author: MATHIAS, Judge.

text:
    MR. BULTS, INC. d/b/a MBI, Appellant-Defendant, v. Nathan ORLANDO, Appellee-Plaintiff.
    No. 56A04-1210-CT-515.
    Court of Appeals of Indiana.
    May 10, 2013.
    Ordered Published May 29, 2013.

      Michael R. Hartigan, Hartigan & O’Con-nor P.C., Chicago, IL, Eric L. Kirschner, Green & Kuchel, P.C., Schererville, IN, Attorneys for Appellant.
    Jeffrey S. Wrage, Blachly, Tabor, Bozik & Hartman, LLC, Valparaiso, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Nathan Orlando (“Orlando”) sued Mr. Bults, Inc., doing business as MBI (“MBI”), for negligence after he was injured when a semi truck backed into the tipper machine he was operating. The jury returned a verdict for Orlando of $650,0000. MBI now appeals and raises two issues, which we restate as whether there was sufficient evidence to sustain a negligence finding and whether the jury award of $650,000 was excessive.

We affirm.

Facts and Procedural History

Orlando was the operator of a tipper machine for Newton County Development Corporation, an Allied Waste landfill site. A tipper machine lifts garbage trailers into the air via a ramp mechanism and dumps the garbage inside the trailer into the landfill. On October 1, 2008, while Orlando was in the cab of the tipper machine, a driver from MBI backed his semi truck into the tipper machine. Orlando was standing up in the cab at time, and he was knocked off his feet from the impact. The right side of his body and head struck the inside walls of the metal cab. Orlando crawled out of the tipper machine but was dizzy.

Orlando went to the Working Well medical clinic where Dr. Charles Mok, Jr. (“Dr. Mok”) treated him. Dr. Mok then transferred him to the emergency room for x-rays, but the x-rays were “unremarkable!;.]” Ex. Vol., Plaintiffs Ex. 2. Orlando returned to work the following day, but he experienced problems with walking and with his kneecap shifting. Tr. p. 107. When the pain in his knee persisted, Orlando returned to Dr. Mok multiple times. Dr. Mok eventually ordered an MRI and referred Orlando to an orthopedic surgeon.

Dr. Keith Pitchford (“Dr. Pitchford”), an orthopedic surgeon, examined Orlando monthly from October 2008 to February 2009. In October and November 2008, Dr. Pitchford reviewed the MRI and concluded that Orlando had an anterior femoral bone bruise on his right knee, which Dr. Pitch-ford attributed to the October 1, 2008 accident due to Orlando’s history and “the mechanism of injury[.]” Tr. p. 79; Ex. Vol., Plaintiffs Ex. 2. Dr. Pitchford also found that Orlando had patellar dislocation of his right knee, chondromalacia of the right patella, sprain/strain of the right anterior cruciate ligament, sprain/strain of the right ankle, and a bone bruise on the right navicular. Id. Dr. Pitchford recommended physical therapy for Orlando two to three times a week for four to six weeks, prescribed hydrocodone-acetamino-phen tablets, and stated that Orlando could return to work on November 4, 2008, but should not kneel, squat, push or pull, or climb stairs or ladders.

In December 2008, Dr. Pitchford noted that Orlando’s ankle was improving and that therapy was helping. Dr. Pitchford suggested usage of a TENS unit to help alleviate pain and prescribed acetaminophen-codeine tablets. Dr. Pitchford again said it was okay to return to work but advised that Orlando should only do sit-down work. In January 2009, Dr. Pitch-ford noted that Orlando was “doing well[,]” that he had excellent strength in his ankle, and that his “knee is improved 5/5 in range and flexion.” Ex. Vol., Plaintiffs Ex. 2. Doctor Pitchford allowed Orlando to return to work without restrictions and recommended therapeutic range and strengthening exercises. On February 2, 2009, Dr. Pitchford again noted that Orlando was okay to go back to work without restrictions.

On May 10, 2010, Orlando brought suit against MBI alleging negligence. The jury trial commenced on May 21, 2012. MBI stipulated to the fact that it was 100% at fault for the accident and stipulated that the amount of the worker’s compensation lien was $9,602.72. However, MBI argued that Orlando was not injured in the manner or extent claimed and denied that Orlando’s injuries were permanent in nature. MBI also argued that the right knee pain was the result of a preexisting medical condition. Tr. p. 61. Orlando argued that he suffered permanent impairment to his knee that was a direct and proximate result of MBI’s negligence.

Orlando was thirty-one years old at the time of the accident, and the court took judicial notice that his reasonable life expectancy was another forty-three and a half years from the time of the trial. Tr. pp. 95-96. Orlando also presented evidence that due to his injuries, he missed work to attend doctor appointments and physical therapy, and he incurred medical expenses. Tr. pp. 61-62. He has difficulty with his right knee during every day activities such as climbing stars, riding in the car, playing with his children, and taking walks with his wife. Tr. pp. 112-13.

On May 22, 2012, the jury returned a verdict against MBI and found that Orlando was entitled to $650,000 in damages. On June 11, 2012, MBI filed a Motion to Correct Error. The trial court denied this motion on October 12, 2012.

MBI now appeals. Additional facts will be provided as necessary.

I. Sufficiency

MBI argues that the jury’s verdict that it was negligent was not supported by sufficient evidence. “When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. We consider only the evidence and reasonable inferences therefrom which support the jury’s verdict.” Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind.Ct.App.1996) (internal citations omitted). We will reverse only “where there is no evidence or reasonable inference from that evidence on an essential element of the plaintiffs case.” Id.

“The tort of negligence consists of three elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused by that breach.” Pelak v. Ind. Indus. Servs., Inc., 831 N.E.2d 765, 769 (Ind.Ct.App.2005), trans. denied. Here, MBI concedes that it was at fault for the accident; therefore, there is no dispute about MBI’s duty and failure to meet this duty. However, MBI argues there was insufficient evidence that the October 1, 2008 accident was the proximate cause of Orlando’s permanent injury to his knee.

To prove the causation element, the plaintiff had to establish that “the harm would not have occurred but for the defendant’s conduct.” City of E. Chicago v. Litera, 692 N.E.2d 898, 901 (Ind.Ct.App.1998).

This element requires, at a minimum, causation in fact — that is, that the harm would not have occurred “but for” the defendants’ conduct. The “but for” analysis presupposes that, absent the tortious conduct, a plaintiff would have been spared suffering the claimed harm. Hence, in order for the plaintiff to carry her burden of proof, she must present evidence of probative value based on facts, or inferences to be drawn from the facts, establishing both that the wrongful act was the cause in fact of the occurrence and that the occurrence was the cause in fact of her injury. The plaintiff’s burden may not be carried with evidence based merely upon supposition or speculation. Standing alone, evidence establishing a mere possibility of cause or which lacks reasonable certainty or probability is not sufficient evidence by itself to support a verdict. Civil liability may not be predicated purely upon speculation.
When an injury is objective in nature, the plaintiff is competent to testify as to the injury and such testimony may be sufficient for the jury to render a verdict without expert medical testimony. Ordinarily, however, the question of the causal connection between a permanent condition, an injury and a pre-existing affliction or condition is a complicated medical question. When the issue of cause is not within the understanding of a lay person, testimony of an expert witness on the issue is necessary. An expert, who has the ability to apply principles of science to the facts, has the power to,draw inferences from the facts which a lay witness or jury would be incompetent to draw. But, even an expert’s opinion, in conjunction with other evidence, may be so lacking in probative value as to be insufficient to support a verdict.

Daub v. Daub, 629 N.E.2d 873, 877-78 (Ind.Ct.App.1994) (internal citations omitted), trans. denied.

In this case, Dr. Pitchford testified that Orlando had a bone bruise on his right knee, a sprain/strain of his right anterior cruciate ligament, had chondromalacia of his right patella, and had patellar dislocation of his right knee. Ex. Vol., Plaintiffs Ex. 2. MBI does not appear to dispute that Orlando’s knee was injured but does dispute that the accident caused permanent injury to the knee. MBI argues that “it was never established that the chondroma-lacia was either initially caused by the accident on October 1, 2008 or permanently aggravated as a result thereof.” Appellant’s Br. at 11. Rather, MBI argues that this case is similar to City of E. Chicago, 692 N.E.2d at 901, because Dr. Pitchford’s testimony was not sufficiently certain in regard to whether the accident was the proximate cause of the chondromalacia and whether the injury to the right knee was permanent. Appellant’s Br. at 8-9, 12.

