Warrick Cnty. v. Hill

• Decision Date: 07 August 2012
• Docket Number: No. 87A01–1201–PL–8.,87A01–1201–PL–8.
• Citation: 973 N.E.2d 1138
• Parties: WARRICK COUNTY, Indiana, A Political Subdivision, by and through its County Commissioners, Nova CONNER, Don Williams, And Phillip Baxter, and Cincinnati Insurance Co., Appellants–Defendants, v. William HILL and Stacy Hill, Appellees–Plaintiffs.
• Court: Indiana Appellate Court

973 N.E.2d 1138

WARRICK COUNTY, Indiana, A Political Subdivision, by and through its County Commissioners, Nova CONNER, Don Williams, And Phillip Baxter, and Cincinnati Insurance Co., Appellants–Defendants,¹

v.William HILL and Stacy Hill, Appellees–Plaintiffs.

No. 87A01–1201–PL–8.

Court of Appeals of Indiana.

Aug. 7, 2012.

Brian L. England, Ryan J. Guillory, Hunt Suedhoff Kalamaros LLP, Indianapolis, IN, Attorneys for Appellants.

Mark K. Phillips, Law Offices of Mark K. Phillips, Boonville, IN, Attorney for Appellees.

OPINION

BRADFORD, Judge.

In this interlocutory appeal, Appellant–Defendant Warrick County, Indiana, challenges the trial court's denial of its motion for summary judgment in an action brought against it and Cincinnati Insurance Company by Appellees–Plaintiffs William Hill and Stacy Hill. Upon appeal, Warrick County claims that the trial court erred in denying summary judgment on multiple grounds. We affirm.

FACTS AND PROCEDURAL HISTORY

The Hills are residents of Warrick County, Indiana, and have a house on Framewood Drive in Newburgh. In 2001 and 2002, Warrick County performed drainage work in a ditch adjacent to the Hills' home. The work involved installing a polyethylene pipe into the ditch and subsequently filling the ditch with backfill, thereby eliminating the ditch. Thereafter, the Hills discovered that the crawl space under their home had significant standing water. The Hills contacted Warrick County. In September of 2002, Warrick County sent contractor MCF to the Hills' residence to install underground downspout lines and direct them into an open ditch in back of the Hills' property, as a remedy. Apparently, downspout lines which had previously drained the Hills' home's roof gutters into the now-filled ditch adjacent to their property had been disconnected during the drainage project. MCF additionally installed a sump pump.

On November 20, 2002, the Hills signed an Agreement and Release in which Warrick County agreed to pay MCF's $2714 bill and the Hills $500 in additional damages. In exchange, the Hills agreed to “release[ ] and forever discharge [ ]” Warrick County from certain claims or liability. App. p. 63. The Release Agreement identified the Hills' water problem and the scope of the release as follows:

[T]he [Hills] have contended that they have suffered certain damages to their home caused by interference with a certain drain which drains down spouts from the roof gutters on this home into an open ditch which had been running along the side of the real estate owned by the [Hills] which caused water to fill the crawlspace underneath said home and which the [Hills] contend has caused mold to accumulate within the home and has caused the [Hills] to incur certain expense in order to correct said drainage problem[.]

* * *

[T]he [Hills] further have contended that the above damage to their home along with the accumulation of water under the crawlspace has been caused by blockage of the drains caused by the County in installing a drain pipe into that open ditch;

* * *

[The Hills] now expressly agree that the County is released and forever discharged from any claims or liability for any damages that may now or may hereafter be discovered as a result of the aforementioned blockage or interference with the drainage from the home of the [Hills] as hereinabove referred to[.]

App. pp. 62–63.

Thereafter, the Hills continued to have problems with accumulating water, including water in the crawlspace and sink holes in their yard. The Hills contacted Warrick County many times after MCF completed its work. According to Ms. Hill, Warrick County indicated that the sink holes were unrelated to drainage and probably due to heavy rain.

