                                                                 FILED
                                                             Oct 18 2016, 8:50 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Gregory F. Zoeller                                         Andrew B. Miller
Attorney General of Indiana                                Jacob M. O’Brien
                                                           Starr Austen & Miller, LLP
Aaron T. Craft
                                                           Logansport, Indiana
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana ex rel. Indiana                           October 18, 2016
Department of Transportation,                              Court of Appeals Case No.
Appellant-Plaintiff,                                       37A05-1603-CC-648
                                                           Appeal from the Jasper Circuit
        v.                                                 Court
                                                           The Honorable John D. Potter,
Joshua Dehaven and FBi                                     Judge
Buildings, Inc.,                                           Trial Court Cause No.
Appellees-Defendants.                                      37C01-1311-CC-863




Riley, Judge.




Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016              Page 1 of 10
                                    STATEMENT OF THE CASE

[1]   Appellant-Plaintiff, State of Indiana, ex rel. Indiana Department of

      Transportation (INDOT), appeals the trial court’s denial of its motion for

      summary judgment in favor of Appellees-Defendants, Joshua DeHaven

      (DeHaven) and FBi Buildings, Inc. (FBi Buildings) (collectively, Appellees).


[2]   We affirm.


                                                      ISSUE

[3]   INDOT raises two issues on appeal, one of which we find dispositive and

      which we restate as: Whether INDOT is entitled to recover, as a matter of law,

      the actual cost incurred to repair the bridge after DeHaven struck it with his

      trailer.


                            FACTS AND PROCEDURAL HISTORY

[4]   On the afternoon of August 25, 2011, DeHaven, an employee of FBi Buildings,

      was driving southbound on I-65 in a 1999 Freightliner. He had just delivered

      some cargo in Remington, Indiana, which had required him to put the crane on

      the back of the Freightliner in the upright position. After the cargo was

      unloaded, DeHaven forgot to lower the crane to its original, resting position.

      He did not realize his mistake until the upright crane collided into the 1800

      South overpass bridge in Jasper County, around mile marker 200, as he was

      driving down the interstate. The collision damaged the bridge and broke the

      crane into two pieces. The impact left black marks on the bridge and bent some


      Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 2 of 10
      support barriers. An INDOT inspector was on the scene almost immediately to

      secure the continued stability and safety of the bridge. Within twenty-four

      hours of the accident, INDOT’s bridge rehabilitation officer, George Snyder

      (Snyder), inspected and evaluated the damage to the bridge. Snyder concluded

      that the bridge had sustained “typical” damage, which did not require it to be

      closed and did not compromise its structural integrity. (Appellant’s App. p.

      119). He estimated a reasonable cost to repair the bridge.


[5]   On November 4, 2011, INDOT sent DeHaven an invoice for $75,198.82, which

      incorporated Snyder’s opinions and constituted a preliminary estimate of the

      amount INDOT would incur to repair the damage to the bridge. Payment of

      the invoice was “due immediately upon receipt.” (Appellant’s App. p. 97).

      INDOT concedes that if the invoice had been paid, DeHaven would not have

      incurred any further liability even if the actual repair cost would have exceeded

      the invoiced amount.


[6]   Appellees hired Elite Consulting Services, Inc. (Elite) to inspect the damage to

      the bridge and to estimate the cost of repairs. Elite communicated to INDOT

      its concern that the invoice was excessive. After conducting its own assessment

      of the damages, Elite opined that the actual cost should be between $15,000 and

      $20,000. Taking into account Elite’s concerns, INDOT sent Appellees a

      second, adjusted invoice in the amount $58,712.38 on June 4, 2012. Still

      finding the amount of repairs excessive, Appellees and Elite decided “to wait

      until the repair project went to bid in hopes that this would produce an amount



      Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 3 of 10
      more reasonably reflective of the value of the necessary costs of repair.”

      (Appellant’s App. p. 153).


[7]   In early 2013, the project proceeded through the statutory bidding process in

      accordance with Ind. Code § 8-23-9-1 et seq. Prior to bidding, INDOT’s

      engineers had estimated the repair cost for the project to be around $64,000.

      On February 6, 2013, at the conclusion of the bidding term, INDOT received

      two bids from independent third-party contractors. Civil Construction, Inc., bid

      $77,307.61 but was disqualified because it had failed to include a performance

      bond and power-of-attorney letter as required by law. See I.C. § 8-23-9-8. The

      only qualified bid was entered by Pioneer Associates, Inc. (Pioneer) for an

      amount of $132,200.80. INDOT accepted Pioneer’s bid and awarded it the

      contract for the bridge repair.


[8]   Pioneer completed the bridge repairs at some point in the spring of 2013, with a

      final cost of $131,421.80. In addition to this repair cost, INDOT incurred

      approximately $200 in additional administrative charges. On August 1, 2013,

      INDOT sent a third invoice to Appellees for $131,623.05, which Appellees

      refused to pay.


[9]   On November 21, 2013, INDOT filed an amended Complaint against

      DeHaven sounding in negligence and against FBi Buildings based on vicarious

      liability. On May 22, 2014, INDOT filed its motion for summary judgment,

      along with an accompanying memorandum of law and designation of evidence.

      On September 17, 2014, Appellees filed their brief in opposition, along with


      Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 4 of 10
       their designated evidence. After mediation failed, the trial court conducted a

       hearing on INDOT’s motion for summary judgment on December 18, 2015.