MBI is correct that “evidence establishing a mere possibility of cause or which lacks reasonable certainty or probability is not sufficient evidence by itself to support a verdict.” Daub, 629 N.E.2d at 877. However, we disagree that Dr. Pitch-ford’s testimony lacked reasonable certainty. While Dr. Pitchford testified that chondromalacia could be chronic or post-traumatic in nature[,]” he stated it was “[m]ost likely” a symptom of the bone bruise, and he attributed Orlando’s bone bruise to the October 1, 2008 accident due to his history and “the mechanism of injury^]” Tr. pp. 78-79. He also testified that if there was an underlying bone bruise, as there was in this case, “it would be indicative of [an] acute event.” Tr. p. 78. Moreover, Dr. Pitchford noted to a degree of medical probability that as permanent condition, “[Orlando] will have some discomfort based on the chondromalacia.” Tr. p. 87. For all these reasons, we find Dr. Pitchford’s testimony sufficient to establish proximate cause.

Even if Dr. Pitchford’s testimony was at all equivocal and was not sufficient to establish proximate cause, we still conclude there was sufficient evidence to establish causation, because we find this case similar to Foddrill v. Crane, where expert testimony was not necessary to prove the causal connection. 894 N.E.2d 1070, 1078 (Ind.Ct.App.2008). In Foddrill, we con-eluded that expert testimony was not “required to show a causal relationship between the accident and Crane’s injuries under the circumstances of this case” when the injury was objective in nature and there was “no evidence that Crane suffered from any preexisting neck injuries, the collision was sufficiently forceful so as to cause Crane’s head to hit the roof of her vehicle, and she almost immediately after-wards began feeling stiffness and pain in her neck.” Id.

Here, Orlando testified that prior to the October 1, 2008 accident he had never suffered knee pain. The accident on October 1, 2008 caused the right side of his body to be slammed against the steel walls of the tipper machine’s cab. Since the accident, he has had difficulty engaging in numerous activities such as climbing stars, riding in the car, playing with his children, and taking walks with his wife. Tr. pp. 100, 112-13. Moreover, MBI concedes that chondromalacia is an objective condition, Appellant’s Br. at 15, and “[w]hen an injury is objective in nature, the plaintiff is competent to testify as to the injury and such testimony may be sufficient for the jury to render a verdict without expert medical testimony.” Daub, 629 N.E.2d at 877. Thus, even if Dr. Pitchford was at all equivocal regarding the permanent nature of the knee injury, as in Foddrill, “the causal connection here is not so complex that a layperson would be unable to comprehend it without expert testimony.” 894 N.E.2d at 1078.

For all these reasons, we conclude that there was sufficient evidence that October 1, 2008 accident was the proximate cause of Orlando’s permanent knee condition, because Dr. Pitchford’s testimony was of sufficient certainty and was supported by sufficient corroborating evidence.

II. Excessive Verdict

MBI argues that the amount of the jury verdict is excessive and is not supported by the evidence but rather is the product of prejudice, passion or sympathy. MBI specifically contends that passion or prejudice was engendered with the jury and resulted in an excessive damages award (1) because “a prospective juror” during voir dire made comments that he had past experience with MBI and it was not a good experience and (2) because Orlando testified that he was born without a portion of his left arm. Appellant’s Br. at 17-18.

When we review a damage award, we show great deference to the jury’s determination and uphold the determination the award is “ hvithin the bounds of the evidence.’ ” Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind.2001) (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971)). We will not invade the province of the jury and will not deem a verdict to be the result of improper considerations, unless the verdict cannot be explained on any reasonable ground. Id. “‘Thus, if there is any evidence in the record that supports the amount of the award, even if it is variable or conflicting, the award will not be disturbed.’ ” Id. We will vacate an award of damages only when it is not rationally related and “so great as to clearly indicate that the jury was motivated by prejudice, passion, partiality, corruption, or that it considered an improper element.” Glasscock v. Corliss, 823 N.E.2d 748, 757 (Ind.Ct.App.2005), reh’g denied, trans. denied.

Here, the jury was instructed that in deciding the amount of money the jury could award for damages, it could consider:

One — the nature and extent of the injuries and the effect of the injuries on Nathan Orlando’s ability to function as a whole person[;]
Two — whether the injuries are temporary or permanent;
Three — the value of lost earnings;
Four — the physical pain Nathan Orlando has experienced and will experience in the future as a result of the injuries;
Five — the reasonable value of necessary medical care, treatment, and services Nathan Orlando incurred and will incur in the future as a result of the injuries[;]
Six — the aggravation of a previous condition;
Seven — the life expectancy of Nathan Orlando.

Tr. pp. 206-07.

The record reveals that there was evidence supporting these factors and that the jury could have based its damage award solely upon this evidénce, rather than on any prejudice or passion. Dr. Pitchford testified that when he examined Orlando after the accident in October 2008, Orlando had an anterior femoral bone bruise on his right knee, which Dr. Pitch-ford attributed to the October 1st accident, patellar dislocation of his right knee; chondromalacia of the right patella; sprain/strain of the right anterior cruciate ligament; sprain/strain of the right ankle; and a bone bruise on the right navicular. He had medical bills and physical therapy costs alone, and he had to miss work for these doctors’ appointments and for physical therapy, resulting in lost wages. His total worker’s compensation claim was $9,602.72.

However, his worker’s compensation claim did not include the damages for the permanent impairment to his knee nor did it capture the physical pain Orlando has had to deal with due to the injuries. Orlando and his wife, Kristin Orlando (“Mrs. Orlando”), gave extensive testimony regarding how the nature of his injuries has impeded his ability to function as whole person and how the injury will continue to impede his life in the future. Since the accident, Orlando has had problems climbing stairs and problems with his knee locking up during car rides. Tr. pp. 112-13. During the summer his knee swells due to heat and increased activity, and during the winter, trudging through snow is difficult with his knee. Moreover, Orlando was also not able to help his younger son learn to ride his bicycle since he could not run behind the bicycle to catch his son when he fell, and he struggled when he took his two sons to the zoo because of the long walks on the concrete. Tr. pp. 112-13.

Mrs. Orlando testified that now Orlando “observes more than interacts” and that he is “not able to do a lot of the things” because of the pain. Tr. pp. 165-66. She explained that he is not able to coach his children’s sports, not able to run around with them, and not able to participate in the “regular family activities” that he did before the accident, such as walking the dog and bike riding. Id. at 166. Moreover, we note that Orlando was only thirty-one years old at the time of the injury and had a life expectancy of forty-three and half more years at the time of trial. Thus, Orlando has to live with the impairment his knee may cause him for many years to come. While this damage is difficult to quantify, the jury is in the best position to assess the damages, because they had the opportunity to weigh evidence and to assess the credibility of the witnesses.

In this case, there were reasonable grounds to support the verdict, including Orlando’s medical and physical therapy costs, his physical pain, the emotional stress caused by the accident, the struggle of having to live with permanent knee impairment, and the effect his knee injury will continue to have on his ability to engage with his family. For all these reasons, we conclude there was sufficient evidence supporting the jury verdict and that the verdict can be explained on grounds other than prejudice, passion, partiality, corruption, or another improper element. For all of these reasons, we cannot say that $650,000 in damages was excessive.

Conclusion

We conclude there was sufficient evidence from which the jury could conclude that the accident was the proximate cause of Orlando’s permanent knee injury and that the jury’s $650,000 award of damages was not excessive.

Affirmed.

BAKER, J., and MAY, J., concur.

      . Chondromalacia of the patella is softening of the chondral surface that lines the kneecap.

      . Under Indiana Trial Rule 59(A)(2), a motion to correct error is a prerequisite for appeal when the party seeks to address "[a] claim that a jury verdict is excessive or inadequate.” Though MBI did file a motion to correct error, we remind counsel that this motion should have been included in the appendix, under Indiana Appellate Rule 50(A)(2)(f), which requires that the appendix should include “pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal[.]” That said, we do not find that MBI has waived this argument on appeal. See Ind. Appellate Rule 49(B).

      . We also note that MBI did not present any expert testimony, or any other evidence, that would suggest that Orlando's permanent injury to his knee was not caused by the accident.

      . The prospective juror was struck from the jury pool prior to trial.

      . MBI also argues that Orlando was only asking for $75,000 in damages. However, Orlando clearly argued that $75,000 was where he thought the jury should begin its discussion for damages, but he did not limit his damages to this amount. Tr. p. 223.

      . MBI also argues that "[i]f there is no evidence to establish the loss of earning capacity, there can be no recovery on that issue.” Scott v. Nabours, 156 Ind.App. 317, 321, 296 N.E.2d 438, 441 (1973) (holding the trial court did not err by withdrawing the issue of loss of earning capacity from the jury, when there was no evidence in that regard). However, the final jury instructions gave a list of factors the jury could consider in determining the amount of money to award, and while the final jury instructions did include an instruction on lost earnings, there was no instruction on loss of earning capacity. Tr. pp. 206-07.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    FIRST AMERICAN TITLE INSURANCE COMPANY, Appellant-Petitioner/Cross-Appellee, v. Stephen W. ROBERTSON, Insurance Commissioner of the State of Indiana, in his official capacity, on Behalf of the INDIANA DEPARTMENT OF INSURANCE, Appellee-Respondent/Cross-Appellant.
    No. 49A04-1206-PL-326.
    Court of Appeals of Indiana.
    May 13, 2013.
    Rehearing Denied June 28, 2013.

