                                                                           Mar 30 2015, 10:05 am




ATTORNEYS FOR APPELLANT                                            ATTORNEYS FOR APPELLEE
Robert D. MacGill                                                  Gregory F. Zoeller
Michael D. Moon, Jr.                                               Attorney General of Indiana
Kara M. Kapke
Matthew B. Barr                                                    Thomas M. Fisher
Indianapolis, Indiana                                              Solicitor General

                                                                   John C. Trimble
                                                                   Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA
In re: Indiana State Fair Litigation                               March 30, 2015

Polet, et al. v. Mid-America Sound, et al.                         Court of Appeals Case No.
                                                                   Consolidated
49D02-1111-CT-44823                                                49A02-1404-CT-288
VanDam Estate v. Mid-American Sound,
et al.
                                                                   Appeal from the Marion
49D02-1111-CT-044823-001                                           Superior Court; The
Urschel v. Mid-American Sound, et al.                              Honorable Theodore M.
49D02-1111-CT-044823-002                                           Sosin, Judge;
                                                                   49D02-1111-CT-44823
Brennon v. Mid-American Sound, et al.
49D02-1111-CT-044823-003
Porter v. Mid-American Sound, et al.
49D02-1111-CT-044823-004
Santiago Estate v. Mid-American Sound,
et al.
49D02-1111-CT-044823-005
BigJohny Estate v. Mid-American Sound,
et al.
49D02-1111-CT-044823-006
Vinnegar v. Mid-American Sound, et
al.

Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                           Page 1 of 31
49D02-1111-CT-044823-007
Indiana Farmers v. Dave Lucas Ent., et al.
49D02-1111-CT-044823-008
Hujdich v. Live Nation Worldwide Ind.,
et al.
49D02-1111-CT-044823-009
Fireman’s Fund Ins. Co. v. State of
Indiana, et al.
49D02-1111-CT-044823-010.



May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 2 of 31
[1]   For many years, the Indiana State Fair Commission (“the Commission”) used

      equipment leased from Mid-America Sound (“Mid-America”) to produce outdoor

      concerts, including one on August 31, 2011, where a number of people were killed

      or injured when a stage at the Indiana State Fair collapsed. Lawsuits followed,

      and Mid-America asserted cross-claims or third-party claims seeking

      indemnification from the Commission. The Commission moved for summary

      judgment on the question whether it must indemnify Mid-America, arguing the

      indemnity provisions in their agreements were unconscionable; violated the

      Indiana Tort Claims Act, Ind. Code ch. 34-13-3; could not be applied retroactively;

      and were outside the Commission’s authority. The trial court granted the

      Commission’s motion but did not articulate the basis for its decision. As the Tort

      Claims Act does not apply and there are genuine issues of fact regarding the

      validity and enforceability of the indemnification agreement, we reverse and

      remand for trial.


                                     Facts and Procedural History1
[2]   Mid-America provides temporary roof structures and other equipment used to

      produce concerts and entertainment events. The Commission operates the Indiana

      State Fair, and its executive director is Cindy Hoye. Since the mid-1990s, the




         1
          We heard oral argument January 12, 2015 at the Statehouse in Indianapolis. We commend counsel on the
         quality of their oral advocacy.

         Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                  Page 3 of 31
      Commission has leased equipment from Mid-America to produce concerts at the

      Grandstand Stage and other locations at the fairgrounds.


[3]   During the last ten years of their business relationship, the Commission and Mid-

      America followed a standard procedure. Mid-America delivered the leased

      equipment to the Commission before the Fair. After the Fair, Mid-America picked

      up the equipment, signed about forty contracts for the rented items, and submitted

      the contracts to the Commission. The Commission audited each contract to

      ensure it reflected the parties’ agreement, then paid Mid-America.


[4]   Before 2003, the invoices Mid-America submitted did not include an

      indemnification provision, but that year the parties began using a form lease

      contract, which they continued to use for the next nine years. It did include

      indemnification provisions. During that period the parties executed over one

      hundred leases.


[5]   Each lease consisted of a double-sided invoice and a single-sided claim voucher.

      The front side of the invoices identified the leased goods and the payment due. It

      included the delivery and return dates for the goods and the “class” of rental – in

      this case, “show.” (App. at 541.) On the back, the invoices included “Conditions

      of Contract” in two sections of the document. In the “Rentals” section, the

      Commission agreed “to assume the entire responsibility for the defense of, and to

      pay, indemnify, and hold [Mid-America] harmless from and hereby releases [Mid-

      America] from any and all claims for damage to property or bodily injury

      (including loss of life) resulting from” the use of Mid-America’s equipment. (Id. at


         Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 4 of 31
      542.) In the “Shows” section of the same “Conditions of Contract,” the

      Commission again agreed to “pay, indemnify, and hold harmless [Mid-America]

      from and hereby releases [Mid-America] from any and all claims for damage to

      property or bodily injury” resulting from the use of the equipment. (Id.) The

      Commission reviewed and paid each invoice.


[6]   The claim vouchers that accompanied the invoices were drafted by the

      Commission and the Commission directed Mid-America to use them. Over the

      signature line for “State Fair Official” the claim voucher included the language: “I

      certify that the attached invoice is true and correct . . . and was in accordance with

      the contract.” (Id. at 544.) The “standard protocol,” (id. at 492), was that the

      claim voucher had to be executed by two officials – it was certified by a State Fair

      official as true and correct and in accordance with the contract, then it was

      approved by the executive director of the Commission.


