author: Goff, Justice.

text:
    John E. MORIARITY and Mae E. Moriarity, Appellants (Petitioners below), v. INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellee (Respondent below).
    Supreme Court Case No. 18S-PL-00296
    Supreme Court of Indiana.
    Argued: June 28, 2018 FILED January 3, 2019
    ATTORNEY FOR APPELLANTS: William M. Horne, Horne Law LLC, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Patricia C. McMath, Deputy Attorney General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 27A04-1612-PL-02731
   Goff, Justice.

The Dam Safety Act gives the Indiana Department of Natural Resources (the "DNR") jurisdiction over certain dams in, on, or along streams in Indiana to protect Hoosiers' lives and property. The Moriaritys have a large pond and related dam on their land, and, since the early 2000s, the DNR has tried to exercise jurisdiction over the dam based on its determination that the dam was located in, on, or along a stream. The Moriaritys have resisted the DNR's jurisdiction and contested its findings without much success in the administrative tribunals and courts below. They now appeal to this Court, presenting us with three different questions. First, did the DNR properly exercise jurisdiction over the dam? Within this question lie issues concerning the reasonableness of the DNR's definition of the word stream and what, if any, notice the Moriaritys had of that definition. Second, did the DNR present substantial evidence supporting its classification of the dam as a high-hazard dam? Third, can the Moriaritys modify their dam to remove it from DNR's future jurisdiction? We answer each of these questions in the affirmative, largely based on our standard of review, and affirm the trial court.

Factual and Procedural History

In the late 1990s, Mae ("Becky") and John Moriarity decided to build a pond on farm land they owned in Grant County. Before excavating and building the necessary embankments, they contacted various local, state, and federal agencies and obtained what they were told were the necessary permits. By 2000, after a few years of work, the Moriaritys ended up with a fairly large pond and related dam. Their pond covered between thirty and forty acres and contained at least one hundred acre-feet of water, and parts of the dam holding back this water were taller than twenty feet.

By 2002, the DNR was aware of the pond and dam. Throughout the early 2000s, the DNR sought to have the Moriaritys correct what it considered "significant safety deficiencies" in the dam according to Indiana Code chapter 14-27-7.5 (the "Dam Safety Act" or the "Act"). See Appellee's App. Vol. V, pp. 237, 239. On May 14, 2012, the DNR issued Notice of Violation VTS-3933-DM (the "NOV") to the Moriaritys, describing numerous violations of the Dam Safety Act. The NOV ordered the Moriaritys to make certain changes to their pond and dam, imposed $35,000 in civil penalties for past violations, and provided daily penalties for any continuing violations.

The Moriaritys petitioned for administrative review of the NOV. Two administrative law judges held a multi-part fact-finding hearing over the course of several months at which the parties presented argument and evidence. At the hearing, the parties' disputes included whether the Moriaritys' dam fell within the DNR's jurisdiction to regulate dams built in, on, or along streams and, if so, whether the dam was properly classified as a high-hazard dam. After the hearing, the presiding administrative law judge issued her Findings of Fact, Conclusions of Law and Nonfinal Order generally in favor of the DNR.

The Moriaritys objected to the administrative law judge's order, and the Natural Resources Commission (the "NRC") held oral argument. The NRC then issued its Findings of Fact, Conclusions of Law and Final Order (the "Final Order") largely along the same lines as the administrative law judge's nonfinal order. The NRC found that the DNR's use of the common meaning of the word stream was proper and constituted an ascertainable standard for identifying a stream, that the Moriaritys' dam was in, on, or along at least one stream, and that there was sufficient evidence to support the conclusion that the Moriaritys' dam was a high-hazard dam. The NRC ordered the Moriaritys to address the issues with their dam, giving them essentially two options: (1) have a professional engineer help safely lower the water in the pond, inspect the dam, make any necessary repairs to the dam, and refill the pond, or (2) have a professional engineer help "dewater, breach and permanently decommission the dam." See Appellants' Corrected App. Vol. 2, pp. 56-57, ¶¶ 1-5. The NRC also ordered the Moriaritys to pay civil penalties totaling $10,000 for past violations of the Dam Safety Act without imposing daily penalties for continuing violations. Id. at 57, ¶ 6.

The Moriaritys sought judicial review of the Final Order, and the trial court affirmed. It ordered the Moriaritys to take the specific action ordered by the DNR, quoting some paragraphs from the NRC's final order and summarizing others. The Moriaritys filed a motion to correct error, which was later deemed denied.

