Because the city of Fort Wayne did not provide accurate locations of its drains to a utility company involved in constructing an underground monolith, its negligence suit against the utility company can’t survive summary judgment. An underground drain was damaged during the process, causing flooding in the area.
Northern Indiana Public Service Co. hired a contractor to perform remediation work on land it owns in Fort Wayne. It asked the city for the locations of underground facilities operated by the city. Fort Wayne provided the information, but some of it was incorrect, which led to a drain being crushed and clogged by concrete-like material placed in the ground as a part of the remediation project. The site near the project flooded in the spring and summer of 2009.
Fort Wayne sued alleging negligence. The trial court granted NIPSCO’s motion for summary judgment in May 2013.
The appellate judges relied on the Indiana Damage to Underground Facilities Act to affirm in The City of Fort Wayne v. Northern Indiana Public Service Company and NiSource, Inc., 02A04-1307-CT-366.
“Essentially, the City is arguing that it complied with DUFA’s requirements by providing NIPSCO with the best information in its possession, however inaccurate it may have been. DUFA, however contains no provision for good faith compliance,” Judge Cale Bradford wrote.
“Because the city failed to comply with the requirements of I.C. 8-1-26-18(a), NIPSCO was given a full defense to the city’s action against it pursuant to section 22(c). The trial court correctly entered summary judgment in favor of NIPSCO.”
The judges also held that any common-law action the city might have had at one time against NIPSCO has been abrogated by the enactment of DUFA.