                                                                         FILED
                                                                     Aug 14 2019, 9:06 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Edward P. Grimmer                                          Alyssa N. Speichert
Daniel A. Gohdes                                           Newby Lewis Kaminski & Jones,
Crown Point, Indiana                                       LLP
                                                           LaPorte, Indiana



                                            IN THE
     COURT OF APPEALS OF INDIANA

Northern Indiana Public Service                            August 14, 2019
Company,                                                   Court of Appeals Case No.
Appellant-Plaintiff,                                       19A-SC-259
                                                           Appeal from the Lake Superior
        v.                                                 Court
                                                           The Honorable Julie N. Cantrell,
Josh’s Lawn & Snow, LLC,                                   Judge
Appellee-Defendant.                                        The Honorable Michael N.
                                                           Pagano, Magistrate
                                                           Trial Court Cause No.
                                                           45D09-1803-SC-669



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019                           Page 1 of 8
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Northern Indiana Public Service Company (NIPSCO),

      appeals the small claims court’s attribution of fault to nonparty Ziese & Sons

      Excavating, Inc. (Ziese) in its suit against Josh’s Lawn & Snow, LLC (Josh’s).


[2]   We affirm.


                                                      ISSUE
[3]   NIPSCO presents one issue on appeal, which we restate as: Whether the small

      claims court’s judgment attributing fault to nonparty Ziese in its award of

      damages to NIPSCO was clearly erroneous.


                       FACTS AND PROCEDURAL HISTORY
[4]   In the spring of 2017, Armani Development, Inc. (Armani) was constructing

      new homes in Schererville, Indiana. One of those homes was located at 406

      Waterford Circle South (the home), where a natural gas line owned and

      operated by NIPSCO had been installed. Armani hired Ziese to grade the soil

      around the home and to install a drainage swale. In the process of installing the

      swale, Ziese removed sixteen-to-eighteen inches of soil, which left part of

      NIPSCO’s gas line covered with only approximately two inches of soil. Ziese

      did not puncture or damage NIPSCO’s gas line.


[5]   Armani hired Josh’s to do landscaping work at the home. Josh’s did not

      contact NIPSCO prior to commencing work at the home, as required by

      Indiana’s Underground Plant Protection Act (UPPA), so that NIPSCO could

      Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019       Page 2 of 8
      mark any underground gas lines at the home. On April 26, 2017, after the

      drainage swale had been installed, a Josh’s employee used a Bobcat-style

      pulverizing machine to loosen the soil in preparation for planting grass. The

      pulverizing machine had one-inch spikes that penetrated and crushed the

      ground. In the process of pulverizing, Josh’s employee punctured NIPSCO’s

      gas line. The gas line was shut off and quickly repaired.


[6]   On March 13, 2018, NIPSCO brought suit in small claims court against Josh’s

      seeking $1,020.74 for the cost of the repairs to its gas line and $1,750 in

      statutory attorney’s fees. NIPSCO alleged breach of statutory duties under the

      UPPA, common law negligence, and trespass. In its answer to NIPSCO’s

      complaint, Josh’s asserted the nonparty defense that Ziese had partially or fully

      caused NIPSCO’s claimed damages.


[7]   On November 19, 2018, the small claims court held a trial on NIPSCO’s

      complaint. NIPSCO argued that Josh’s had breached its statutory duty under

      the UPPA to alert NIPSCO of its intention to excavate around the home so that

      markers could be placed, and the line avoided. NIPSCO contended that the

      UPPA did not provide any exemption for those excavating the surface of

      ground, did not provide that excavators maintain soil depth such that Josh’s

      could not presume adequate gas line depth, and did not create an exemption

      allowing subcontractors to rely upon their general contractors to warn of

      shallow-depth lines. As a result, NIPSCO argued that no fault could be

      attributed to Ziese. Josh’s argued that up to 95% of fault could be attributed to

      Ziese, as it had left only two inches of soil covering NIPSCO’s gas line when it

      Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019            Page 3 of 8
      installed the drainage swale. The small claims court ruled in favor of NIPSCO

      but attributed 90% fault to Ziese and 10% of fault to Josh’s. The small claims

      court did not enter any special findings of fact or conclusions of law. On

      December 6, 2018, NIPSCO filed a motion to correct error which the small

      claims court denied without a hearing.


[8]   NIPSCO now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[9]   NIPSCO appeals the small claims court’s attribution of fault to nonparty Ziese.

      We begin by noting that this matter was litigated in a small claims court.

      Judgments rendered by a small claims court are “subject to review as prescribed

      by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). The

      Indiana trial rules apply to small claims proceedings to the extent that they do

      not conflict with the small claims court rules. Summit Account & Comput. Serv. v.

      Hogge, 608 N.E.2d 1003, 1005 (Ind. Ct. App. 1993). Pursuant to Trial Rule

      52(A), the findings or judgments rendered by a small claims court are upheld

      unless they are clearly erroneous. Because small claims courts were designed to

      dispense justice efficiently by applying substantive law in an informal setting,

      this deferential standard of review is particularly appropriate. Berryhill v.

      Parkview Hosp., 962 N.E.2d 685, 689 (Ind. Ct. App. 2012). We consider the

      evidence most favorable to the judgment and all reasonable inferences to be

      drawn from that evidence. Id. However, we still review issues of substantive


      Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019          Page 4 of 8
       law de novo. Id. The burdens of proof are the same in a small claims suit as

       they would have been if suit had been filed in a trial court of general

       jurisdiction. Martin v. Ramos, 120 N.E.3d 244, 249 (Ind. Ct. App. 2019).