In approximately May 2007, Ms. Hill noticed that brick had begun to pull away from the side of her house. She also noticed cracks in the brick wall on her home's west side. Ms. Hill contacted her insurance carrier, who sent an adjuster to the house, and ultimately hired an engineering firm. In August of 2007, Donan Engineering issued a report indicating that the Hills' home's structural problems were attributable to the high moisture condition in the foundation soil. On December 5, 2007, Andy Easley Engineering submitted a report indicating that the moisture and foundational problems were due to the County's eliminating the open ditch adjacent to the Hills' home, leading to a higher water table. Easley recommended the construction of a groundwater interception drain to lower the ground water level on the Hills' property.

On December 14, 2007, the Hills submitted a notice of tort claim, and on November 25, 2008, filed a complaint against Warrick County and Cincinnati Insurance Company seeking damages caused by Warrick County's filling of the drainage ditch. In their complaint, the Hills alleged that Warrick County's elimination of the ditch was not contemplated by their Release Agreement. In its answer, Warrick County asserted that the Hills' claims were barred on several grounds, including (1) failure to provide timely Notice of Tort Claim under the Indiana Tort Claims Act; (2) the six-year statute of limitations; and (3) operation of the Release Agreement.

On July 9, 2011, Warrick County moved for summary judgment on the above three grounds. On August 12, 2011, the Hills filed a response disputing Warrick County's claims for summary judgment and requesting trial. Following Warrick County's September 19, 2011 reply, the trial court held a hearing on October 11, 2011, after which it denied Warrick County's motion on October 18, 2011. ² Warrick County petitioned the trial court to certify the matter for interlocutory appeal, which it did. This court accepted the appeal on February 20, 2012.

DISCUSSION AND DECISION

Upon appeal, Warrick County challenges the trial court's grant of summary judgment. On appeal, the standard of review for a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003) (citing Ind. Trial R. 56(C)). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Id. Review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court. Id.

I. Indiana Tort Claims Act

The parties do not dispute the applicability of the Indiana Tort Claims Act (“ITCA”). Under section 34–13–3–8 (2007) of the ITCA, a tort claim against a political subdivision is barred unless notice is filed with the political subdivision within one hundred eighty (180) days after the loss occurs.

On appeal, we are generally bound by the same standard as the trial court, specifically, that we must consider all designated material in the light most favorable to the nonmoving party. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct.App.2007), trans. denied. However, compliance with the notice provisions of the ITCA “ ‘is a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial.’ ” Hupp v. Hill, 576 N.E.2d 1320, 1323 (Ind.Ct.App.1991) (quoting Ind. Dep't of Highways v. Hughes, 575 N.E.2d 676, 678 (Ind.Ct.App.1991)). Accordingly, judgments based upon compliance with ITCA are subject to review as negative judgments, which we will reverse only if contrary to law. Id. at 1324. Otherwise stated, a negative judgment may only be reversed if the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to a conclusion other than that reached by the trial court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193, 1199 (Ind.Ct.App.2010).

Warrick County points to designated evidence indicating that the Hills's observation of water problems occurred on a continuing basis since 2002. According to Warrick County, the continuing nature of the water problems links them to the original problems observed and addressed in 2002. Given this alleged 2002 origin of the problems, the Hills' December 2002 Notice of Tort Claim, in Warrick County's view, fell well outside the statutory 180–day time frame.

The Hills respond by arguing that the issue of structural damage to their home was not discovered until May 2007, that they did not know its cause until December 2007, and that they filed their notice of tort claim regarding this structural damage on December 14, 2007, which was within the 180 days.

In denying Warrick County's motion for summary judgment, the trial court observed ³ from the designated evidence that the 2002 water problems were attributed to unconnected downspouts. The court also observed that the structural damage discovered in 2007 was attributed to excessive soil moisture content resulting from the elimination of a ditch adjacent to the Hills' home. Distinguishing the downspout problem from the excessive moisture content problem, the court observed that the structural damage and its cause were not discovered until as late as December 2007, and concluded that the Hills were within the ITCA's 180–day time frame when they filed their notice.

We find no error in the trial court's decision. The undisputed evidence demonstrates that Warrick County's drainage project involved more than one component, including disconnecting existing downspouts and filling in an existing ditch. The 2002 problems were attributed, by an expert contractor, to the disconnected downspouts. The 2007 problems, in contrast, were attributed by an expert to the removal of a ditch and the resulting excessive soil moisture content. These problems are easily distinguished: one involves the inadequate means by which excessive water is removed; the other, the factors forcing an...