[7]   In 2009 the Commission hired a contracts officer, who worked to adopt a “sole

      source,” (id. at 473), agreement that would allow the Commission to accept

      equipment and services from Mid-America without requiring the Commission to

      engage in a bidding process. In 2011, the Commission asked Mid-America to send

      a letter explaining the services Mid-America would provide in 2011. The

      Commission asked that the letter refer to the long-term working relationship

      between the Commission and Mid-America, and to indicate Mid-America’s

      “satisfaction with how business has been done with [the Commission] . . .

      regarding payments, invoices, etc.” (Id. at 475.) Mid-America did so, and the

      letter referred to the parties’ prior course of dealing. The letter noted Mid-America

         Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 5 of 31
      had always provided the Commission with lower-than-normal pricing for

      production services, and it was able to do so because it worked so well with the

      Commission’s Events Services Manager, who “understands our billing and the

      timing and manner in which invoices are paid.” (Id. at 481.) Because of that “long

      term relationship,” (id.), Mid-America could maintain expenses at the same level

      or limit any increase.


[8]   Also in 2011, the Commission sent Mid-America its “Standard Terms and

      Conditions that it provided in all contracts.” (Br. of Appellee Indiana State Fair

      Commission (hereinafter Commission’s Br.) at 5.) That document included

      language that Mid-America would agree to indemnify and hold harmless the

      Commission, but the Commission would not provide such indemnification to Mid-

      America. The Commission does not direct us to anything in the record indicating

      the parties ever entered into any agreement including those standard terms and

      conditions, and the record evidence is that Mid-America did not receive that

      document.


[9]   The Commission hired Mid-America to provide equipment for the 2011 State Fair,

      where strong winds blew the temporary roof structure and audio equipment to the

      ground. After the 2011 Fair, Mid-America submitted to the Commission

      documents and invoices that included the same defense and indemnity provisions

      that had been in the lease agreements in prior years. The Fair’s Director of Events

      signed the vouchers, certifying each was “true and correct” and “in accordance

      with the contract.” (E.g., App. at 525.) Then Hoye, the Commission’s Executive

      Director, reviewed and executed the contracts, giving them “special scrutiny”

         Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 6 of 31
   because of the stage collapse. (Id. at 503.)2 The Commission’s Chief Financial

   Officer audited Mid-America’s invoice for the temporary roof structure, which

   included the defense and indemnity provisions, certifying it was true and correct

   and in accordance with the contract.


[10] When   various plaintiffs commenced lawsuits against Mid-America and others,

   Mid-America asked the Commission to defend and indemnify it, but the

   Commission refused. Mid-America then filed third-party claims and cross-claims

   against the Commission. The Commission moved for and was granted summary

   judgment.


                                      Discussion and Decision
[11] We   review summary judgment de novo, applying the same standard as the trial

   court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all reasonable

   inferences in favor of the non-moving party, we will find summary judgment

   appropriate if the designated evidence shows there is no genuine issue as to any

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

   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




      2
        The Commission asserts in its Statement of Facts that “[the Commission] . . . never saw the
      indemnity provisions on the back of the invoice.” (Commission’s Br. at 7.) The pages of the
      record to which the Commission directs us in support of that assertion are part of Hoye’s
      deposition testimony, where she said she did not know the “conditions of contract even
      existed.” (App. at 739.) That testimony does not support the statement that the Commission
      “never saw the indemnity provisions on the back of the invoice.”

      Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015           Page 7 of 31
   of the truth, or if the undisputed material facts support conflicting reasonable

   inferences. Id.


[12] The   initial burden is on the summary-judgment movant to demonstrate there is no

   genuine issue of fact as to a determinative issue, at which point the burden shifts to

   the non-movant to come forward with evidence showing there is an issue for the

   trier of fact. Id. While the non-moving party has the burden on appeal of

   persuading us a summary judgment was erroneous, we carefully assess the trial

   court’s decision to ensure the non-movant was not improperly denied his day in

   court. Id.


[13] Our   summary judgment policies aim to protect a party’s day in court. Id. While

   federal practice permits the moving party to merely show that the party carrying

   the burden of proof lacks evidence on a necessary element, we impose a more

   onerous burden -- to affirmatively negate an opponent’s claim. Id. That permits

   summary judgment to “be precluded by as little as a non-movant’s ‘mere

   designation of a self-serving affidavit.’” Id. (quoting Deuitch v. Fleming, 746 N.E.2d

   993, 1000 (Ind. Ct. App. 2001), trans. denied). Summary judgment is not a

   summary trial, and it is not appropriate just because the non-movant appears

   unlikely to prevail at trial. Id. at 1003-04. We “consciously err[] on the side of

   letting marginal cases proceed to trial on the merits, rather than risk short-

   circuiting meritorious claims.” Id. at 1004.


[14] No   public policy prevents parties from contracting as they desire, and in Indiana, a

   party may contract to indemnify another for the other’s own negligence. GKN Co.


          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 8 of 31
   v. Starnes Trucking, Inc., 798 N.E.2d 548, 552 (Ind. Ct. App. 2003). However, such

   provisions are strictly construed and will not be held to provide indemnification

   unless it is so stated in clear and unequivocal terms. Id. We disfavor

   indemnification clauses because to obligate one party for the negligence of another

   is a harsh burden that a party would not lightly accept. Id.