The Moriaritys then appealed to the Court of Appeals. Moriarity v. Ind. Dep't of Nat. Res. , 91 N.E.3d 642 (Ind. Ct. App. 2018). They raised many of the same issues as before the NRC and trial court, and the Court of Appeals affirmed. Id. at 646-49. They also challenged the Final Order to the extent that it did not expressly allow them to modify their pond and dam so that it would fall outside DNR's jurisdiction, but the Court of Appeals found this argument waived. Id. at 649.

We granted the Moriaritys' petition to transfer, thereby vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A).

Standard of Review

The Moriaritys challenge the trial court's order upholding the DNR's administrative decision. Under Indiana's Administrative Orders and Procedures Act ("AOPA"), we may set aside an agency's action if it 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) (2018). The Moriaritys bear the burden of showing us that the DNR's action is invalid. I.C. § 4-21.5-5-14(a).

With AOPA in mind, we note that "[o]ur review of agency action is intentionally limited, as we recognize an agency has expertise in its field and the public relies on its authority to govern in that area." Ind. Alcohol and Tobacco Comm'n v. Spirited Sales, LLC , 79 N.E.3d 371, 375 (Ind. 2017) (quoting West v. Office of Ind. Sec'y of State , 54 N.E.3d 349, 352-53 (Ind. 2016) ). We do "not try the facts de novo" but rather "defer to the agency's findings if they are supported by substantial evidence." Id. "On the other hand, an agency's conclusions of law are ordinarily reviewed de novo." Id. While "[w]e are not bound by the [agency's] conclusions of law, ... '[a]n interpretation of a statute by an administrative agency charged with the duty of enforcing the statute is entitled to great weight, unless this interpretation would be inconsistent with the statute itself.' " Chrysler Grp., LLC v. Review Bd. of Ind. Dep't of Workforce Dev. , 960 N.E.2d 118, 123 (Ind. 2012) (third alteration in original) (quoting LTV Steel Co. v. Griffin , 730 N.E.2d 1251, 1257 (Ind. 2000) ). See also Nat. Res. Comm'n v. Porter Cty. Drainage Bd. , 576 N.E.2d 587, 588 (Ind. 1991) (stating that "the interpretation of a statute by the administrative agency charged with its enforcement is entitled to great weight"). "In fact, 'if the agency's interpretation is reasonable, we stop our analysis and need not move forward with any other proposed interpretation.' " Jay Classroom Teachers Ass'n v. Jay Sch. Corp. , 55 N.E.3d 813, 816 (Ind. 2016) (citation omitted). Like many cases involving judicial review of agency action, the outcome here turns on this standard of review.

Despite the dissent's resolute arguments to the contrary, applying this standard of review comports with precedent and our prior decision in NIPSCO Industrial Group v. Northern Indiana Public Service Co. , 100 N.E.3d 234, 241 (Ind. 2018). Rather than effecting a sea change in NIPSCO , we applied a specific, controlling portion of the same standard we recite today. Both in NIPSCO and here, we note that we ordinarily review legal questions addressed by an agency de novo. Id. In NIPSCO , that was our primary focus. Id. We did not continue our discussion of the standard of review to address an agency's interpretation of the relevant statute because there was no need; we found the agency's interpretation contrary to the statute itself and, thus, necessarily unreasonable. Compare id. at 237-38, 242, with Jay Classroom Teachers Ass'n , 55 N.E.3d at 816 (instructing that we accept an agency's interpretation only if it is reasonable), and Chrysler Grp., LLC , 960 N.E.2d at 123 (providing that an agency's interpretation that is inconsistent with the statute itself does not receive "great weight"). Here, on the other hand, we continue our discussion and recite the full standard because in Part I.A. below we find the DNR's interpretation reasonable and not inconsistent with the Dam Safety Act. Differences in the respective agencies' statutory interpretations in NIPSCO and here lead us to focus on different parts of the standard of review.

In both cases, however, the whole standard remains the same.

Taking a step back from the details of these cases, this standard of review does not abdicate any of our duties, diminish the role of the judiciary, or cast doubt on any rules of statutory construction by implication. This standard entails a fresh look at the dispute on appeal, including the agency's interpretation of the relevant statute, and allows us to continue to say what the law is. It retains for the judiciary the ultimate power to determine the outcome of the dispute based on the law and facts, but it also recognizes the expertise contained within a co-equal branch of government and the value to the public in being able to rely on reasonable agency interpretations. Finally, as was the case in each prior opinion to apply this standard, our use of the standard here does nothing to cast doubt on the continued vitality of the rule of lenity.

