text:
    STATE of Indiana, Appellant (Plaintiff) v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellee (Defendant)
    Supreme Court Case No. 18S-IF-193
    Supreme Court of Indiana.
    Argued: May 17, 2018 FILED September 24, 2018
   ATTORNEYS FOR APPELLANT: Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrew A. Kobe, Larry D. Allen, Deputy Attorneys General, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Raymond A. Atkins, Hanna M. Chouest, Sidley Austin LLP, Washington, DC, Bryan H. Babb, Bradley M. Dick, Bose McKinney & Evans LLP, Indianapolis, Indiana, John C. Duffey, Heather L. Emenhiser, Stuart & Branigin LLP, Lafayette, Indiana

ATTORNEYS FOR AMICUS CURIAE THE ASSOCIATION OF AMERICAN RAILROADS: Harold Abrahamson, Jonathan E. Halm, Abrahamson, Reed & Bilse, Munster, Indiana

ATTORNEYS FOR AMICI CURIAE FRANCIS P. MULVEY AND CHARLES D. NOTTINGHAM : Stephen J. Peters, David I. Rubin, Plunkett Cooney, P.C., Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE INDIANA RAILROAD COMPANY ET AL.: Karl L. Mulvaney, Margaret M. Christensen, Nana Quay-Smith, Bingham Greenebaum Doll LLP, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1607-IF-1524

Rush, Chief Justice.

Indiana-The Crossroads of America -is a railroad capital. Statewide, dozens of railroad companies run trains on more than four thousand miles of track. Roads intersect those tracks, creating 5,693 public railroad-highway grade crossings. That's one for every seventeen public-roadway miles-the highest concentration in the country.

To aid public travel, the State bars railroads from blocking those crossings for more than ten minutes, except in situations outside the railroads' control. Violations carry minimum $200 fines. After 23 citations, Norfolk Southern challenged the State's regulation as preempted by federal law.

This issue of first impression in Indiana raises two questions. Does the standard presumption against preemption apply in the railroad-crossing context? And to what extent has Congress kept the tracks clear from state regulation of rail transportation?

We hold that while the longstanding presumption against preemption applies here, Indiana's blocked-crossing statute is a remedy that directly regulates rail transportation and is thus expressly preempted by the Interstate Commerce Commission Termination Act.

Facts and Procedural History

Indiana's blocked-crossing statute bars railroads from blocking railroad-highway grade crossings for more than ten minutes, except in circumstances outside the railroads' control. Ind. Code § 8-6-7.5-1 (2018). Violations are Class C infractions and carry a minimum $200 fine. I.C. § 8-6-7.5-3(a).

Between December 2014 and December 2015, Norfolk Southern collected 23 blocked-crossing citations for violations near its Allen County trainyard. Norfolk Southern moved for summary judgment on the citations, arguing that the Interstate Commerce Commission Termination Act ("ICCTA") and the Federal Railroad Safety Act ("FRSA") expressly preempt Indiana's blocked-crossing statute. It also designated evidence-undisputed by the State-that it faced a heavy compliance burden at grade crossings near the trainyard.

Based on that evidence, the trial court found that train-switching maneuvers, track congestion, and mechanical defects can all cause traffic blockages lasting more than ten minutes. It also found that, to shorten blockages, Norfolk Southern would have to run trains faster, run shorter trains, or "cut" trains into segments-an onerous process that requires more than ten minutes of reassembly and brake tests. The court then granted summary judgment for Norfolk Southern on all 23 citations, finding that both the ICCTA and the FRSA preempt the blocked-crossing statute.

The State appealed, arguing that neither federal act preempts Indiana's blocked-crossing statute, especially given the presumption against preemption. The Court of Appeals agreed, reversing the trial court because neither the ICCTA nor the FRSA explicitly list blocked-crossing statutes as preempted. State v. Norfolk S. Ry. , 84 N.E.3d 1230, 1236, 1238 (Ind. Ct. App. 2017).

Norfolk Southern petitioned to transfer, which we granted, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

Preemption here turns on whether federal law expressly preempts Indiana's blocked-crossing statute. See Kennedy Tank & Mfg. Co. v. Emmert Indus. Corp. , 67 N.E.3d 1025, 1028 (Ind. 2017). We review that issue of law, and the trial court's grant of summary judgment, de novo. Id. ; Young v. Hood's Gardens, Inc. , 24 N.E.3d 421, 423 (Ind. 2015).

Discussion and Decision

Congress can preempt state law expressly, with explicit preemptive text, or impliedly, "under the twin doctrines of field and conflict preemption." KS & E Sports v. Runnels , 72 N.E.3d 892, 905 (Ind. 2017) ; see also Kennedy Tank , 67 N.E.3d at 1028. Field preemption exists when Congress imposes "exclusive federal regulation of the area." Kennedy Tank , 67 N.E.3d at 1028 (quoting Basileh v. Alghusain , 912 N.E.2d 814, 818 (Ind. 2009) ). And conflict preemption exists when compliance with both state and federal laws is "physically impossible" or when a state law does "major damage" to Congress's purpose. Id. at 1029.

Norfolk Southern argues only that Indiana's blocked-crossing statute is expressly preempted. The statute's current version says:

It shall be unlawful for a railroad corporation to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of ten (10) minutes, except where such train, railroad car or engine cannot be moved by reason of circumstances over which the railroad corporation has no control.

I.C. § 8-6-7.5-1. State statutes like this one are ordinarily covered by a presumption against preemption, see Kennedy Tank , 67 N.E.3d at 1028, but Norfolk Southern argues that the presumption does not apply here.

We disagree with Norfolk Southern and find at the outset that the presumption applies, given the State's legitimate interest in protecting the public use of grade crossings. With that presumption on board, we then address the ICCTA's express preemption provision. We conclude that because Indiana's blocked-crossing statute provides a remedy that regulates rail transportation, the ICCTA expressly preempts it.

I. Federalism dictates that the presumption against preemption applies to the blocked-crossing statute.

As a concept "central to the constitutional design," federalism requires that we not find preemption easily. Kennedy Tank , 67 N.E.3d at 1028 (quoting Arizona v. United States , 567 U.S. 387, 398, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) ). So we carefully consider Norfolk Southern's challenge to the long-settled presumption against preemption, see id. , examining the federal and state interests in railroad-crossing regulation.

Since the presumption is animated by federalism, it "is not triggered when the State regulates in an area where there has been a history of significant federal presence." United States v. Locke , 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). This presumption exception is strict, applying when "Congress has legislated in the field from the earliest days of the Republic, creating an extensive federal statutory and regulatory scheme." Id. (finding the presumption inapplicable in the maritime trade context).

So does the presumption against preemption apply in this railroad-crossing case, or does Locke 's exception derail it?

To start, we agree with Norfolk Southern that Congress comprehensively regulated the railroad industry dating back to the late nineteenth century. See United Transp. Union v. Long Island R.R. , 455 U.S. 678, 687, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982). But even then, regulating railroad crossings for the public welfare remained "one of the most obvious cases of the [states'] police power." Erie R.R. v. Bd. of Pub. Util. Comm'rs , 254 U.S. 394, 410, 41 S.Ct. 169, 65 L.Ed. 322 (1921).

Indiana has exercised that police power for over 150 years. In 1865, the legislature made it a misdemeanor to leave a train "standing across any public highway or street, to the hindrance of travel, for a longer time than ten minutes." Act of Dec. 20, 1865, ch. XXIV, 1865 Ind. Acts 119. Over decades, the General Assembly nuanced the regulation-adjusting the blockage time limit and the fine amount, and eventually regulating blockages by freight cars and passenger cars separately. See Ind. Rev. Stat. § 2176 (1896); Burns' Ind. Stat. Ann. § 2672 (1914); Burns' Ind. Stat. Ann. §§ 2903, 2904 (1926); Burns' Ind. Stat. Ann. §§ 10-3904, 10-3905 (1933); Burns' Ind. Stat. Ann. §§ 10-3904, 10-3905 (Repl. 1956). Then in 1972, the legislature passed the current statute, which has remained unamended. See P.L. 63-1972 (codified at I.C. § 8-6-7.5-1 ). Across their nuances, these statutes have aimed "to prevent delay to traffic using our avenues of travel at points where railroads intersect such avenues." Pa. R.R. v. Huss , 96 Ind. App. 71, 77, 180 N.E. 919, 921, (1932) (in banc), trans. denied . The State thus properly notes that Indiana has long regulated railroad crossings with a blocked-crossing statute.

Norfolk Southern responds that even if the blocked-crossing statute has protected the public interest for a long time, it remains a direct regulation of railroad operations. This is a fair point-and one that headlines our preemption analysis below-but it does not undermine the presumption against preemption.

Rather, the presumption covers "subject[s] traditionally governed by state law." CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 663-64, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). So in Easterwood , the Supreme Court of the United States applied the presumption in a challenge to a railroad's state-law tort duties to maintain both reasonable train speeds and proper warning devices at crossings. Id. at 661, 663-64, 668, 113 S.Ct. 1732. Those duties are no less regulations of rail operations than the blocked-crossing statute is here. Yet the presumption still applied.