      Thomas E. Wheeler, III, Sarah Steele Riordan, Maggie L. Smith, Frost Brown Todd, Indianapolis, IN, for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, David Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

First American Title Insurance Company (“First American”) filed a verified petition for judicial review and declaratory relief against Stephen W. Robertson in his official capacity as Insurance Commissioner of the State of Indiana (the “Commissioner”). First American sought a declaration and judgment that the Commissioner’s order setting an investigatory hearing was void because it was issued outside the statutory time frame. First American appeals the trial court’s subsequent denial of its petition, raising the following restated issues: 1) whether the Commissioner’s failure to comply with the statutory deadline rendered his order void, and 2) whether the trial court erred by requiring a separate showing of prejudice. On cross-appeal, the Commissioner appeals the trial court’s denial of his motion to dismiss First American’s petition, raising the following restated issues: 1) whether First American’s failure to exhaust its administrative remedies deprived the trial court of subject matter jurisdiction over the petition, and 2) whether First American submitted sufficient materials for judicial review. Concluding the Commissioner’s claim with regard to the failure to exhaust administrative remedies is waived and there were sufficient materials to enable judicial review, but that the Commissioner’s failure to comply with the statutory deadline rendered his order void and the trial court erred by requiring a separate showing of prejudice, we affirm in part, reverse in part, and remand.

Facts and Procedural History

First American is an insurer licensed to do business in the state of Indiana. In March 2009, the Commissioner appointed a third party to perform a market conduct examination of First American. The third party examiner completed its examination and filed the market conduct examination report (the “report”) with the Commissioner on September 30, 2010. The Commissioner forwarded the report to First American on October 18, 2010. First American filed its response and rebuttal on November 10, 2010. On December 20, 2010, the Commissioner requested, and First American agreed, to retroactively extend the statutory thirty day deadline for an additional thirty days. The parties met on January 26, 2011, at which time they were unable to reach a resolution of the issues. The Commissioner requested and First American agreed to extend the deadline to February 4, 2011. On March 21, 2011, the Commissioner, through his agents, requested that First American agree to a third extension of time up through April 15, 2011. First American denied this request. On April 15, 2011, the Commissioner issued an order appointing an administrative law judge and setting an investigatory hearing on the report. On April 19, 2011, a notice of hearing was issued by the administrative law judge, setting the hearing for July 12, 2011.

On May 17, 2011, First American filed a verified petition for judicial review and declaratory relief with the trial court. First American sought a judgment and declaration that the Commissioner’s failure to act on the report within the statutory time frame rendered his order void. The Commissioner filed a motion to dismiss, arguing that First American failed to serve the Attorney General with its petition and that it failed to submit the agency record to the court. The trial court heard oral argument on the motion to dismiss on September 28, 2011. The court denied the motion, finding that First American properly served the Attorney General and that the documents attached to the petition were sufficient for judicial review.

After both parties submitted briefs on the merits of the petition for review and the Commissioner renewed his motion to dismiss on the ground that First American had not properly filed an agency record with the court, the trial court heard oral argument on these matters on April 23, 2012. The trial court denied the motion to dismiss, finding again that the materials submitted were sufficient for judicial review. However, the court denied the petition for judicial review and declaratory relief on the merits. In its order, the trial court stated that under the guidelines of the Administrative Orders and Procedures Act (“AOPA”), “the Court must find both that an agency action fits into one of the five aforementioned categories and that the agency action prejudiced the petitioner,” and found that First American did not meet its burden of proof with regard to the second prong of prejudice. Appellant’s Appendix at 11. First American now appeals and the Commissioner cross-appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

Judicial review of administrative decisions is governed by the AOPA. Ind. Code § 4-21.5-2-0.1(a). When reviewing the decision of an administrative agency, we are bound by the same standard of review as the trial court. The Kroger Co. v. Plan Comm’n of Town of Plainfield, 953 N.E.2d 536, 539 (Ind.Ct.App.2011), trans. denied. A court may set aside an agency action if the petitioner was prejudiced by an agency action that fits into one of five categories set forth in Indiana Code section 4-21.5-5-14(d). On appeal, to the extent the trial court’s factual findings were based on a paper record, review is de novo. Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 (Ind.2001). Similarly, we review a trial court’s ruling on a motion to dismiss de novo where the facts are not in dispute and the court ruled on a paper record. Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind.2006).

II. Cross-Appeal

A. Subject Matter Jurisdiction

We address first the jurisdictional argument, as jurisdiction is a threshold issue. On cross-appeal, the Commissioner argues that First American’s failure to exhaust its administrative remedies deprived the trial court of subject matter jurisdiction over the petition. This is the first time the Commissioner has raised this issue. The Commissioner argues that this issue is properly before the court by citing the rule that subject matter jurisdiction cannot be waived and may be raised at any time. First American argues that the failure to exhaust administrative remedies goes to whether the trial court had jurisdiction over this particular case and, as such, is a procedural error that can be waived. We agree with First American.

While it is well-established that a court’s subject matter jurisdiction cannot be waived, whether a particular error impacts a court’s subject matter jurisdiction is not as clear. Our supreme court recently clarified the concept of subject matter jurisdiction and stated the following:

Attorneys and judges alike frequently characterize a claim of procedural error as one of jurisdictional dimension. The fact that a trial court may have erred along the course of adjudicating a dispute does not mean it lacked jurisdiction.
Thus, while we might casually say, “Judge Flywheel assumed jurisdiction,” or “the court had jurisdiction to impose a ten-year sentence,” such statements do not have anything to do with the law of jurisdiction, either personal or subject matter. Real jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or a judgment rendered without any service of process. Thus characterizing other sorts of procedural defects as “jurisdictional” misapprehends the concepts.

K.S. v. State, 849 N.E.2d 538, 541-42 (Ind.2006) (emphasis in original) (holding that the juvenile court’s alleged failure to approve by written order the filing of a delinquency petition was a procedural error, and not a jurisdictional one, and thus could not be attacked collaterally). In Packard v. Shoopman, our supreme court held that the alleged failure to comply with a deadline for filing a petition for judicial review in the Tax Court was a procedural rather than jurisdictional error despite the fact that “cases from this Court and the Court of Appeals from time to time have described timely filing requirements as implicating the ‘jurisdiction’ of the court.” 852 N.E.2d 927, 930 (Ind.2006). The court noted that the phrase, “ ‘jurisdiction over the particular case,’ is something of a misnomer and refers to failure to meet procedural requirements.” Id. at 929-30. Because the error was procedural and was not raised in a timely fashion, any objection to the timeliness of the filing was waived. Id. at 932.

Our supreme court’s analysis in K.S. and Packard applies here. See St. Joseph Hosp. v. Cain, 937 N.E.2d 903, 906 (Ind.Ct.App.2010) (rejecting the argument that “the analysis of jurisdictional concepts in K.S. applies with less force in an AOPA case than it does in a juvenile delinquency adjudication”), trans. denied. Like the error in Packard, the alleged error here— the failure to exhaust administrative remedies — has often been described as implicating a court’s subject matter jurisdiction. See, e.g., Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind.2005). Yet, in Packard, the court held that the error was actually a procedural and not jurisdictional error. 852 N.E.2d at 932. Subject matter jurisdiction is defined as “the power to hear and determine cases of the general class to which any particular proceeding belongs.” K.S., 849 N.E.2d at 540. Here, it is clear that the Marion Superior Court possessed jurisdiction over the general class of cases to which this petition belonged. First American filed a petition for review of an order issued by the Commissioner, head of an administrative agency, as contemplated by the AOPA. See Ind.Code § 4-21.5-5-2. The Commissioner’s argument that First American failed to exhaust its administrative remedies as set forth in Indiana Code section 4-21.5-5-4 goes towards the jurisdiction of this particular case, and is thus a procedural and not jurisdictional error. See Kennedy v. Town of Gaston, 923 N.E.2d 988, 994 (Ind.Ct.App.2010) (holding that the alleged failure to exhaust administrative remedies under the Unsafe Building Act was a procedural rather than jurisdictional error and was thus waived when it was not raised in a timely fashion). Because the Commissioner raises this alleged procedural error for the first time on appeal, its claim in regard to exhaustion is waived.