                                              II. Comparative Fault

[10]   Pursuant to Indiana’s comparative fault statute, in a suit for recovery of harm to

       property, “a defendant may assert as a defense that the damages of the claimant

       were caused in full or in part by a nonparty.” Ind. Code §§ 34-51-2-1, -14. The

       defendant bears the burden of proof of the nonparty defense, although the

       claimant retains the burden of proving that the defendant caused, in whole or in

       part, the claimed damages. I.C. § 34-51-2-15. It is well-settled “that the

       allocation of fault is entrusted to the sound judgment of the factfinder.” Carney

       v. Patino, 114 N.E.3d 20, 32 n.8 (Ind. Ct. App. 2018), trans. denied.


[11]   The small claims court attributed 90% of the fault for NIPSCO’s damages to

       Ziese. Relying on the Underground Plant Protection Act, NIPSCO argues that

       it proved that Josh’s was 100% liable for its damages because Ziese did not owe

       a legal duty of care to NIPSCO to retain any certain depth of soil over

       NIPSCO’s gas line. In light of this lack of legal duty, NIPSCO contends that

       the small claims court erred as a matter of law by attributing any fault to Ziese

       because “[f]ault can be assigned only to a person, whether a party or non-party,

       who has a duty of care.” (Appellant’s Br. p. 17, bold removed).


[12]   This argument misses the mark because the small claims court was not required

       to find that Ziese had a legal duty of care toward NIPSCO in order to attribute


       Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019           Page 5 of 8
fault to Ziese. In Bulldog Battery Corporation v. Pica Investments, Inc., 736 N.E.2d

333, 336 (Ind. Ct. App. 2000), property owner Pica Investments sued neighbor

Bulldog Battery for negligence when Bulldog’s property improvements led to

increased runoff and flooding of Pica’s property. Bulldog asserted a nonparty

defense that the negligent designs of its architect contributed to Pica’s damages.

Id. at 337. Pica argued that Bulldog could not name its architect as a nonparty

defendant because, pursuant to caselaw, an architect owed no duty to third

parties such as Pica absent contractual privity or a design that was so negligent

as to create an imminently dangerous condition. Id. In reversing the trial

court’s grant of summary judgment to Pica on Bulldog’s nonparty defense, the

court noted that until 1995, the comparative fault statute defined a nonparty as

“‘a person who is, or may be[,] liable to the claimant in part or in whole for the

damages claimed but who has not been joined in the action as a defendant by

the claimant.” Id. (quoting I.C. § 34-4-33-2(a), emphasis in opinion). The

statute was subsequently amended to define a nonparty as “‘a person who caused

or contributed to cause the alleged injury, death, or damage to property but who has

not been joined in the action as a defendant.’” Id. at 338 (quoting I.C. § 34-6-2-

88, emphasis in opinion). Drawing on the change of statutory definition, the

court rejected Pica’s argument that “‘[i]n naming a person as a nonparty, it is

implicit that some legal duty must exist as to the plaintiff.’” Id. The court

found that the amendment to the definition of ‘nonparty’ specifically excluded

the concept of liability to focus instead on causation. Id. Thus, the court

concluded that “whether or not the nonparty may be liable to the plaintiff is no

longer a consideration.” Id. We similarly reject the contention that Ziese must
Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019              Page 6 of 8
       have owed a legal duty to NIPSCO in order to be found partially at fault for

       Josh’s damage to the gas line.


[13]   NIPSCO devotes much of its appellate argument to outlining its reasons why

       Josh’s was at fault for its claimed damages. It argues that Josh’s activity at the

       home qualified as excavation under the UPPA, Josh’s failed its duty imposed

       by the UPPA to notify NIPSCO of its plan to excavate, failed to plan its

       excavation to avoid injury to the line, and pulverized over the gas line even

       though the evidence suggested the line was visible to the Josh’s employee at the

       time. We find that these arguments and others illustrating Josh’s negligence are

       unavailing because the small claims court already found Josh’s to be at fault,

       they do not buttress NIPSCO’s claim that the trial court erred as a matter of law

       in attributing fault to Ziese, and because NIPSCO does not argue on appeal that

       the small claims court should have assessed different percentages of liability to

       Ziese and Josh’s.


[14]   Regarding the issue of whether Josh’s proved that Ziese partially caused the

       damage to the gas line, NIPSCO claims “for Ziese to be at fault, to be a

       proximate cause, there needed to be a duty of care Ziese owed to [NIPSCO],

       and further its deviation from that standard of care.” (Appellant’s Br. p. 18).

       We find this to be nothing more than a restatement of NIPSCO’s legal duty

       claim which we have already rejected, so we do not address the issue of

       causation further. Because NIPSCO has not shown that the small claims court

       made any errors of law, we cannot say that the small claims court’s judgment

       attributing fault to Ziese was clearly erroneous. See T.R. 52(A).

       Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019         Page 7 of 8
                                               CONCLUSION
[15]   Based on the foregoing, we conclude that the small claims court’s judgment

       attributing 90% fault to nonparty Ziese was not clearly erroneous.


[16]   Affirmed.


[17]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 19A-SC-259 | August 14, 2019    Page 8 of 8