And because states have long regulated railroad crossings, Locke 's no-federalism-interest exception does not derail the presumption here. Indeed, Easterwood applied the presumption to a railroad's tort duties at railroad crossings, confirming that these crossings have been "traditionally governed by state law." See id. at 664, 668-70, 113 S.Ct. 1732 (accepting that "[j]urisdiction over railroad-highway crossings resides almost exclusively in the States"). And Indiana's history proves its longstanding State concern with blocked crossings.

Thus, under Easterwood , "[o]ur analysis begins with a presumption against preemption," Kennedy Tank , 67 N.E.3d at 1028.

II. The ICCTA, by its plain language, preempts Indiana's blocked-crossing statute.

When Congress used the ICCTA to largely deregulate the rail industry, it included an express preemption provision to limit state involvement. That provision preempts state remedies that manage or govern rail transportation. We find that Indiana's blocked-crossing statute is such a remedy for two reasons. First, because its effects substantially interfere with railroad operations. And second, because ICCTA preemption is not limited to explicitly economic regulations.

A. The ICCTA's history informs its express preemption provision.

Over time, significant shifts have transformed federal regulatory control over interstate commerce. These changes provide essential context for the ICCTA's express preemption provision.

Federal regulation of interstate commerce began in 1887 when Congress established the Interstate Commerce Commission, the first independent federal agency. Kennedy Tank , 67 N.E.3d at 1032. The Commission's "original purpose was to 'protect the public from the monopolistic abuses of the railroads.' " Id. (quoting Paul Stephen Dempsey, Rate Regulation and Antitrust Immunity in Transportation: The Genesis and Evolution of This Endangered Species , 32 Am. U. L. Rev. 335, 337 (1983) ). Its regulatory reach grew in the 1900s, resulting in a comprehensive scheme that managed rates and some services in the surface transportation industries. See generally Dempsey, supra .

More recently, though, Congress came to view this scheme as an "onerous regulatory burden" that hindered railroads' economic competitiveness. Friends of Eel River v. N. Coast R.R. Auth. , 3 Cal.5th 677, 220 Cal.Rptr.3d 812, 399 P.3d 37, 55-57 (2017) (recounting the ICCTA's purpose and history). So Congress began the deregulatory process, culminating with the ICCTA in 1995. Id. , 220 Cal.Rptr.3d 812, 399 P.3d at 56. The ICCTA's explicit policies for rail transportation include "minimiz[ing] the need for Federal regulatory control over the rail transportation system" and ensuring "a sound rail transportation system with effective competition." 49 U.S.C. § 10101 (2012). Put simply, the ICCTA "significantly reduced federal regulation of interstate commerce." Kennedy Tank , 67 N.E.3d at 1029-30.

While Congress largely deregulated the railroad industry, it did not invite states to step in and fill the void. See Eel River , 220 Cal.Rptr.3d 812, 399 P.3d at 55-56 ; cf.

Kennedy Tank , 67 N.E.3d at 1031-33 (explaining the states' role in regulating the trucking industry under the ICCTA). Instead, Congress retained federal control over a few areas-such as routes, rates, and rail construction and abandonment-and gave exclusive jurisdiction over them to the newly created Surface Transportation Board ("STB"). 49 U.S.C. § 10501 ; Eel River , 220 Cal.Rptr.3d 812, 399 P.3d at 53-54. Then, to limit states' role in rail regulation, Congress nestled an express preemption provision into its enumeration of the STB's jurisdiction. See City of Ozark v. Union Pac. R.R. , 843 F.3d 1167, 1170 (8th Cir. 2016). That provision says that the STB's jurisdiction over railroad operations "is exclusive" and that, unless otherwise provided, ICCTA remedies "are exclusive and preempt" state remedies:

(b) The jurisdiction of the [STB] over-
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law .

49 U.S.C. § 10501(b) (emphasis added).

Norfolk Southern argues that this provision preempts Indiana's blocked-crossing statute. Since it argues only express-not field or conflict-preemption, our task is statutory interpretation. See Easterwood , 507 U.S. at 664, 113 S.Ct. 1732. The ticket to our decision is thus the preemption provision's language. See Puerto Rico v. Franklin Cal. Tax-Free Tr. , --- U.S. ----, 136 S.Ct. 1938, 1946, 195 L.Ed.2d 298 (2016). If the words are ambiguous, the presumption against preemption imposes "a duty to accept the reading that disfavors preemption." Bates v. Dow AgroSciences LLC , 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005). But if those words are clear, "we do not invoke any presumption," and they alone keep us on track. Puerto Rico , 136 S.Ct. at 1946.

The ICCTA's preemption provision is two sentences. See 49 U.S.C. § 10501(b) ; Elam v. Kan. City S. Ry. , 635 F.3d 796, 805 (5th Cir. 2011). The first makes STB jurisdiction exclusive. Id. And the second makes ICCTA remedies exclusive. Id. We focus on the second sentence as the clearer statement of Congress's preemptive intent-it explicitly says not only that federal remedies are exclusive, but also that they "preempt the remedies provided under ... State law." 49 U.S.C. § 10501(b) ; see Franks Inv. Co. v. Union Pac. R.R. , 593 F.3d 404, 410 (5th Cir. 2010) (en banc). But see generally Fayus Enters. v. BNSF Ry. , 602 F.3d 444, 448-50 (D.C. Cir. 2010) (explaining the preemption provision's history and taking a broader view of exclusive-jurisdiction preemption).

B. The ICCTA broadly preempts state statutes that manage or govern rail transportation but leaves routine crossing matters to the states.

The preemption provision's second sentence specifies which state remedies are preempted: those "with respect to regulation of rail transportation ." 49 U.S.C. § 10501(b) (emphasis added). We thus consider what the phrase "regulation of rail transportation" encompasses-and what it does not.

Contrary to the State's argument, the phrase does not encompass only state remedies that are redundant of an ICCTA remedy. Instead, the preemption provision's clear text makes ICCTA remedies "exclusive." 49 U.S.C. § 10501(b). So it bars any state remedy-whether redundant, supplementary, or distinct-that regulates rail transportation. See Eel River , 399 P.3d at 43 ("Where the [ICCTA] has deregulated, the states are not free to fill regulatory voids."); Union Pac. R.R. v. Chi. Transit Auth. , 647 F.3d 675, 678 (7th Cir. 2011) (recognizing Congress's "broad and sweeping" intent to preempt state regulation of rail transportation).

But the preemption provision also does not encompass all state actions affecting railroad crossings. In fact, while "[s]ubstantial interference with railroad operations will be preempted; routine crossing disputes will not." Franks , 593 F.3d at 413. Routine crossing requirements that are often too tangential to "regulate" rail transportation include keeping crossings in service, id. at 409, closing private crossings, Island Park, LLC v. CSX Transp. , 559 F.3d 96, 105 (2d Cir. 2009), and paying for pedestrian crossings and sidewalks, Adrian & Blissfield R.R. v. Village of Blissfield , 550 F.3d 533, 541 (6th Cir. 2008).

Many state actions, though, do regulate rail transportation and are thus preempted. Courts are unanimous that the test is whether a statute has "the effect of 'managing' or 'governing' rail transportation." Delaware v. Surface Transp. Bd. , 859 F.3d 16, 19 (D.C. Cir. 2017) (quoting Fla. E. Coast Ry. v. City of W. Palm Beach , 266 F.3d 1324, 1331 (11th Cir. 2001) ) (collecting cases); Or. Coast Scenic R.R. v. Or. Dep't of State Lands , 841 F.3d 1069, 1077 (9th Cir. 2016) (quoting Ass'n of Am. R.Rs. v. S. Coast Air Quality Mgmt. Dist. , 622 F.3d 1094, 1097 (9th Cir. 2010) ); Blissfield , 550 F.3d at 539 ; City of Girard v. Youngstown Belt Ry. , 134 Ohio St.3d 79, 979 N.E.2d 1273, 1281 (2012) (collecting cases).

With this test in hand, it's full speed ahead to the ICCTA's application here.

C. The ICCTA expressly preempts Indiana's blocked-crossing statute.

Indiana's blocked-crossing statute says:

It shall be unlawful for a railroad corporation to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of ten (10) minutes, except where such train, railroad car or engine cannot be moved by reason of circumstances over which the railroad corporation has no control.

I.C. § 8-6-7.5-1. Again, the test for ICCTA preemption is whether this statute has "the effect of 'managing' or 'governing' rail transportation."

The broad definition of "transportation" in 49 U.S.C. section 10102(9) sweeps up "virtually any property, track, or vehicle 'related to the movement of passengers or property, or both, by rail.' " Allied Erecting & Dismantling Co. v. Surface Transp. Bd. , 835 F.3d 548, 550 (6th Cir. 2016). So in limiting how long a "railroad corporation" can block "railroad-highway grade crossing[s]," Indiana Code section 8-6-7.5-1 undisputedly affects rail transportation.

But does that amount to "regulation" under the ICCTA's preemption provision? That is, does it rise to the level of " 'managing' or 'governing' " rail transportation?

PCS Phosphate Co. v. Norfolk S. Corp. , 559 F.3d 212, 218-19 (4th Cir. 2009) (expounding the preemption provision's focus on "regulation"). The State argues that it does not, because the blocked-crossing statute merely regulates peripheral concerns rather than a railroad's economic choices. We disagree.

