MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         Sep 10 2018, 9:07 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Patrick B. McEuen                                        Francis A. Veltri
McEuen Law Office                                        Travelers Staff Counsel Indiana
Portage, Indiana                                         Merrillville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Al Seng,                                                 September 10, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CC-43
        v.                                               Appeal from the Lake Superior
                                                         Court
Indiana-American Water Co.,                              The Honorable Elizabeth Tavitas,
Inc.,                                                    Judge
Appellee-Defendant                                       Trial Court Cause No.
                                                         45D03-1412-CC-1076



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018                  Page 1 of 9
                                             Case Summary
[1]   Al Seng appeals the trial court’s grant of summary judgment in favor of

      Indiana-American Water Co., Inc. (“IAWC”), stemming from a flooding

      incident that resulted in damage to a home that he was renovating. He asserts

      that the trial court erred in granting summary judgment and in denying his

      motion to correct error. We affirm.


                                 Facts and Procedural History
[2]   Seng owns a construction company. Part of his business involves flipping

      houses. In 2013, he was renovating a home (“the property”) for eventual resale.

      Seng installed new plumbing and turned on the water to the property. By

      autumn 2013, Seng had received two disconnect notices from IAWC for

      nonpayment. Seng had no contact with IAWC concerning the notices. In early

      October, around the time of the second notice, Seng suspended his work on the

      property due to a lack of funds and decided to resume the work the next spring.

      He had the electricity turned off and decided to spend part of the winter

      working in Florida. He did not recall flushing the pipes before he left. On

      October 10, 2013, IAWC executed an internal disconnect work order to shut off

      water service to the property. Three days later, an IAWC technician went to

      the property to shut off the water but did not completely shut off the valve.

      Seng did not call IAWC or go to the property to see whether the water had been

      turned off.




      Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 2 of 9
[3]   Six months later, Seng decided to return to the property to resume his

      renovations. On April 19, 2014, a representative from the power company

      came to turn on the electricity, and when the power was restored, Seng

      discovered that the basement had flooded due to a frozen water pipe.


[4]   Seng filed a complaint against IAWC, alleging negligence and breach of

      contract. The complaint included an allegation that IAWC assumed a duty to

      disconnect his service. IAWC filed a motion for summary judgment, with a

      supporting memorandum and designated materials. Seng filed a memorandum

      in opposition, in which he argued that IAWC had a common law duty to

      disconnect his water service and that IAWC negligently failed to do so. Neither

      party requested a hearing. The trial court issued an order granting summary

      judgment in favor of IAWC on all issues.


[5]   Seng filed a motion to correct error, in which he raised the issue of assumed

      duty. The trial court conducted a hearing, and Seng argued that IAWC

      “assumed a duty to shut off the water as threatened.” Tr. Vol. 2 at 5. IAWC

      argued that Seng had waived the issue of assumed duty by failing to address it

      in his materials in opposition to summary judgment. At the close of the

      hearing, the court instructed the parties to submit authority on the applicability

      of waiver. The court held a second hearing and heard argument on the waiver

      issue. The court denied Seng’s motion to correct error, finding that he waived

      the issue of assumed duty by failing to raise it in his summary judgment

      materials. Seng now appeals. Additional facts will be provided as necessary.



      Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 3 of 9
                                     Discussion and Decision
[6]   Seng contends that the trial court erred in granting summary judgment in favor

      of IAWC. We review a summary judgment de novo, applying the same

      standard as the trial court and drawing all reasonable inferences in favor of the

      nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229

      (Ind. Ct. App. 2011).


[7]   Summary judgment is appropriate if the designated evidence shows that there is

      no genuine issue as to any material fact and that the moving party is entitled to

      judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule

      56(C). The moving party bears the onerous burden of affirmatively negating an

      opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, the nonmoving party

      must “come forward with contrary evidence” showing a genuine issue for the

      trier of fact. Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009). The

      nonmoving party cannot rest upon the allegations or denials in the pleadings.

      Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005).


[8]   In determining whether issues of material fact exist, we neither reweigh

      evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

      (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

      facts established by the designated evidence favoring the nonmoving party. Brill

      v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 4 of 9
       A trial court’s grant of summary judgment arrives on appeal clothed with a

       presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a grant

       of summary judgment on any legal basis supported by the designated evidence.

       Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).


[9]    Seng’s underlying action is for negligence.1 To recover on a theory of

       negligence, a plaintiff must establish: “(1) duty owed to plaintiff by defendant;

       (2) breach of duty by allowing conduct to fall below the applicable standard of

       care; and (3) compensable injury proximately caused by defendant’s breach of

       duty.” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind.

       2016). “Absent a duty, there can be no breach, and therefore, no recovery for

       the plaintiff in negligence.” Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind.

       2011) (quoting Vaughn v. Daniels Co. (West Virginia), 841 N.E.2d 1133, 1143

       (Ind. 2006)). The determination of whether a duty exists is a question of law to

       be decided by the court. Id.


[10]   The trial court issued findings of fact as part of its summary judgment order.

       “Special findings are not required in summary judgment proceedings and are

       not binding on appeal.” Warren v. Warren, 952 N.E.2d 269, 273 (Ind. Ct. App.