                                   Unconscionability and Enforceability

                                       a.       Retroactive Application

[15] The   Commission asserts indemnity agreements cannot be retroactively applied,

   citing Henthorne v. Legacy Healthcare, Inc., 764 N.E.2d 751, 759 (Ind. Ct. App. 2002)

   (“the date of the negligent act causing injury is the date for deciding when an

   indemnitee should be held responsible to defend or indemnify after a demand or

   claim is made”). And see Am. States Ins. Co. v. Williams, 151 Ind. App. 99, 105, 278

   N.E.2d 295, 300 (1972) (when indemnity is the subject of an express contract,

   Indiana takes the broad view that parties may lawfully bind themselves to

   indemnify against future acts of negligence). The Commission characterizes the

   indemnity provision in the case before us as retroactive because the indemnity

   provisions were printed on an invoice, and the invoice was not provided to the

   Commission until after Mid-America had rendered its services and after the stage

   collapse. However, the Commission reviewed and signed the invoices Mid-

   America submitted after the state collapse, and it paid Mid-America.




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 9 of 31
[16] The   designated evidence of the parties’ course of dealing3 gives rise to a genuine

   issue whether the application of the indemnity provision may fairly be

   characterized as “retroactive,” and summary judgment therefore could not

   properly be granted on that ground. Before the stage collapse, the Commission

   agreed to continue the parties’ longstanding course of dealing, which had for years

   included indemnity terms on invoices not submitted until after the Fair. That

   agreement before the stage collapse was confirmed by “the Commission’s

   certifications after the Fair,” (Reply Br. of Appellant (hereinafter Mid-America’s

   Reply Br.) at 3), in the form of its audits of the invoices, its execution of them, and

   its certifications that the invoices were true and correct and in accordance with the

   contract.


[17] We    find instructive S. Ry. Co. v. Arlen Realty & Dev. Corp., 257 S.E.2d 841, 845 (Va.

   1979). Arlen argued it was not bound by an indemnification agreement because it

   was not executed until after Southern’s employee was injured. The trial court had

   found that “on many occasions for the convenience of all parties,” the agreements

   in question were signed after the equipment had been picked up and returned. Id.




       3
         We agree with numerous decisions holding whether there has been a mutual course of
       dealing is a question of fact. E.g., Wagener v. Steele, 43 S.E. 403, 404 (Ga. 1903); and see C9
       Ventures v. SVC-W., L.P., 136 Cal. Rptr. 3d 550, 562 (Cal. Ct. App. 2012) (whether there may
       be an inference of the parties’ common knowledge or understanding that is based upon a prior
       course of dealing is a question of fact); Olinger v. Sanders, 92 Ind. App. 358, 174 N.E. 513, 515
       (1931) (whether a deposit “was a general or special deposit, and what the intention of the
       parties really was, is a question of fact for the court or jury trying the case to determine, from
       all the evidence as to custom, course of dealing, understanding, and circumstances of the
       particular case under investigation”).


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015              Page 10 of 31
   “It was the habit and practice of [the parties] to conduct their business in this

   manner and was a course of conduct and business practice that both parties, by

   their past dealings, had approved.” Id.


[18] The   Virginia Supreme Court held the finding that the parties, by their course of

   dealings, had assented to and adopted the terms of the printed form as their

   agreement “is fully supported by the uncontradicted evidence showing that the

   same forms were employed in hundreds of transactions between the parties over a

   period of several years preceding [employee’s] injury.” Id. Similarly, Mid-

   America and the Commission agreed before the Fair that they would continue

   their long-term working relationship, which had included more than one hundred

   certifications by the Commission that invoices containing the same indemnity

   provisions as those at issue here were “in accordance with the contract.” (E.g.,

   App. at 544.) Summary judgment could not properly be granted on the ground the

   agreements were retroactive.


                                 b.      Placement of Indemnity Provision

[19] The   Commission next argues the indemnity provisions were unconscionable. The

   Commission characterizes the indemnification provision as something Mid-

   America “slipped in” in 2003, (Commission’s Br. at 3), and as being “tucked into

   the middle of small boilerplate print on the back of the invoice,” (id. at 4). We

   cannot find, as a matter of law, this indemnification provision was unconscionable.

   The indemnification provision is in the same size type as everything else on the

   “Conditions of Contract” page, (e.g., App. at 542), and in the “Rentals” section it


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 11 of 31
   has a heading in bold type that says “5. Responsibility for Use – Indemnity.”

   (Id.) (emphasis in original).


[20] The   Commission relies on Maxon Corp. v. Tyler Pipe Indus., Inc., 497 N.E.2d 570,

   577 (Ind. Ct. App. 1986), reh’g denied, trans. denied, where we said “[w]hen . . . the

   imposition of a broad indemnification clause is attempted without the express

   assent of the proposed indemnitor, and when that clause is placed in relative

   obscurity on the back of an invoice, it is unconscionable.” Even though “there

   may have been no disparity in the bargaining positions of Tyler and Maxon,” we

   said that “[i]mposing such a clause upon a disadvantaged party who knows not

   what he signs and guilefully imposing it upon a party through the unilateral use of

   an invoice at or after the time the product is delivered” was unconscionable. Id. at

   578.


[21] Maxon   does not control. We note initially that the unconscionability discussion in

   Maxon was dictum; we determined the indemnity provision amounted to a

   “material alteration” and therefore never became part of the contract between

   Tyler and Maxon: “[b]ecause the indemnification clause in the invoice was, as a

   matter of law, a material alteration, it did not, as a matter of law, become a part of

   the contract.” Id. at 575.


[22] Maxon   is also factually distinguishable. There, as here, the indemnity provision

   was on the back of an invoice. But in Maxon the provision “BY ACCEPTANCE

   OF THE GOODS, BUYER AGREES TO INDEMNIFY SELLER AGAINST

   ALL LIABILITY, LOSS, COST AND EXPENSE ARISING OUT OF ANY


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 12 of 31
    CLAIM OF ANY NATURE” was inserted deep in a lengthy passage with the

    heading “WARNING AND COVENANTS.” Id. at 572 (emphasis in original).