1. Indiana's blocked-crossing statute regulates railroads.

The statute's bar on blocking grade crossings for more than ten minutes dictates key operational choices. Railroads cannot run trains too slowly or make them too long, lest they take more than ten minutes to clear a crossing. See CSX Transp., Inc. v. City of Plymouth , 283 F.3d 812, 817 (6th Cir. 2002) ("[T]he amount of time a moving train spends at a grade crossing is mathematically a function of the length of the train and the speed at which the train is traveling."). Railroads also cannot schedule trains or operate trainyards in a way that forces them to stop trains for more than ten minutes at a crossing to repair problems, perform safety checks, or wait for tracks to clear.

The facts here, as the trial court ably found, provide examples. Norfolk Southern's switching operations take more than ten minutes to safely complete. Mechanical defects and trainyard congestion can also cause violations. So Norfolk Southern would have to run faster or shorter trains, or "cut" trains into segments, to comply with the blocked-crossing statute. And if Norfolk Southern "cut" its trains to open the crossings, reassembly and mandatory brake tests would take more than ten minutes. All this means that Norfolk Southern-just to try to comply with the blocked-crossing statute-would have to change several key railroad-operation choices.

Nor does the statute's exception for blockages outside the railroads' control provide a light at the end of the tunnel. The statute's duty to clear crossings within ten minutes means that if there is any way for the railroad to comply-no matter how onerous-then it must do so. See Norfolk & W. Ry. v. State , 180 Ind. App. 185, 188, 387 N.E.2d 1343, 1344, (1979), trans. denied . So, for example, "if a crossing can be cleared by separating the cars, such must be done." Id.

In sum, as the en banc Fifth Circuit recognized, "[r]egulating the time a train can occupy a rail crossing impacts, in such areas as train speed, length and scheduling, the way a railroad operates its trains." Franks , 593 F.3d at 411 (quoting Friberg v. Kan. City S. Ry. , 267 F.3d 439, 443 (5th Cir. 2001) ). So "mandat[ing] when trains can use tracks and stop on them is attempting to manage or govern rail transportation in a direct way." Id.

Since the statute regulates rail transportation, we turn to the State's next argument-that the ICCTA preempts only economic regulations.

2. ICCTA preemption is not limited to explicitly economic regulations.

Despite the blocked-crossing statute's direct regulatory effect, the State argues that the statute is not preempted because the ICCTA's core concern is economic regulation. Courts have struggled to find Congress's intent on that point. See, e.g. , Elam , 635 F.3d at 806 ("The preemptive effect of § 10501(b) may not be limited to state economic regulation, but economic regulation is at the core of ICCTA preemption."); Blissfield , 550 F.3d at 539 ("[T]he Federal scheme of economic regulation and deregulation is intended to address and encompass all such regulation and to be completely exclusive."); N.Y. Susquehanna & W. Ry. v. Jackson , 500 F.3d 238, 252 (3d Cir. 2007) ("[T]he [ICCTA] does not preempt only explicit economic regulation."). But we need not divine Congress's intent because the State's argument cannot prevail for two reasons.

First, the line between economic and non-economic regulations "begins to blur" in many cases, including this one. City of Auburn v. U.S. Gov't , 154 F.3d 1025, 1031 (9th Cir. 1998). Environmental, traffic, or safety regulations "amount to 'economic regulation,' " Eel River , 399 P.3d at 62, when they stymie railroads' key operational choices-choices they would otherwise make for economic reasons. See id. at 62-64. So the blocked-crossing statute's effects on train length, speed, and scheduling are indistinguishable from economic regulations. See Friberg , 267 F.3d at 444.

Second-and more fundamentally-even if an economic focus were in Congress's mind, it is not in the ICCTA's text. See 49 U.S.C. § 10501(b). Plain text, when we have it, "begins and ends our analysis." Puerto Rico , 136 S.Ct. at 1946. Here the preemption provision plainly does not limit preemption to economic regulations. 49 U.S.C. § 10501(b) ; see Friberg , 267 F.3d at 444 (noting "the all-encompassing language of the ICCTA's preemption clause").

So since Indiana's blocked-crossing statute is a remedy that directly regulates rail operations, the ICCTA categorically preempts it. See Wedemeyer v. CSX Transp., Inc. , 850 F.3d 889, 894-95 (7th Cir. 2017) ("Categorical preemption occurs when a state ... action is preempted on its face," including when states "deny a railroad the ability to conduct some part of its operations."). This holding mirrors those of several other jurisdictions addressing blocked-crossing preemption under the ICCTA. See Elam , 635 F.3d 796 ; Friberg , 267 F.3d 439 ; Maynard v. CSX Transp., Inc. , 360 F.Supp.2d 836 (E.D. Ky. 2004) ; People v. Burlington N. Santa Fe R.R. , 209 Cal. App. 4th 1513, 148 Cal.Rptr.3d 243 (2012) ; Burlington N. & Santa Fe Ry. v. Dep't of Transp. , 206 P.3d 261 (Or. Ct. App. 2009) ; City of Seattle v. Burlington N. R.R. , 145 Wash.2d 661, 41 P.3d 1169 (2002) (en banc).

Despite preemption, the State may have federal recourse for blocked crossings. The STB's Rail Customer and Public Assistance Program "solves problems in ways ranging from a simple answer to a telephone inquiry to lengthy informal mediation efforts." In 2017, that program addressed 32 issues related to railroad blocked crossings. The STB has also addressed ongoing blocked-crossing disputes with formal decisions.

Since the ICCTA preempts the blocked-crossing statute, it is the end of the line-we need not address preemption under the FRSA. The trial court is affirmed.

Conclusion

While the presumption against preemption applies in this railroad-crossing context, the ICCTA's preemption provision unambiguously preempts Indiana's blocked-crossing statute. We thus affirm summary judgment for Norfolk Southern.

David, Massa, Slaughter, and Goff, JJ., concur.

      Indiana's state motto. Resolution of Mar. 2, 1937, ch. 312, 1937 Ind. Acts 1389.

      Indiana Dep't of Transportation, Indiana State Rail Plan , 25, 32, 69-70 (Oct. 2017).

      "Grade crossings" here refers to highways and railroads intersecting on the same level (that is, "at grade") instead of one passing over the other via, for example, a tunnel or bridge. Cf. Ind. Code § 8-6-7.7-1 (2018).

      For this reason, we need not get sidetracked by incidental burdens on railroad operations, see Delaware , 859 F.3d at 18 ("[T]he ICCTA preempts 'all state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.' " (quoting N.Y. Susquehanna , 500 F.3d at 252 ) ), or as-applied preemption, see Wedemeyer , 850 F.3d at 895.

      Surface Transportation Board, Rail Customer and Public Assistance , https://www.stb.gov/stb/rail/consumer_asst.html.

      Surface Transportation Board, RCPA 2017 Full Year Statistics by Issue and Region , https://www.stb.gov/stb/docs/ConsumerAssistance/Full%20Year%20RCPA%202017%20Cases%20by%20Category-Region.pdf.

      E.g. , CSX Transp. Inc. , STB Docket No. FD 35522, June 22, 2016, https://www.stb.gov/decisions/readingroom.nsf/9855c1fb354da09b85257f1f000b5f79/d3c0b4ed40a3bad585257fda0056d1e0?OpenDocument; Canadian Nat'l Ry. , STB Decision No. 26, Docket No. FD 35087, Dec. 17, 2010, https://www.stb.gov/decisions/readingroom.nsf/9855c1fb354da09b85257f1f000b5f79/b956b01d3225252a852578000050aee5?OpenDocument.


source: Caselaw Access Project

author: Shepard, Senior Judge.

license: Public Domain

text:
    Melodie LIDDLE, Appellant-Plaintiff, v. Cameron F. CLARK, in his official capacity as Director of the Indiana Department of Natural Resources, Paul Sipples, as an individual and in his official capacity as Manager of Versailles State Park, and Harry Bloom, Appellees-Defendants.
    Court of Appeals Case No. 49A04-1707-MI-1662
    Court of Appeals of Indiana.
    Filed July 23, 2018
    Attorneys for Appellant: Laura M. Nirenberg, E. Anne Benaroya, Trevor DeSane, Center for Wildlife Ethics, LaPorte, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Andrea E. Rahman, Deputy Attorney General, Indianapolis, Indiana
   Shepard, Senior Judge.

[1] Melodie Liddle's dog, Copper, died in a concealed animal trap in Versailles State Park. Liddle sued several state officials seeking damages. She also asked the trial court to declare invalid state-issued emergency rules governing trapping in state parks.

[2] The court awarded damages to Liddle for the loss of Copper, but she appeals the court's rulings on summary judgment limiting the calculation of damages and denying her request for declaratory judgment.

Facts and Procedural History

[3] Versailles State Park (VSP) sits on 5,988 acres in southeastern Indiana next to the city of Versailles. In the mid-2000s, the park received complaints from visitors about raccoons. Raccoon overpopulation may have been an issue throughout Indiana's state park system, as the Indiana Department of Natural Resources decided to facilitate trapping in its parks statewide. In November 2005, DNR issued an emergency rule that authorized park managers to permit individuals to trap raccoons during Indiana's official trapping season.