B. Sufficiency of Materials Submitted

On cross-appeal, the Commissioner also appeals the trial court’s denial of its motion to dismiss on the ground that First American failed to submit an agency record. The Commissioner cites the statutory requirement that a petitioner seeking judicial review of an agency action must request the agency record from the agency and then transmit that record to the court. See Ind.Code § 4-21.5-5-13. First American did not make a written request for the agency record from the Commissioner. Instead, it submitted with its petition to the court a cover letter dated April 13, 2011, from the Commissioner’s attorney to First American’s attorney, a copy of the order setting an investigatory hearing, the notice of hearing issued by the administrative law judge, and a letter from First American’s attorney dated March 29, 2011, refusing to agree to a third extension of time. The trial court held that these materials were sufficient to decide the issue presented for judicial review. We agree.

In Indiana Family and Social Services Admin. v. Meyer, our supreme court was recently evenly divided on the issue of whether a trial court may proceed with a case where the agency record was not timely filed, but the submitted materials contained sufficient facts on which a determination could be made. 927 N.E.2d 367, 871-72 (Ind.2010). In that case, the issue on appeal was a question of fact regarding the valuation of some property. Id. at 369. The agency had admitted to error in its answer. Id. at 372. Two of the justices determined that, in light of the admission, “there was nothing needed to resolve the [issue] beyond facts established by the petition and answer, and the applicable law as set forth in the regulations,” and, thus, the submitted documents were sufficient for judicial review. Id. The two other justices disagreed, arguing that an agency record is required for judicial review, and that holding otherwise would lead to future contests over whether the submitted records were “complete enough” for review. Id. at 374. Further, the disagreeing justices noted that in that case, if the court dismissed the case, it would be reviewed by a Medicare county office and thus the petitioner would “receive all the further consideration to which the Court says she is entitled.” Id. It is not clear to what extent this fact influenced the decision of the disagreeing justices, and whether they would have held differently had their decision precluded further review of the petitioner’s case.

This case is different from Meyer in multiple respects. First, the issue here is a pure question of law. The issue presented for judicial review was whether the Commissioner’s failure to comply with the statutory time frame rendered his order void. To the extent any facts were necessary, they were included in the submitted materials. For example, the hearing order issued on April 15, 2011, noted that the report that was to be the subject of the hearing and that started the statutory timeframe running was filed on September 30, 2010. In fact, the Commissioner acknowledged, in his brief filed with the trial court, that the order “was not issued pursuant to the time frame outlined in Indiana Code § 27-1-3.1-11.” Appellant’s App. at 102. Because the issue was a question of law regarding compliance with a statutory deadline, and there were no disputed facts, the submitted materials were sufficient to allow judicial review of the issue.

Moreover, most of the materials typically included in an agency record do not exist in this case because no evidentiary hearing was conducted. Indiana Code section 4-21.5-3-33(b) defines an agency record as consisting of the following:

(1) Notices of all proceedings.
(2) Any prehearing order.
(3) Any motions, pleadings, briefs, petitions, requests, and intermediate rulings.
(4) Evidence received or considered.
(5) A statement of matters officially noticed.
(6) Proffers of proof and objections and rulings on them.
(7) Proposed findings, requested orders, and exceptions.
(8) The record prepared for the administrative law judge or for the ultimate authority or its designee under sections 28 through 31 of this chapter, at a hearing, and any transcript of the record considered before final disposition of the proceeding.
(9) Any final order, nonfinal order, or order on rehearing.
(10) Staff memoranda or data submitted to the administrative law judge or a person presiding in a proceeding under sections 28 through 31 of this chapter.
(11) Matters placed on the record after an ex parte communication.

Because an evidentiary hearing was not conducted, there was no evidence received or considered, no statement of matters officially noticed, and no proposed findings or requested orders, for instance. And any order or notice issued by the Commissioner or the administrative law judge was submitted to the court with the petition. The Commissioner points to seventeen items that it claims should have also been included as part of the agency record. However, a review of these items reveals that most of them relate to the market conduct examination and are dated prior to the issuance of the report, which started the statutory timeframe running. The only two items listed by the Commissioner that did not predate the issuance of the report are the report itself and communications between the Commissioner and First American attempting to schedule a settlement hearing during January 2011. None of these items were necessary for the narrow question of law presented to the trial court for judicial review — whether the Commissioner’s failure to issue its order within the statutory timeframe rendered it void. And, thus, the materials submitted by First American were sufficient for review. See Izaak Walton League of Am., Inc. v. DeKalb Cnty. Surveyor’s Office, 850 N.E.2d 957, 965 (Ind.Ct.App.2006) (holding the materials submitted were sufficient because the record should include “all that is necessary in order for the reviewing court to accurately assess the challenged agency action”), trans. denied. We, therefore, affirm the trial court’s denial of the Commissioner’s motion to dismiss.

III. Appeal

A Failure to Comply with Statutory Deadline

Indiana Code section 27-1-3.1-11 mandates that:

(a) Within thirty (30) days after the end of the period allowed for the receipt of written submissions or rebuttals, the commissioner shall ... enter an order:
(1) adopting the examination report . . .;
(2) rejecting the examination report ...; or
(3) calling for an investigatory hearing with no less than twenty (20) days notice to the company for purposes of obtaining additional documentation, data, information and testimony.

Here, the Commissioner chose to call for an investigatory hearing but waited over thirty days from the end of the period allowed for the receipt of written submissions or rebuttals. At the trial court level, the Commissioner acknowledged that the order “was not issued pursuant to the time frame outlined in Indiana Code § 27-1-3.1-11,” Appellant’s App. at 102, but now, on appeal, claims that he has flexibility as to when to respond to the report and that the “shall” in the statute is not mandatory. We disagree.

“The first and often the only step in resolving an issue of statutory interpretation is the language of the statute.” Shell Oil Co. v. Meyer, 705 N.E.2d 962, 972 (Ind.1998). Here, Indiana Code section 27-1-3.1-11 states that “within thirty (30) days ... the commissioner shall ... enter an order.” (Emphasis added.) This language suggests that the thirty day requirement is mandatory. See State, Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 946 (Ind.1999) (finding that the language of statutory provision which states “the commission shall, not later than thirty (30) days after the election is made, file a civil action” suggested that the thirty day requirement was mandatory, not directory). In addition, Indiana case law presumes that “shall” is mandatory “unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning.” United Rural Elec. Membership Corp. v. Ind. & Mich. Elec. Co., 549 N.E.2d 1019, 1022 (Ind.1990).

The Commissioner claims that the “shall” is not mandatory because the statutory provision governing the time period allowed for the receipt of submissions and rebuttals allows the Commissioner to extend that time period if in his “sole discretion, [he] determines that an extension is appropriate or necessary.” See Ind.Code § 27-1-3.1-10(b). However, this provision contemplates that an extension is requested by the company which was the subject of the market conduct examination. Further, it limits any extensions to those that are “appropriate or necessary,” see Ind.Code § 27-1-3.1-10, and thus the Commissioner cannot “extend the deadline for an investigatory hearing merely by extending the time for rebuttals and statements,” see Brief of Appellee and Cross Appeal at 27. In fact, explicitly granting the Commissioner the discretion to allow for an extension of time for rebuttals and statements reflects that the thirty day deadline in that statutory provision is mandatory. The statutory provision setting forth a thirty day timeframe for issuance of an order by the Commissioner is similarly mandatory, but does not include any language allowing for an extension. From this omission, we can presume the legislature purposely chose not to allow the Commissioner to extend the deadline to issue its order. See Andrianova v. Ind. Family & Soc. Serv. Admin., 799 N.E.2d 5, 16 (Ind.Ct.App.2003) (“When language is used in one section of a statute but omitted from others, courts indulge a general presumption that [the legislature] acted intentionally and purposely in so doing.”). Thus, when the mandatory statutory deadline passed, the Commissioner no longer had the authority to issue an order with regard to the report. The Commissioner’s order was void.

B. Separate Showing of Prejudice

Under AOPA, a court may set aside an agency action if

it determines that a person seeking judicial relief has been prejudiced by an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.

Ind.Code § 4-21.5-5-14(d). The trial court stated that it “must find both that an agency action fits into one of the five aforementioned categories and that the agency action prejudiced the petitioner,” and found that First American failed to meet its burden of proof with regard to the second prong of prejudice. Appellant’s App. at 11. On appeal, First American argues that the trial court erred by requiring a separate showing of prejudice. We agree.

As we conclude above, by failing to comply with a mandatory statutory deadline, the Commissioner acted without observance of procedure required by law and in excess of its statutory authority. No Indiana caselaw requires proving anything beyond establishing that the agency action at issue falls into one of the five enumerated categories set forth in Indiana Code section 4-21.5-5-14(d) in order to obtain relief. See, e.g., A.B. v. State, 949 N.E.2d 1204, 1217 (Ind.2011) (stating that the “AOPA specifies five instances under which judicial relief should be granted due to 'prejudice by an agency action: if the agency action is [listing the five enumerated categories]”) (emphasis added). Thus, we find that First American satisfied its burden of proof and was entitled to relief.

