Oshinski v. Northern Indiana Commuter

• Decision Date: 22 February 2006
• Docket Number: No. 45A03-0502-CV-58.,45A03-0502-CV-58.
• Citation: 843 N.E.2d 536
• Parties: Thomas J. OSHINSKI, Appellant-Plaintiff, v. NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee-Defendant.
• Court: Indiana Appellate Court

843 N.E.2d 536

Thomas J. OSHINSKI, Appellant-Plaintiff, v. NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee-Defendant.

No. 45A03-0502-CV-58.

Court of Appeals of Indiana.

February 22, 2006.

C. Marshall Friedman, P.C., Andrew S. Williams, St. Louis, MO, Dale E. Allen, Merrillville, for Appellant.

Robert A. Welsh, Harris Welsh & Lukmann, Chesterton, for Appellee.

OPINION

BARNES, Judge.

Case Summary

Thomas Oshinski appeals the trial court's grant of summary judgment in favor of the Northern Indiana Commuter Transportation District ("NICTD"). We affirm.

Issues

We address the two dispositive issues, which we restate as:

I. whether Oshinski waived his objection to NICTD's amended affirmative defense by failing to object to such amendment; and

II. whether the State of Indiana has given "blanket consent" to be sued in Indiana courts under the Federal Employer's Liability Act ("FELA"), thus making compliance with the Indiana Tort Claims Act ("ITCA") unnecessary.

Facts

Oshinski began his employment with NICTD at its Michigan City Terminal in July 1979. Beginning in April 1998 and continuing through April 1999, Oshinski cleaned the tops of rail cars using a NICTD-provided solvent that contained methylene chloride.

On February 9, 2002, Oshinski filed a FELA complaint against NICTD alleging that the carrier had acted negligently by failing to provide him with proper safety equipment. As a result of this alleged negligence, Oshinski claimed that he suffered injuries to his thyroid, lungs, pulmonary system, legs, eyes, and nervous system.

On April 12, 2002, NICTD filed its answer and affirmative defenses. On January 28, 2004, NICTD filed a motion to amend requesting the trial court's permission to add affirmative defenses based on sovereign immunity and non-compliance with the notice provision of ITCA and the Indiana statute of limitations.¹ At a status conference held on February 18, 2004, the trial court granted NICTD's motion, and NICTD filed its amended affirmative defenses on March 5, 2004.

On June 29, 2004, NICTD requested summary judgment based on its sovereign immunity and ITCA affirmative defenses. Oshinski responded to the request on August 27, 2004. The trial court held a hearing on the request on October 18, 2004 and granted summary judgment in favor of NICTD on January 11, 2005. Oshinski now appeals.

Analysis

Summary judgment is appropriate only if the evidence shows there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Beta Steel v. Rust, 830 N.E.2d 62, 67 (Ind.Ct.App. 2005).² Courts must construe all facts and reasonable inferences drawn from those facts in favor of the nonmoving party. Beta Steel, 830 N.E.2d at 67. Appellate review of the grant or denial of a summary judgment motion is limited to those materials designated to the trial court, and appellate courts must carefully review decisions on summary judgment motions to ensure that parties are not improperly denied their day in court. Id.

I. Waiver of Objection to Amended Affirmative Defenses

Oshinski argues that trial court abused its discretion by allowing NICTD to amend its answer and affirmative defenses nearly two years after filing its original first responsive pleading. He claims he was unfairly prejudiced by the amendment asserting an ITCA defense because by the time the amendment was allowed, the time during which Oshinski could file ITCA notice had already passed. Indiana Trial Rule 15(A) governs amendments to pleadings and provides that, when the time during which a party may amend a pleading as a matter of course has passed, the party "may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires."

It is within the trial court's sound discretion to grant a party leave to amend an answer to include an affirmative defense. The grant will only be reversed for abuse thereof.... Accordingly, a party may not claim error where he has not been prejudiced by the amendment.

Shewmaker v. Etter 644 N.E.2d 922, 926 (Ind.Ct.App.1994) (quotations and citations omitted). Oshinski contends that he was prejudiced by NICTD's amendment because he would have had time to furnish ITCA-prescribed notice if the carrier had asserted its sovereign immunity affirmative defense in its original answer.