Discussion and Decision

The Dam Safety Act, in relevant part, is concerned with the safety of certain dams in, on, or along streams in Indiana. I.C. § 14-27-7.5-8(a)(1) (2004). It places an affirmative obligation on the owners of such dams to properly maintain them, I.C. § 14-27-7.5-7(a), and it gives the DNR supervisory and enforcement power to ensure this happens, I.C. § 14-27-7.5-8(a)(1)-(2). Here, the DNR asserted jurisdiction over the Moriaritys' dam after concluding it was in, on, or along a stream, it then assigned a hazard classification to the dam based on the assessed risk to nearby people and property, and it finally ordered the Moriaritys to perform certain inspection and maintenance activities. The Moriaritys challenge the DNR's jurisdiction, its hazard classification, and its ordered actions. We address each argument in turn.

I. The DNR has jurisdiction over the Moriaritys' dam based on its location in, on, or along a stream of Indiana.

The Dam Safety Act gives the DNR jurisdiction over dams "in, on, or along the rivers, streams, and lakes of Indiana." I.C. § 14-27-7.5-8(a)(1). The DNR's assertion of jurisdiction over the Moriaritys' dam rested primarily on the presence of at least one stream on the property, and so the Moriaritys focus their jurisdictional arguments on the word stream. They argue that the DNR improperly defined the word and that it failed to provide an ascertainable standard of what constitutes a stream. Both arguments fail.

A. The DNR's definition of stream was reasonable.

Neither the legislature nor the DNR have defined the word stream for purposes of the Dam Safety Act, and the Moriaritys argue that the DNR used an improper definition here. When presented with a question of statutory interpretation, "our primary goal is to ascertain the legislature's intent[,] ... look[ing] first to the statutory language itself." Suggs v. State , 51 N.E.3d 1190, 1193 (Ind. 2016). If the legislature has not defined a word, we give the word its plain, ordinary, and usual meaning, consulting English language dictionaries when helpful in determining that meaning. State v. Hancock , 65 N.E.3d 585, 587 (Ind. 2016). But when, as happened here, an agency interprets a statute it is tasked with enforcing, we give the agency's interpretation "great weight" and stop our analysis if that interpretation is reasonable. West , 54 N.E.3d at 353 (citation omitted).

Here, the DNR identified a stream as "flowing water through a defined channel" with neither size nor consistency of water flow being determinative of the presence of a stream. Appellants' Corrected App. Vol. 2, pp. 51-52. This definition is consistent with dictionary definitions of the word. See Stream , WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2259 (2002) (defining the word as "a body of running water flowing in a channel on the surface of the ground ..."). See also Appellee's App. Vol. V, pp. 6-10 (providing various definitions of the word). And there is no indication that this definition is inconsistent with the Dam Safety Act itself. Because the definition the DNR used is consistent with the plain, ordinary, and usual meaning of the word stream, it is reasonable, and we "need not move forward with any other proposed interpretation." Jay Classroom Teachers Ass'n , 55 N.E.3d at 816 (citation omitted).

B. The Moriaritys had adequate notice of what constitutes a stream for purposes of the Dam Safety Act.

The Moriaritys contend that they lacked adequate notice that their property contained a stream that could bring their dam within the DNR's Dam Safety Act jurisdiction. Specifically, they claim that the "DNR, by failing to promulgate any regulations or guidance [defining stream under the Act] and relying solely on the statute, had not given any notice or fair warning" that their dam would fall within DNR's jurisdiction. Pet. to Transfer, pp. 7-8. As the Moriaritys correctly point out, "[a]dministrative decisions must ... be based on ascertainable standards in order to be fair and consistent rather than arbitrary and capricious." State Bd. of Tax Comm'rs v. New Castle Lodge # 147, Loyal Order of Moose, Inc. , 765 N.E.2d 1257, 1264 (Ind. 2002). These standards "give fair warning as to what the agency will consider in making its decision." Id. (citation omitted). However, this ascertainable standards requirement is not meant to unduly constrain administrative action because agencies are "entitled to reasonable latitude in carrying out [their] responsibilities." Id. at 1264 n.13 (citing State Bd. of Tax Comm'rs v. Garcia , 766 N.E.2d 341 (Ind. 2002) ). The Moriaritys fail to show that the DNR's reliance on the language of the Act, rather than on explanatory regulations or other guidance, failed to provide an ascertainable standard for two reasons.