Conclusion

The Commissioner waived its claim regarding exhaustion of administrative remedies by waiting to raise the issue for the first time on appeal. Because the materials submitted by First American with its petition were sufficient for judicial review, the trial court properly considered the merits of First American’s petition. Thus, we affirm the court’s denial of the Commissioner’s motion to dismiss. We conclude, however, that the Commissioner’s failure to comply with the statutory deadline rendered his order void and that the trial court erred by requiring a separate showing of prejudice. Thus, we reverse the trial court’s denial of First American’s verified petition for judicial review and declaratory relief and remand with instructions to grant the petition.

Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J., and CRONE, J., concur.

      . First American also argues that it did not actually fail to exhaust its administrative remedies. However, because we hold that the Commissioner is raising an untimely procedural error and has thus waived its claim regarding exhaustion, we need not address that issue.

      . The Commissioner claims that Kennedy is inconsistent with other, more recent, decisions issued by this court. However, in all of those cases, the issue was whether the party had failed to exhaust its administrative remedies, and not whether an objection to the failure to exhaust administrative remedies can be waived. See Amerisafe Risk Serv., Inc. v. Estate of Wadsack, 980 N.E.2d 842, 846 (Ind.Ct.App.2012) (reversing the trial court’s denial of a motion to dismiss because the complaint should have been filed with the Worker’s Compensation Board and not with the court), trans. denied; Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447, 459 (Ind.Ct.App.2012) (affirming the trial court’s decision to dismiss the case because the claim fell within the agency’s exclusive jurisdiction and exhaustion would not have been futile), trans. denied; Outboard Boating Club of Evansville, Inc. v. Ind. State Dep’t of Health, 952 N.E.2d 340, 343 (Ind.Ct.App.2011) (affirming the trial court’s decision to dismiss the case for failure to exhaust administrative remedies), trans. denied. Thus, those cases are not on point.

      . Justice Sullivan did not participate in the decision, and the remaining four justices were equally divided on this issue.

      . As noted below, the Commissioner has now changed his position on appeal and claims that the statutory deadline is flexible.

      . The Commissioner claims that the trial court erred by relying on the allegations in First American's petition. However, to the extent the trial court relied upon them to find that First American failed to satisfy its burden of proof with regard to prejudice, we conclude below that no separate showing of prejudice was required. Any other facts that came from the petition merely established the timeframe following the filing of the report, which was not in dispute.

      . The Commissioner claims that these materials were necessary to determine the issue of whether the Commissioner’s failure to comply with the statutory deadline prejudiced First American. However, even if this is true, it is of no consequence, because, as we conclude below, the trial court erred by requiring a separate showing of prejudice.

      . Submissions and rebuttals are allowed within thirty days of issuance of the report. Ind. Code § 27—1—3.1—10(b). In this case, the deadline for rebuttals and statements was around November 18, 2010, which First American complied with by submitting its rebuttal on November 10, 2010. Thus, the deadline for issuing an order was around December 18, 2010. The order here was issued over four months from that deadline, and over sixty days from the last agreed upon extension of February 4, 2011.

      . We note that in many instances, when a court sets aside an agency action, it remands the case to the agency for further proceedings. See Ind.Code § 4-21.5-5-15. Considering our holding that the Commissioner’s failure to comply with the statutory deadline rendered his order void and he can no longer take action on the report that was the subject of the order, remand to the agency would serve no purpose and is, therefore, unnecessary. See Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 865 N.E.2d 660, 668 (Ind.Ct.App.2007) (“Simply put, where remand would serve no purposes — as in instances where no additional issues remain for determination — remand is unnecessary.”). On remand, the trial court must simply issue an order granting First American’s petition and declaring the Commissioner’s order void.


author: BRADFORD, Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant/Cross-Appellee/Defendant, v. WARSAW CHEMICAL COMPANY, INC., Appellee/Cross-Appellant/Plaintiff.
    No. 49A04-1203-CT-97.
    Court of Appeals of Indiana.
    May 23, 2013.
    Richard A. Rocap, Rocap Musser LLP, Indianapolis, IN, Bradford S. Moyer, Jeffrey C. Gerish, Plunkett Cooney, Kalamazoo, MI, Attorneys for Appellant.
    Brent W. Huber, Brian J. Paul, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

INTRODUCTION

Over the course of several decades, Ap-pellee/ Cross-Appellant/Plaintiff Warsaw Chemical Company (“Warsaw”) released pollutants into the soil and groundwater at its Warsaw, Indiana facility. This contamination was discovered in the late 1980s, and Warsaw agreed to remediate in August of 1989. In 1990, Warsaw notified its general liability insurer, Appellant/Cross-Appellee/Defendant United States Fidelity and Guaranty Company (“USF & G”), of the contamination and that Warsaw was seeking reimbursement for the remediation pursuant to its primary and excess policies. USF & G notified Warsaw that it believed that coverage did not exist for a number of reasons and denied coverage pursuant to both primary and excess liability policies. In 1992, in exchange for $25,000, Warsaw released USF & G from claims or demands related to the remediation.

In 2007, Warsaw filed suit against USF & G, contending, inter alia, that the 1992 release only concerned primary liability policies. Over the course of the next few years, the trial court ruled that (1) the 1992 release did not bar coverage under the excess policies, (2) Warsaw’s claim was not time-barred, and (3) coverage existed under the personal injury coverage of the excess policies. The trial court ultimately entered judgment in favor of Warsaw for $417,953.

USF & G contends that the trial court erred in ruling in Warsaw’s favor because (1) the 1992 release executed by Warsaw covered the excess policies, (2) Warsaw’s claim is time-barred, (3) coverage does not exist under the personal injury provisions of its policies with Warsaw, and (4) not all of Warsaw’s costs were covered even if coverage did exist. Warsaw responds to all of these arguments and additionally claims that (1) the Court of Appeals should affirm for the alternate reason that coverage exists under the property damage provisions of the relevant policies and (2) Warsaw is entitled to prejudgment interest. Because we conclude that the 1992 release covered the excess policies, we reverse the judgment of the trial court and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Warsaw is located in Warsaw, Indiana, and is in the business of receiving and repackaging chemicals and manufacturing chemical products. From May 3, 1985, to May 3, 1989, Warsaw had primary liability policies with USF & G and had excess policies from May 3, 1985, to May 3, 1988. (Appellant’s App. 45). In June of 1988, contractors installing a sewer trench 400 feet from Warsaw’s facility encountered soil and groundwater that smelled of solvents. Samples taken at the site revealed the presence of 1, 1, 1 Trichloroethane; Ethylbenzene; Tetrachloroethylene; Toluene; Trichloroethylene; Xylene; Alkyl-benzene; 1, 2 Dichloroethane; 1, 1 Diehlo-roethane; Methylene Chloride; Acetone; Methyl Isobutyl; Ketone; cis 1, 2 Dichlo-roethane; and mixed alkanes. On October 26 and 27, 1988, the Environmental Protection Agency (“EPA”) conducted testing, the results of which indicated groundwater contamination near a well field that supplied approximately one-third of the city’s water. (Appellant’s App. 71). On February 16, 1989, Warsaw’s consultant sampled a monitor well and discovered an insoluble floating layer consisting of 30% Toluene; 25% Mineral Spirits; 21% Xylene; 14% 1, 1, 1 Trichloroethane; and lesser amounts of Trichloroethene and Tetrachloroethene. (Appellant’s App. 71).

On September 12, 1989, the EPA and Warsaw issued an Administrative Order by Consent, which indicated that the conditions present at Warsaw “constitute[d] a threat to public health or welfare or the environment ... due to the existence of heavily contaminated groundwater and soil.” Appellant’s App. pp. 74-75. Consequently, the order required Warsaw to investigate and remediate the contamination caused by its operations and cease further contamination. In a letter dated January 10, 1990, Warsaw notified USF & G of the contamination matter. (Appellant’s App. 219). In a later dated January 9, 1991, USF <& G denied coverage for the remediation under both its primary and excess liability policies with Warsaw. (Appellant’s App. 219-20).

On June 22, 1992, Warsaw executed a Release and Settlement Agreement (“the Release”), in exchange for which USF & G paid Warsaw $25,000. The Release provides, in part, as follows:

WHEREAS, USF & G issued to Warsaw the following comprehensive general liability insurance policies for the following policy periods:
Policy Number Policy Period
ICP 07911442001 05/03/88-05/03/89
ICC 090453055 05/03/87-05/03/88
ICC 085149911 05/03/86-05/03/87
ICC 069731717 05/03/85-05/03/86

NOW THEREFORE, Warsaw, by its duly authorized representative, agrees as follows:
1. In consideration for the payment of $25,000.00, receipt of which is hereby acknowledged, Warsaw releases, acquit[s], and forever discharges USF & G and its agents, representatives, parent organizations, subsidiaries, and all other persons, firms or corporations in privity with USF & G from any further claims, demands, causes of action, damages, clean-up costs, expert fees, consulting fees, attorneys fees, costs or losses of any kind and nature whether known or unknown, foreseen or unforeseen, anticipated or unanticipated arising from, or in any way related to, the pollution and contamination of the soil and groundwater in, upon or adjacent to the Warsaw facility in Warsaw, Indiana.

