Indiana Business Lawyer Blog

The Indiana Supreme Court recently reversed the judgment of a trial court which had granted a city’s motion to strike the jury trial request of a utility companies and the city’s motion for partial judgment on the pleadings in a case where the utility company challenged the compensation amount awarded for condemnation of its property by a city’s board of public works under an eminent domain statute.

In Utility Center, Inc. v. City of Fort Wayne, 985 N.E.2d 731 (Ind. 2013), the City of Fort Wayne (“the City”) through its Board of Public Works (“the Board”) passed a resolution appropriating and condemning a fraction of water and sewer facilities owned by Aqua Indiana, Utility Center, Inc. (“Utility Center”) that served approximately 12,000 customers. In 2003, the Board assessed damages of $17,202,499.50, but then adjusted them to $14,759,500.00 in 2004. Utility Center then challenged the condemnation by alleging that the City failed to follow proper eminent domain or condemnation statutes.
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An Indiana appellate court recently affirmed a trial court’s decision to dismiss a plaintiff’s complaint for damages, attorney’s fees and an injunction for lack of jurisdiction and the plaintiff’s failure to exhaust administrative remedies prior to filing suit.

In Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447 (Ind. Ct. App. 2012), Veolia turned off Bridges’ water for nonpayment. Bridges then attempted to file a class action lawsuit for breach of contract, seeking a return of her $25 reconnection fee, other unspecified damages, attorney’s fees, and an injunction. Veolia is an independent contractor that managed and operated water treatment and distribution facilities owned by the Department of Waterworks. It moved to dismiss Bridges’ complaint and argued that the trial court lacked subject matter jurisdiction over the matter because she failed to exhaust the administrative remedies available to her at the Indiana Utility Regulatory Commission (“IURC”). The trial court agreed with Veolia and dismissed the complaint for those reasons. Bridges then appealed.
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A federal appeals court recently affirmed a lower court’s dismissal of a lawsuit where the plaintiff alleged a taking under the federal and Illinois state constitutions, as well as nuisance claims, and procedural challenges to an amendment of a county ordinance in regard to a renewable energy wind project.

In Muscarello v. Winnebago County Board, the plaintiff, a landowner with multiple agriculturally-zoned tracts, filed a lawsuit against the Winnebago County Board (the “County”) on the basis of 2009 amendment to the County’s zoning ordinance that made it easier for an owner of agriculturally-zoned land to obtain permission to build a wind farm. Although no one had yet applied for a zoning clearance or building permit for a wind farm in the County and no wind farm has actually been built anywhere therein, the plaintiff worried that a wind farm on a property adjacent to hers would cause substantial damage including noise, radar and cell phone interference and stray voltage among other colorful claims. While the United States Court of Appeals for the Seventh Circuit acknowledged that some of the plaintiff’s concerns may be speculative, the injury “need be neither certain nor great to confer standing under Article III of the Constitution.”
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The Indiana Court of Appeals affirmed an order from the Indiana Utility Regulatory Commission which denied an electric utility company’s petition to seek deferred-accounting treatment for storm-operating expenses.

In Duke Energy Indiana, Inc. v. Office of Utility Consumer Counselor, 983 N.E.2d 160 (Ind. Ct. App. 2012), a southern Indiana wind storm in September 2008 and an ice storm in January 2009 caused approximately $32 million in damage to Duke Energy Indiana, Inc.’s (“Duke”) electrical system. Duke filed a petition with the Indiana Utility Regulatory Commission (IURC) which sought deferred-accounting treatment for $11.6 million. The Office of Utility Consumer Counselor (OUCC), a state agency charged with representing the interests of ratepayers, consumers, opposed Duke’s petition. It contended that Duke’s proposal constituted single-issue ratemaking and retroactive ratemaking, both of which are generally prohibited.
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The Indiana Court of Appeals recently affirmed a trial court’s refusal to set aside an agreement that was entered into by a non-for-profit utility-West Boggs Sewer District (“West Boggs”) and a group of Amish neighbors. The Court also affirmed the trial court’s decision in refusing to award attorney’s fees to West Boggs against most of the Amish parties.

In Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363 (Ind. Ct. App. 2012), West Boggs installed a sanitary sewer structure adjacent to parcels of property owned by a group of individual members of the Old Amish Order community (“Wagler” or “the members”). A state statute allows a utility like West Boggs to compel connection to the sewer system if it is within three hundred feet of an individual’s property line. Because the sewer system came within the statutory requirements, West Boggs sent letters to the members notifying them of the operational availability of the system and that “connection should be made by [these properties] to West Boggs’ system” on or before a certain date.
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