As an initial matter, an agency is not required to promulgate regulations defining each word in a statute. Although the Moriaritys seem to advocate for this rule, they cite no law foisting such a burden upon agencies in Indiana. To the contrary, we have a well-established rule to deal with these situations: "[u]ndefined words ... are given their plain, ordinary and usual meaning." Hancock , 65 N.E.3d at 587 (citing I.C. § 1-1-4-1(1) (2016 Repl.) ). Here, the DNR based its definition of the word stream on the standard dictionary definition, as the legislature and this Court have instructed. This reasonable definition gave the Moriaritys fair warning as to what the DNR would consider a stream. It was neither arbitrary nor capricious.

Additionally, the Moriaritys' intense focus on the word stream and the lack of regulations defining the word loses sight of the legislature's intent in enacting the Dam Safety Act and the Act's other jurisdictional provisions. As the colloquial name of the Act implies, it is all about the safety of dams. See, e.g. , I.C. § 14-27-7.5-7(a) (2004). It is not a law regulating streams. While the word stream is one part of the Act's jurisdictional grant, see I.C. § 14-27-7.5-8(a)(1), it cannot be viewed in isolation without also considering the broader context of the statutory provision within the Dam Safety Act. In fact, another provision provides specific guidance on dams that fall outside the Act. I.C. § 14-27-7.5-1. Dams that are no more than twenty feet high and that do "not impound a volume of more than one hundred ... acre-feet of water[,]" among other things, are not within the DNR's Dam Safety Act jurisdiction. I.C. § 14-27-7.5-1(1). When the word stream is viewed in light of the Act's purpose and the other jurisdictional provisions, individuals have more than fair notice of which dams might fall within the DNR's jurisdiction. This conclusion is driven home even more forcefully in this case, where the Moriaritys stipulated that parts of their dam were taller than twenty feet and that their dam impounded more than one hundred acre-feet of water. Appellee's App. Vol. II, pp. 48-49. The Moriaritys have failed to show that the DNR's exercise of jurisdiction over their dam based on the statutory language of the Dam Safety Act was arbitrary or capricious.

II. The DNR presented substantial evidence supporting its classification of the Moriaritys' dam as a high-hazard dam.

As part of its supervisory duties under the Dam Safety Act, the DNR must assign a hazard classification-high, significant, or low-to each dam within its jurisdiction based on the risk posed to life and property in the event of an uncontrolled release from the dam. I.C. § 14-27-7.5-8(b). The DNR classified the Moriaritys' dam as high-hazard, and the Moriaritys argue on appeal that this classification lacks substantial evidence. While the Moriaritys acknowledge that two DNR witnesses testified that the dam was a high-hazard structure, they argue that an inundation study the DNR completed was so flawed that the DNR's conclusion on the dam's hazard classification was not supported by substantial evidence.

When reviewing a claim that an agency's decision lacks substantial evidence, "the reviewing court may vacate [the] decision only if the evidence, when viewed as a whole, demonstrates that the conclusions reached by the [agency] are clearly erroneous." Regester v. Ind. State Bd. of Nursing , 703 N.E.2d 147, 151 (Ind. 1998) (citation omitted). "A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment." E.B.F. v. D.F. , 93 N.E.3d 759, 762 (Ind. 2018).

The Dam Safety Act defines a high-hazard dam as "[a] structure the failure of which may cause the loss of life and serious damage to homes, industrial and commercial buildings, public utilities, major highways, or railroads." I.C. 14-27-7.5-8(b)(1). The Act's regulations instruct the DNR's Division of Water to assign its hazard classifications "based on [the] best information available" and expressly allow it to "consider observations of the dam and the vicinity of the dam, including the risk posed to human life and property if the dam fails." 312 Ind. Admin. Code 10.5-3-1(a), (c) (2012), http://www.in.gov/legislative/iac/T03120/A00105.PDF?&iacv=iac2012. To support its high-hazard assessment, the DNR presented testimony of two of its employees as well as an inundation study conducted on the dam. On the other hand, the Moriaritys presented testimony casting doubt on the accuracy of the inundation study. Even ignoring the evidence from the inundation study, the DNR presented substantial evidence supporting the dam's high-hazard classification. Kenneth Smith, the Assistant Director of DNR's Division of Water, testified that the presence of a church, a home, and a road below the dam made it "visually obvious" that it would likely be a high-hazard dam. Appellants' Corrected App. Vol. 2, pp. 128-29. George Crosby, the Manager of DNR's Dam Safety Section, testified that, if the dam broke above the house situated below the dam, it would cause "serious damage." Appellants' Corrected App. Vol. 3, p. 45. He also testified that the dam would be classified as high-hazard even without the homes below because the road below the dam was heavily trafficked. Appellee's App. Vol. III, p. 187-88. Thus, substantial evidence supports the DNR's conclusion that the Moriaritys' dam was a high-hazard structure. The Moriaritys' argument to the contrary fails.

