NIPSCO loses appeal in damaged gas line small-claims suit

An excavation company found at fault for the destruction of a new home’s gas line will still have to pay up to the Northern Indiana Public Service Company despite the latter’s assertion that the company could not be held liable for a landscaper’s failure to mark the gas lines.

A gas line installed by Northern Indiana Public Service Company at a new home development property in Schererville was punctured in 2017 after a landscaper’s Bobcat-style pulverizing machine loosened the soil in preparation for planting grass.

Josh’s Lawn & Snow LLC had been hired by the property development company to perform landscaping after Ziese & Sons Excavating, Inc. was hired to grade the soil around the home and install a drainage swale. In the process of making the drainage swale, 16 to 18 inches of soil was removed, leaving part of the NIPSCO gas line covered by just 2 inches of soil.

NIPSCO sued Josh’s seeking $1,020.74 for the cost of repairs to its gas line and $1,750 in statutory attorney fees, alleging breach of statutory duties under Indiana’s Underground Plant Protection Act, common law negligence, and trespass. In its answer to NIPSCO’s complaint, Josh’s asserted the nonparty defense that Ziese had partially or fully caused NIPSCO’s claimed damages.

NIPSCO argued no fault could be attributed to Ziese because Josh’s had failed to alert NIPSCO of its intention to excavate around the home so that markers could be placed, and the line avoided. The trial court ruled in NIPSCO’s favor, but found 90 percent fault to Ziese and 10 percent fault to Josh’s. It further denied NIPSCO’s subsequent motion to correct error.

The Indiana Court of Appeals affirmed, rejecting NIPSCO’s argument that Josh’s was 100 percent liable for its damages because Ziese did not owe a legal duty of care to NIPSCO to retain any certain depth of soil over the gas line.

“This argument misses the mark because the small claims court was not required to find that Ziese had a legal duty of care toward NIPSCO in order to attribute fault to Ziese,” Judge Patricia Riley wrote for the court. Citing Bulldog Battery Corporation v. Pica Investments, Inc., 736 N.E.2d 333, 336 (Ind. Ct. App. 2000), the appellate court similarly rejected the contention that Ziese must have owed a legal duty to NIPSCO in order to be found partially at fault for Josh’s damage to the gas line.

“NIPSCO devotes much of its appellate argument to outlining its reasons why Josh’s was at fault for its claimed damages … We find that these arguments and others illustrating Josh’s negligence are unavailing because the small claims court already found Josh’s to be at fault, they do not buttress NIPSCO’s claim that the trial court erred as a matter of law in attributing fault to Ziese, and because NIPSCO does not argue on appeal that the small claims court should have assessed different percentages of liability to Ziese and Josh’s,” the panel wrote.

It therefore concluded that because NIPSCO had not shown that the trial court made any errors of law, its judgment attributing fault to Ziese was not clearly erroneous in Northern Indiana Public Service Company v. Josh’s Lawn & Snow, LLC, 19A-SC-259.

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