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Monday, March 30, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decisions)

For publication opinions today (2):

In In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al., a 31-page, 2-1 opinion, Judge May writes:

For many years, the Indiana State Fair Commission (“the Commission”) used equipment leased from Mid-America Sound (“Mid-America”) to produce outdoor concerts, including one on August 31, 2011, where a number of people were killed or injured when a stage at the Indiana State Fair collapsed. Lawsuits followed, and Mid-America asserted cross-claims or third-party claims seeking indemnification from the Commission. The Commission moved for summary judgment on the question whether it must indemnify Mid-America, arguing the indemnity provisions in their agreements were unconscionable; violated the Indiana Tort Claims Act, Ind. Code ch. 34-13-3; could not be applied retroactively; and were outside the Commission’s authority. The trial court granted the Commission’s motion but did not articulate the basis for its decision. As the Tort Claims Act does not apply and there are genuine issues of fact regarding the validity and enforceability of the indemnification agreement, we reverse and remand for trial. * * *

The Commission characterizes the indemnity provision in the case before us as retroactive because the indemnity provisions were printed on an invoice, and the invoice was not provided to the Commission until after Mid-America had rendered its services and after the stage collapse. However, the Commission reviewed and signed the invoices Mid-America submitted after the state collapse, and it paid Mid-America.

The designated evidence of the parties’ course of dealings gives rise to a genuine issue whether the application of the indemnity provision may fairly be characterized as “retroactive,” and summary judgment therefore could not properly be granted on that ground. Before the stage collapse, the Commission agreed to continue the parties’ longstanding course of dealing, which had for years included indemnity terms on invoices not submitted until after the Fair. * * *

The Commission next argues the indemnity provisions were unconscionable. The Commission characterizes the indemnification provision as something Mid-America “slipped in” in 2003, (Commission’s Br. at 3), and as being “tucked into the middle of small boilerplate print on the back of the invoice,” (id. at 4). We cannot find, as a matter of law, this indemnification provision was unconscionable. * * *

Nor was the Commission entitled to summary judgment on the ground it “did not knowingly and willingly agree to indemnification.” (Commission’s Br. at 14.) In light of the ample evidence it reviewed, audited, approved, and paid the invoice at issue, and numerous similar invoices over the years, summary judgment on the ground the Commission was unwilling to agree to indemnification or did not know it was doing so was error. * * *

Even if there was a valid indemnity agreement, the Commission argues, it cannot be enforced because the Commission, as a government entity, cannot enter into such an agreement. It relies on the Indiana Tort Claims Act (ITCA) and the Appropriations Clause of the Indiana Constitution. * * *

The Commission argues the ITCA applies to this contract action because the indemnity clause is in fact “a means of shifting tort liability to Indiana taxpayers,” and only the legislature “decides the terms of potential taxpayer exposure to civil damages suits.”[7] * * *

The record before us does not reflect the Commission’s enabling statute or its own rules concerning contracts prohibit indemnification agreements, and it is clear the legislature knows how to limit or proscribe indemnity provisions when it wants to do so. See, e.g., Ind. Code § 8-2.1-26-5 (prohibiting indemnification agreements in motor carrier transportation contracts with regulated public utilities), and Ind. Code § 13-23-13-10 (prohibiting indemnification agreements in agreements by owners or operators of underground storage tanks who are liable to the state for the costs of corrective action). * * *

Conclusion. There are genuine issues of fact regarding the validity and enforceability of the indemnification provisions in the vouchers Mid-America submitted to the Commission and the Commission reviewed and paid, and the Commission is not shielded by the ITCA. Summary judgment for the Commission was therefore error, and we accordingly reverse and remand for trial.

Friedlander, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins at p. 23] * * * The majority reverses the trial court’s grant of summary judgment in favor of the Commission, finding that there are genuine issues of material fact as to the validity and enforceability of the indemnification clauses. Given that the purported indemnification clauses were located on the backside of unsigned invoices, I have serious doubts as to whether there was an enforceable contract between Mid-America and the Commission. But I respectfully dissent from the majority’s opinion because, taking substance over form, I believe that this case is nothing more than Mid-America’s attempt to shift tort liability to the Commission—a tort in contract’s clothing, if you will. I would find that the Commission has immunity from Mid-America’s claims against them since this is the type of action contemplated by the Indiana Tort Claims Act (ITCA) and the Commission is a governmental entity. * * *
[7] The Commission also argues at some length that a document it refers to as the “Professional Services Contract Manual,” (Commission’s Br. at 28), prohibits state entities from entering into indemnification agreements. That manual does not appear to be in the record before us, and a web address to which the State directs us returns this result: “Error - Page Not Found. The Indiana Department of Administration has made major improvements to our site!” http://www.in.gov/ai/errors/idoa_404.html (last visited January 2, 2015). We are therefore unable to address that argument.

ILB observation: At the end of this Oct. 10, 2011 post, the ILB, citing several Indiana federal opinions, asked:
If the state lottery is a quasi-public entity, and thus not an arm of the State of Indiana, is it entitled to sovereign immunity? Several recent federal court decisions have said "no."
In Paul D. Mobley v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
Paul D. Mobley appeals his conviction for Class A misdemeanor patronizing a prostitute. Mobley argues that the evidence is insufficient to sustain his conviction or, in the alternative, that the State failed to rebut his defense of entrapment. We find that the evidence is sufficient to prove that Mobley knowingly agreed to pay an undercover detective $20 to perform fellatio on him. We also conclude that according to the Indiana Supreme Court’s recent decision in Griesemer v. State, --- N.E.3d ---, 2015 WL 970660 (Ind. 2015), because a reasonable trier of fact could have found the State proved, beyond a reasonable doubt, that the police did not induce Mobley, his entrapment defense fails. We therefore affirm his conviction for Class A misdemeanor patronizing a prostitute.
NFP civil decisions today (8):

Eric D. Smith v. The Marion County Prosecutor's Office, Terry R. Curry, John G. Baker, Margrett Robb, Justice May, Justice Mathias, Justice Sullivan, Sr., and The Indiana General Assembly (mem. dec.)

S.B. v. C.B. (mem. dec.)

Nathan Ferguson and Deanna Ferguson v. Shiel Sexton Company, Inc. d/b/a Shiel Sexton; WR Dunkin & Son Inc.: Lynch Harrison & Brumleve, Inc.; Alt & Witzig Engineering et al (mem. dec.)

David R. Ulrich and Marcia K. Ulrich v. Brad R. Minear and Miranda G. Minear (mem. dec.)

In the Matter of D.P. & C.H., Children Alleged to be Children in Need of Services, T.P. Mother v. The Ind. Dept. of Child Services (mem. dec.)

Louis Ridgeway v. Richard Jacobs (mem. dec.)

In Re: The Guardianship of A.M. v. Shapree Bailey v. Blanche Meriweather and Douglas Meriweather (mem. dec.)

In the matter of the Donald L. Colbert Living Trust dated 5-27-2008 created by Settlor, Donald L. Colbert, Barbro Colbert v. Katherine Colbert Kraek (mem. dec.)

NFP criminal decisions today (5):

Leroy D. Brown v. State of Indiana (mem. dec.)

Taylor Baughn v. State of Indiana (mem. dec.)

Darrell Dewayne Carter v. State of Indiana (mem. dec.)

James D. Huffman v. State of Indiana (mem. dec.)

Antonio D. Walker v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 30, 2015 10:58 AM
Posted to Ind. App.Ct. Decisions