                                                       Jan 15 2014, 6:04 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CAROLYN M. TRIER                                BRENT E. INABNIT
Trier Law Office                                CHRISTOPHER M. KEEFER
Fort Wayne, Indiana                             Sopko, Nussbaum, Inabnit & Kaczmarek
                                                South Bend, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

THE CITY OF FORT WAYNE,                         )
                                                )
     Appellant/Plaintiff/Counter-Defendant,     )
                                                )
            vs.                                 )      No. 02A04-1307-CT-366
                                                )
NORTHERN INDIANA PUBLIC SERVICE                 )
COMPANY and NISOURCE, INC.,                     )
                                                )
     Appellees/Defendants/Counter-Plaintiffs.   )


                   APPEAL FROM THE ALLEN SUPERIOR COURT
                       The Honorable Stanley A. Levine, Judge
                            Cause No. 02D01-1101-CT-2


                                    January 15, 2014

                           OPINION - FOR PUBLICATION

BRADFORD, Judge
                                         CASE SUMMARY

       In 2009, Appellee/Defendant/Counter-Plaintiff Northern Indiana Public Service

Company (“NIPSCO”) hired a contractor to perform remediation work on land it owns in

Fort Wayne. The remediation project was designed to address contamination and involved

excavation and construction of an underground monolith. NIPSCO requested information

from Appellant/Plaintiff/Counter-Defendant the City of Fort Wayne (“the City”) regarding

the locations of underground facilities operated by the City, information the City

subsequently provided. As it happened, the information was incorrect regarding the location

of an underground drain, and NIPSCO’s contractor damaged the drain, causing flooding in

the area. The City brought suit against NIPSCO and NiSource, NIPSCO’s sole shareholder

and corporate parent. Ultimately, the trial court granted NiSource’s motion to dismiss1 and

NIPSCO’s motion for summary judgment. The City now appeals, contending that the trial

court erred in striking portions of an affidavit it designated, in failing to strike portions of an

affidavit designated by NIPSCO, and in granting summary judgment in favor of NIPSCO.

We conclude that the City’s failure to discharge its statutory duties to provide accurate

locations of its underground facilities to NIPSCO is dispositive of all claims on appeal, and

we affirm.

                           FACTS AND PROCEDURAL HISTORY

       In Fort Wayne, there is 48-inch drain identified as M10 264 and M10 373 running


       1
           The City does not appeal the grant of NiSource’s motion to dismiss.




                                                     2
generally east-west under Duck Street (“the Duck Street Drain”). According to the City’s

maps, the Duck Street Drain intersects with a drain running generally north-south under Barr

Street (“the Barr Street Drain”) directly under the intersection of Duck and Barr. In reality,

the Barr Street Drain veers to the northeast at some point South of the intersection and

therefore drains into the Duck Street Drain some distance to the east of the intersection. In

2000, NIPSCO hired Reynolds, Inc., to rehabilitate the Duck Street Drain on its property, a

project that included isolation of the drain, televising the drain, and installing an appropriate

drain liner. Measurements taken by Reynolds at the time seem to indicate the Barr Street

Drain intersecting with the Duck Street Drain east of the intersection.

       On July 22, 2008, NIPSCO and the City entered into a Remedial Work Plan to address

contamination believed to have been caused by the operation of a manufactured gas plant

located near Barr and Superior Streets in Fort Wayne. The project was designed to

accomplish in situ solidification of certain subsurface materials, which, inter alia, involved

NIPSCO auguring soil in a designated area and creating an underground monolith with a

concrete-like substance.

       Prior to performing the work and pursuant to the Indiana Damage to Underground

Facilities Act (“DUFA”), NIPSCO’s contractor WRS Compass Environmental notified the

Indiana Underground Plant Protection Service (“IUPPS”) of its intent to excavate and

requested “locates” of all underground facilities in the area. The City subsequently provided

locates of certain underground facilities in the area. The City’s utility maps failed to indicate

that the Barr Street Drain veered to the northeast and drained into the Duck Street Drain to



                                               3
the east of the intersection of the two streets. WRS Compass began work on the project in

January of 2009 and completed it in or around May of 2009. In February, March, April,

May, and July of 2009, the site near the remediation experienced flooding, and it was

discovered that the Barr Street Drain had been crushed and clogged by the concrete-like

material placed in the ground as part of the remediation project.