[4] DNR reissued the emergency rule on an annual basis from 2007 through 2013, reauthorizing park managers to permit raccoon and other animal trapping. Prior to 2012, the rule did not include any guidance on how traps should be placed or whether notice should be given to park visitors.

[5] Harry Bloom was a security officer at VSP and had extensive experience in trapping animals. Beginning in 2007, the park's manager authorized him to trap raccoons. Bloom installed his own traps during the December trapping season. He used lethal "bodygrip" style traps. Appellant's App. Vol. 2, p. 91.

[6] Bloom decided where to place the traps, concealing some of them in open-ended wooden boxes he had built. The park manager did not keep track of where Bloom put the traps. Bloom did not post signs to warn parkgoers because he was concerned about theft, having had seven traps stolen in VSP over the years. Between 2007 and 2013 he trapped 35 to 50 raccoons during trapping season. Bloom harvested the pelts from the raccoons and apparently sold them. See id. at 92 ("I processed the hides (furs) from these animals to partially compensate my time, equipment, and expenses incurred.").

[7] December 16, 2011, was an unseasonably warm day. Melodie Liddle drove to VSP with her two dogs to take a walk. One of the dogs, Copper, was a ten-year-old beagle mix. Liddle kept the dogs on leashes, and she walked on a paved road in the park. The dogs led Liddle off the road and down an embankment to a stream. At that point, Copper stuck her head in an open-ended wooden box and became caught in one of Bloom's traps. She cried out as the trap closed around her, drawing Liddle's attention. Liddle struggled for several minutes to free Copper while calling for help, but no one heard her. She could not pry open the trap, which had clamped down on Copper's neck. Copper died from suffocation.

[8] Liddle called a friend, Gene Beach, who arrived at the scene and removed Copper's body from the trap. Liddle went to the park office and found park manager Paul Sipples, who returned to the trap site with her and picked up the trap. When Liddle complained about the unmarked trap, Sipples stated that if they had put out warning signs, someone would have stolen the traps.

[9] Bloom removed the rest of the traps from the park that evening, and he has not used lethal traps at VSP since the incident. The versions of the emergency trapping rule that were issued in 2012 and 2013 banned the use of lethal body-gripping traps on dry land and required park staff to post notices warning visitors about trapping. Id. at 46-49.

[10] Liddle filed suit in June 2013, naming DNR Commissioner Cameron Clark, park manager Paul Sipples, and Harry Bloom as defendants. We refer to the defendants collectively as DNR. Liddle alleged DNR was negligent. She further requested declaratory judgment, specifically asking the court to declare the emergency rules void as unauthorized by DNR's statutory authority. DNR moved to dismiss Liddle's claim for declaratory judgment. In a February 12, 2014 order, the court granted DNR's motion in part, concluding Liddle's challenge to the 2012 and 2013 versions of the rule could proceed, but her challenge to prior versions of the rule was time-barred.

[11] Next, DNR filed a motion for partial summary judgment. On July 1, 2016, the court granted the motion, determining: (1) Sipples and Bloom were immune from personal liability under the Indiana Tort Claims Act because they acted within the scope of their roles as employees; (2) Liddle's damages would be limited to Copper's fair market value at the time of death; and (3) Liddle's challenge to the 2012 and 2013 versions of the rule was moot.

[12] Both parties filed further motions, and the trial court held oral argument. On June 27, 2017, the court issued an order on the cross-motions for summary judgment, determining: (1) Liddle was entitled to summary judgment because DNR created an unreasonable risk of harm and failed to protect her and her property; (2) DNR was not entitled to summary judgment on its claim of contributory negligence; and (3) Liddle was entitled to $477.00 in damages, reflecting a calculation of Copper's fair market value as drawn from examples of beagle sales in Indiana that were submitted by the parties. This appeal followed.

Discussion and Decision

[13] Liddle presents two issues arising from the trial court's July 1, 2016 order granting partial summary judgment to DNR:

I. Did the court err in ruling in favor of DNR on Liddle's request for declaratory judgment on the emergency trapping rules; and
II. Did the court err in excluding sentimental value from the calculation of Liddle's damages?

I. Standard of Review

[14] A movant is entitled to summary judgment "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). "Summary judgment imposes a heavy factual burden on the moving party-and a correspondingly light burden for the non-movant's response." In re Ind. State Fair Litig. , 49 N.E.3d 545, 548 (Ind. 2016).

[15] We review summary judgment de novo, applying the same standard as the trial court. Hughley v. State , 15 N.E.3d 1000 (Ind. 2014). We construe all facts and reasonable inferences drawn therefrom in a light most favorable to the non-moving party. McSwane v. Bloomington Hosp. & Healthcare Sys. , 916 N.E.2d 906 (Ind. 2009). We review questions of law under a de novo standard and owe no deference to a trial court's legal conclusions. Int'l Union of Police Assocs., Local No. 133 v. Ralston , 872 N.E.2d 682 (Ind. Ct. App. 2007).

II. Declaratory Judgment

[16] Liddle asked the trial court to declare that DNR exceeded its statutory authority by issuing the emergency rules allowing park managers to permit commercial fur trapping. She specifically claims that allowing trappers to sell the fur that they harvested violated the law. Liddle acknowledges that our review is limited to the validity of the 2012 and 2013 versions of the emergency rule. Reply Br. p. 9, n.10.

[17] The DNR argues that Liddle's challenge to the validity of the rules is moot. We agree. A case becomes moot when it is no longer live and the parties lack a legally cognizable interest in the outcome or when no effective relief can be rendered. Save Our Sch. v. Ft. Wayne Cmty. Schs. , 951 N.E.2d 244 (Ind. Ct. App. 2011), trans. denied .

[18] Liddle's claim for declaratory relief focused on whether the emergency rules authorizing trapping in state parks violated governing statutes. The 2012 and 2013 versions of the rule have expired and are no longer in effect, as are any permits that park managers issued under those versions of the rule.

[19] Further, Liddle concedes DNR has stopped using the emergency rule process to govern trapping in state parks. Appellant's Br. p. 22. Instead, in 2014, the General Assembly amended Indiana Code section 14-22-6-13 to permit the DNR director to "authorize the taking of a species" within a state park if the species poses a hazard to individuals or risk of damage to the park's ecological balance. 2014 Ind. Acts 2827. The director shall make the decision pursuant to "rules adopted under IC 4-22-2." Id. Liddle's challenge to the validity of the emergency rules is no longer live, and any decision we might issue as to the rules would be purely advisory.

[20] Liddle argues the issue of fur trapping for profit is not moot because the alleged misconduct-allowing trappers to sell the furs they harvest in state parks, in violation of statutory authority-is ongoing. That may be so, but Liddle presented her claim in the context of the emergency rules, asking the trial court and this Court to compare the text and application of these rules to DNR's statutory authority. Any trapping that occurs pursuant to the director's authority under Indiana Code section 14-22-6-13 and associated rules raises different statutory questions and different facts.

[21] Liddle further argues that even if the Court deems her claim for declaratory relief to be moot, the Court should nonetheless address her claim because it pertains to a recurring issue of great public importance. Indiana courts may adjudicate a moot claim on the merits "upon the existence of three elements: the issue concerns a question of great public importance which is likely to recur in a context which will continue to evade review." DeSalle v. Gentry , 818 N.E.2d 40, 49 (Ind. Ct. App. 2004).

[22] Liddle's specific claim-that DNR wrongfully promulgated emergency rules permitting fur trapping for profit, in violation of statutory authority-is unlikely to recur. Further, to the extent that Liddle wishes to challenge the general practice of trapping for profit in Indiana's public parks, if DNR continues to allow trapping under Indiana Code section 14-22-6-13 then the issue will not evade judicial review but will instead arise in the future. For these reasons, we decline to apply the public interest exception, and we affirm the trial court's determination that Liddle's claim for declaratory relief is moot.

III. Damages

[23] Liddle argues the trial court erred in limiting her damages to Copper's fair market value, claiming sentimental value should have been included in the calculation.

[24] Damages directly attributable to the wrong done are recoverable. Greives v. Greenwood , 550 N.E.2d 334 (Ind. Ct. App. 1990). Damages may not be awarded on guess or speculation, but must be ascertainable with reasonable certainty. Id. In general, damages for the destruction of personal property are measured by the fair market value of the property at the time of the loss. Ridenour v. Furness , 546 N.E.2d 322 (Ind. Ct. App. 1989).

[25] Regarding pets, there are jurisdictions that have determined that sentimental value may be included in calculating damages arising from the death of a pet, by statute or judicial decision. See, e.g. , Tenn. Code Ann. § 44-17-403 (2007) (allowing up to $5,000 in "noneconomic damages" for the negligent death of one's pet, subject to certain restrictions); 510 Ill. Comp. Stat. Ann. 70/16.3 (2008) (authorizing damages, including for "emotional distress,"

arising from the death of one's pet); Brousseau v. Rosenthal , 110 Misc.2d 1054, 443 N.Y.S.2d 285 (N.Y. Civ. Ct. 1980) (affirming award for emotional damages suffered by pet owner arising from pet's death due to negligence).