       On January 26, 2016, the trial court issued its Order, denying summary

       judgment to INDOT on the amount of damages.


[10]   On February 24, 2016, INDOT requested the trial court to certify its Order for

       interlocutory appeal, which was granted two days later. On April 15, 2016, this

       court accepted jurisdiction over the interlocutory appeal.


[11]   Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION


                                              I. Standard of Review


[12]   Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to a judgment as a matter of law.

       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[13]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 5 of 10
       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


[14]   We observe that in the present case, the trial court entered findings of fact and

       conclusions of law in support of its judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale and facilitate appellate review. Id.


                                                    II. Damages


[15]   INDOT contends that the trial court erred when it denied its summary

       judgment on damages. It asserts that as a tort victim, INDOT must be restored

       to the position it held prior to DeHaven’s negligence and, therefore, it is entitled

       to recover the actual cost of repairs, which constitute reasonable damages as a


       Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 6 of 10
       matter of law. However, Appellees respond that once INDOT submitted

       evidence of the costs to repair the damage to the bridge, Appellees “were

       afforded an opportunity to designate evidence establishing that the value of the

       damage sustained was less than the cost evidence tendered by [INDOT], . . . by

       demonstrating that INDOT had failed to reasonably mitigate its damages.”

       (Appellees’ Br. p. 11).


[16]   To support their respective arguments, both parties relied on City of Marion v.

       Taylor, 785 N.E.2d 663, 664 (Ind. Ct. App. 2003), trans. denied, where Taylor

       disputed the cost of the actual damage to the City’s stoplight, incurred as a

       result of his negligence. Explaining the different damages and cost

       measurements, this court concluded that:

               When measuring a tortious injury to property attached to real
               estate, Indiana law applies two measures of damages. In the case
               of permanent injury to property, the measure of damages is the
               value of property before the injury. Damages for temporary or
               repairable injury are measured by the cost of the repair. After the
               plaintiff establishes a prima facie case for damages, the burden
               then shifts to the defendant. A prima facie case is established
               when the costs of reparation are admitted into evidence.


       Id. at 665 (internal citations omitted). In applying these principles to the

       situation before it, this court noted that the City of Marion introduced into

       evidence an invoice for repairs to the stoplight, claiming the damage was

       temporary. Id. Finding that the City had established a prima facie case for

       damages, the court concluded that “[a]s soon as the City’s invoice was accepted



       Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 7 of 10
       into evidence by the trial judge, the burden of proof shifted to Taylor to

       establish that the damages were less than the costs submitted by the City.” Id.


[17]   Likewise, here, as soon as INDOT entered its final invoice into evidence, the

       burden shifted to Appellees to establish that the costs of $131,421.80, as

       determined by Pioneer, were higher than the damages incurred. To carry their

       burden, Appellees designated Elite’s estimated cost of $20,000 and INDOT’s

       engineers’ estimated repair cost of $64,000, as well as INDOT’s first two

       invoices. Therefore, the trial court concluded that a genuine issue of material

       fact existed and denied INDOT’s motion for summary judgment on the

       damages.


[18]   While we agree with INDOT that Appellees must take their victim as they find

       it, we also point out that a victim is under a duty to mitigate damages. See

       Fisher v. Heymann, 12 N.E.3d 867, 871 (Ind. 2014) (noting that the duty to

       mitigate damages is a common law duty that requires a non-breaching party to

       make a reasonable effort to act in such a manner as to decrease the damages

       caused by the breach). Statutory requirements mandated INDOT to let the

       repair work after proceeding through a bidding process pursuant to I.C. § 8-23-

       9-1. In accordance with this statute, INDOT had the discretion to “reject any

       and all proposals for cause.” I.C. § 8-23-9-2. At the same time,

               the department may accept a proposal and award a contract . . .
               if:


               (1) The lowest responsive and qualified bid is:

       Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 8 of 10
                        (A) Less than one million dollars ($1,000,000);


                        (B) One (1) of four (4) or more bids received by the
                           department for the contract; or


                        (C) Not more than fifteen percent (15%) above the
                           estimated cost of the project.


       I.C. § 8-23-9-4. Although the statute is phrased in discretionary language, the

       sole successful bid submitted by Pioneer and accepted by INDOT represented

       at least twice the project cost estimated by INDOT’s engineers. Thus, by

       accepting a bid through a statutory bidding process, and correlating this bid

       with the damages that were incurred by Appellees due to their negligence

       without granting Appellees the opportunity to dispute the reasonableness of

       these costs, INDOT is in effect attempting to insulate itself from having to

       mitigate its damages. We cannot agree with INDOT’s interpretation. Rather,

       by including language—albeit discretionary—that multiple bids may be

       received, or, as here, in case of less than four bids received, the winning bid

       should not be more than 15% above the department’s estimated cost, the

       legislature incorporated a safeguard against a possible excessive expenditure of

       taxpayer’s money. Accordingly, INDOT’s suggested interpretation does not

       find any basis in Taylor or in the statutory bidding process.


                                                CONCLUSION

[19]   Based on the foregoing, we affirm the trial court’s denial of INDOT’s motion

       for summary judgment.

       Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 9 of 10
[20]   Affirmed.


[21]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Opinion 37A05-1603-CC-648 | October 18, 2016   Page 10 of 10