    Mid-America’s “Rentals” indemnity provision was included under the heading

    “Responsibility for Use -- Indemnity.” (App. at 779.) In the “Shows” section, it

    was included under “Operation of Equipment.” (Id.)


[23] In   Maxon, the parties had exchanged similar forms in the past, but there were no

    facts indicating a Tyler employee had previously read an identical invoice. Id. at

    575-76. Here, by contrast, the record indicated a long course of dealing, which

    included the use for many years of invoices containing the indemnity provisions,

    and the Commission’s review and approval of over a hundred similar invoices.

    We acknowledge evidence the Commission’s director did not read the invoices, but

    the Commission had a statutory obligation with regard to its payments:

                  The fiscal officer of a governmental entity may not draw a warrant or
                  check for payment of a claim unless . . . the invoice or bill is approved
                  by the officer or person receiving the goods and services . . . the
                  invoice or bill is filed with the governmental entity’s fiscal officer;
                  [and] the fiscal officer audits and certifies before payment that the invoice or bill
                  is true and correct.
    Ind. Code § 5-11-10-1.6 (emphasis added). There was evidence of such review and

    certification of the many invoices the Commission paid to Mid-America. To the

    extent summary judgment for the Commission was premised on unconscionability,

    it was error.




          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                  Page 13 of 31
                        c.       The Commission’s Agreement to the Provision

[24] Nor   was the Commission entitled to summary judgment on the ground it “did not

   knowingly and willingly agree to indemnification.” (Commission’s Br. at 14.) In

   light of the ample evidence it reviewed, audited, approved, and paid the invoice at

   issue, and numerous similar invoices over the years, summary judgment on the

   ground the Commission was unwilling to agree to indemnification or did not know

   it was doing so was error.


[25] Parties   may contract for indemnification, but it must be done knowingly and

   willingly. Weaver v. Am. Oil Co., 257 Ind. 458, 465, 276 N.E.2d 144, 148 (1971).

   The Commission characterizes Weaver as holding where “a printed form prepared

   by one party contains hidden clauses unknown to the other party, the burden is on

   the party submitting the printed form to show that the other party had knowledge

   of the terms contained in the form.” (Commission’s Br. at 15.) The Commission

   asserts Mid-America therefore was required to show it explained the indemnity

   provisions to the Commission. Under the facts of this case, we decline to hold

   Mid-America had any such obligation.


[26] Weaver    does say “[t]he party seeking to enforce such a contract has the burden of

   showing that the provisions were explained to the other party and came to his

   knowledge and there was in fact a real and voluntary meeting of the minds and not

   merely an objective meeting.” 257 Ind. at 464, 276 N.E.2d at 148. But the

   Commission does not acknowledge the language that precedes that statement:

                 When a party can show that the contract, which is sought to be
                 enforced, was in fact an unconscionable one, due to a prodigious

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015     Page 14 of 31
                  amount of bargaining power on behalf of the stronger party, which is
                  used to the stronger party’s advantage and is unknown to the lesser
                  party, causing a great hardship and risk on the lesser party, the
                  contract provision, or the contract as a whole, if the provision is not
                  separable, should not be enforceable on the grounds that the provision
                  is contrary to public policy.
   Id. at 464, 276 N.E.2d at 148 (emphasis added). As it appears both parties before

   us were sophisticated and held relatively equal bargaining power, Weaver does not

   control. At the very least, there are factual issues whether the State Fair

   Commission was, in this transaction, a “lesser party” over which Mid-America

   wielded “a prodigious amount of bargaining power.”


[27] Finally,   the Commission asserts it did not knowingly and willingly agree to

   indemnify Mid-America because 1) the invoice in question was not signed, and 2)

   the “Sole Source” letter does not reflect an indemnification agreement.


[28] As   for the fact the invoice was not signed, the Commission offers no authority to

   the effect that alone invalidates any agreement the parties had, nor does it explicitly

   so argue. It does, however, argue its signature on the Commission’s internal claim

   voucher authorizing payment for the invoice does not create an indemnity contract

   because it does not indicate the Commission assented to the indemnification terms

   on the invoice itself. As there was ample evidence from which an inference of the

   Commission’s assent could be drawn, summary judgment on that ground was

   error.


[29] The   Commission appears to argue it signed the claim voucher only because it was

   required to by statute, see Ind. Code § 5-11-10-1.6 (fiscal officer of a governmental

   entity may not draw a warrant or check for payment of a claim unless the invoice
          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015     Page 15 of 31
   or bill is approved by the officer or person receiving the goods and services), and its

   signature did not mean it agreed to the boilerplate indemnity language on the

   invoice. But the language on the claim vouchers reflected exactly that agreement.

   The claim vouchers did more than just authorize payment – they explicitly

   established the invoices were in accordance with the contract, and were true and

   correct. And as noted above, the “Sole Source” letter memorializes the parties’

   prior course of dealing, which included over a hundred identical indemnification

   agreements. To the extent summary judgment for the Commission was based on

   the premise it was not aware of or did not willingly assent to the indemnification

   provision, it was error.


                    Whether the Terms of the Invoice Require Indemnification

[30] The   Commission argues Mid-America has no right to indemnification even

   according to the terms of the contract, pointing to evidence the use of Mid-

   America’s load bearing roof was not for a “rental” but was instead for a “show.”

   As noted above, the invoice at issue in this case had two sections, “Rentals” and

   “Shows,” each with an indemnity section. Under the column “class” on the

   invoice, the word “show” is entered. (App. at 778.)


