« Ind. Decisions - More on: Criminal Appeals in the Post-Shepard Era: Justice Massa Is 18-1 for the Prosecution | Main | Ind. Courts - Nominations open for the 1st District attorney member of the Judicial Nominating Commission »

Friday, August 03, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Veolia Water Indianapolis LLC, City of Indianapolis Dept. of Waterworks, and City of Indianapolis v. National Trust Ins. Co. and FCCI Ins. Co. a/s/o Ultra Steak, Inc. d/b/a Texas Roadhouse, a 32-page opinion, Judge Crone writes:

On January 4, 2010, there was a fire at a Texas Roadhouse restaurant in Indianapolis. The Indianapolis Fire Department responded promptly, but discovered that the fire hydrants in the surrounding four blocks were frozen. This allegedly caused a delay of forty-five minutes in fighting the fire. Due to the delay, the Restaurant building was a total loss.

The Restaurant was insured by National Trust Insurance Company and FCCI Insurance Company. On October 7, 2010, the Insurers filed suit against the City of Indianapolis and its Department of Waterworks, as well as Veolia Water Indianapolis LLC, which at the time had a contract to operate the City's waterworks. The complaint alleged that the fire hydrants were frozen because the Appellants sold water from the hydrants to private companies, which had failed to properly close the hydrants after using them. The City filed a motion to dismiss, and Veolia filed a motion for judgment on the pleadings. Both motions claimed that the Appellants were entitled to immunity. The trial court denied the motions in part, concluding that the Appellants' commercial sale of water took their actions outside the scope of the common law immunity for firefighting. The trial court also found that the Insurers were third-party beneficiaries of Veolia's contract with the City.

We conclude that both the City and Veolia are entitled to common law immunity [ILB emphasis, see p. 10 of opinion], because the common law rule turns on the purpose for which the water is being used, not the underlying cause of the lack of water. We further conclude that the explicit language of the City's contract with Veolia disavows any intent to create third-party beneficiaries. Therefore, we reverse. * * *

Pursuant to long-standing precedent, common law immunity bars claims for fire damages stemming from an inadequate supply of water or inoperable fire hydrants. This immunity applies both to the City and to Veolia. We also conclude that Veolia did not waive its immunity, and even if it had, the explicit terms of the contract indicate that the Insurers are not third-party beneficiaries of the Management Agreement. We therefore reverse the judgment of the trial court.

NFP civil opinions today (0):

Michael L. Gaebler v. Janice (Gaebler) Bankert-Countryman (NFP)

NFP criminal opinions today (0):

Clair Wilson v. State of Indiana (NFP)

Michael Nance v. State of Indiana (NFP)

Posted by Marcia Oddi on August 3, 2012 11:08 AM
Posted to Ind. App.Ct. Decisions