ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

ADVERTISEMENT