[31] The   “Rental” section of the invoice generally addresses the use of Mid-America’s

   equipment by the lessee, here the Commission, while the “Shows” section

   addresses use of the equipment by Mid-America or under Mid-America’s

   supervision. Mid-America argues the “rental” section applies because the

   Commission used Mid-America’s equipment. The “Shows” section independently

   applies, Mid-America says, because the Commission and the performers’
       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 16 of 31
   employees operated the equipment, including the load-bearing roof, but with Mid-

   America’s authorization, which authorization was premised on the Commission’s

   agreement not to use the roof in high winds.


[32] The      Commission asserts the “Shows” provision cannot apply because “such

   indemnification applies only to injuries arising from the use of ‘equipment,’ and not

   to injuries arising from the load-bearing roof.” (Commission’s Br. at 25.) It does

   not offer a citation to anything in the record to support its apparent premise that

   the roof was not considered part of the “equipment” the Commission leased from

   Mid-America. Rather, it notes Mid-America could authorize others to use its

   equipment, but it asserts “unlike other equipment, Mid-America has ‘absolute

   control’ of the Load Bearing Roof, and no provision exists allowing Mid-America

   to transfer control of the Load Bearing Roof to anyone else.” 4 (Id.) (emphasis in

   original).


[33] As   there was evidence the Commission and the performers’ representatives

   “operated the equipment, including the Load Bearing Roof,” (Mid-America’s

   Reply Br. at 11), we decline to hold the Commission was entitled to summary




          4
             Mid-America’s control over the roof was not so “absolute” as the Commission characterizes
          it. The language of the “Shows” provision is that Mid-America had “absolute control” of
          “height, loading, banners, backdrops, and all actions regarding operation of the roof . . .
          regarding inclement weather.” (App. at 779.)



          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015         Page 17 of 31
   judgment on the premise the invoice was for a “show” only5 and the language in

   the “Shows” part of the invoice cannot be applied.


                               The Commission’s Authority to Indemnify

[34] Even   if there was a valid indemnity agreement, the Commission argues, it cannot

   be enforced because the Commission, as a government entity, cannot enter into

   such an agreement. It relies on the Indiana Tort Claims Act (ITCA) and the

   Appropriations Clause of the Indiana Constitution.


[35] The   ITCA does not apply. Like any statute in derogation of the common law, the

   ITCA must be strictly construed against limitations on a claimant’s right to bring

   suit. City of Indianapolis v. Buschman, 988 N.E.2d 791, 794 (Ind. 2013). The ITCA

   “applies only to a claim or suit in tort,” Ind. Code § 34-13-3-1, and this is a dispute

   over a contract provision, not a tort claim.6


[36] The   Commission argues the ITCA applies to this contract action because the

   indemnity clause is in fact “a means of shifting tort liability to Indiana taxpayers,”




       5
         The Commission correctly notes testimony by Mid-America’s president that “this was a
       show invoice,” (App. at 762), but the Commission does not acknowledge that immediately
       afterward, when asked “So it’s not a rental invoice; it’s a show invoice,” (id. at 1452), he said,
       “No. I believe it’s still a rental too.” (Id.) Summary judgment therefore cannot be premised
       on the statement “this was a show invoice.”


       6
         As summary judgment in this contract dispute was error to the extent it was premised on
       application of the tort claims act, we need not address whether the Commission was a
       governmental entity to which the act might apply. Nor do we address its argument it has no
       “authority to agree to excess tort liability.” (Commission’s Br. at 36.)



       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015              Page 18 of 31
    (Commission’s Br. at 27), and only the legislature “decides the terms of potential

    taxpayer exposure to civil damages suits.”7 The Commission notes the basic

    purpose of an indemnity clause is to shift from the indemnitee to the indemnitor

    the financial responsibility to pay damages, citing Mead Johnson & Co. v. Kenco Grp.,

    Inc., 899 N.E.2d 1, 3 (Ind. Ct. App. 2009). Still, in that decision we analyzed the

    dispute over an indemnity clause as a contract action and noted if the words of an

    indemnity clause are clear and unambiguous, they are to be given their plain and

    ordinary meaning. Id. We have held a party “may not restyle a breach-of-contract

    claim as a tort claim simply to obtain additional damages,” JPMCC 2006-CIBC14

    Eads Parkway, LLC v. DBL Axel, LLC, 977 N.E.2d 354, 364 (Ind. Ct. App. 2012),

    and we decline the Commission’s invitation to permit it to restyle this breach-of-

    contract claim as a tort claim simply to avoid a contractual obligation.


[37] In   a decision addressing limitations, the Southern District of Indiana rejected, in

    Lilly Indus., Inc. v. Health-Chem Corp., 974 F. Supp. 702, 710 (S.D. Ind. 1997),

    reasoning similar to that the Commission offers: “Health-Chem argues briefly that

    the substance of this [indemnification] count is a claim for damage to real property.




          7
            The Commission also argues at some length that a document it refers to as the “Professional
          Services Contract Manual,” (Commission’s Br. at 28), prohibits state entities from entering
          into indemnification agreements. That manual does not appear to be in the record before us,
          and a web address to which the State directs us returns this result: “Error - Page Not Found.
          The Indiana Department of Administration has made major improvements to our site!”
          http://www.in.gov/ai/errors/idoa_404.html (last visited January 2, 2015). We are therefore
          unable to address that argument.

          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015          Page 19 of 31
   However, the source of the duty allegedly breached here was the written contract,

   and that makes this a claim for breach of a written contract.”


[38] The   legislature has explicitly granted the Commission broad authority to enter into

   contracts: “The commission may . . . [e]nter into contracts related to the

   commission’s powers and duties under this article.” Ind. Code § 15-13-3-4.