[26] By contrast, Indiana has long held that animals are personal property, and the fair market value of the animal at the time of loss is the appropriate basis for calculating damages. See Toledo & Wabash Ry. Co. v. Smith , 25 Ind. 288 (1865) (market value of horse at time of death was the measure of damages); Jacquay v. Hartzell , 1 Ind. App. 500, 27 N.E. 1105, 1105 (1891) ("One who willfully and maliciously kills a dog which is not vicious or dangerous in its disposition and habits, and is not engaged in committing damages, is liable to the owner for the fair value of the animal."); Moorman Mfg. Co. v. Barker , 110 Ind. App. 648, 40 N.E.2d 348 (1942) (measure of damages was fair market value of sows before and after harm occurred); Ridenour , 546 N.E.2d 322 (assessing value of erroneously caught sport fish); Star Bank, N.A. v. Laker , 637 N.E.2d 805 (Ind. 1994) (fair market value of a horse was the proper measure of damages); Harlan Sprague Dawley, Inc. v. S.E. Lab Group, Inc. , 644 N.E.2d 615 (Ind. Ct. App. 1994) (lab entitled to full market value of lab rats destroyed by defective equipment), trans. denied .

[27] The Court most recently addressed this issue in Lachenman v. Stice , 838 N.E.2d 451 (Ind. Ct. App. 2005), trans. denied . Lachenman owned a terrier, but other dogs that belonged to neighbors, the Stices, attacked and killed the terrier. The trial court determined Lachenman's damages would be limited to the terrier's purchase price and to veterinary bills. On appeal, Lachenman argued he should be allowed to present evidence of value other than fair market value. The Court wrote: "However unfeeling it may seem, the bottom line is that a dog is personal property, and the measure of damages for the destruction of personal property is the fair market value thereof at the time of the destruction." Id. at 467. Thus, sentimental value was not a factor in calculating damages.

[28] We are constrained to follow precedent and to conclude the trial court did not err in limiting Liddle's damages to Copper's fair market value. Further, even if we were deciding from a clean slate whether sentimental damages should be recoverable for the death of a pet due to negligence, it would be difficult to determine where to draw the line. Would all types of pets be included? Which individuals would be entitled to recover such damages for the loss of a pet? As the Wisconsin Supreme Court said in denying recovery for emotional distress arising from the killing of a pet, "allowance of recovery would enter a field that has no sensible or just stopping point." Rabideau v. City of Racine , 243 Wis. 2d 486, 500, 627 N.W.2d 795, 802 (2001).

[29] Liddle cites to the Court's decision in Campins v. Capels , 461 N.E.2d 712 (Ind. Ct. App. 1984). It was a case with very different facts. A burglar took several items of gold jewelry from Capels' home and sold them to a gold dealer, Campins, who melted them down. Capels sued Campins, claiming he knew or should have known the jewelry was stolen. The trial court determined Campins was liable for the destruction of one wedding ring and three award rings Capels received for his work in the auto racing industry.

[30] On appeal, Campins challenged the trial court's valuation of the award rings at $1,000 each, claiming those valuations were well above their fair market value. A panel of this Court determined the award rings were not "ordinary jewelry" but rather "coveted awards and symbols of certain achievements accomplished by very few." Id. at 720. As a result, the Court concluded the rings "should be valued differently than other jewelry." Id. Thus, "sentimental value" could be considered for items such as heirlooms, family papers and photographs, handicrafts, and trophies. Id. at 721.

[31] We conclude the holding in Campins does not control here because the Court intended for its decision to apply to inanimate items whose special origin would likely add actual value. Where pets are concerned, we follow Indiana's longstanding precedent limiting recovery to the pet's fair market value.

Conclusion

[32] For the reasons stated above, we affirm the judgment of the trial court.

[33] Affirmed.

[34] Vaidik, C.J., and Brown, J., concur.

      We held oral argument in Indianapolis on June 8, 2018. We thank the parties for their presentations.

      Liddle asked the court to certify the July 1, 2016 order for discretionary interlocutory appeal, and the court granted the request. On November 10, 2016, the Court of Appeals declined to accept jurisdiction over the interlocutory appeal. Liddle v. Clark , 49A02-1609-MI-2177 (Ind. Ct. App. Nov. 10, 2016).

      DNR also claims Liddle lacks standing to challenge the 2012 and 2013 versions of the emergency rule because Copper's death occurred in 2011, before those versions took effect. Because we dispose of the issue on mootness grounds, we need not address this claim.

      Recent academic debate features opposing perspectives. See, e.g., Lauren M. Sirois, Comment, Recovering for the Loss of a Beloved Pet: Rethinking the Legal Classification of Companion Animals and the Requirements for Loss of Companionship Tort Damages , 163 U. Pa. L. Rev. 1199 (2015) (arguing that loss of companionship damages should be expanded to cover companion animals); Victor E. Schwartz and Emily J. Laird, Non-Economic Damages in Pet Litigation: The Serious Need To Preserve a Rational Rule , 33 Pepp. L. Rev. 2 (2006) (arguing that allowing non-economic damages in pet cases is bad public policy and will ultimately harm rather than help pets).


author: May, Judge.

text:
    ONB INSURANCE GROUP, INC., d/b/a Old National Insurance, and Joseph E. Kenworthy, Appellants-Defendants, v. The ESTATE OF Joann Marie MEGEL, Deceased; the Estate of Edward J. Megel, Deceased; Darcy Megel; Nicholas Megel; Christina Megel; and Amy Jones, Appellees-Plaintiffs
    Court of Appeals Case No. 40A01-1707-CT-1513
    Court of Appeals of Indiana.
    FILED July 25, 2018 Rehearing Denied October 5, 2018
    Attorneys for Appellants: Andrew J. Detherage, Christian P. Jones, Andrea S. Warren, Barnes & Thornburg LLP, Indianapolis, Indiana
    Attorney for Appellees: Scott A. Faultless, Craig Kelley & Faultless LLC, Indianapolis, Indiana
   May, Judge.

[1] In this interlocutory appeal, ONB Insurance Group, Inc., d/b/a Old National Insurance, and Joseph E. Kenworthy (collectively, "ONI") appeal the trial court's denial of their motion for partial summary judgment in favor of The Estate of Joann Marie Megel, Deceased; the Estate of Edward J. Megel, Deceased; Darcy Megel; Nicholas Megel; Christina Megel; (collectively, "the Megel Parties" and Amy Jones ("Jones") (collectively, "the Accident Parties"). ONI presents multiple issues for our review, which we restate as:

1. Whether, as a matter of law, the Accident Parties can establish ONI owed them a common law duty;
2. Whether, as a matter of law, ONI assumed a duty to the Accident Parties; and
3. Whether ONI conspired with or aided and abetted an insured's violation of the terms of the Federal Motor Carrier Safety Regulations ("FMCSR").

We reverse and remand.

Facts and Procedural History

Background Facts

[2] ONI is "an independent insurance broker that seeks insurance quotes from multiple brokers and insurance companies." (App. Vol. XVIII at 126.) Kenworthy works as an agent for ONI. One of the insurance companies ONI worked with to procure insurance was Occidental Fire and Casualty Company of North Carolina ("Occidental"). ONI uses American Underwriting Services ("AUS") and Creative Underwriters ("CU") to write insurance quotes.

[3] William Hackney ("Hackney") was the owner of Hackney Trucking ("HT"), formed in 2004. Hackney and ONI began their relationship in 2008, when Hackney owned HT. On August 18, 2010, Hackney sold all of HT's assets to C & K Transport, Inc. ("C & K"), which is also owned by Hackney. C & K and HT had the same phone number, email, bank account, and business location. C & K utilized HT's assets including trucks, equipment, and employees, and C & K's earnings were used to pay HT's outstanding debts.

[4] To obtain federal operating authority for C & K, Hackney was required to submit a number of forms. In their brief, the Accident Parties delineated the required forms that are relevant to this case:

1) OP-1: application for motor carrier authority, 49 CFR 365.105(a), and mandating financial responsibility the applicant "must maintain and have on file with the FMCSA" of liability insurance in a minimum amount of $750,000;
2) BMC-91X: part of the application, 49 CFR 365.109 & 385.305(b)(3) & (c), and mandating financial responsibility for bodily injury be filed with the FMCSA; 49 CFR 365.109(5)(i); and
3) BMC[-]34: part of the application, 49 CFR 365.109 & 385.305(b)(3) & (c), and mandating financial responsibility for cargo liability be filed with the FMCSA; 49 CFR 365.109(5)(iii).

(Br. of Appellees at 48) (grammatical errors in original) (citations to the record omitted).

[5] On August 16, 2010, Stacy Hicks of GL Authority helped Hackney complete and submit the OP-1. As part of the OP-1, Hackney was asked, "Do you have now, or have you ever had, any relationship with any other FMCSA Regulated entity within the past 3 years?" (App. Vol. XIV at 70.) Hackney answered, "No." (Id. ) On August 30, 2010, Carla Carson, a representatives from ONI, emailed the AUS underwriter and requested Occidental, who was to provide insurance for C & K, to file a BMC-91X form with the FMCSA, which would provide the FMCSA with information regarding C & K's liability insurance coverage. The FMCSA accepted all relevant forms on August 30, 2010, and C & K obtained its operating authority the same day.

