The Indiana Court of Appeals has affirmed the denial of summary judgment for the Indiana Department of Transportation after the department had argued that it should be allowed to seek the more than $100,000 it spent to repair a state bridge damaged in an accident, an amount that was double the estimated cost.
In the case of State of Indiana ex rel. Indiana Department of Transportation v. Joshua DeHaven and FBi Buildings, Inc. 37A05-1603-CC-648, Joshua DeHaven, an employee of FBi Buildings Inc., was driving southbound on Interstate 65 in August 2011 after delivering cargo in Remington, a delivery that required him to put the crane on the back of his Freightliner in the upright position. DeHaven forgot that the crane was up until it crashed into an overpass bridge in Jasper County, damaging the bridge and breaking the crane into two pieces.
Within 24 hours of the collision, INDOT inspector George Snyder had evaluated the bridge and determined that it had sustained “typical” damage that did not compromise its structural integrity. Snyder also estimated a $64,000 cost for the bridge repairs, and INDOT sent DeHaven an invoice for $75,198.82, which was “due immediately upon receipt.”
Instead, DeHaven and FBi Buildings hired Elite Consulting Services Inc. to estimate the cost of the repairs and found that the actual cost should have been between $15,000 and $20,000. In response, INDOT lowered DeHaven’s invoice to $58,712.38. However, DeHaven and Elite still found that cost excessive and chose “to wait until the repair project went to bid in hopes that this would produce an amount more reasonably reflective of the value of the necessary costs of repair.”
In early 2013, INDOT accepted a bid for the repair project from Pioneer Associates, Inc. for $132,200.80, which was the only qualified bid that was received. The final cost of Pioneer’s work amounted to $131,421.80 with roughly $200 in administrative charges, so INDOT sent DeHaven a third invoice for $131,623.05, which he and FBi Buildings refused to pay.
INDOT filed a negligence claim against DeHaven and a vicarious liability claim against FBi Buildings in November 2013 and subsequently filed for summary judgment in May 2014. However, the Jasper Circuit Court denied the motion for summary judgment, prompting the department’s appeal.
In its appeal, INDOT argued that as a tort victim, it must be restored to the position it held before the accident and, therefore, is entitled to the actual cost of repairs.
But the Indiana Court of Appeals upheld the trial court decision Tuesday, writing that the burden of proof was on DeHaven to prove that the final invoice of $131,421.80 was higher than the damages incurred, and that DeHaven had successfully done so by pointing out that Elite had estimated the cost at $20,000, Snyder had estimated it at $64,000 and that INDOT’s first two invoices were each less than the final invoice.
While the Court of Appeals noted that it agreed with INDOT that appellees must take their victim as they find it, the court also said that a victim, such as INDOT, is under a duty to mitigate damages. The court pointed to Indiana Code 8-23-9-2, which requires that the lowest responsive qualified bid for a project be no more than 15 percent above the estimated cost of the project. In this case, Pioneer’s bid was at least double Snyder’s estimated cost.
“By including language…(that) the winning bid should not be more than 15 percent about the department’s estimated cost, the legislature incorporated a safeguard against a possible excessive expenditure of taxpayer’s money,” the court wrote.