HARRISON V. VEOLIA WATER Ind.POLIS LLC, 49A04-0912-CV-722
| Decision Date | 29 June 2010 |
| Docket Number | No. 49A04-0912-CV-722,No. 49D01-0806-CT-25425,49A04-0912-CV-722,49D01-0806-CT-25425 |
| Parties | MICHAEL HARRISON,Appellant-Plaintiff, v. VEOLIA WATER INDIANAPOLIS, LLC,Appellee-Defendant. |
| Court | Indiana Appellate Court |
ATTORNEYS FOR APPELLANT: W.F. CONOUR, TIMOTHY F. DEVEREUX
ATTORNEYS FOR APPELLEE: JOSEPH M. DIETZ, NEIL A. DAVIS, ANDREW M. SUMERFORD
OPINION-FOR PUBLICATION
Michael Harrison appeals the trial court's grant of summary judgment in favor of Veolia Water Indianapolis, LLC ("Veolia"). We reverse and remand.
The sole restated issue before us is whether Veolia is entitled to summary judgment because it is a political subdivision of the State, and Harrison failed to give it notice of his claim against it in accordance with the Indiana Tort Claims Act ("ITCA").
For over one hundred years, the City of Indianapolis's ("City's") water utility was operated by the Indianapolis Water Company ("IWC"), a private company, through a franchise granted by the City. In 2001, the City created the Department of Waterworks ("the Department"); that same year, the City purchased IWC's assets and transferred management of the water utility to the Department.
On March 21, 2002, the Department and U.S. Filter Operating Services, Inc., entered into a Management Agreement, transferring responsibility for the operation, management, and maintenance of the water utility to U.S. Filter. U.S. Filter later assigned the Management Agreement to USFilter Indianapolis Water, LLC, and thiscompany later changed its name to Veolia. Under the Management Agreement, the City pays Veolia approximately $40 million per year, plus additional sums if Veolia meets certain incentives. Veolia, incorporated in Delaware, is a wholly-owned subsidiary of Veolia Water North America ("VWNA"), which in turn is a subsidiary of Veolia Environment ("VE"), a French corporation with multi-billion dollar annual revenues. VWNA "is an organization that generally operates and maintains facilities for municipalities and industrials dealing with wastewater and water treatment."2 App. p. 505.
On December 14, 2006, Harrison was working for his employer, Corbitt & Sons Construction, which was a Veolia subcontractor. Harrison was working on a water line installation project when, he alleges, he received a severe electrical shock from an uninsulated overhead electrical line. Harrison filed suit against Veolia on June 3, 2008, asserting Veolia had been negligent in various ways with respect to the exposed electrical line. Harrison had not provided any other notice to Veolia of his injury or intention to sue.
Veolia filed a motion for summary judgment, claiming Harrison's lawsuit was barred because Veolia is a political subdivision of the State and Harrison had not provided a tort claim notice within 180 days of the alleged incident, as required by ITCA.
On November 17, 2009, the trial court entered summary judgment in favor of Veolia. Harrison now appeals.
When reviewing a summary judgment ruling, we apply the same standard as the trial court. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1282 (Ind. 2006). Summary judgment is proper "if the designated evidentiary matter 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); Harvey, 842 N.E.2d at 1282. We must construe all facts and reasonable inferences drawn from them in favor of the nonmoving party. Harvey, 842 N.E.2d at 1282. We may affirm a summary judgment ruling if it is sustainable on any legal theory or basis found in the evidentiary matter designated to the trial court. West American Ins. Co. v. Cates, 865 N.E.2d 1016, 1020 (Ind. Ct. App. 2007), trans. denied.
Tort claims against the State and its agencies and political subdivisions are governed by ITCA, Indiana Code Chapter 34-13-3. Any claim against a political subdivision of the State is barred unless a plaintiff files notice with the "governing body of that political subdivision" within 180 days after a loss occurs. Ind. Code § 34-13-3-8. It is undisputed that Harrison did not provide any such notice to Veolia. Political subdivision for purposes of ITCA is defined by statute as a:
(1) county;
(2) township;
(3) city;
(4) town;
(5) separate municipal corporation;
(6) special taxing district;
(7) state educational institution;
(8) city or county hospital;
(9) school corporation;
(10) board or commission of one (1) of the entities listed in subdivisions (1) through (9);
(11) drug enforcement task force operated jointly by political subdivisions;
(12) community correctional service program organized under IC 12-12-1; or
(13) solid waste management district established under IC 13-21 or IC 13-9.5-2 (before its repeal).
