Gibson v. EVANSVILLE VANDERBURGH BLDG. COMM.

• Decision Date: 29 March 2000
• Docket Number: No. 87A01-9902-CV-40.,87A01-9902-CV-40.
• Citation: 725 N.E.2d 949
• Parties: David GIBSON and Nancy Gibson, Appellants-Plaintiffs, v. EVANSVILLE VANDERBURGH BUILDING COMMISSION and The Evansville Vanderburgh Area Plan Commission, Appellees-Defendants.
• Court: Indiana Appellate Court

725 N.E.2d 949

David GIBSON and Nancy Gibson, Appellants-Plaintiffs, v. EVANSVILLE VANDERBURGH BUILDING COMMISSION and The Evansville Vanderburgh Area Plan Commission, Appellees-Defendants.

No. 87A01-9902-CV-40.

Court of Appeals of Indiana.

March 29, 2000.

Leslie C. Shively, Fine & Hatfield, P.C., Evansville, Indiana, Attorney for Appellant.

D. Timothy Born, Shawn M. Sullivan, Terrell, Baugh, Salmon & Born, LLP Evansville, Indiana, Attorneys for The Evansville Vanderburgh Area Plan Commission.

Joseph H. Harrison, Jr., Cedric Hustace, Bowers, Harrison, Kent & Miller, Evansville, Indiana, Attorneys for Evansville Vanderburgh Building Commission.

OPINION

STATON, Sr. Judge

David and Nancy Gibson ("the Gibsons") appeal from the entry of summary judgment in favor of the Evansville Vanderburgh Building Commission ("Building Commission") and the Evansville Vanderburgh Area Plan Commission ("APC"). The Gibsons raise two issues for our review, which we restate as:

I. Whether the Building Commission's and the APC's motions for summary judgment were repetitive, and thus, should have been summarily denied.

II. Whether the trial court erred by granting summary judgment in favor of the Building Commission and the APC pursuant to the Indiana Tort Claims Act.¹

We affirm.

In 1991, the Gibsons sought to construct a home on property they had purchased in Evansville. Before building the home, the Gibsons were required to obtain an improvement location permit from the APC. Once an application for a permit has been submitted to the APC, the Building Commission checks flood rate insurance maps to determine whether the property where the home is to be built is located within a flood plain. The permit issued by the APC indicated that the Gibsons' property was not located in a flood zone. On November 11, 1991, the Building Commission notified the Gibsons' building contractor of the Building Commission's determination, based on its examination of the flood insurance rate maps, that the Gibsons' property was not located in a flood zone. Based on the information from the APC and the Building Commission, the Gibsons built their home. In 1996, the Gibsons' home was damaged by flooding on two different occasions. After the Gibsons notified the Building Commission of their flooding problems, the flood insurance rate maps were reviewed again, and the Building Commission notified the Gibsons that their property was located in the 100-year flood zone.

The Gibsons brought suit against the Building Commission and the APC, alleging that both had been negligent in determining whether the Gibsons' property was located in a flood zone. The Building Commission filed a motion to dismiss, which was denied by the trial court. Both the Building Commission and the APC filed motions for summary judgment, contending that they were immune from civil liability pursuant to IND.CODE § 34-13-3-3(13) (1998) because their actions were merely unintentional misrepresentations. The trial court granted summary judgment in favor of both the Building Commission and the APC. The Gibsons appeal.

I. Repetitive Motions

The Gibsons contend that the defendants' summary judgment motions were repetitive and should have been summarily denied under Ind. Trial Rule 53.4. Specifically, the Gibsons argue that because the defendants' motions for summary judgment were based on the same theory as the Building Commission's motion to dismiss, and because the trial court denied the Building Commission's motion to dismiss, the summary judgment motions were repetitive and should have been deemed denied five days after they were filed. T.R. 53.4(B). We disagree.

First, we are not convinced that the summary judgment motions in this case were repetitive. The Building Commission did file an Ind. Trial Rule 12(B)(6) motion to dismiss, based on its claim of immunity for unintentional misrepresentation under IC XX-XX-X-X(13), which was denied by the trial court. However, the grant of a motion to dismiss under T.R. 12(B)(6) is appropriate only where it appears to a certainty from the facts stated on the face of the complaint that the plaintiff is not entitled to relief. Bentz Metal Prod. Co. v. Stephans, 657 N.E.2d 1245, 1247 (Ind.Ct.App.1995). In contrast, a motion for summary judgment requires the parties to designate evidence in support of their positions as to whether or not the action should proceed. Ind. Trial Rule 56(C). Thus, the motions, although based on the same theories, required the trial court to examine different evidence in order to make the determination as to whether the defendants were entitled to judgment as a matter of law.

