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For-profit Veolia Water not entitled to common law sovereign immunity

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The Indiana Supreme Court held Thursday that for-profit, private company Veolia Water is not entitled to common law sovereign immunity from liability for damages resulting from a fire that destroyed an Indianapolis Texas Roadhouse restaurant in 2010.

When Indianapolis firefighters arrived at the restaurant, they were delayed in fighting the fire because of several frozen hydrants. As a result, the restaurant was a total loss. At the time of the fire, Veolia Water Indianapolis LLC was responsible for operating the city’s water utility pursuant to an agreement with the city. The restaurant’s insurers brought this lawsuit, alleging the hydrants froze because the private companies to whom Veolia licensed access failed to properly close the hydrants.

The trial court held that the city is not entitled to common law sovereign immunity or statutory sovereign immunity under the Indiana Tort Claims Act regarding the water supply and that Veolia is not entitled to common law sovereign immunity on the matter. The Court of Appeals reversed and held that the two entities are entitled to common law sovereign immunity.

The COA urged the Supreme Court to take this case to rule on the growing use and complexity of public-private contracts. The justices relied on Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352 (Ind. Ct. App. 2001), and a test outlined by the 5th Circuit Court of Appeals to affirm the trial court’s decision that Veolia isn’t entitled to sovereign immunity.

“Despite the arguments that the City and Veolia advance, we are persuaded by the Insurers’ claim that the profit motive of Veolia — a for-profit, private company operating a public water utility under contract with a governmental unit — precludes extension of the common law sovereign immunity to which the City is entitled. Therefore, Veolia is not entitled to common law sovereign immunity on the Insurers’ claims that it failed to provide an adequate supply of water from which to fight the fire. The case against Veolia may proceed; although the Insurers’ case may not be successful on its merits, or even reach the merits, their case survives Veolia’s Rule 12 motion,” Justice Steven David wrote in Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et al., 49S04-1301-PL-8.

David encouraged trial courts to look to the 5th Circuit test for guidance when these kinds of issues arise in court.

The justices also affirmed that the city is not entitled to statutory sovereign immunity from liability regarding the inadequate water supply, but found the city is entitled to common law sovereign immunity.
 

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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