       2011). However, the court’s special findings offer valuable insight into its

       rationale and therefore help facilitate our review. Id.




       1
         Seng’s complaint alleged both breach of contract and negligence. Because he has effectively abandoned his
       contract claim, we limit our discussion to his negligence claim. See Tr. Vol. 2 at 4-5 (Seng conceding that
       there is no contractual or statutory obligation for IAWC to carry out its disconnect threat due to
       nonpayment).

       Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018                Page 5 of 9
[11]   IAWC sought summary judgment based on a lack of duty, arguing that the act

       of sending a disconnect notice does not amount to a duty to carry out the threat

       and actually disconnect service. The trial court agreed and granted summary

       judgment. See Appellant’s App. Vol. 2 at 11 (court’s conclusion that Seng

       “failed to submit any authority establishing that [IAWC] had a statutory or

       common law duty to Plaintiff to carry out its threat to disconnect service due to

       nonpayment of the water bill.”). The trial court’s special findings reflect that

       after having received two disconnect notices, Seng ran out of money, had the

       electricity turned off, left the property without winterizing it, did not return for

       six months, had no communication with IAWC to ascertain whether the water

       had in fact been shut off, and discovered that the water valve had not been

       completely shut off only when he returned to the property the following spring.


[12]   IAWC is a “public utility” as defined by Indiana Code Section 8-1-2-1(a)(2).

       As such, it is subject to the provisions of the Indiana Administrative Code

       pertaining to the standards of service for water utilities under the authority of

       the Indiana Utility Regulatory Commission. 170 IAC 6-1-16 provides detailed

       rules concerning the disconnection of services. For example, the rule outlines

       procedures that the utility must follow for disconnecting service upon a

       customer’s request and for disconnecting without request, whether with or

       without prior notice. “In all … instances [other than those where notice is not

       required], a utility, upon providing the customer with proper notice as defined

       in subsection (e), may disconnect service subject to the other provisions of this

       rule.” 170 IAC 6-1-16(b) (emphasis added). Subsections (e) and (f) detail the


       Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 6 of 9
       required contents of disconnect notices and the rules for executing a service

       disconnection, respectively. Subsection (f) concludes with the following:


               When the employee has disconnected the service, he or she shall
               give to a responsible person at the customer’s premises or, if no
               one is at home, shall leave at a conspicuous place on the premises
               a notice stating that service has been disconnected and stating the
               address and telephone number of the utility where the customer
               may arrange to have service reconnected.


       170 IAC 6-1-16 underscores not only the significance of providing notice before

       and after an involuntary disconnection of service, but also the discretionary

       nature of a disconnection of service in the first place. In short, IAWC did not

       have a duty to disconnect Seng’s service when he fell behind in making his

       payments.


[13]   To the extent that Seng now argues that summary judgment was improper due

       to his claim in his original complaint that IAWC is liable based on assumed

       duty, we note that he never addressed assumed duty in his memorandum and

       cannot rest on the allegations in his complaint. See Syfu, 826 N.E.2d at 703.

       Even if he had included such a claim in his summary judgment materials, the

       undisputed designated facts do not support it. Liability for the breach of

       assumed duty is expressed in the Restatement (Third) of Torts § 42 (2012),

       which reads:


               An actor who undertakes to render services to another and who
               knows or should know that the services will reduce the risk of
               physical harm to the other has a duty of reasonable care to the
               other in conducting the undertaking if:

       Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 7 of 9
               (a) the failure to exercise such care increases the risk of harm
               beyond that which existed without the undertaking, or


               (b) the person to whom the services are rendered or another relies
               on the actor’s exercising reasonable care in the undertaking.


[14]   Here, the designated materials show that IAWC did not render the disconnect

       service to reduce the risk of flooding; rather, in its discretion, it sent a technician

       to shut off Seng’s water service due to Seng’s nonpayment. The technician’s

       failure to completely close the valve did not increase the damage that would

       have existed had IAWC never sent him in the first place. Moreover, Seng

       cannot be said to have relied on the technician’s exercise of reasonable care

       because he did not know whether the service technician would come and never

       checked to see if he had come. He simply assumed that his service would be

       disconnected. Assumption is not reliance. Summary judgment was properly

       granted in this case due to the negation of the duty element of negligence.


[15]   Seng also claims that the trial court abused its discretion in denying his motion

       to correct error. The function of a motion to correct error is to focus on

       important alleged errors by the trial court and afford the trial court a chance to

       reflectively consider those allegations and make corrections if warranted.

       Macken v. City of Evansville, 173 Ind. App. 60, 62, 362 N.E.2d 202, 204 (1977).

       The motion to correct error is not the proper forum for addressing issues not

       previously raised to the trial court. See Van Winkle v. Nash, 761 N.E.2d 856, 859

       (Ind. Ct. App. 2002) (“A party may not raise an issue for the first time in a

       motion to correct errors.”). Because Seng did not raise assumed duty during

       Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 8 of 9
       the summary judgment proceedings, the trial court cannot be said to have

       abused its discretion in not considering it. Accordingly, we affirm.


[16]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CC-43 | September 10, 2018   Page 9 of 9
