from the Lake Superior Court The Honorable Julie N. Cantrell,
Judge The Honorable Michael N. Pagano, Magistrate Trial Court
Cause No. 45D09-1803-SC-669
Attorneys for Appellant Edward P. Grimmer Daniel A. Gohdes
Crown Point, Indiana.
Attorney for Appellee Alyssa N. Speichert Newby Lewis
Kaminski & Jones, LLP LaPorte, Indiana.
OF THE CASE
Appellant-Plaintiff, Northern Indiana Public Service Company
(NIPSCO), appeals the small claims court's attribution of
fault to nonparty Ziese & Sons Excavating, Inc. (Ziese)
in its suit against Josh's Lawn & Snow, LLC
NIPSCO presents one issue on appeal, which we restate as:
Whether the small claims court's judgment attributing
fault to nonparty Ziese in its award of damages to NIPSCO was
AND PROCEDURAL HISTORY
In the spring of 2017, Armani Development, Inc. (Armani) was
constructing new homes in Schererville, Indiana. One of those
homes was located at 406 Waterford Circle South (the home),
where a natural gas line owned and operated by NIPSCO had
been installed. Armani hired Ziese to grade the soil around
the home and to install a drainage swale. In the process of
installing the swale, Ziese removed sixteen-to-eighteen
inches of soil, which left part of NIPSCO's gas line
covered with only approximately two inches of soil. Ziese did
not puncture or damage NIPSCO's gas line.
Armani hired Josh's to do landscaping work at the home.
Josh's did not contact NIPSCO prior to commencing work at
the home, as required by Indiana's Underground Plant
Protection Act (UPPA), so that NIPSCO could mark any
underground gas lines at the home. On April 26, 2017, after
the drainage swale had been installed, a Josh's employee
used a Bobcat-style pulverizing machine to loosen the soil in
preparation for planting grass. The pulverizing machine had
one-inch spikes that penetrated and crushed the ground. In
the process of pulverizing, Josh's employee punctured
NIPSCO's gas line. The gas line was shut off and quickly
On March 13, 2018, NIPSCO brought suit in small claims court
against Josh's seeking $1, 020.74 for the cost of the
repairs to its gas line and $1, 750 in statutory
attorney's fees. NIPSCO alleged breach of statutory
duties under the UPPA, common law negligence, and trespass.
In its answer to NIPSCO's complaint, Josh's asserted
the nonparty defense that Ziese had partially or fully caused
NIPSCO's claimed damages.
On November 19, 2018, the small claims court held a trial on
NIPSCO's complaint. NIPSCO argued that Josh's had
breached its statutory duty under the UPPA to alert NIPSCO of
its intention to excavate around the home so that markers
could be placed, and the line avoided. NIPSCO contended that
the UPPA did not provide any exemption for those excavating
the surface of ground, did not provide that excavators
maintain soil depth such that Josh's could not presume
adequate gas line depth, and did not create an exemption
allowing subcontractors to rely upon their general
contractors to warn of shallow-depth lines. As a result,
NIPSCO argued that no fault could be attributed to Ziese.
Josh's argued that up to 95% of fault could be attributed
to Ziese, as it had left only two inches of soil covering
NIPSCO's gas line when it installed the drainage swale.
The small claims court ruled in favor of NIPSCO but
attributed 90% ...