       On January 3, 2011, the City brought suit against NIPSCO and NiSource, alleging

negligence on the part of NIPSCO that led to the City incurring monetary losses. On March

18, 2011, NIPSCO and NiSource answered the City’s claim, and NIPSCO asserted a

counterclaim. On March 24, 2011, the City answered NIPSCO’s counterclaim. On October

29, 2012, NIPSCO and NiSource moved for partial summary judgment and NiSource filed a

motion to dismiss. NIPSCO designated the affidavit of Mark Okin. On January 9, 2013, the

City responded to NIPSCO’s and NiSource’s motions, designating the affidavit of Mike

Hicks in support of its response to NIPSCO’s summary judgment motion and moving to

strike portions of Okin’s affidavit. On February 22, 2013, NIPSCO and NiSource filed reply

briefs in response of their dispositive motions and also moved to strike portions of Hick’s

affidavit.

       On May 13, 2013, the trial court held a hearing on the parties’ pending motions,

during which it granted in part and denied in part the cross-motions to strike and granted

NiSource’s motion to dismiss. On June 21, 2013, the trial court granted summary judgment

in favor of NIPSCO.




                                             4
                             DISCUSSION AND DECISION

       When reviewing the grant or denial of a summary judgment motion, we apply the

same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,

741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is appropriate only where the

evidence shows there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences

drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a

motion for summary judgment, a party must demonstrate that the undisputed material facts

negate at least one element of the other party’s claim. Id. Once the moving party has met

this burden with a prima facie showing, the burden shifts to the nonmoving party to establish

that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears

the burden of persuading us that the trial court erred. Id.

I. Did the Trial Court Err in Concluding that the City Failed to Comply with DUFA

       The City contends that the trial court erred in concluding that it failed to comply with

the requirements for operators of underground facilities pursuant to DUFA, or Indiana Code

chapter 8-1-26. DUFA details the responsibilities of both operators and those wishing to

excavate in the area of underground facilities:

       [A] person may not excavate real property or demolish a structure that is
       served or was previously served by an underground facility without first
       ascertaining in the manner prescribed by sections 16 and 18 of this chapter the
       location of all underground facilities in the area affected by the proposed
       excavation or demolition.

Ind. Code § 8-1-26-14. At all times relevant to this appeal, section 16 of DUFA provided



                                              5
that “before commencing an excavation or demolition operation described in section 14 of

this chapter each person responsible for the excavation or demolition shall … serve notice on

the [IUPPS] of the person’s intent to excavate or demolish[.]”

       In return, the operator of any underground facilities, in this case the City,

       shall, in two (2) full working days after receiving the notice of intent provided
       in section 16 of this chapter, supply to the person responsible for the
       excavation or demolition the following information, using maps when
       appropriate:
          (1) The approximate location and description of all the operator’s
          underground facilities that may be damaged as a result of the excavation or
          demolition.
          (2) The location and description of all facility markers indicating the
          approximate location of the underground facilities.
          (3) Any other information that would assist that person in locating and
          avoiding damage to the underground facilities, including providing
          adequate temporary markings indicating the approximate location of the
          underground facility and locations where permanent facility markers do not
          exist.

Ind. Code § 8-1-26-18(a).

       Finally, section 22 provides in relevant part as follows:

       (a) If an operator suffers a pecuniary loss as a result of a violation of this
       chapter, the operator may bring a civil action against the person who caused
       the loss for the following:
           (1) An amount equal to the operator’s actual damage to the facility.
           (2) The costs of the action.
           (3) A reasonable attorney’s fee.
       (b) At the court’s discretion, a court having jurisdiction may award punitive
       damages up to three (3) times the operator’s actual damage.
       (c) It is a defense to an action brought under this chapter if an operator fails to
       comply with the duties imposed under this chapter.

(Emphasis added).