Facts of Incident Prompting Litigation

[6] On February 25, 2011, C & K driver Kenneth Kelley stopped at a weigh station in Lima, Ohio. At the weigh station, he discovered the truck ("C & K Truck") was overweight and the brakes were not working properly. Kelley parked the C & K Truck. The next morning, Kelley heard air coming from the brake area and called Hackney, who asked Kelley to drive the C & K Truck from Lima, Ohio, to Mitchell, Indiana, on a route that did not have any weigh stations. Kelley refused.

[7] On February 26, 2011, Hackney drove to Ohio. He did not perform any repairs on the truck before driving it back to Mitchell, Indiana, and he drove the C & K Truck on the route with no weigh stations. Around 8:00 p.m. that day, Edward Megel was driving on U.S. 50 with his wife, JoAnn Megel, and his granddaughter, Darcy Megel. Edward was waiting to make a left turn when Amy Jones approached him as part of oncoming traffic. Hackney saw Edward's vehicle and realized he might not be able to stop. Hackney, driving the C & K Truck, collided with Edward's and Jones' vehicles. Edward and Darcy sustained injuries from the crash. JoAnn died on March 11, 2011, from injuries sustained in the collision. Jones was also injured. It is undisputed by the parties that the C & K Truck driven by Hackney was at fault for the accident.

Procedural History of Current Matter

[8] On May 23, 2011, the Megel Parties filed an action for damages against multiple parties, including Occidental, stemming from the accident. On May 18, 2012, Jones filed a separate action for damages against the same parties stemming from the accident. ONI was not an original party to either action. On January 3, 2012, Occidental filed third-party claims in both actions against ONI, alleging ONI made misrepresentations to Occidental that purportedly induced Occidental to issue an insurance policy to C & K. In February 2013, both the Megel Parties and Jones amended their complaints to include ONI as a defendant.

[9] On December 8, 2014, ONI filed a motion for summary judgment with regard to Occidental's third-party defendant claims against ONI, arguing Occidental could not sue ONI, as C & K's insurance agent, for alleged misrepresentations on C & K's application for insurance. Additionally, the motion argued Occidental's claim that ONI conspired with C & K to fraudulently procure insurance failed as a matter of law because "an agent cannot conspire with a principal ... [and] civil conspiracy allegations require an underlying tort, and there is no underlying misrepresentation claim here." (App. Vol. VI at 238.) On August 17, 2016, the trial court granted ONI's motion for summary judgment as to Occidental's third-party claims against ONI, stating, "As a matter of law, the Court grants summary judgment for ONI/ONB and Kenworthy on these claims" under the heading, "II. Common Law, Statutory and Actual Fraud/Misrepresentation Claims of Occidental." (App. Vol. XVII at 194.)

[10] On December 8, 2014, ONI filed a motion for summary judgment against the Megel Parties, alleging their claims failed as a matter of law. On January 21, 2015, ONI filed a motion for summary judgment against Jones, alleging her claims failed as a matter of law. On August 17, 2016, the trial court denied both of ONI's motions for summary judgment. The trial court certified its decision for interlocutory appeal, but our court declined to accept jurisdiction over the matter.

[11] On December 19, 2016, ONI filed renewed motions for summary judgment against the Megel Parties and Jones. The renewed motions were based on the Indiana Supreme Court's holding in Goodwin v. Yeakle's Sports Bar and Grill, Inc. , 62 N.E.3d 384 (Ind. 2016). The Goodwin court stated, regarding a trial court's analysis of foreseeability of an injury for purposes of allocating duty, that the "court is tasked with engaging in a general analysis of the broad type of plaintiff and harm involved without regard to the facts of the actual occurrence." Id. at 394. Based thereon, ONI argued the evidentiary material designated as part of Accident Parties' responses to ONI's earlier motion for summary judgment

focused on the actual facts of the transactions and events that Plaintiffs contend led to the accident at issue. Under Indiana law as articulated by Goodwin , Plaintiffs' argument was wrong as a matter of law, and the extensive evidentiary material Plaintiffs relied upon to oppose summary judgment was immaterial and irrelevant on summary judgment.

(App. Vol. XVIII at 59.) In response, the Accident Parties filed a motion opposing ONI's renewed motion for summary judgment and argued a duty of care existed under Goodwin , ONI assumed a duty, ONI owed a statutory duty of care, and ONI was liable for aiding, abetting, and conspiracy.

[12] The trial court held a hearing on ONI's renewed motion for summary judgment on April 20, 2017, and summarily denied ONI's renewed motion for summary judgment on April 28, 2017. On June 14, 2017, the trial court certified its denial for interlocutory appeal under Indiana Rule of Appellate Procedure 14(B)(1)(c)(ii). On August 11, 2017, our court accepted jurisdiction over the matter and granted the parties' motions to consolidate the actions for appeal.

Discussion and Decision

Standard of Review

[13] We review summary judgment using the same standard as the trial court: summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rogers v. Martin , 63 N.E.3d 316, 320 (Ind. 2016). All facts and reasonable inferences are construed in favor of the non-moving party. City of Beech Grove v. Beloat , 50 N.E.3d 135, 137 (Ind. 2016). Where the challenge to summary judgment raises questions of law, we review them de novo . Rogers , 63 N.E.3d at 320.

Existence of Common Law Duty

[14] To prevail on a claim of negligence, the Accident Parties must demonstrate (1) ONI owed them a duty; (2) ONI breached that duty by allowing its conduct to fall below the applicable standard of care; and (3) ONI's breach of duty proximately caused Accident Parties' injuries. See Rogers , 63 N.E.3d at 321 (setting forth elements of negligence). Absent a duty, there can be no breach. Id.

[15] Whether a duty exists is a question of law for the court to decide. Id. at 321. We therefore review de novo whether ONI owed the Accident Parties a duty. See id. at 320 (reviewing existence of duty de novo ). In determining whether a duty exists when it has not been established by law, we use a three-part balancing test under which we consider: (1) the relationship between the parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns. Goodwin, 62 N.E.3d at 387. Based on our Indiana Supreme Court's holding in Goodwin , ONI argues it did not owe a common law duty to the Accident Parties.

[16] In Goodwin , our Indiana Supreme Court set forth a new standard by which a court should review the reasonable foreseeability of harm when considering whether a party owed a duty to another party in a negligence action. ONI's motion for summary judgment argued the holding regarding foreseeability in Goodwin changed how the trial court should consider the evidence of foreseeability designated by the Accident Parties and, under Goodwin , ONI was entitled to summary judgment. We agree.

[17] In Goodwin , three patrons of Yeakle's Sports Bar and Grill, Goodwin, Randolph, and Washington (collectively "Goodwin"), sued Yeakle's after all three were injured during an altercation with Carter, another bar patron. Goodwin argued Yeakle's was negligent for "failing to provide security for its patrons; ... failing to search Rodney Carter for weapons; ... [and] failing to warn [P]laintiffs that Rodney Carter was armed and dangerous." Goodwin , 62 N.E.3d at 386 (ellipses in original). Yeakle's filed for summary judgment arguing, "Carter's criminal acts were unforeseeable and thus [Yeakle's] had no duty to anticipate and take steps to prevent Carter's conduct." ( Id. ) The trial court granted Yeakle's motion for summary judgment and Goodwin appealed.

[18] Our Indiana Supreme Court concluded, as an initial matter, that foreseeability is different when considering duty than when considering proximate cause. Id. at 389. To that end, the Court stated, "[i]n sum, because foreseeability is - in this particular negligence action - a component of duty, and because whether a duty exists is a question of law for the court to decide, the court must of necessity determine whether the criminal act at issue here was foreseeable." Id.

[19] To illustrate how a trial court should examine the issue of foreseeability, our Indiana Supreme Court relied upon the West Virginia Supreme Court's opinion in Strahin v. Cleavenger , 216 W.Va. 175, 603 S.E.2d 197 (2004), in which that court held:

[A] court's task - in determining "duty" - is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. The jury, by contrast, considers "foreseeability" ... [in] more focused, fact-specific settings.

Id. at 207 (emphasis and ellipsis in original). To further clarify, the Goodwin Court adopted language from the Court of Appeals opinion Goldsberry : "the foreseeability component of proximate cause requires an evaluation of the facts of the actual occurrence, while the foreseeability component of duty requires a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence." Goodwin , 62 N.E.3d at 391 (quoting Goldsberry v. Grubbs , 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied ).

[20] Many subsequent cases have interpreted Goodwin , but these cases have dealt mostly with premises liability. See, e.g., Polet v. ESG Sec. , 66 N.E.3d 972, 983 (Ind. Ct. App. 2016) (security company hired by the Indiana State Fair did not owe a duty of care to those patrons who were injured as part of a stage collapse due to high winds because the court did "not believe that security firms routinely contemplate that a stage might collapse"); see also Neal v. IAB Fin. Bank , 68 N.E.3d 1114, 1122 (Ind. Ct. App. 2017) (Bank employees who helped a man with a flat tire did not owe Neal a duty because "[t]o require every individual who undertakes to aid a stranded motorist to safeguard against the possibility that motorist may be intoxicated would be requiring those individuals to ensure the safety of all motorists. We do not believe reasonable persons would recognize such a duty exists."), trans. denied; and see Jones v. Wilson , 81 N.E.3d 688, 695 (Ind. Ct. App. 2017) (Wilson, the promoter of a wrestling event at a county fairground owed no duty of care to Jones, a person injured by a third party in the parking lot of the event, because "the harm inflicted on Jones was not normally to be expected, and thus not foreseeable").

