                                                                     Dec 23 2015, 10:05 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Paul T. Fulkerson                                         Jerry Garau
Skiles Detrude                                            Garau Germano, P.C.
Indianapolis, Indiana                                     Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE,
DEFENSE TRIAL COUNSEL OF INDIANA
Donald B. Kite, Sr.
Wuertz Law Office, LLC
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Sharpsville Community                                     December 23, 2015
Ambulance, Inc.,                                          Court of Appeals Case No.
Appellant-Defendant,                                      34A05-1503-CT-101
                                                          Interlocutory Appeal from the
        v.                                                Howard Superior Court
                                                          The Honorable Brant J. Parry,
Cynthia Gilbert and                                       Judge
Randall Gilbert,                                          Trial Court Cause No.
Appellee-Plaintiffs                                       34D02-1306-CT-530




Baker, Judge.




Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015                  Page 1 of 11
[1]   Sharpsville Community Ambulance, Inc. (Sharpsville), brings this interlocutory

      appeal challenging the trial court’s order granting partial summary judgment in

      favor of Cynthia and Randall Gilbert. The trial court found that Sharpsville is

      not entitled to the protections of the Indiana Tort Claims Act (ITCA) because it

      is a private company rather than a governmental entity. Sharpsville, a

      volunteer emergency medical services provider, contends that it falls under the

      ITCA because it provides a uniquely governmental service. Given precedent

      from our Supreme Court and the requirement that we strictly construe statutes

      in derogation of the common law, we find that the trial court did not err by

      finding that Sharpsville is not entitled to ITCA protection. We affirm and

      remand.


                                                     Facts     1




[2]   The facts are not in dispute. Sharpsville is an incorporated, not-for-profit entity

      that operates an emergency ambulance service for the Sharpsville community in

      Tipton County (the County). Sharpsville is run entirely by volunteers. It does

      not perform non-emergency transfers for the general public; instead, it performs

      only emergency services that originate from the county’s emergency dispatch or

      911 center. In other words, Sharpsville’s services are not open for hire to the

      public. It can only be contacted through the 911 dispatch system.




      1
       We held oral argument on December 9, 2015, in Indianapolis. We thank the attorneys for their outstanding
      written and oral advocacy in this matter.

      Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015                  Page 2 of 11
[3]   Sharpsville has one vehicle—an ambulance. Pursuant to a 2010 contract

      between Sharpsville and the County, the County pays Sharpsville $16,000 per

      year in exchange for Sharpsville’s agreement to serve as the community’s

      primary emergency ambulance provider. The contract requires Sharpsville to

      carry general liability insurance with a minimum limit of $5 million and

      automobile liability insurance with a minimum limit of $5 million. Sharpsville

      rents a space in a barn that it shares with the Sharpsville Volunteer Fire

      Department. The County owns the barn and charges Sharpsville $1 per year for

      the use of the space.


[4]   Sharpsville charges for its ambulance runs “to discourage unnecessary calls, but

      not for complete operation of the Service, in that those rates would be too high

      for most to be able to afford use of the service.” Appellant’s App. p. 161.

      Sharpsville does not pursue collections if community members are unable to

      pay for the services provided.


[5]   On August 8, 2011, Sharpsville volunteers responded to a dispatch to the

      intersection of 450 N and U.S. 31, where a person was experiencing difficulty

      breathing. The volunteers pulled the patient from his vehicle and began to

      transport him toward Howard Community Hospital in the ambulance. Cynthia

      Gilbert was traveling eastbound on Alto Road while the ambulance was

      traveling north on U.S. 31. The two vehicles collided as they both entered the

      intersection at the same time.




      Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 3 of 11
[6]   On January 27, 2012, the Gilberts filed a tort claim notice, and on June 25,

      2013, the Gilberts filed a complaint against Sharpsville, seeking damages for

      injuries sustained by Cynthia as a result of the accident. The Gilberts filed a

      motion for partial summary judgment on October 3, 2014, arguing that

      Sharpsville is not entitled to the protections of the ITCA because it is not a

      governmental entity. Sharpsville responded and filed a cross-motion for partial

      summary judgment, arguing that it is entitled to the protections of the ITCA.

      Following briefing and argument, the trial court issued an order on January 7,

      2015, granting the Gilberts’ motion and denying Sharpsville’s cross-motion. In

      pertinent part, the trial court held as follows:

              Sharpsville is not available to anyone who would require
              ambulance transport. They are available only for 911 emergency
              calls. However, Sharpsville does charge a fee for their services.
              These limitations on service were put into place through the
              contract that Sharpsville entered into with Tipton County. In
              essence, Sharpsville placed these restrictions on itself. Sharpsville
              was not compelled to limit itself by statute, rule or regulation. . . .