Further, T.R. 53.4 was designed to prevent delay through the repetitive filing of motions. Biggs v. Marsh, 446 N.E.2d 977, 981 (Ind.Ct.App.1983) (citing W. Harvey, Indiana Practice, vol. 3 (1982 Supp. p. 91)). However, the trial court has inherent power to reconsider any of its previous rulings so long as the action remains in fieri, or until judgment is entered Id. There is no dispute that this action was in fieri at the time the motions for summary judgment were filed. Thus, the trial judge had discretion to rule on the defendants' summary judgement motions, even if they were repetitive and the five day period referred to in T.R. 53.4(B) had expired. The trial court did not err by considering and ruling on the defendants' motions for summary judgment. Now we turn to the question of whether the trial court erred by ruling in favor of the defendants.

II. Summary Judgment

The Gibsons contend that the trial court erred by granting summary judgment in favor of the APC and the Building Commission. Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Ramon v. Glenroy Construction Co., Inc., 609 N.E.2d 1123, 1127 (Ind.Ct.App.1993), trans. denied. The burden is on the moving party to prove there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in a light most favorable to the non-movant. Ramon, 609 N.E.2d at 1127.

The Indiana Tort Claims Act ("the Act") allows suit against government entities for torts committed by their agencies or employees, but grants immunity under the specific circumstances enumerated in IC XX-XX-X-X. Whether a governmental entity is immune from liability under the Act is a question of law for the courts. Joseph v. LaPorte County, 651 N.E.2d 1180, 1183 (Ind.Ct.App.1995). The essential inquiry is whether the legislature intended acts such as those challenged to enjoy immunity. Id. Because the Act is in derogation of common law, it is narrowly construed against the grant of immunity. Jacobs v. Board of Com'rs of Morgan County, 652 N.E.2d 94, 98 (Ind.Ct.App. 1995). The party seeking immunity bears the burden of proving that its conduct falls within the Act and is, thus, shielded from liability. Id.

The provision of the Act at issue in this case is IC XX-XX-X-X(13), which provides: "A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from ... misrepresentation if unintentional[.]" It is clear from the plain language of the provision that the legislature intended to provide immunity for any misrepresentation that is not intentionally made.² However, the Gibsons contend that the Building Commission and the APC are not immune from liability under the unintentional misrepresentation provision of the Act. Specifically, the Gibsons argue that the actions of the Building Commission and the APC that were negligent, and thus, give rise to liability, were not the misrepresentations but the underlying examinations of the flood maps. Therefore, the Gibsons argue, the Building Commission and the APC are liable for their negligence in examining the flood maps, and should not be shielded under the immunity provision for unintentional misrepresentations. We disagree.

Although we are not bound by the decisions of courts that have interpreted a similar provision of immunity under the Federal Tort Claims Act,³ ("FTCA") we find those cases instructive. In particular, the decision of the United States Supreme Court in U.S. v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961) is helpful to our resolution of this issue. In Neustadt, the Supreme Court addressed the question of whether the government was entitled to immunity under 28 U.S.C. § 2680(h), which precludes recovery against the federal government on claims "arising out of ... misrepresentation." The facts of that case are as follows. The plaintiff bought a home in reliance on a certificate of value prepared by the Federal Housing Administration (FHA).⁴ It was later discovered that the FHA's inspection of the home was negligently conducted, and that the value of the home was less than the amount indicated by the FHA appraisal. The plaintiff brought suit against the government, claiming that the government's negligent inspection and appraisal caused the harm. The government countered that the plaintiff's claim fell within the misrepresentation exception of 28 U.S.C. § 2680. Neustadt, 366 U.S. at 698-701, 81 S.Ct. 1294.

The Supreme Court held that the misrepresentation exception to the FTCA was intended to immunize government entities and employees from negligent misrepresentations. Id. at 702, 81 S.Ct. 1294. Addressing the plaintiff's claim that the injury was caused by the negligent...