[21] However, our court recently applied Goodwin to facts similar to those before us today. Estate of Staggs by and through Coulter v. ADS Logistics Co., LLC , 64A03-1708-CT-1961, 102 N.E.3d 319, 2018 WL 2187806 (Ind. Ct. App. May 14, 2018), trans. pending . In that case, Staggs and other plaintiffs (collectively, "Staggs") were injured or killed when a large steel coil came unsecured from the truck on which it was loaded and collided with several vehicles. Like in the case before us, the plaintiffs sued a number of parties for negligence, alleging each played a small part in the accident.

[22] ADS had a contract with ArcelorMittal, USA, LLC ("Mittal"), to house Mittal's steel coil. Mittal sold steel coils to Eagle Steel Products, Inc. ("Eagle"), who hired Kendall Transportation to haul the steel coil from the ADS warehouse to Eagle's location in Ohio. Kendall Transportation contracted with Israel Rankin, who owned and operated a tractor-trailer under the motor carrier authority of Kendall Transportation, to drive the tractor-trailer that would transport the steel coil.

[23] On January 11, 2010, Rankin arrived at ADS to pick up the steel coil. "Kendall Transportation's dispatcher and Rankin controlled the means and methods of delivering a load to a customer. Rankin had been trained how to secure a steel coil through previous employment and through his work at Kendall Transportation." Id. at *1, 322. The crane operator at ADS followed Rankin's directions regarding "where and how to place the steel coil on the flatbed." Id. After the crane operator loaded the coils on the flatbed, Rankin secured the coils. ADS, Kendall Transportation representatives, and Rankin testified "that it is the driver's responsibility to secure the load onto the driver's vehicle." Id. Rankin left the ADS facility, stopped for lunch, and then was involved in the accident.

[24] The appeal before our court concerned Staggs' negligence claim against ADS, to which the trial court granted summary judgment in favor of ADS, "finding as a matter of law that ADS had no duty to the plaintiffs 'regarding securing the load to the tractor trailer that was involved in this incident.' " Id. at *2, 323. Our court affirmed the trial court's grant of summary judgment in favor of ADS because, based on the analysis set forth in Goodwin , ADS did not owe a common law duty to Staggs. We examine each of these factors through the lens of Staggs and apply them to the case before us.

Relationship Between the Parties

[25] Under certain circumstances, our Indiana Supreme Court has held a sufficient relationship exists between strangers to impose a common law duty. See, e.g., Gariup Const. Co., Inc. v. Foster , 519 N.E.2d 1224, 1229 (Ind. 1988) (Gariup, who hosted a party during which its employee, Orner, became intoxicated, had a duty to exercise reasonable care to Foster, who was injured when Orner drove intoxicated); see also Picadilly, Inc. v. Colvin , 519 N.E.2d 1217, 1220 (Ind. 1988) ("there is a common law action against those unlawfully selling or furnishing intoxicating liquor in favor of third persons subsequently injured by the acts of the purchasers as a result of their intoxicated condition") (quoting Whisman v. Fawcett , 470 N.E.2d 73, 80 (Ind. 1984) ). ONI contends there is no relationship between ONI and the Accident Parties. We agree.

[26] In Staggs , our Court held:

As for the relationship between ADS and the Appellants, there is none. ADS's only involvement was to warehouse the steel coil and then load it onto Rankin's flatbed per Rankin's instructions. ADS also had no contractual relationship with Rankin, Kendall Transportation, or Eagle Steel, nor did it have any right of control over Rankin's acts, including the securing of the coil onto the flatbed. The accident did not occur on ADS's property, it did not involve ADS's employees or vehicles, and it did not involve anyone with whom ADS has a contractual relationship.

Staggs , op. at *4, 102 N.E.3d at 325. The same can be said here.

[27] It is undisputed that there is no direct relationship between ONI and the Accident Parties. It is true ONI was involved with the procurement of insurance for C & K; however, the trial court found, when granting summary judgment in favor of ONI, that ONI did not make any material misrepresentations to Occidental in the process of procuring insurance for C & K. ONI also supplied information to the federal government to assist C & K in obtaining an operating license, though only insomuch as to indicate whether C & K had insurance. The accident did not happen on ONI's land, nor did it involve an ONI employee or vehicle. Like in Staggs , ONI offered a service to a client to aid in the procurement of another service, after which an accident occurred. We hold this factor weighs against a duty.

Foreseeability

[28] Based on Goodwin 's holding, ONI filed a renewed motion for summary judgment in which it argued:

In opposing ONI's prior summary judgment motion, Plaintiffs submitted reams of evidentiary material that they purported to summarize in a 75-page fact statement supporting their argument that it was reasonably foreseeable that ONI's conduct would cause harm to the Plaintiffs. This evidentiary material focused on the actual facts of the transactions and events that Plaintiffs contend led to the accident at issue. Under Indiana law articulated by Goodwin , Plaintiffs' argument was wrong as a matter of law, and the extensive evidentiary material Plaintiffs relied upon to oppose summary judgment was immaterial and irrelevant on summary judgment.

(App. Vol. XVIII at 59) (internal citations omitted). ONI suggested the proper application of Goodwin to the facts in the case with the Accident Parties:

When applied here, the Goodwin analytical framework also leads to the conclusion that ONI owed no duty to Plaintiffs as a matter of law. The "broad type of plaintiff" involved in this case is any motorist traveling on a public road. The harm involved is the risk that an insured driver, once able to drive legally because he has obtained insurance, will injure such motorists in automobile accidents. As in Goodwin , although any client of any insurance agency is potentially likely to be involved in an automobile accident, insurance agents do not routinely contemplate that a client will independently operate its own vehicle in a manner that will cause an accident.

(Id. at 63.)

[29] Similarly, on appeal, ONI argues its role as an insurance agent is not "to determine whether their clients deserve coverage, or at what price." (Br. of Appellants at 25.) Instead, it contends, insurance underwriters "evaluate the risk of those clients being involved in accidents," (id. ), and then the insurance companies make the decision whether to provide insurance to a client. ONI argues it is merely "an intermediary" in this process. (Id. ) ONI asserts, to "impose a duty on insurance agents like ONI to safeguard against the possibility that one of their clients will harm a member of the general public would make insurance agents the 'insurer' of the general public's safety." (Id. at 26.)

[30] In Staggs , our Court undertook a foreseeability analysis of duty as prescribed in Goodwin : "[T]he foreseeability component of duty requires a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence." Goodwin , 62 N.E.3d at 389 (quoting Goldsberry , 672 N.E.2d at 479 ). The Staggs court then considered the question of what type of broad plaintiffs, defendants, and harm were involved. In that case, the broad plaintiff was identified as "motorists," the defendants were "a warehousing entity," and the harm was "a vehicular accident after commercial cargo became unsecured and struck the motorists." Staggs , op. at *4, 102 N.E.3d at 325. Based on those parameters, the Staggs Court concluded:

As a general matter, of course it is foreseeable that large and heavy cargo, which is secured to a flatbed trailer, could become unsecured on a public roadway and cause injuries to nearby motorists. But the broad type of defendant here-a warehousing entity-would have no reason to foresee that its own conduct, in warehousing the cargo or in loading the cargo onto another entity's vehicle, at the instruction of the other entity's driver, would result in harm to motorists. Put another way, an entity that has no role whatsoever in securing the cargo to the flatbed could not foresee that its own actions would result in that cargo becoming unsecured. This factor weighs against a finding of duty.

Id.

[31] The same rationale can be applied to the facts before us now. The broad plaintiffs here are motorists, the defendants are an insurance agency and its agent, and the type of harm involved was a multi-vehicle collision caused by faulty brakes on a large tractor-trailer. We hold the insurance agency and its agent, who had no role whatsoever in the decision to put the vehicle on the road in its condition, could not foresee that its actions relevant to this matter, which are only answering questions regarding whether their client had insurance coverage, would result in injury to a motorist. This factor weighs against finding duty.

Public Policy

[32] The final factor in the Goodwin test is the public policy consideration of "who is, or should be, in the best position to prevent injury and how society should allocate the costs of such injury." Cox v. Stoughton Trailers, Inc. , 837 N.E.2d 1075, 1080 (Ind. Ct. App. 2005). The Staggs Court held, "[i]t is apparent that the party best suited to prevent an injury to motorists with respect to commercial cargo secured to a flatbed trailer is the entity responsible for securing, hauling, and checking the cargo during the drive." Staggs , op. at *5, 102 N.E.3d at 326. In Staggs , those entities were the driver Rankin and his employer Kendall Transportation,. Here, the entities best suited to prevent injury to a motorist were Hackney, who drove the truck that caused the accident even though he knew of its defective brakes, and C & K, which owned the truck. As ONI had no control over the actual means by which the accident occurred, this factor weighs against finding ONI had a duty to the Accident Parties.

[33] All three of the factors we are to consider when determining whether one party owed a common law duty to another party weigh in favor of holding ONI did not owe a duty to the Accident Parties. Therefore, we conclude the trial court erred when it denied ONI's renewed motion for summary judgment on the issue of whether ONI owed the Accident Parties a common law duty.