                It seems to be well settled that the state in all its contracts and dealing
                must be adjudged and abide by the rules which govern in determining
                the right of private citizens contracting and dealing with each other.
                There is not one law for the state, and another for its subjects. When
                the state engages in business and business enterprises, and enters into
                contracts with individuals, the rights and obligations of the contracting
                parties must be adjusted upon the same principles as if both
                contracting parties were private persons. Both stand upon equality
                before the law.
   State v. Feigel, 204 Ind. 438, 178 N.E. 435, 437 (1931).


[39] The   record before us does not reflect the Commission’s enabling statute or its own

   rules concerning contracts prohibit indemnification agreements, and it is clear the

   legislature knows how to limit or proscribe indemnity provisions when it wants to

   do so. See, e.g., Ind. Code § 8-2.1-26-5 (prohibiting indemnification agreements in

   motor carrier transportation contracts with regulated public utilities), and Ind.

   Code § 13-23-13-10 (prohibiting indemnification agreements in agreements by

   owners or operators of underground storage tanks who are liable to the state for the

   costs of corrective action).




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015          Page 20 of 31
                                                  Conclusion
[40] There   are genuine issues of fact regarding the validity and enforceability of the

   indemnification provisions in the vouchers Mid-America submitted to the

   Commission and the Commission reviewed and paid, and the Commission is not

   shielded by the ITCA. Summary judgment for the Commission was therefore

   error, and we accordingly reverse and remand for trial.


[41] Reversed   and remanded.

       Friedlander, J., concurs. Vaidik, C.J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015    Page 21 of 31
                                            IN THE
    COURT OF APPEALS OF INDIANA

In re: Indiana State Fair Litigation                               Court of Appeals Case No.
                                                                   Consolidated
Polet, et al. v. Mid-America Sound,et al.
                                                                   49A02-1404-CT-288
49D02-1111-CT-44823
VanDam Estate v. Mid-America Sound,
et al.
49D02-1111-CT-044823-001
Urschel v. Mid-America Sound, et al.
49D02-1111-CT-044823-002
Brennon v. Mid-America Sound, et al.
49D02-1111-CT-044823-003
Porter v. Mid-America Sound, et al.
49D02-1111-CT-044823-004
Santiago Estate v Mid-America Sound, et
al.
49D02-1111-CT-044823-005
BigJohny Estate v. Mid-America Sound,
et al.
49D02-1111-CT-044823-006
Vinnegar v. Mid-America Sound, et al.
49D02-1111-CT-044823-007
Indiana Farmers v. Dave Lucas Ent., et al.
49D02-1111-CT-044823-008
Hujdich v. Live Nation Worldwide Inc.,
et al.
49D02-1111-CT-044823-009
Fireman’s Fund Ins. Co. v. State of
Indiana, et al.
49D02-1111-CT-044823-010




Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                Page 22 of 31
   Vaidik, Chief Judge, dissenting.


[42] Mid-America       was sued in tort by individuals claiming they were injured by Mid-

   America’s negligent acts and omissions, which led to the tragic stage-roof collapse

   at the 2011 Indiana State Fair. Mid-America’s position is that this is a contract

   matter: they allege that the Indiana State Fair Commission (the Commission)

   agreed to indemnify Mid-America in “contracts” between the parties from 2003

   onward.8 The majority reverses the trial court’s grant of summary judgment in

   favor of the Commission, finding that there are genuine issues of material fact as to

   the validity and enforceability of the indemnification clauses. Given that the

   purported indemnification clauses were located on the backside of unsigned

   invoices, I have serious doubts as to whether there was an enforceable contract

   between Mid-America and the Commission. But I respectfully dissent from the

   majority’s opinion because, taking substance over form, I believe that this case is

   nothing more than Mid-America’s attempt to shift tort liability to the

   Commission—a tort in contract’s clothing, if you will. I would find that the

   Commission has immunity from Mid-America’s claims against them since this is

   the type of action contemplated by the Indiana Tort Claims Act (ITCA) and the

   Commission is a governmental entity.




      8
          Specifically, in their third-party complaint for indemnification, Mid-America asserted as follows:

               [] Pursuant to Rule 14 of the Indiana Trial Rules, Mid-America, as third-party claimant, brings
               this claim against the State Fair Commission to protect and secure its rights to defense and
               indemnification under the contracts existing between the parties.
      Appellant’s App. p. 1006.

      Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                            Page 23 of 31
[43] Sovereign   immunity developed in England as a common law doctrine founded on

   the substantive principle that “the king could do no wrong,” and encompassing the

   procedural notion that the king, as a sovereign, was not subject to being sued in his

   own court. State v. Rendleman, 603 N.E.2d 1333, 1335 (Ind. 1992) (quoting Peavler

   v. Monroe Cnty. Bd. Of Comm’rs, 528 N.E.2d 40, 41 (Ind. 1988) (citing Prosser &

   Keeton on Torts, § 131 at 1033 (5th ed. 1984))). The doctrine was carried over by

   courts in the United States and was long recognized in Indiana. See id. Then, in

   1972, after years of increasing restrictions to the doctrine, our Supreme Court in

   Campbell v. State, 259 Ind. 55, 283 N.E.2d 733 (1972), abolished the doctrine of

   sovereign immunity for the State in almost all tort cases. Oshinski v. N. Ind.

   Commuter Transp. Dist., 843 N.E.2d 536, 543 (Ind. Ct. App. 2006). The Campbell

   Court explained that the legislature is primarily responsible for considering which

   instances of governmental conduct should be immunized from liability, and, in

   1974, the General Assembly enacted the ITCA. Id.


