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Court affirms judgment for NIPSCO in easement dispute

July 30, 2014

A trial court was correct in awarding a northern Indiana utility company $245,858 for the cost of reconstructing power lines on a new easement after prior owners had mined sand on the prior easement, making servicing poles difficult.

A case transferred from Porter to Newton Superior Court dates to 2007, when Northern Indiana Public Service Company sought damages for violations of a 1995 easement agreement. The trial court found in favor of NIPSCO and awarded the cost of reconstructing power lines in Duneland Properties, LLC, Duneland Sand, Inc., Duneland Sand Enterprises, LLC, Duneland Holdings, LLC, David Lasco and Lasco Family Trust v. Northern Indiana Public Service Company, 56A03-1308-PL-320.

“Duneland Holdings now appeals. First, it contends that NIPSCO’s failure to mitigate damages is a bar to relief. Second, it contends that the trial court erred in admitting Plaintiff’s Exhibit 5 — a material and labor estimate prepared by a long-time NIPSCO engineer for relocating the power lines onto the new easement — into evidence because it is hearsay,” Chief Judge Nancy Vaidik wrote for the panel.

“Because mitigation of damages is not a defense to liability and NIPSCO in fact mitigated its damages, this issue is not a bar to NIPSCO’s recovery. In addition, experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field. Here, NIPSCO’s engineer testified that he relied on data from other NIPSCO departments in arriving at his material and labor estimate. The trial court therefore did not abuse its discretion in admitting Plaintiff’s Exhibit 5,” Vaidik wrote. “We affirm the trial court.”


 

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