Appellant’s App. pp. 287, 289. The excess policies were not specifically mentioned in the Release.

On October 16, 2007, Warsaw filed suit against USF & G, contending that USF & G is obligated to defend and indemnify Warsaw pursuant to the excess polices. On December 23, 2009, the trial court denied USF & G’s motion for summary judgment, rejecting USF & G’s argument that the Release covered the excess policies as well as the primary policies. (Appellant’s Br. 50). On February 4, 2010, the trial court denied USF & G’s motion for summary judgment on the ground that Warsaw’s claims were time-barred. (Appellant’s Br. 53). On September 23, 2010, the trial court denied both parties’ motions for summary judgment, concluding that there was a genuine issue of material fact as to whether there was an “occurrence” pursuant to the excess policies. (Appellant’s Br. 59).

On December 28, 2010, the trial court ruled on Warsaw’s motion to reconsider, concluding that coverage did, in fact, exist under the “personal injury” provisions of the excess policies. The trial court also found that Warsaw had already exceeded the $500,000 per occurrence coverage limit of the primary coverage. (Appellant’s Br. 63-64). The trial court entered partial summary judgment in favor of Warsaw, concluding that (1) USF & G had a duty to defend Warsaw and that (2) coverage existed under the personal injury provisions of the excess policies and that USF & G was to indemnify Warsaw for “all environmental response costs, legal defense costs, and any other future costs Warsaw Chemical sustains in the underlying environmental matter, less the policy limit of the underlying primary policy[.]” Appellant’s Br. p. 64.

On February 3, 2012, the trial court entered its Order and Final Judgment. In the order, the trial court noted the parties’ stipulations that Warsaw’s total outlay for remediation had been $1,109,664.98, and Warsaw’s costs prior to September of 1989 had been $191,711. (Appellant’s Br. 67). The trial court concluded that Warsaw’s $191,711 outlay prior to September of 1989 were defense costs for which USF & G was not liable and the remaining $917,953 of Warsaw’s total outlay were indemnity costs. The trial court also found that Warsaw’s coverage claim was not time-barred and that the primary coverage limit of $500,000 had been exceeded. The trial court entered judgment in favor of Warsaw for $417,953 but denied Warsaw’s request for prejudgment interest.

DISCUSSION

Whether the Trial Court Erred in Denying USF & G’s Summary Judgment Motion on the Basis that the Release Covered the Excess Policies

When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party’s claim. Id. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id. Where a different standard of appeal is to be applied, that will be noted.

USF & G argues that the Release unambiguously releases it from any and all claims related to contamination at Warsaw. USF & G claims that the listing of policies in the Release, which did not include the excess policies, does not render Warsaw’s release ambiguous because the list appears in the preliminary recitals. Warsaw counters that the Release, including the recitals, should be read as a whole and that doing so leads to the conclusion that the Release only related to the primary polices, not the excess policies.

The disposition of this issue turns on the legal effect of operative language versus recitals, or “whereas” clauses, in a contract. “The first rule in the interpretation of contracts is to give meaning and effect to the intention of the parties as expressed in the language of the contract.” Stech v. Panel Mart, Inc., 434 N.E.2d 97, 100 (Ind.Ct.App.1982). “In ascertaining the intention of the parties, a court must construe the instrument as a whole, giving effect to every portion, if possible.” Id.

As the Stech court noted however, Indiana has long distinguished between operative contract language and recitals:

In Irwin’s Bank v. Fletcher, etc., Trust Co., Rec. (1924), 195 Ind. 669, at 694, 145 N.E. 869, at 877, the Indiana Supreme Court stated:
“The preliminary recitals in a contract may be persuasive in determining the intention of the parties thereto when the language expressing their contractual relations is ambiguous, uncertain and indefinite, but they should never be allowed to control, as here, the clearly expressed stipulations of the parties.”

Citing Irwin’s Bank, supra, the Indiana Supreme Court in Kerfoot v. Kessener (1949), 227 Ind. 58, at 79, 84 N.E.2d 190, at 199 held:

“The preliminary recitals of the contract may be of some value, but they are not contractual, and can not be permitted to control the express provisions of the contract which are contractual in nature.”

Id.

The distinction between recitals and operative language has not been questioned or criticized in this court or the Indiana Supreme Court, much less abrogated. As previously mentioned, the relevant operative language of the Release

forever discharges USF & G and its agents, representatives, parent organizations, subsidiaries, and all other persons, firms or corporations in privity with USF & G from any further claims, demands, causes of action, damages, cleanup costs, expert fees, consulting fees, attorneys fees, costs or losses of any kind and nature whether known or unknown, foreseen or unforeseen, anticipated or unanticipated arising from, or in any way related to, the pollution and contamination of the soil and groundwater in, upon or adjacent to the Warsaw facility in Warsaw, Indiana.

Appellant’s App. p. 289. Warsaw does not argue that this operative language is ambiguous, and the language clearly releases USF & G from “any further claims” related to pollution and contamination at the Warsaw facility, without reference to different types of insurance coverage. Under the binding precedent of Irwin’s Bank and Kerfoot, the recitals referencing only the primary policies may not be used to interpret the unambiguous operative language.

Warsaw argues, essentially, that Irwin’s Bank and Kerfoot are no longer good law and should not be followed. Citing to OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312 (Ind.1996), Warsaw argues that post-Stech Indiana Supreme Court precedent follows the general rule that a contract must be construed as a whole to divine the intent of the parties, which in Warsaw’s view represents an implied rejection of Irwin’s Bank’s and Kerfoot’s distinction between recitations and operative language. While it is true in OEC-Diasonics that the Court referred to recitation language in a release in its analysis, there are at least two reasons why the case does not help Warsaw. First, the issue of recitations versus operative language appears not to have been brought up or argued by either party. Indeed, OEC-Diasonics does not even mention — much less explicitly overrule or modify — Stech, Irwin’s Bank, or Kerfoot.

Second, a close reading of OEC-Diason-ics reveals that the Court used the recital language in question as an aid to interpreting operative language that was less than clear, which is entirely consistent with the holdings in Irwin’s Bank and Kerfoot. To summarize the factual background of OEC-Diasonics, Major entered into a distribution agreement with OEC in 1969. OEC-Diasonics, 674 N.E.2d at 1313. In the early 1980s, OEC spun off its Medical Systems Division, for which Majors was also distributing product, as OEC Medical Systems (“OECMS”), a separate corporate entity, and both corporations then became wholly owned subsidiaries of the apparently-newly-formed OEC International. Id. at 1314. In 1983, Diasonics acquired OEC International, and, the next year, Biomet, Inc., acquired OEC while Diasonics continued to own OECMS, which changed its name to OEC-Diasonics. Id. At some point in or after 1984, OEC-Diasonics terminated its distributorship agreement with Majors. Id. Majors sued OEC-Diasonics over the contract dispute. Id. Majors also pursued federal litigation with OEC over a similar contract dispute, which resulted in a 1988 release negotiated with Biomet and OEC. Id.

In its litigation with Majors, OEC-Dia-sonics claimed that the 1988 release of Biomet and OEC, as it covered Biomet’s and OEC’s “successors,” also applied to it because it was a successor of OEC, having spun off in 1983. Id. Paragraph fourteen of the release provided, inter alia, that the “ ‘[ajgreement shall inure to the benefit of, and may be enforced by, and shall be binding on the parties hereto and respective assigns and successors in interest.’ ” Id. at 1315. The Court noted that paragraph 14 did not specify whether it was referring to the successors of OEC as it existed in 1969 (which would include OEC-Diasonics) or the successors of OEC as it existed at the time of the release (which would not). Id. Paragraph three, a recital, provided, in part, as follows: “ WHEREAS, a dispute has arisen between Biomet and [the plaintiff] arising out of their relationship and the notice of termination by Biomet of an Agreement originally entered into between Major and Orthopedic Equipment Company, Inc., (“OEC”) on September 15, 1969 ... ’ ” Id. (brackets in OEC-Diasonics ). OEC-Diasonics apparently argued that this language indicated an intent to define OEC, for purposes of the release, as the entity that existed by that name in 1969. The Court, however, noted that the recital language only designated the date the parties entered into the distribution agreement. Id. The Court ultimately concluded that OEC-Diasonics was not a “successor” pursuant to the release. Id. at 1316.

