State v. Daily Exp., Inc.

• Decision Date: 05 July 1984
• Docket Number: No. 1-983A303,1-983A303
• Parties: STATE of Indiana and Indiana State Highway Commission, Defendant-Appellants, v. DAILY EXPRESS, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 764

465 N.E.2d 764

STATE of Indiana and Indiana State Highway Commission Defendant-Appellants, v. DAILY EXPRESS, INC., Plaintiff-Appellee.

No. 1-983A303.

Court of Appeals of Indiana,

First District.

July 5, 1984.

Linley E. Pearson, Atty. Gen., Bruce L. Kamplain, Deputy Atty. Gen., Indianapolis, for defendant-appellants.

Laura B. Worrell, Hall, Render, Killian, Heath & Lyman, Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellants, State of Indiana and the Indiana Highway Commission (Highway Commission), appeal an adverse judgment rendered by the Hancock Superior Court in favor of the plaintiff-appellee, Daily Express, Inc. (Daily Express), in its suit for damages. We reverse the judgment.

STATEMENT OF FACTS

Daily Express, a Pennsylvania corporation involved in interstate transportation, applied for an oversize permit from the Highway Commission in order to operate an overheight truck on Indiana's highways. It applied via telephone, as opposed to completing a written application form, which conversation provided the measurements and weight of the vehicle and the proposed route to be taken through Indiana. The Highway Commission thereafter compared the proposed route with a posted bridge map which indicates the minimum clearance levels for all bridges. Daily Express's permit application and route choice were approved and an oversize permit was issued and transceived to a truck stop in Richmond, where it was picked up by the Daily Express driver upon his entrance into this state. The load being transported by Daily Express measured 14' 4 1/2" high; the permit application was for a 14'5" high As a result of this accident, Daily Express incurred damages totaling $625.00. Daily Express also settled the claims of others injured through the accident in the amount of $47,135.26. The trial court awarded Daily Express a judgment against the State and the Highway Commission in the amount of $94,463.27, the sum of $47,760.26 and $45,389.87 in prejudgment interest, plus costs.

load. The bridge at the intersection of I-465 and 82nd Street in Indianapolis, which was on the route taken by Daily Express, was 14'4"' high at its lowest point, and was labeled as such on the posted bridge map. When Daily Express attempted to pass beneath the 82nd Street bridge, its load struck the bridge, came loose and struck an empty car carrier.

ISSUES

The State raises several issues, however, since the judgment must be vacated, we will discuss only two: whether the trial court erred in finding no indemnification agreement was in effect between the State and Daily Express, and whether the trial court erred in awarding court costs against the State.

DISCUSSION AND DECISION

IND.CODE 9-8-1-16 grants the Highway Commission the authority to issue special permits for transporting oversize loads on Indiana highways when, in the discretion of the Commission, other traffic will not be seriously affected and the bridges and highways will not be seriously damaged by such loads. The permit may contain restrictions and conditions as deemed necessary by the Highway Commission for protection of the traffic, highways and bridges.

The Highway Commission developed form M-233-S, Rev. 11-73 (M-233-S), a written application for an oversize permit which it requires to be carried, along with the permit, with the oversize load while it is on Indiana highways. The front of M-233-S pertains to the description of the vehicle, load and route, the same information provided through a telephone application. The back of M-233-S relates the conditions under which the permit is granted and includes a clause which reads:

"THE APPLICANT AGREES TO INDEMNIFY, DEFEND, EXCULPATE, AND HOLD HARMLESS THE STATE OF INDIANA, ITS OFFICIALS AND EMPLOYEES from any liability due to loss, damage, injuries, or other casualties of whatsoever kind, or by whomsoever caused, to the person or property of anyone on or off the right-of-way arising out of, or resulting from the issuance of this permit or the work connected therewith, or from the installation, existance, use, maintenance, condition, repairs, alteration, or removal of any equipment or material, whether due in whole or in part to the negligent acts or omissions (1) of the State, its officials, agents, or employees; or (2) of the applicant, his agents or employees, or other persons engaged in the performance of the work, or (3) the joint negligence of any of them: including any claims arising out of the Workmen's Compensation Act or any other law, ordinance, order, or decree. The applicant also agrees to pay all reasonable expenses and attorneys' fees incurred by or imposed on the State in connection herewith in the event that the application shall default under the provisions of this paragraph."

An identical indemnification agreement was approved by our supreme court as a reasonable safeguard to the State against liability caused by a utility's use of a right-of-way to perform excavations in the highway, in Southern Indiana Gas and Electric Company v. Cornelison, (1978) 269 Ind. 71, 378 N.E.2d 845. As the court explained in Cornelison, this clause renders the applicant strictly liable, vis a vis the State, for any liability caused by the work done under the permit.

The language of the clause here does obligate Daily Express to indemnify the State for liability resulting from the negligence of the State's own employees, however, Daily Express was not carrying M-233-S when the accident occurred and had not signed such form in connection with the instant permit. Daily Express contends it therefore was not bound by the indemnification clause and is entitled to recover damages and the settlement amounts from the State, whose employee negligently approved the requested route under a bridge with inadequate clearance for Daily Express's load.

It is true the law in Indiana requires a written contract between the indemnitor and the indemnitee containing a clear and unequivocal provision stating the indemnitor has knowingly and willingly assumed the burden of indemnification for the indemnitee's negligence before such arrangement will be enforced. Indiana State Highway Commission v. Thomas, (1976) 169 Ind.App. 13, 346 N.E.2d 252. The indemnity clause in M-233-S is unambiguous and meets this state's standards. Cf. State v. Thompson, (1979) 179 Ind.App. 227, 385 N.E.2d 198. However, we must determine whether Daily Express agreed to the indemnification terms, since the form was not signed.

Indemnity agreements are governed by the law of contracts. Zebrowski and Associates, Inc. v. City of Indianapolis, (1983) Ind.App., 457 N.E.2d 259. The validity of a contract is not dependent upon the signature of the parties, unless such is made a condition of the agreement. 6 I.L.E. Contracts Sec. 53 (1958); see Parrish v. Terre Haute Savings Bank, (1982) Ind.App., 431 N.E.2d 132; Seco Chemicals, Inc. v. Stewart, (1976) 169 Ind.App. 624, 349 N.E.2d 733. This rule applies to contracts of indemnity. However, some form of assent to the terms is necessary. See generally Hess v. Lackey, (1921) 191 Ind. 107, 132 N.E. 257. Assent may be expressed by acts which manifest acceptance. Herald Telephone v. Fatouros, (1982) Ind.App., 431 N.E.2d 171.

In the present case, upon entering Indiana, Daily Express picked up its requested oversize permit which stated,

"THIS PERMIT IS HEREBY GRANTED SUBJECT TO GENERAL PROVISIONS AND/OR SPECIAL PROVISIONS ON FORM M-233-S REV. 11-73 WHICH MUST BE CARRIED BY DRIVER WHILE MOVE IS BEING MADE",

in bold print. Daily Express thereafter transported its oversize load on Indiana's highways. We agree with the Sixth Circuit Court of Appeals that such acts in accordance with the permit amount to acceptance by Daily Express of the terms and conditions of the permit. Allied Steel and Conveyors, Inc. v. Ford Motor Company, (6th Cir.1960) 277 F.2d 907. In Allied Steel, Ford entered into an agreement to purchase certain machinery from Allied, which stated:

"... the signing and returning to Buyer by Seller of the Acknowledgment Copy shall constitute acceptance by Seller of this Purchase Order...