              A choice was made to contract with [Sharpsville] to provide
              emergency ambulance service. The township could have
              purchased an ambulance . . . for use by the volunteer fire
              department pursuant to I.C. 36-8-13-3(a)(1). In that case, the
              ambulance would have been covered by the ITCA. However, in
              this case, a private company was hired for that service. The
              Court finds that an ambulance service is not such a uniquely
              governmental service.


      Appellant’s App. p. 6-7. At Sharpsville’s request, the trial court certified its

      order for interlocutory appeal.

      Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 4 of 11
                                    Discussion and Decision
                                      I. Standard of Review
[7]   In this case, we are asked to review the trial court’s order granting partial

      summary judgment in the Gilberts’ favor. The parties agree, however, that the

      relevant facts are not in dispute and that our primary task is one of statutory

      interpretation. As that entails a pure question of law, we apply a de novo

      standard of review. E.g., Bd. of Comm’rs of LaPorte Cnty. v. Great Lakes Transfer,

      LLC, 888 N.E.2d 784, 789 (Ind. Ct. App. 2008).


                                 II. Indiana Tort Claims Act
[8]   The ITCA provides that “[a] governmental entity or an employee acting within

      the scope of the employee’s employment is not liable if a loss results from” a

      lengthy list of acts occurring within the scope of the function of the

      governmental entity. Ind. Code § 34-13-3-3. “Governmental entity” is defined

      as “the state or a political subdivision of the state.” Ind. Code § 34-6-2-49.


             A. Ayres v. Indian Heights Volunteer Fire Department
[9]   We begin our analysis with our Supreme Court’s opinion in Ayres v. Indian

      Heights Volunteer Fire Department, 493 N.E.2d 1229 (Ind. 1986). The relevant

      discussion in Ayres concerns whether a volunteer fire department qualified as a

      governmental entity under the ITCA. Our Supreme Court held that “[w]hen

      private individuals or groups are endowed by the state with powers or functions

      governmental in nature, they become agencies or instrumentalities of the state


      Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 5 of 11
       and are subject to the laws and statutes affecting governmental agencies and

       corporations.” Id. at 1235.


[10]   In considering whether the volunteer fire department was a governmental

       entity, our Supreme Court first noted that


               [f]irefighting is a service that is uniquely governmental. The need
               to control, prevent, and fight fires for the common good of the
               community has been universally accepted as a governmental
               function and duty in this State and, as far as we can determine, in
               this Nation from its very beginning. . . . Nor do we know of the
               existence in Indiana of any private enterprise in the business of
               fighting fires. This distinguishes the volunteer fire department
               from independent contractors in the business of paving streets,
               constructing school buildings or bridges, or many of the other
               private enterprises the government is sometimes called upon to
               hire to fulfill its governmental duties to the public. . . . They are
               private businesses available to anyone requiring their services,
               either public or private, and at a charge for their services. This is
               not true of any volunteer fire department organized pursuant to
               our statutory law and particularly was not true of Indian Heights
               Volunteer Fire Department, Inc.


       Id.


[11]   Next, the Ayres Court noted that our legislature recognized the need for local

       governments to provide for fire protection in their communities by enacting a

       chapter of the Indiana Code concerned with the establishment of fire protection

       district. The General Assembly also recognized the limited financial resources

       of certain smaller communities by enacting a chapter that authorized the

       creation of volunteer fire departments. Our Supreme Court examined the


       Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 6 of 11
       chapter related to volunteer fire departments and concluded that “[i]t is clearly

       the intention of the Legislature to recognize volunteer fire departments as

       instrumentalities of local government . . . .” Id. at 1237.


[12]   Finally, our Supreme Court focused on the facts related to the specific volunteer

       fire department before it. The Court noted that the Indian Heights Volunteer

       Fire Department was composed solely of volunteers who lived in the township

       and was created pursuant to statutes at the behest of the township. The

       contract price of $27,500 per year “could reasonably be determined to be

       nominal in amount . . . .” Id. Consequently, our Supreme Court determined

       that this fire department was an instrumentality of local government that was

       protected by the ITCA.


[13]   Turning to the case before us, we initially note that we agree with the Gilberts

       that the provision of ambulance services is not a uniquely governmental service.

       Indeed, there are many private enterprises in Indiana in the business of

       providing emergency ambulance transportation, including most of the hospitals

       in the State. We agree with the Gilberts that if the provision of emergency

       medical services brings the provider under the purview of the ITCA, “virtually

       every hospital, physician, and paramedic in Indiana would be covered by the

       ITCA.” Appellees’ Br. p. 8. In our view, therefore, Sharpsville is more

       analogous to the independent contractors that pave streets and construct

       buildings than to the volunteer fire department.




       Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 7 of 11
[14]   Furthermore, it is critical to note that following Ayres, our General Assembly

       amended the statutory definition of “political subdivisions” such that it now

       explicitly includes volunteer fire departments. Ind. Code § 34-13-3-22(3).

       “Volunteer fire department” is defined as follows: “a department or association

       organized for the purpose of answering fire alarms, extinguishing fires, and

       providing other emergency services, the majority of members of which receive

       no compensation or nominal compensation for their services.” Ind. Code § 36-

       8-12-2. The legislature has not defined entities that solely provide emergency

       medical services—even all-volunteer providers of emergency medical services—

       as “political subdivisions” for the purpose of the ITCA.


[15]   The ITCA is a statute that is in derogation of the common law. As such, we are

       compelled to strictly construe it. Greater Hammond Cmty. Servs. v. Mutka, 735

       N.E.2d 780, 782 (Ind. 2000). Given those parameters and the fact that our

       legislature has not specifically included a definition that would encompass

       Sharpsville as a “political subdivision” for ITCA purposes, we are inclined to

       conclude that Sharpsville is not entitled to ITCA protection. Before we reach a

       final conclusion, however, we must consider our Supreme Court’s opinion in

       Mutka, which was decided after the General Assembly amended the ITCA

       following Ayres.




       Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 8 of 11
               B. Greater Hammond Community Services v. Mutka
[16]   In Mutka, the relevant issue was whether the Greater Hammond Community

       Services (GHCS) qualified as a political subdivision under the ITCA. 2 GHCS

       contracted with Lake County to provide services to the low income, elderly,

       and handicapped. The specific services provided included “employment,

       education, better use of income, housing, emergency services, nutrition, food,

       medicine, disabilities, child development, transportation, referral for other

       services, outreach, and in-home services, such as home-delivered meals and

       nutrition education.” 735 N.E.2d at 782. With little discussion, the Mutka

       Court concluded that “[p]roviding these types of services to disadvantaged

       people is not uniquely governmental.” Id.


[17]   Next, GHCS argued that because it operated pursuant to government control, it

       qualified as a political subdivision. The Mutka Court acknowledged that

       GHCS’s operations were limited by the contract with the government, but

       noted that “GHCS voluntarily submitted to this degree of . . . control. Our

       statutes do not require this level of management; rather the parties arranged it

       themselves when GHCS contracted with [the government].” Id. at 783. Our

       Supreme Court found that this relationship does not raise the private entity to

       the level of a political subdivision:




       2
         The injury giving rise to the lawsuit in Mutka occurred when a GHCS bus struck another vehicle and
       injured a passenger in the other vehicle.

       Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015                    Page 9 of 11
               “An entity does not become a ‘public agency,’ thus coming
               within the purview of the statutes in question, by contractually
               agreeing to submit to [control by another governmental entity].
               Rather, an entity is ‘subject to’ those procedures only if compelled
               to submit by statute, rule, or regulation.” Perry County Dev. Corp.
               v. Kempf, 712 N.E.2d 1020, 1025 (Ind. Ct. App. 1999) . . . .


               A group that is neither specifically named a political subdivision
               by statute nor engaged in the provision of uniquely governmental
               services may not receive the protection of the Indiana Tort
               Claims Act by contracting to be managed by an established
               governmental entity.


       Id. at 784 (emphases original) (footnote omitted).


[18]   It is true that Sharpsville provides only emergency medical services, is

       comprised of volunteers, is a non-profit entity, can be reached only through

       911, provides its services to a specific geographic area, and provides its services

       at the behest of the government for a nominal fee. These limitations, however,

       are self-imposed by Sharpsville’s voluntary decision to enter into the contract

       with Tipton County. For example, Sharpsville does not operate as a part of the

       volunteer fire department, but it could have set up its operations in that way,

       which would have unquestionably offered ITCA protections. There are no

       statutes, rules, or regulations that compel Sharpsville to adhere to any of these

       restrictions. Pursuant to Mutka, therefore, these facts do not support a finding

       that Sharpsville is a governmental entity. Sharpsville cannot voluntarily

       contract its way into the status of “governmental entity.”




       Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 10 of 11
[19]   Having considered Mutka, it is evident that, while Ayres created an exception to

       the ITCA for entities other than those specifically enumerated by the statute,

       that exception is extremely narrow. Moreover, the legislature has now

       explicitly included volunteer fire department—but not volunteer providers of

       emergency medical services—within the definition of “political subdivision.”

       Given the evolution of this area of law from Ayres, to legislative amendment, to

       Mutka, we are compelled to conclude that Sharpsville does not qualify as a

       governmental entity for the purpose of ITCA protections. Consequently, the

       trial court did not err by granting the Gilberts’ partial motion for summary

       judgment.


[20]   The judgment of the trial court is affirmed and remanded for further

       proceedings.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015   Page 11 of 11