I.C. § 34-6-2-110. While acknowledging that it does not fall under the express statutory definition of a "political subdivision," Veolia asserts nonetheless that it is sufficiently akin to a governmental entity or political subdivision of the State that it is entitled to ITCA's procedural protections.
Although the issue here is not, strictly speaking, one of sovereign immunity, we believe it is necessary to review the history of sovereign immunity in Indiana and theadoption of ITCA.3 Sovereign immunity originated in the English concept that "the king could do no wrong." Campbell v. State, 259 Ind. 55, 57, 284 N.E.2d 733, 734 (1972). The states adopted this principle after the Revolutionary War because "the new government was not financially secure enough to face claims of negligence in its governmental activities." Id. at 58, 284 N.E.2d at 734. However, various exceptions to common law sovereign immunity began arising, starting in Indiana in 1889. Id., 284 N.E.2d at 734-35 (quoting City of Goshen v. Myers, 119 Ind. 196, 199, 21 N.E. 657, 658-59 (1889)).
One principle that became well-settled was "that if a governmental body is negligent in performing a proprietary function, it will be liable for its negligence; while, if an activity is classified as governmental, the defense of sovereign immunity shall apply." Id., 284 N.E.2d at 735. Over the years, however, it became very difficult to define exactly what constituted a "proprietary function" versus a "governmental function." Id. Despite the difficulty of defining what constituted a "proprietary function" for which a municipality could be held liable if it had been performed negligently, there were numerous cases clearly establishing that a municipality's operation of a public utility, such as electricity and water, was a "proprietary" function to which sovereign immunity did not attach. See, e.g., Public Serv. Co. of Indiana v. City of New Castle, 212 Ind. 229, 237, 8 N.E.2d 821, 824 (1937) (); City of Logansport v. Public Serv. Comm'n, 202 Ind. 523, 532, 177 N.E. 249, 252 (1931) (); Aiken v. City of Columbus, 167 Ind. 139, 150, 78 N.E. 657, 661 (1906) (); cf. also City of Anderson v. Indiana Dep't of State Revenue, 406 N.E.2d 346, 348 (Ind. Ct. App. 1980) () (quoting Department of Treasury v. City of Linton, 223 Ind. 363, 366, 60 N.E.2d 949, 950 (1945)).
In 1967, this court completely abolished the right of municipalities to claim the defense of sovereign immunity. Brinkman v. City of Indianapolis, 141 Ind. App. 662, 666, 231 N.E.2d 169, 172 (1967), trans. denied. The Brinkman court based its holding largely on the unworkability of the governmental-proprietary rule. In Klepinger v. Boardof Commissioners, 143 Ind. App. 155, 239 N.E.2d 160 (1968), trans. denied, sovereign immunity was abolished as to counties. Finally, in Campbell, our supreme court as a general rule abolished sovereign immunity as to the State itself, stating, "the elimination of sovereign immunity means a more equitable distribution of losses in society caused by the government unto members of society, rather than forcing individuals to face the total loss of the injury." Campbell, 259 Ind. at 61, 284 N.E.2d at 736. The Campbell court recognized three areas in which common law sovereign immunity still would apply: with respect to claims of inadequate police protection to prevent crime, with respect to claims of a state official appointing an incompetent person to a post, and with respect to judicial decisions. Id. at 62-63, 284 N.E.2d at 737.
In response to Campbell, the General Assembly enacted ITCA in 1974. See King v. Northeast Sec., Inc., 790 N.E.2d 474, 478 (Ind. 2003). ITCA specifies twenty-three activities for which the State and its agencies and political subdivisions enjoy complete immunity from tort liability. I.C. § 34-13-3-3. ITCA also limits the total monetary damages to which a government entity may be exposed and eliminates the possibility of punitive damages. I.C. § 34-13-3-4. Additionally, ITCA provides a time period for notifying a government entity of a potential claim that is much shorter than the statute of limitations for tort actions. I.C. §§ 34-13-3-6 (...
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