reversal of summary judgment for NIPSCO stands because the facts do not completely resolve this issue. See Creighton v. Caylor-Nichel Hosp. (1985), Ind.App., 484 N.E.2d 1303, trans. denied; Stuteville v. Downing (1979), 181 Ind. App. 197, 391 N.E.2d 629. An inference arises from the facts before us, albeit conflicting, that Steury may have rebuilt or reconstructed the Worls's home in satisfaction of their claim. So, if doubt remains as to the existence of this material fact, or if inferences are conflicting, it must be resolved against NIPSCO, the moving party. See Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc. (1984), Ind.App., 458 N.E.2d 291, trans. denied.

MILLER, P.J. CONCURS.

SULLIVAN, J. CONCURRING WITH SEPARATE OPINION.

Disposition

Rehearing denied.

Opinion ON REHEARING

SULLIVAN, J., CONCURRING

The sole question resolved by our earlier opinion was whether Steury had standing to bring the action against NIPSCO. We, properly I think, answered in the affirmative. We did not decide the extent, if any, of Steury's permissible recovery.

As NIPSCO concedes in its Petition for Rehearing, steury had a standing-conferring interest, at least to the extent of the $100 deductible which was not ...


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