Ozinga Transp. Systems, Inc. v. Michigan Ash Sales, Inc.
| Decision Date | 14 February 1997 |
| Docket Number | No. 45A04-9603-CV-111,45A04-9603-CV-111 |
| Citation | 676 N.E.2d 379 |
| Parties | OZINGA TRANSPORTATION SYSTEMS, INC., Appellant, v. MICHIGAN ASH SALES, INC., d/b/a Michigan Ash, Inc., U.S. Ash, Inc., Northern Indiana Public Service Corporation (NIPSCO), James Schroeder, and Angelina Schroeder, Appellees. James SCHROEDER and Angelina Schroeder, Appellants, v. MICHIGAN ASH SALES, INC., d/b/a Michigan Ash, Inc., U.S. Ash, Inc., Northern Indiana Public Service Corporation (NIPSCO), and Ozinga Transportation Systems, Inc., Appellees. |
| Court | Indiana Appellate Court |
Plaintiffs-Appellants James and Angelina Schroeder appeal from the trial court's grant of summary judgment in favor of Defendant-Appellee Michigan Ash Sales, Inc., d/b/a Michigan Ash, Inc., U.S. Ash, Inc. ("Michigan Ash") and Defendant-Appellee Northern Indiana Public Service Corporation ("NIPSCO").
Third-Party Defendant-Appellant Ozinga Transportation Systems, Inc. ("Ozinga") appeals from the trial court's grant of summary judgment in favor of NIPSCO on its cross-claim against Michigan Ash and on Michigan Ash's third-party claim against Ozinga on the issue of contractual indemnity.
We affirm the trial court in all respects and remand for further proceedings consistent with this opinion.
There are two broad issues raised in this appeal. The first is whether the trial court erred in granting summary judgment in favor of NIPSCO and Michigan Ash on Schroeder's negligence claim. The second is whether the trial court erred in granting summary judgment in favor of NIPSCO and Michigan Ash and against Ozinga on the issue of contractual indemnity.
This consolidated appeal involves a negligence claim brought by Schroeder following his slip and fall on NIPSCO's premises while performing work pursuant to his employer's (Ozinga) contract with Michigan Ash. It also involves contractual indemnity claims brought by NIPSCO against Michigan Ash and Michigan Ash against Ozinga.
NIPSCO is a public utility responsible for generating electricity for Northwest Indiana. In November of 1991, NIPSCO owned and operated the Dean Mitchell Generating Station in Gary, Indiana. In March of 1989, NIPSCO and Michigan Ash entered into a contract for Michigan Ash to dispose of and/or market fly ash produced by NIPSCO at its various generating plants in Northwest Indiana. Fly ash is a by-product of the spent coal burned during the production of electricity. The fly ash is accumulated in hoppers and then loaded into trucks for disposal. In November of 1989, Michigan Ash entered into a contract with Ozinga, whereby Ozinga agreed to remove the fly ash from the Gary plant.
James Schroeder was employed by Ozinga as a truck driver. As part of his employment with Ozinga, Schroeder was required to transport fly ash from the D.H. Mitchell Generating Station to a dump site. On November 29, 1991, Schroeder, while at the D.H. Mitchell site, slipped and fell on wet fly ash and sustained serious back injuries. It is undisputed that on the day of his fall, there was a delay at the fly ash hopper and the trucks began to back up. Schroeder got out of his truck to help the driver in front of him, and as he was returning to his truck, he slipped and fell.
Schroeder filed his complaint in November of 1993, against both NIPSCO and Michigan Ash, alleging negligence and loss of consortium. NIPSCO then filed a cross-claim against Michigan Ash alleging contractual indemnity based on the March 1989 contract between NIPSCO and Michigan Ash (hereinafter "NIPSCO-Michigan Ash Contract"). Following NIPSCO's cross-claim, Michigan Ash filed a third-party complaint against Ozinga alleging contractual indemnity based on the November 1989 contract between Michigan Ash and Ozinga (hereinafter "Michigan Ash-Ozinga Contract").
NIPSCO, Michigan Ash and Ozinga each filed motions for summary judgment seeking judgment as a matter of law on Schroeder's original complaint and on the various cross-claims and third-party claims. 1 The trial court heard consolidated oral argument by the parties on November 8, 1995, and took the matter under advisement.