III. The Moriaritys may, in the course of complying with the trial court's order, modify their dam to remove it from DNR's jurisdiction.

The Moriaritys insist that the DNR exceeded its jurisdiction by issuing its Final Order that did not expressly allow them to modify their dam to remove it from the DNR's jurisdiction. They seek a modification of the trial court's order enforcing the Final Order to include an express provision allowing them to change their dam so that it no longer falls within the DNR's Dam Safety Act jurisdiction, or they ask us to remand with instructions that they may change their dam to remove it from the DNR's jurisdiction. Regardless of any potential waiver of this argument due to the Moriaritys' failure to raise it before their motion to correct error, we will address it. See Pierce v. State , 29 N.E.3d 1258, 1267 (Ind. 2015) (citation omitted) ("[W]henever possible, 'we prefer to resolve cases on the merits' instead of on procedural grounds like waiver.").

The trial court's order largely adopted the portions of the DNR's Final Order regarding compliance with the Dam Safety Act going forward. Appellants' Corrected App. Vol. 2, pp. 25-26. Modification of this order is not necessary, but the Moriaritys may choose to modify their dam in the course of complying with the trial court's order in order to remove it from the DNR's jurisdiction from that point forward. As noted above, the Moriaritys stipulated that their dam exceeded twenty feet in height and impounded a volume of more than one hundred acre-feet of water, both of which meant their dam did not qualify for the Dam Safety Act's statutory exception. See I.C. § 14-27-7.5-1(1) (2004). If they modify it so that it no longer exceeds a height of twenty feet or impounds more than one hundred acre-feet of water (along with the other statutory requirements), the DNR will no longer have jurisdiction over the dam under the Dam Safety Act. The DNR acknowledged that this option was available to the Moriaritys, Oral Argument at 20:58-22:50, and the Moriaritys acknowledged that they would accept this option, id. at 17:05-17:20, 18:19-18:58. Whether the parties ultimately act on this apparent agreement is up to them.

Conclusion

For the reasons stated herein, we affirm the trial court's order enforcing the Final Order. We find, however, that the Moriaritys can, in the course of complying with the trial court's order, modify their dam to remove it from the DNR's jurisdiction under the Dam Safety Act. Given the parties' unsuccessful attempts at settlement despite their apparent agreement in principle, we anticipate disagreements may arise if the Moriaritys choose to modify their dam to remove it from the DNR's jurisdiction. Because those disagreements have only been hinted at and not fully litigated to date, we cannot offer guidance on them but instead leave that to the trial court, should the need arise. See State ex rel. Brubaker v. Pritchard , 236 Ind. 222, 226, 138 N.E.2d 233, 235 (Ind. 1956) ("It is well established that once a court acquires jurisdiction over parties, the jurisdiction continues until the final disposition of the litigation including the enforcement of the judgment or decree."). Therefore, we remand to the trial court for further proceedings consistent with this decision.

Rush, C.J., and David, J., concur.

Massa, J., concurs in result.

Slaughter, J., dissents with separate opinion.

I respectfully dissent from the Court's decision for two reasons. First , on the standard of review, I would give no deference to the Department's interpretation of "stream" within the Dam Safety Act. The prerogative to interpret the law authoritatively belongs to us. And we disserve separation-of-powers principles when we allow agencies within the executive branch to usurp a core judicial function. Second , on the merits, the Court's conclusion that the Department properly exercised jurisdiction over the Moriaritys' property follows from the Court's deferential standard of review. Its application of the wrong standard has caused it to reach the wrong result.