Warsaw cites OEC-Diasonics as evidence that the Indiana Supreme Court has abandoned the holdings of Irwin’s Bank and Kerfoot. It is apparent, however, that to the extent that the Court considered the recital language, it did so only because it found the operative language at issue to be less than completely clear, which is the only circumstance under which a court may consider recital language under Irwin’s Bank and Kerfoot. Put another way, the OEC-Diasonics Court used the language in paragraph three, a recital, as an aid to interpret the language in paragraph fourteen, which contained operative language. The Indiana Supreme Court’s approach in OEC-Diasonics, far from repudiating the holdings in Irwin’s Bank and Kerfoot, supports, and is entirely consistent with, them. We cannot accept Warsaw’s argument that the Indiana Supreme Court’s holding in OEC-Diasonics represents a departure from the rule laid out in Irwin’s Bank and Kerfoot.

CONCLUSION

The unambiguous operative language of the Release provided that Warsaw was releasing USF & G

from any further claims, demands, causes of action, damages, clean-up costs, expert fees, consulting fees, attorneys fees, costs or losses of any kind and nature whether known or unknown, foreseen or unforeseen, anticipated or unanticipated arising from, or in any way related to, the pollution and contamination of the soil and groundwater in, upon or adjacent to the Warsaw facility in Warsaw, Indiana.

Appellant’s App. p. 289. Recital language that arguably suggests that the release applied to only some of the insurance policies Warsaw had with USF & G does not trump this clear language. Because the Release covered the excess policies, the trial court erred in denying USF & G’s summary judgment motion on this point. We therefore reverse the judgment of the trial court and remand for entry of summary judgment in favor of USF & G.

We reverse and remand with instructions.

NAJAM, J., and FRIEDLANDER, J., concur.

      . We heard oral argument in this case on April 30, 2013. We would like to commend counsel from both sides on the extremely high quality of their oral advocacy.

      . When subtracting the defense costs from the total costs, the trial court did not include the $0.98 in the calculation.

      . It is worth noting that this is consistent with the overwhelming weight of authority nationwide. Of the at least thirty federal jurisdictions and states that have addressed the issue, the vast majority have held that recitals do not control unambiguous operative language in contracts. See e.g., Grynberg v. F.E.R.C., 71 F.3d 413, 416 (D.C.Cir.1995) (“[I]t is standard contract law that a Whereas clause, while sometimes useful as an aid to interpretation, 'cannot create any right beyond those arising from the operative terms of the document.’ ”) (citation omitted); Burch v. Premier Homes, LLC, 199 Cal.App.4th 730, 131 Cal.Rptr.3d 855, 867 (2011) (“In cases where there is 'any apparent conflict between its different clauses or provisions, the circumstances surrounding its execution and the conditions and motives of the parties as shown by recitals in the contract or matters in evidence should be taken into consideration in order that the true intent of the parties may be ascertained.’ ") (citation omitted); Andersen ex rel. Andersen, Weinroth & Co., L.P. v. Weinroth, 48 A.D.3d 121, 849 N.Y.S.2d 210, 219 (2007) ("[W]e note that a recital paragraph in a document is not determinative of the rights and obligations of parties to the agreement^]”); Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339 S.W.3d 326, 336 (Tex.App.2011) ("Recitals in a contract are not strictly part of the contract, and they will not control the operative phrases of the contract unless those phrases are ambiguous.”).
      Seemingly, the only jurisdictions that arguably do not adhere to the proposition that recitals will not be used to interpret contracts in the absence of ambiguity are Arkansas, Illinois, and Wisconsin. See Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202, 206-07 (1968) ("The 'whereas' clauses set forth the reasons or inducements for entering into a contract and must be considered in determining the true intentions of the parties thereto.”); Hagene v. Derek Polling Const., 388 Ill.App.3d 380, 327 Ill.Dec. 883, 902 N.E.2d 1269, 1274 (2009) ("[W]e are instructed to give effect to all the relevant contractual language to resolve the question of the parties’ intent. This includes the contract recitals in which the respondent indicated that it had paid all the medical bills, when in truth and in fact it had not. '[W]hile recitals are not [an] operational part of [a] contract between the parties, they reflect the intent of the parties and influence the way the parties constructed the contract.'") (citations omitted); Levy v. Levy, 130 Wis.2d 523, 388 N.W.2d 170, 175 (1986) (concluding that "[t]he recital or whereas clause of a contract may be examined to determine the intention of the parties” without explicitly requiring ambiguity in the operative language.).

      . Because we conclude that the Release applied to the excess policies, we need not address any of USF & G’s other direct appeal claims or any of Warsaw’s cross-appeal claims.


author: RILEY, Judge.

text:
    REBIRTH CHRISTIAN ACADEMY DAYCARE, INC., Appellant-Petitioner, v. INDIANA FAMILY & SOCIAL SERVICES ADMINISTRATION, Appellee-Respondent.
    No. 49A04-1209-MI-467.
    Court of Appeals of Indiana.
    May 24, 2013.

      Elizabeth C. Milliken, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Rebirth Christian Academy Daycare, Inc. (Rebirth), appeals the trial court’s denial of its Motion to Dissolve and/or Modify Order in First Amended Agreement Judgment.

We affirm.

ISSUE

Rebirth raises three issues on appeal, one of which we find dispositive and which we restate as follows: Whether the trial court properly determined that Rebirth cannot employ LaSonda Carter (Carter) pursuant to Ind.Code section 12-17.2-6-14 despite an earlier trial court’s order restricting access to her criminal record.

FACTS AND PROCEDURAL HISTORY

Rebirth is a non-profit religious organization that operated a child care ministry (CCM) inside a church located at Caito Drive in Indianapolis, Indiana. Carter was the CCM’s director and maintained both an office and a church sanctuary on its premises. In July of 2010, a dispute arose between Rebirth and Appellee-Re-spondent, the Indiana Family & Social Services Administration (FSSA), regarding Rebirth’s employment of Carter. The FSSA contended that Rebirth was prevented from employing Carter because of her previous conviction for a felony relating to controlled substances pursuant to Ind.Code Ch. 35-48-4. On July 7, 2010, Rebirth filed an emergency petition for a temporary restraining order against the FSSA, which was denied by the trial court the same day. On July 19, 2010, the FSSA filed a verified petition for preliminary and permanent injunction and civil penalties. A hearing was held, after which on August 2, 2010, the trial court approved the Agreed Entry entered into by both parties and which provides, in pertinent part,

a. [Carter] is to have no contact with the children at Rebirth and she cannot be at Rebirth at all when children are there.
b. Any certificate of registration to operate as a child care ministry that Rebirth might obtain will be terminated immediately and Rebirth will be required to close on the effective date of the termination if [Carter] is found to be at Rebirth when children are there.
c. Rebirth acknowledges that FSSA by its employees, agents, and/or representatives may randomly inspect [Rebirth] [ ] and any future locations of Rebirth.
d. Rebirth agree[s] to pay a five hundred dollar ($500.00) fíne to FSSA on or before September 29, 2010.

(Appellee’s App. p. 6).

The FSSA received reports in 2010 and 2011 that Rebirth was violating the Agreed Entry. Consequently, on April 15, 2011, the FSSA filed a motion for rule to show cause as to why Carter and Rebirth should not be held in contempt for disobeying the Agreed Entry. A hearing was held and the trial court continued the contempt proceedings until November 9, 2011. At the November 9, 2011 hearing, the parties agreed to amend the Agreed Entry and entered into the First Amended Agreed Judgment. In an attempt to work with Carter and Rebirth and to resolve the issues pending before the trial court, the FSSA agreed in this First Amended Agreed Judgment that

a. Rebirth agrees to remain closed until Rebirth applies to be a Registered Child Care Ministry and is issued a Certificate of Registration.
b. FSSA agrees to process any application filed by Rebirth in a timely manner subject to the terms of this First Amended Agreed Judgment.
e. [Carter] further agrees to have no contact with the children at Rebirth and she cannot be in the building, on the premises, or in the parking lot at Rebirth during operational hours or while children are there.
g. FSSA further agrees to allow [Carter] to perform administrative duties for Rebirth as long as it does not involve any contact whatsoever with the children or being in the building, on the premises, or in the parking lot at Rebirth during operational hours or while children are there.

(Appellant’s App. pp. 4-5).

In January of 2011, a substantiated report naming Carter as a perpetrator of child abuse or neglect was expunged from the Child Protection Index by the Marion County Superior Court. On January 18, 2012, Carter obtained an order from the Marion Superior Court, Criminal Division, restricting access to Carter’s criminal history. On February 7, 2012, the FSSA issued Rebirth a new certificate of registration to operate a CCM. On May 21, 2012, Rebirth was found to be in violation of at least eight requirements for CCMs and a corrective action plan was issued. Because Rebirth failed to comply with the corrective action plan, the FSSA terminated its certificate of registration on June 22, 2012.