[44] The   ITCA governs tort claims against governmental entities and public employees

   and partially reinstated the sovereign immunity abolished by the Campbell Court.

   Oshinski, 843 N.E.2d at 543; see also Ind. Code § 34-13-3-1 et seq. Pursuant to the

   ITCA, governmental entities can be subjected to liability for tortious conduct

   unless the conduct is within an immunity granted by the ITCA. Oshinski, 843

   N.E.2d at 543-44. The General Assembly created the ITCA in recognition of the

   principle that “it is the legislature, and not the courts, that is in the best position to

   determine the nature and extent to which governmental units in Indiana should be

   insulated from tort liability.” Benton v. City of Oakland City, 721 N.E.2d 224, 232

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015    Page 24 of 31
   (Ind. 1999). The legislative purpose of the ITCA was to limit the financial

   responsibility of the State by restricting damages in tort in order to protect the fiscal

   integrity of governmental bodies. In re Train Collision at Gary, Ind. on Jan. 18, 1993,

   654 N.E.2d 1137, 1146 (Ind. Ct. App. 1995), reh’g denied.


[45] Most   relevant to this case, the ITCA provides, “A governmental entity or an

   employee acting within the scope of the employee’s employment is not liable if a

   loss results from . . . [t]he act or omission of anyone other than the governmental

   entity or the governmental entity’s employee.” Ind. Code § 34-13-3-3(10).

   Regarding this subsection, our Supreme Court has stated that it provides immunity

   in certain cases wherein governmental liability could otherwise occur, “but that

   this immunity exists only when the alleged governmental liability is grounded

   upon the acts or omissions of persons other than the government employee acting

   within the scope of the employee’s employment.” Hinshaw v. Bd. of Comm’rs of Jay

   Cnty., 611 N.E.2d 637, 640 (Ind. 1993). Although the Hinshaw Court construed

   this portion of the statute to apply to actions seeking to impose vicarious liability

   on governmental entities and employees by reason of conduct of third parties, it

   applies equally to the situation we have here, where Mid-America seeks to hold the

   Commission liable, not for the acts or omissions of the Commission, but for the

   acts or omissions of Mid-America.


[46] The   ITCA specifically states that it applies only to tort claims; I would find this to

   be a tort claim. Treating this as a contract matter disregards Subsection 10. See

   Hinshaw, 611 N.E.2d at 638 (“[I]n construing a statute, we will presume that the

   legislature did not enact a useless provision.”). Furthermore to allow a

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015     Page 25 of 31
   government employee to enter into a contract—by course of dealing or

   otherwise—with the terms of that contract being that the governmental entity will

   assume the tort liability of another party frustrates the entire purpose of the ITCA.

   See Benton, 721 N.E.2d at 232.


[47] The   bottom line is this: the legislature alone decides when State entities can and

   will be subject to suit. See Oshinski, 843 N.E.2d at 543; see also Raygor v. Regents of

   the Univ. of Minn., 534 U.S. 533, 543 (2002) (“[A] State ‘may prescribe the terms

   and conditions on which it consents to be sued.’”). Moreover, a state may not be

   sued in its own courts unless it has waived its sovereign immunity by expressly

   consenting to such suit through a clear declaration of that consent. Oshinski, 843

   N.E.2d at 539-40 (quotation omitted). As such, the Commission could not expose

   itself to tort or contract liability under these facts even if it wanted to—and that is

   by design. Otherwise, as the Commission points out, “the legislature’s critical role

   in protecting [S]tate funds from exposure to unlimited liability would be

   completely undermined.” Appellee’s Br. p. 36; see also In re Train Collision, 654

   N.E.2d at 1146; Thompson v. State, 425 N.E.2d 167 (Ind. Ct. App. 1981) (“We

   conclude then that the object of the Tort Claims Act . . . is to protect the fiscal

   integrity of governmental entities by limiting their liability . . . for damages in

   tort.”), reh’g denied. 9




       9
         Indeed, the General Assembly, through legislation, created a “supplemental state fair relief fund” of six
       million dollars above the ITCA caps to provide additional relief for the victims of the stage-collapse
       occurrence. See Ind. Code § 34-13-8-3. Not the Governor, the Attorney General, or any other employee of
       the State had the power to consent to state liability above the limits of the ITCA. Given this, it makes little

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                           Page 26 of 31
[48] And,    although the majority did not reach this issue, it is clear that the Commission

    is a governmental entity. Indiana Code section 34-6-2-49 defines “governmental

    entity” for purposes of the ITCA as follows: “‘Governmental entity[,]’ for purposes

    of . . . IC 34-13-3, . . . means the state or a political subdivision of the state.”

    Indiana Code section 15-13-2-1(b) provides that the Commission:

                           (1) is a separate body, corporate and politic;
                           (2) is not a state agency; and
                           (3) performs essential governmental functions.


    Although according to Section 15-13-2-1, the Commission is “a separate body,

    corporate and politic” and “not a state agency,” it is nonetheless a “governmental

    entity” because it operates as an entity of the State.


[49] In   support of this conclusion, one need only look to the statutes of Indiana Code

    section 15-13-1-1 et seq., which govern the State Fair and the Commission. Most

    significantly, under Section 15-13-2-1, the Commission was established by the State

    to “perform[] essential governmental functions.” Ind. Code § 15-13-2-1(b)(3)

    (emphasis added). Five of the eight members of the Commission are appointed by

    the governor. Ind. Code § 15-13-2-2(a)(1). Commission vacancies are filled by

    individuals appointed by the governor. Ind. Code § 15-13-2-4(a). The




          sense that a Commission employee(s) can waive tort immunity by submitting claim forms and unsigned Mid-
          America invoices to the Commission.