On December 6, 1995, the trial court entered its order granting summary judgment in favor of NIPSCO and Michigan Ash on the issue of negligence. The trial court also found that Ozinga owed a duty to defend and indemnify NIPSCO and Michigan Ash, and granted summary judgment in favor of NIPSCO and Michigan Ash on their respective claims for contractual indemnification. A pre-appeal conference was held on April 12, 1996, and on April 25, 1996, this court entered an order granting the consolidation of this appeal.
Schroeder appeals on the liability issue and Ozinga appeals on the contractual indemnity issue. We heard oral argument on November 15, 1996, in Rensselaer, Indiana.
When reviewing motions for summary judgment, we apply the same standard as the trial court. Gilliam v. Contractors United, Inc., 648 N.E.2d 1236, 1238 (Ind.Ct.App.1995), trans. denied. We consider only those portions of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters designated to the trial court by the moving party for purposes of the motion for summary judgment. Ind.Trial Rule 56(C), (H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993).
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C); Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996). All facts and inferences must be liberally construed in the light most favorable to the nonmoving party. Haas Carriage, Inc. v. Berna, 651 N.E.2d 284, 287 (Ind.Ct.App.1995). The party moving for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Hermann v. Yater, 631 N.E.2d 511, 513 (Ind.Ct.App.1994), reh'g denied. Once the movant satisfies this burden, the burden shifts to the nonmoving party to produce specifically designated facts showing the existence of a genuine issue. Id. The trial court's grant of summary judgment is clothed with a presumption of validity, and the appellant bears the burden of demonstrating that the trial court erred. Rosi, 615 N.E.2d at 434. We will affirm the grant of summary judgment on any legal theory which is consistent with the designated evidence in the record. Crist v. K-Mart Corp., 653 N.E.2d 140, 142 (Ind.Ct.App.1995), reh'g denied, trans. denied.
Schroeder contends that the trial court erred in granting summary judgment in favor of NIPSCO and Michigan Ash. Schroeder's complaint alleged that NIPSCO and Michigan Ash were negligent in that they failed to properly inspect the premises, failed to properly remove accumulated fly ash, failed to properly store and handle the fly ash and failed to provide a safe and adequate walkway.
Following an evidentiary hearing and review of the designated material, the trial court granted summary judgment in favor of NIPSCO and Michigan Ash on Schroeder's negligence claim as follows:
The Court now finds that as a matter of law the Defendants NIPSCO and Michigan Ash had surrendered control over the fly ash loading process, as well as the maintenance of the fly ash spills and accumulation in the area of the loading process, to Ozinga. The Court now therefore finds that the Defendants, [NIPSCO] and Michigan Ash ... are entitled to summary judgment as a matter of law.
(R. 403).
Schroeder maintains that there are four genuine issues of material fact which preclude the entry of summary judgment in favor of NIPSCO and Michigan Ash on the issue of liability: (1) whether Michigan Ash assigned all of its duties undertaken in the NIPSCO-Michigan Ash Contract to Ozinga; (2) Whether Michigan Ash's requirement that Ozinga maintain daily communication with Michigan Ash rendered Michigan Ash in control of the NIPSCO property for premises liability purposes; (3) whether Schroeder's fall was attributable to spillage of fly ash or "natural accumulation" of fly ash; and (4) whether Schroeder's fall was partially attributable to defective concrete on the NIPSCO premises.
Schroeder's assertions of genuine issues of material fact sound in negligence. To recover on a theory of negligence, a plaintiff must establish three elements: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff proximately caused by the breach. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied; Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991), reh'g denied.
In order to prevail on a negligence action, the plaintiff must prove all of the essential elements of the cause of action. Hence, a defendant in a negligence action may obtain summary judgment by demonstrating that the undisputed material facts negate at least one element of the plaintiff's claim. Ramon v. Glenroy Const. Co., Inc., 609 N.E.2d 1123, 1128 (Ind.Ct.App.1993), trans. denied.
We begin by examining the relevant contract language. Paragraph 8 of the NIPSCO-Michigan Ash Contract enumerates the responsibilities assumed by Michigan Ash with regard to the fly ash removal process. Specifically,...
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