Previously, on March 30, 2012, as a result of the court’s order restricting access to Carter’s criminal history, Rebirth filed a Motion to Dissolve and/or Modify Order in First Amended Agreed Judgment. In the motion, Rebirth contended that because Carter’s criminal record is restricted and her substantiated allegation for child abuse or neglect has been expunged, Rebirth can now employ Carter. The FSSA opposed the motion. On May 30, 2012, the trial court conducted a hearing on Rebirth’s motion, which the trial court denied on August 4, 2012, concluding, in pertinent part that “[Carter] still has a controlled substance felony conviction because her records have only been restricted and not expunged. This is a fact known to Rebirth and FSSA.” (Appellant’s App. p. 45).

Rebirth now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Rebirth contends that the trial court erred when it denied its Motion to Dissolve and/or Modify the Order in the First Amended Agreed Judgment. Specifically, Rebirth asserts that after the restriction of Carter’s criminal record by virtue of the application of the Restricted Access Act, the disqualifying conviction is no longer disclosed on a criminal history check and thus Carter becomes employable at a CCM.

Resolution of Rebirth’s argument will require us to interpret the interplay between Indiana’s Restricted Access Act and the regulations pertaining to child care ministries, included in Indiana Code Chapter 12-17.2-6. The interpretation of a statute is a legal question that is reviewed de novo. Sun Life Assur. Co. of Canada v. Ind. Dept. of Ins., 868 N.E.2d 50, 55 (Ind.Ct.App.2007). Statutory interpretation is the responsibility of the court and within the exclusive province of the judiciary. Id. The first and often the last step in interpreting a statute is to examine the language of the statute. Id. When confronted with an unambiguous statute, we do not apply any rules of statutory construction other than to give the words and phrases of the statute their plain, ordinary, and usual meaning. Id. This court’s goal in statutory construction is to determine, give effect to, and implement the intent of the legislature. Shaffer v. State, 795 N.E.2d 1072, 1076 (Ind.Ct.App.2003).

I. Child Care Ministries

Generally, in Indiana, child care centers must be licensed by the State and are supervised through the FSSA. See I.C. § 12-17.2-1-1. Indiana Code section 12-17.2-2-8 describes certain child care providers that are exempt from state licen-sure, one of which is “[a] child care ministry registered under [I.C. Ch.] 12-17.2-6.” See I.C. § 12-17.2-2-8. A child care ministry is defined as “child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation under Section 501 of the Internal Revenue Code.” I.C. § 12-7-2-28.8. If an individual or organization elects to run a child care ministry without obtaining a child care center license, it must comply with the rules established by the division for child care ministries and it must meet the requirements for becoming exempt from licensure. See I.C. §§ 12-17.2-2-5; -6-1 et seq. One of these requirements is included in Chapter 6 and regulates a child care ministry to

(1) Conduct a criminal history check of the child care ministry’s employees and volunteers;
(2) Refrain from employing, or allowing to serve as a volunteer, an individual who:
(A) has been convicted of any of the following felonies:
(XVII) a felony relating to controlled substances under [I.C. Ch.] 35-48-4.
(3) Maintain records of each criminal history check.

I.C. § 12-17.2-6-14. If an unlicensed child care ministry fails to comply with these statutory requirements, it is no longer exempt from licensure under Indiana law. I.C. § 12-17.2-6-9. The ministry must then cease operations immediately and apply for and receive a certificate or license prior to resuming child care. I.C. §§ 12-17.2-6-2; -3.

Rebirth was a license-exempt child care ministry. When running Carter’s criminal history, her conviction for a felony relating to controlled substances was noted. As such, Carter was prohibited from being employed at or volunteering at any child care ministry. Rebirth and Carter now attempt to circumvent this prohibition by relying on the Restricted Access Act.

II.The Restricted Access'Act

Since 1983, Indiana has allowed some form of restriction of criminal records pursuant to Indiana Code Chapter 35-38-5 et seq. Under Indiana Code section 35-38-5 — 5(b) a person may petition the state police department to limit access to the person’s limited criminal history to criminal justice agencies if more than fifteen years have elapsed from the last date the person was discharged from probation, imprisonment or parole. In 1998, the General Assembly added explicit provisions governing the release of records when an individual volunteers services involving the contact, care, or supervision of a child under the purview of a social services agency or a nonprofit organization. See I.C. §§ 35-38-5-5(a); 10-13-3-27(a)(8). With another amendment in 2011, the General Assembly added I.C. § 35-38-5-5.5 (2012) and I.C. Ch. 35-38-8 (2012), related to the restriction of records. While I.C. § 35-38-5-5.5 concerns the restriction of records relating to an arrest, I.C. Ch. 35-38-8 allows an individual convicted of a Class D felony offense that did not result in injury to a person and who is not a sex or violent offender to petition the court to restrict access to his or her criminal history by a non-criminal justice agency.

III.Interplay Between the Two Statutes

Rebirth now contends that the application of both statutes leads to the “absurd result that Rebirth, by virtue of its prior knowledge of Carter’s conviction, is prohibited from employing Carter while any other CCM, having no prior knowledge of the disqualifying conviction, is not.” (Appellant’s Br. p. 13).

Contrary to Rebirth’s assertion, the Restricted Access Act and Indiana Code section 12-17.2-6-14 can be applied harmoniously. Although not stated explicitly, the purpose of the Restricted Access Act is to grant individuals a second chance by giving access to certain employment that may have been previously unavailable to them due to their criminal history. See I.C. § 35-38-8-7. However, the Act is silent as to information obtained by employers prior to restriction under the Act, or obtained through other sources before a restriction is in place. Additionally, the Act does not impose a retroactive prohibition, preventing an agency from using its prior knowledge in its determination of future actions.

The purpose of the Act is not ignored when the FSSA applies the provisions of Indiana Code section 12-17.2-6-14, which prevents the employment by a CCM of certain individuals with disqualifying convictions. Here, Rebirth and the FSSA received information of Carter’s disqualifying conviction for employment at a CCM before Carter applied for a restriction of her criminal record. As such, Rebirth is prohibited from employing Carter and is mandated to keep a record of the criminal history check. See I.C. § 12-17.2-6-14. Because FSSA has been informed of Carter’s disqualifying criminal history prior to its restriction, the FSSA can rely on this knowledge to prevent Carter’s future efforts to work at any CCM.

Moreover, Indiana Code section 35-38-8-6 provides that:

(a) If a person whose records are restricted under this chapter brings a civil action that might be defended with the contents of the record, the defendant is presumed to have a complete defense to the action.
(c) In an action described in subsection (a), the plaintiff may be required to state under oath whether:
(1) the plaintiff had records in the criminal justice system; and
(2) those records were restricted.
(d) In an action described in subsection (a), if the plaintiff denies the existence of the records, the defendant may prove the existence of the records in any manner compatible with the law of evidence.

Because Rebirth initiated a civil action by way of its motion to dissolve and/or modify order in First Amended Agreed Judgment, the FSSA, as the defendant, can use Carter’s entire criminal history as a defense to Rebirth’s claim that Carter has become employable by a CCM.

Based on the circumstances before us, we conclude that the FSSA can use its prior knowledge, established prior to Carter’s restriction of her criminal history, to disqualify Carter from being employed by a CCM.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly denied Rebirth’s Motion to Dissolve and/or Modify Order in First Amended Agreement Judgment.

Affirmed.

BRADFORD, J. and BROWN, J., concur.

      . It appears that the First Amended Agreed Judgment, as included in the Appendix, has omitted paragraphs (c) and (d).

      . It appears from Rebirth’s brief, that Rebirth is treating Carter’s restriction of her criminal history as a de facto expungement. However, the record reflects that only a substantiated report naming Carter as a perpetrator of child abuse or neglect was expunged from the Child Protection Index. Expungement essentially destroys or seals the record relating to a person’s arrest. See I.C. Ch 35-38-5 et seq. Here, as also noted by the trial court, Carter’s disqualifying conviction was merely restricted. Additionally, it should be mentioned that the General Assembly crafted a bill broadening the applicability of the expungement statute to persons convicted of a felony. This Bill has passed both the House and the Senate and is expected to become effective July 1, 2013. See House Bill 1482, http://www.in. gov./apps/lsa/session/billwatch (last visited Apr. 30, 2013).

      . Rebirth also raises two constitutional issues. Specifically, Rebirth asserts that I.C. § 12-17.2-6-14 is unconstitutional as applied when viewed in light of the Equal Protection Clause of Article I, § 23 and the Fourteenth Amendment. However, we do not reach constitutional claims when a case can be properly disposed of on non-constitutional grounds. See Garnelis v. Ind. State Dep't of Health, 806 N.E.2d 365, 372 (Ind.Ct.App.2004).