          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                  Page 27 of 31
   Commission is mandated to maintain, develop, and administer the fairgrounds and

   other property owned by the Commission “to provide for maximum use of the

   fairgrounds and property of the [C]ommission for the benefit of the citizens of

   Indiana.” Ind. Code §§ 15-13-3-1, -2. The Commission holds the state fairgrounds

   in trust for the state, cannot dispose of any part of the fairgrounds unless

   authorized by statute, and cannot dispose of any real property without the

   governor’s consent. Ind. Code §§ 15-13-4-2, -3. The fairgrounds and property of

   the Commission are exempt from state and local taxes, license fees, and special

   assessments. Ind. Code § 15-13-4-4. And at the close of a fiscal year, the

   Commission is required to submit an annual report setting forth a complete

   operating and financial statement of the preceding year to the governor, budget

   committee, and General Assembly. Ind. Code § 15-13-3-10.


[50] The   State Fair Fund, which is administered by the Commission, is also controlled

   by statute. The Fund consists of, among other things, property-tax revenue and

   appropriations made by the General Assembly. Ind. Code § 15-13-8-3. The

   money in the Fund is subject to allotment under Indiana Code section 4-13-2-18,

   the statute governing appropriations and administration of the allotment system.

   Ind. Code § 15-13-8-7. And the state treasurer invests the Fund money in the same

   manner as other public funds may be invested. Ind. Code § 15-13-8-4. From these

   governing statutes it is clear that the State has significant involvement in and

   oversight of the Commission’s fiscal affairs.


[51] Although   federal law is not, of course, controlling in this matter, it is nonetheless

   instructive in providing guidance in our analysis of the Commission’s status as a

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015     Page 28 of 31
   state entity. Under federal law, the question of whether an entity is an “arm of the

   state” for purposes of Eleventh Amendment immunity turns largely on two factors:

   (1) the extent of the entity’s financial autonomy from the state and (2) the “general

   legal status” of the entity. Kashani v. Purdue Univ., 813 F.2d 843, 845-47 (7th Cir.

   1987). Of the two, the entity’s financial autonomy is the “most important factor.”

   Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 695 (7th

   Cir. 2007). In making this assessment, courts consider: (1) the extent of state

   funding; (2) the state’s oversight and control of the entity’s fiscal affairs; (3) the

   entity’s ability to raise funds; (4) whether the entity is subject to state taxation; and

   (5) whether a judgment against the entity would result in an increase in its

   appropriations. Id. at 696.


[52] From   the statutes governing the Commission, Indiana Code section 15-13-2-1 et

   seq., we know that the Commission receives state appropriations made by the

   General Assembly; that the Commission is required to submit an annual report to

   the governor, budget committee, and the General Assembly; and that the

   Commission administers the State Fair Fund, which consists of property-tax

   revenue, appropriations made by the General Assembly, interest accrued from the

   investment of Fund money, and certain proceeds from the operation of the fair.

   See I.C. §§ 15-13-3-10, 15-13-8-3, -7. Moreover, the Commission can issue revenue

   bonds, but only with the governor’s consent, and only for the limited purposes of

   funding projects or refunding outstanding revenue bonds. See Ind. Code §§ 15-13-

   10-3, -4. As to the question of where the funds to cover tort-claim damages would

   come from, Mid-America in its reply brief cites Indiana Code section 15-13-2-14:


      Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015     Page 29 of 31
   “The [C]ommission shall pay the expenses of the [C]ommission from the money of

   the [C]ommission, including the [State Fair] [F]und.”10 But Mid-America ignores

   the fact that the State Fair Fund itself relies upon state appropriations. See I.C. §

   15-13-8-3. Therefore, it is clear that the Commission is not financially autonomous

   from the State.


[53] As   to the second factor—the entity’s “general legal status”—the federal courts

   “prioritize substance over form.” Peirick, 510 F.3d at 696. Here, as discussed

   above, the statute establishing the Commission provides that the Commission is “a

   separate body, corporate and politic” and “not a state agency,” but the statutes

   discussed above clearly support the conclusion that the Commission is a state and

   governmental entity. Primarily, the Commission was established to “perform

   essential governmental functions.” I.C. § 15-13-2-1. Five of the eight members of

   the Commission are gubernatorial appointees. I.C. § 15-13-2-2. Moreover, the

   Commission serves the entire state, as its primary responsibility is to maintain,

   develop, and administer the fairgrounds “for the benefit of the citizens of Indiana.”

   I.C. §§ 15-13-3-1, -2. Indeed, under Indiana Code section 15-13-4-2, the

   Commission holds the fairgrounds in trust for the State. I would conclude that the




          10
             In its reply brief, Mid-America references a 1991 press release by the Attorney General, in which it is
          “opined that debts of the Commission are to be paid from the State Fair Fund and that ‘there is no recourse
          against the state and its general fund . . . .’” Appellant’s Reply Br. p. 19. This press release was drafted in
          response to the question of whether “[w]ith regards to quasi-state agencies,” the State—which “creates these
          agencies as well as partially funds them”—would be obligated or liable in case of default on their part. See
          Ind. Op. Att’y Gen. No. 10 (1991).

          Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015                          Page 30 of 31
   Commission’s general legal status is that of a state entity. See Peirick, 510 F.3d at

   696.


[54] Thus,   prioritizing substance over form, I would find that the Commission is

   immune from Mid-America’s indemnity claim under the ITCA; accordingly, I

   would affirm the trial court’s grant of summary judgment in favor of the

   Commission.




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015   Page 31 of 31
