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Northern Indiana Public Service Co. v. Josh's Lawn & Snow, LLC

Court of Appeals of Indiana

August 14, 2019

Northern Indiana Public Service Company, Appellant-Plaintiff,
v.
Josh's Lawn & Snow, LLC, Appellee-Defendant.

          Appeal 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.

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] 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 (Josh's).

         [¶2] We affirm.

         ISSUE

         [¶3] 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 clearly erroneous.

         FACTS AND PROCEDURAL HISTORY

         [¶4] 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.

         [¶5] 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 repaired.

         [¶6] 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.

         [¶7] 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% ...


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