Assumed Duty

[34] In Yost v. Wabash College , 3 N.E.3d 509 (Ind. 2014), our Indiana Supreme Court set forth the standard of review for determining assumed duty: "[T]he concept of assumed duty is expressed in the Restatement and requires a focus upon the specific services undertaken. While an actor may be accountable for negligence in the performance of certain services actually undertaken, such liability does not extend beyond the undertaking." Id. at 521. The Restatement referenced therein is Restatement (Third) of Torts: Physical and Emotional Harm § 42 (2012), which states:

An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
(a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
(b) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking.

Id. at 517. "Thus, to impose liability resulting from breach of assumed duty, it is essential to identify and focus on the specific services undertaken. Liability attaches only for the failure to exercise reasonable care in conducting the 'undertaking.' " Id.

[35] In Yost , a college student, Yost, sued the college he attended, Wabash, for negligence after Yost was injured in a fraternity hazing incident. Yost argued Wabash assumed a duty of care because it engaged in educational outreach programs to encourage appropriate student behavior and curb hazing. Our Indiana Supreme Court rejected this argument:

[T]here is no direct evidence or reasonable inferences in this case to establish that Wabash deliberately and specifically undertook to control and protect Yost from the injuries he sustained or to generally prevent its students from engaging in injurious private conduct toward each other. Nor is there evidence that Yost in any way relied upon Wabash to take action in furtherance of the claimed gratuitously assumed duty. Wabash's policies and investigations with respect to hazing do not rise to the level of a specific undertaking that demonstrate a special relationship between Yost and Wabash so as to justify the imposition upon Wabash of a gratuitously assumed duty to protect Yost from hazing. To the contrary, colleges and universities should be encouraged, not disincentivized, to undertake robust programs to discourage hazing and substance abuse. To judicially impose liability under a theory of gratuitously assumed duty is unwise policy and should be cautiously invoked only in extreme circumstances involving a negligently performed assumed undertaking - circumstances not here present.

Id. at 518.

[36] Our Indiana Supreme Court further clarified its analysis of assumed duty when it interpreted Yost as part of Doe # 1 v. Indiana Dept. of Child Servs. , 81 N.E.3d 199 (Ind. 2017). In Doe # 1 , an individual who reported alleged abuse to the Department of Child Services ("DCS") sued DCS for negligently disclosing his identity, which resulted in harassment to his family. Doe # 1 argued DCS assumed a duty of care when the employee told Doe # 1 that his identity was "confidential. Nobody will find out." Id. at 201. The employee's statement was consistent with established DCS policy. Our Indiana Supreme Court reviewed Yost and a similar opinion, Lanni v. NCAA , 42 N.E.3d 542, 553 (Ind. Ct. App. 2015), in which our court held merely communicating a rule - that is, the boundaries of a fencing area during a fencing tournament - was not an "undertaking" which triggered an assumed duty. The Court analogized Yost and Lanni to the facts in Doe # 1 :

And that is all the DCS hotline employee did here. By informing John that his report was confidential, the employee did no more than the college in Yost or the NCAA in Lanni - she simply communicated an existing rule. Granted, the employee did summarize Section 2 using her own words: "[I]t's confidential. Nobody will find out." But given the demanding standard for "specific undertaking," and given our caution in finding gratuitously assumed duties, we cannot read the hotline worker's words as an offer to take on additional common-law liability.

Doe # 1 , 81 N.E.3d at 206.

[37] Here, ONI's "undertakings" were helping C & K obtain insurance, engaging C & K in training, and answering questions truthfully concerning whether C & K had insurance in order for C & K to obtain its federal operating authority. ONI contends those undertakings were provided to C & K, not the Accident Parties, and thus no assumed duty exists "because Plaintiffs had no connection whatsoever to ONI's provision of those services." (Br. of Appellants at 31.) We agree.

[38] Much like Wabash College in Yost , ONI attempted to supply Hackney with tools he could use to rehabilitate the safety rating of HT. ONI scheduled a mock audit and sent a representative to train HT employees regarding the new safety standards, which would focus on past and present driving records of the operator. Additionally, like in Doe # 1 , ONI employees repeatedly informed Hackney of the new procedures and how they would affect his business. However, this diligence does not rise to an assumed duty under Yost because, like in that case, ONI did not oversee or control Hackney's behavior, here driving a vehicle with faulty brakes, following these undertakings. See Yost , 3 N.E.3d at 518 (university provided educational materials, but did not undertake to protect or control Yost or other students from engaging in injurious behavior). ONI did not assume a duty to the Accident Parties, and the trial court should have entered summary judgment for ONI on this theory of liability. See id.

Joint Liability for Tortious Conduct

[39] As part of the actions against ONI, the Accident Parties claimed "ONI knowingly, intentionally, and fraudulently aided and abetted C & K to become a chameleon carrier." (Br. of Appellees at 43.) The Accident Parties also alleged ONI conspired with C & K to do the same. However, the Accident Parties did not identify the tort it claimed ONI aided and abetted or conspired to commit, and thus no action can accrue. See Hefferman v. Bass , 467 F.3d 596, 601 (7th Cir. 2006) (aiding and abetting is not an independent tort; a person who aids and abets is liable for the tort itself); and see Winkler v. V.G. Reed & Sons, Inc. , 638 N.E.2d 1228, 1234 (Ind. 1994) ("civil conspiracy is not an independent cause of action"). Therefore, we conclude the trial court erred when it denied ONI's renewed motion for summary judgment on this issue.

Conclusion

[40] ONI did not owe the Accident Parties a common law duty, ONI did not assume a duty, and no statutory duty existed. Nor can ONI be liable for aiding, abetting, or conspiring when the Accident Parties did not allege a corresponding tort ONI was to aid, abet, or conspire to commit. Because all those theories of liability fail, the trial court erred when it denied ONI's motion for summary judgment. Accordingly, we reverse and remand for proceedings consistent with this opinion.

[41] Reversed and remanded.

Riley, J., and Altice, J., concur.

      We held oral argument on this matter on May 17, 2018, in Jeffersonville, Indiana, as part of the Indiana Bar Association's Leadership Development Academy. We thank the organizers for their hospitality and counsel for their congeniality and excellent presentations.

      "[AUS] was an authorized agent of Occidental, pursuant to a written agency agreement. Pursuant to the agency agreement, Occidental granted AUS the express authority to receive information about C & K, evaluate and underwrite C & K's coverage, issue a binder for coverage, and compile and issue an insurance policy to C & K." (App. Vol. VII at 5-6) (internal citations omitted).

      Hackney described GL Authority as "a service where we had our fuel cards. It's actually GetLoaded.com, we had our fuel cards through. They had a service where they could get your operating authority for you. I don't know whether I filled it out online or talked to them personally on the phone." (App. Vol. XIX at 30) (errors in original).

      Much of the Accident Parties' arguments regarding duty center around events that occurred between ONI and Occidental in the process of insurance procurement. The record reflects ONI employee Carla Carson told AUS, an agent of Occidental, that Hackney "ha[d] been owner of another trucking firm for over 20 years - he recently decided to form a new company and obtain his authority under the new name." (App. Vol. XIII at 158.) The record also indicates that Hackney converted HT into C & K to allegedly circumvent FMCSR. However, because those facts pertain to the communications between ONI and Occidental, and no party challenged the trial court's earlier conclusion that ONI did not make any material misrepresentations to Occidental, we are confined to the facts relevant only to the filing of the operating authority paperwork.

      At some point during the proceedings, the trial court began hearing the two claims together based on the fact they involved the same defendants, including ONI, and arose from the same accident. While the cases were not officially consolidated at trial, the appealed order is captioned to address ONI's motions for summary judgment in both cases and only one appellate cause number exists.

      The Accident Parties also note a relationship between parties that creates a duty can exist by virtue of a statute. See , e.g. , Goldsberry , 672 N.E.2d at 480 (holding duty existed based on relationship created by Indiana Code section 8-20-1-28 ). Here, the Accident Parties argue Indiana state and federal regulations create a relationship between ONI and the Accident Parties. Indiana Code section 8-2.1-24-18(a) incorporates 49 CFR § 385.306 and 49 CFR § 390.13 into Indiana law. 49 CFR § 385.306 states: "A carrier that furnishes false or misleading information, or conceals material information in connection with the registration process, is subject to ... [a]ssessment of the civil and or criminal penalties prescribed in 49 USC 521 and 49 USC chapter 149." 49 CFR § 390.13 states, "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter."
      However, ONI did not provide false or misleading information during the registration process. The Accident Parties make much of the information passed and actions taken by ONI in the procurement of insurance for C & K; however, the trial court ruled ONI did not make material misrepresentations in that process and that ruling was not challenged. Additionally, ONI did not have oversight of the OP-1, on which Hackney misrepresented his company history. The only actions at issue here are ONI's statement for the BMC-91X, in which ONI was asked if C & K had insurance. It is undisputed ONI answered in the affirmative, as C & K had a policy with Occidental.

      As the trial court found and concluded ONI did not make misrepresentations to Occidental in the procurement of the insurance policy for C & K, we need not evaluate whether or how the actions taken prior to the issuance of the insurance policy may have factored into this foreseeability analysis.