There is nothing in the record that indicates Oshinski filed a written stipulation to NICTD's proposed amendment as mentioned in Indiana Trial Rule 15(A), but he concedes that he failed to object to NICTD's request to amend its affirmative defenses.³ See Appellant's Br. p. 27. "Generally, a party may not raise an issue on appeal that was not raised to the trial court, even in summary judgment proceedings." McGill v. Ling, 801 N.E.2d 678, 687 (Ind.Ct.App.2004), trans. denied. We conclude that Oshinski's failure to object to NICTD's request to amend its affirmative defenses constituted a waiver of the prejudice argument he now asserts on appeal. His failure to object to the amendment has not, however, affected his argument on the merits of NICTD's claimed defense under ITCA.

II. Blanket Consent

Oshinski argues the trial court erred by granting NICTD's motion for summary judgment because he was not required to comply with the notice provision of ITCA. Indiana Code Section 34-13-3-6 provides, in part: "a claim against the state is barred unless notice is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs." The parties do not dispute, the trial court found, and we agree that NICTD is a state agency. See Ind.Code Chapter 8-5-15 (establishing commuter transportation districts); see also Gouge v. Northern Indiana Commuter Transp. Dist., 670 N.E.2d 363, 369 (Ind. Ct.App.1996) (adopting analysis used by the Federal District Court for the Northern District of Illinois and holding that NICTD is a state agency.); see App. p. 7. Despite NICTD's state-agency status, however, Oshinski contends that ITCA compliance was unnecessary under these facts because Indiana has given its "blanket consent" to be sued.

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.⁴ Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680, 119 S.Ct. 2219, 2228, 144 L.Ed.2d 605 (1999). In the context of this case, the term "blanket consent" refers to Indiana's complete, "no strings attached" consent to be sued in its own state courts. Here, that means consent to be sued without regard for ITCA. "Qualified consent," for purposes of this opinion, means limited consent with "strings"—here, ITCA compliance. The primary dispute in this case focuses on whether Indiana has given blanket consent to be sued in FELA actions brought in state court. NICTD seems to concede that the State has given consent as qualified by ITCA. We find a brief history of the United States Supreme Court's Eleventh Amendment jurisprudence instructive before analyzing further the question of blanket consent.

During the last several decades, the Supreme Court's Eleventh Amendment⁵ jurisprudence has undergone a significant evolution. In 1964 the Court decided Parden v. Terminal Railway of Alabama Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), a FELA case which set out a two-part holding:

In Parden, we permitted employees of a railroad owned and operated by Alabama to bring an action under the Federal Employers' Liability Act (FELA) against their employer. Despite the absence of any provision in the statute specifically referring to the States, we held that the Act authorized suits against the States by virtue of its general provision subjecting to suit "[e]very common carrier by railroad ... engaging in commerce between ... the several States." We further held that Alabama had waived its immunity from FELA suit even though Alabama law expressly disavowed any such waiver:

"By enacting the [FELA] ... Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit."

Coll. Sav. Bank, 527 U.S. at 676-77, 119 S.Ct. at 2226 (alterations in original), (citations omitted). The first portion of the Parden holding is commonly referred to as its statutory construction holding and the second as its constructive waiver holding.

Over the next several decades, the Court began to chip away at Parden, limiting its holdings, and, in Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987), it expressly overruled Parden's constructive waiver holding.

In Welch, although we expressly avoided addressing the constitutionality of Congress's conditioning a State's engaging in Commerce Clause activity upon the State's waiver of sovereign immunity, we said there was "no doubt that Parden's discussion of congressional intent to negate Eleventh Amendment immunity is no longer good law," and overruled Parden "to the extent [it] is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language."

Coll. Sav. Bank, 527 U.S. at 678, 119 S.Ct. at 2227 (alteration in original), (citations omitted).

In Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991), the Court again addressed the states' sovereign immunity in the context of a FELA claim. Relying on stare decisis, Hilton held that FELA creates a cause of action against a state-owned railroad enforceable in state court, thus partially reaffirming Parden.

In Parden we held that FELA...