       We conclude first that the designated evidence establishes that NIPSCO discharged its



                                               6
duties pursuant to DUFA as a matter of law, i.e., it is undisputed that NIPSCO notified

IUPPS of its intent to excavate in the remediation area. This notice placed the onus on the

City to then provide NIPSCO with the information detailed in DUFA section 18(a), including

the location of all of its underground facilities. The City contends that it satisfied the DUFA

locate requirements by “identif[ying] the location of the [Barr Street Drain] based on the best

information that the City had.” Appellant’s Br. p. 28. At the same time, the City

acknowledges that the City’s map “did not show the [Barr Street Drain] running north

diagonally into the [Duck Street Drain] at 49 feet.” Appellant’s Br. pp. 27-28. Essentially,

the City is arguing that it complied with DUFA’s requirements by providing NIPSCO with

the best information in its possession, however inaccurate it may have been. DUFA,

however contains no provision for good faith compliance. Section 18(a) provides that an

operator “shall” provide the approximate2 locations of its underground facilities, and, for

whatever reason, the City failed to do so. Because the City failed to comply with the

requirements of section 18(a), NIPSCO was given a full defense to the City’s action against it

pursuant to section 22(c). The trial court correctly entered summary judgment in favor of

NIPSCO.

            II. Did the Trial Court Err in Failing to Address Whether NIPSCO
                  Had a Common Law Duty not to Crush the Sewer Line

        The City also argues that even if it failed to comply with DUFA’s requirements, it still

has a common-law negligence action against NIPSCO. We conclude, however, that any



        2
          “As used in this chapter, ‘approximate location’ means a strip of land at least four (4) feet wide but
not wider than the width of the underground facility plus two (2) feet on either side of the outer limits of the

                                                       7
common-law action that the City might have had at one time against NIPSCO has been

abrogated by enactment of DUFA. “We presume that the legislature does not intend by the

enactment of a statute to make any change in the common law beyond what it declares, either

in express terms or by unmistakable implication.” Rocca v. S. Hills Counseling Ctr., Inc.,

671 N.E.2d 913, 920 (Ind. Ct. App. 1996) (citation omitted). However, “[a]n abrogation of

the common law will be implied where a statute is enacted which undertakes to cover the

entire subject treated and was clearly designed as a substitute for the common law or where

the two laws are so repugnant that both in reason may not stand.” Id. DUFA governs the

relationship between and responsibilities of operators of underground facilities and those

who wish to excavate or build in the vicinity of those facilities. Most significantly for this

case, DUFA provides a cause of action for operators who suffer a pecuniary loss due to a

violation of DUFA, allowing the operator to recover actual damages, costs, attorney’s fees,

and possible punitive damages. See Ind. Code § 8-1-26-22(a), -22(b). The General

Assembly also saw fit to provide a defense to that action in case the operator failed to

discharge its duties imposed by DUFA. We doubt very seriously that the General Assembly

intended that an operator who lost his cause of action pursuant to DUFA would still be able

to recover under another theory. To the extent that the trial court did not consider the City’s

argument that it had a common-law claim against NIPSCO, it did not err in so doing. In

summary, we conclude that the trial court properly granted summary judgment in favor of

NIPSCO.


physical plant.” Ind. Code § 8-1-26-2. The City does not argue that the discrepancy between its maps and the
true location of the Barr Street Drain falls within these limits.

                                                     8
        The judgment of the trial court is affirmed.3

MATHIAS, J., and PYLE, J., concur.




        3
           We need not address the City’s claims on appeal related to the trial court’s striking of portions of
Hicks’s affidavit and refusing to strike portions of Okin’s. The portions of Hicks’s affidavit at issue relate to
number of times WRS Compass “followed up” with the City regarding the location of underground facilities
and indicate that WRS Compass acted in reliance on the City’s information. These averments, even assuming
they are true, are irrelevant. DUFA requires the City to provide the location of underground facilities upon
request, there is no requirement for “follow-up,” and what WRS Compass did or did not do has nothing to do
with the City’s duties.
         The portions of Okin’s affidavit at issue relate to the City’s argument that NIPSCO’s alleged
knowledge of the true location of the Barr Street Drain somehow relieved it of its obligations pursuant to
DUFA. Again, even if NIPSCO did have knowledge of the true path of the Barr Street Drain, such knowledge
would be irrelevant pursuant to DUFA, as there is no exception in DUFA for such circumstances.

                                                       9