I'll begin with the standard of review. Only months ago, we held unanimously that we review agencies' legal determinations "de novo"; that we accord such determinations "no deference"; that plenary review of agency decisions is "constitutionally preserved" for the judiciary; that our separation-of-powers doctrine does not contemplate a "tie-goes-to-the-agency" standard for reviewing agency decisions on questions of law; and that we decide the statutory interpretation that is "best" and "do not acquiesce in the interpretations of others." NIPSCO Indus. Grp. v. Northern Indiana Pub. Serv. Co. , 100 N.E.3d 234, 241 (Ind. 2018).

In contrast, the Court today applies a very different standard. It opens by describing the standard as "de novo" but then says the interpretation of a statute by the agency charged with enforcing it is entitled to "great weight"; and that an agency's interpretation need only be "reasonable", at which point we will "stop our analysis" and not consider "any other proposed interpretation."

I had thought this discredited standard, which the Court resurrects today, had been laid to rest for good in NIPSCO . What we held in NIPSCO cannot be reconciled with the standard the Court applies today. It is no answer that NIPSCO involved the Utility Regulatory Commission and today's decision concerns the Department of Natural Resources. There is no principled reason, consistent with separation of powers, for according fundamentally different treatment to the statutory interpretations of different agencies within the executive branch of state government. An agency interpretation that is "reasonable" but not the "best" is not good enough. Allowing an agency's reasonable interpretation to prevail over our best interpretation ignores our unique "law-giving function", A.A. v. Eskenazi Health/Midtown CHMC , 97 N.E.3d 606, 610 n.1 (Ind. 2018), which includes our inherent constitutional "duty to act as the final and ultimate authority" in pronouncing Indiana law, id. (quoting Troue v. Marker , 253 Ind. 284, 288, 252 N.E.2d 800, 803 (1969) ).

These rival standards of review-"only the best" vs. "reasonable will do"-are not only irreconcilable but proceed from very different visions of the role of the judiciary within our constitutional scheme. NIPSCO regards the judiciary as a vital, co-equal branch within our tripartite system of government with ultimate responsibility for interpreting the law. Today's decision, however, treats the judiciary as a bit player with a limited role vis-à-vis the other two branches. To be sure, judicial modesty has its place. But we should not confuse modesty with abdication. Our job is to interpret the law fully and faithfully-no more, no less. Today's standard does much less. It is a standard where judicial review is plenary in theory, deferential in name, and a rubberstamp in fact.

We do not give similar deference to other actors who wield executive power. For example, we afford zero deference to prosecuting attorneys, who exercise an essential aspect of the State's executive power: the power "to enforce the criminal laws of the State of Indiana". State ex rel. Egan v. Superior Ct. of Lake Cty. , 211 Ind. 303, 309, 6 N.E.2d 945, 947 (1937). Prosecutors would seemingly have greater standing to insist on deference when interpreting the laws they enforce. Unlike executive-branch agencies, prosecutors are not creatures of statute but constitutional officers. Ind. Const. art. 7, § 16. As between them, one might think that if deference were ever appropriate on matters of legal interpretation, it would be constitutional officers who deserve the benefit of the doubt. But our caselaw holds otherwise. If a criminal statute is ambiguous, we do not give "great weight" to a prosecutor's interpretation or require that the interpretation only be "reasonable" to withstand legal challenge. To the contrary, our rule of lenity holds that ambiguity in a statute defining a crime should be resolved in favor of the defendant. Day v. State , 57 N.E.3d 809, 813 (Ind. 2016). Make no mistake-that is how it should be. But given the standard of review the Court applies today, one might fairly ask whether the rule of lenity's continued validity is now in doubt. I hope the answer is no, but I am not confident of that. At a minimum, today's standard erodes the rule's doctrinal underpinnings.

Turning to the merits, the conclusion that the Department properly exercised jurisdiction under the Dam Safety Act is premised on the Court's acquiescence in the Department's determination that the disputed dam was located along a "stream". As the Court acknowledges, its lax standard of review ensured the Department's jurisdictional ruling would be upheld: "Like many cases involving judicial review of agency action, the outcome here turns on this standard of review." On this point, I agree with the Court. A more robust standard would have led to a different outcome on the threshold question of the Department's exercise of jurisdiction over the Moriaritys' property. Because the Court applied the wrong standard, it reached the wrong result.

I respectfully dissent.

      In this context, the NRC is the ultimate authority of the DNR. Ind. Code § 14-10-2-3 (2014 Repl.). Thus, the Final Order represented the DNR's last order on the matter.

      The Act speaks in terms of structures, which are defined as dams and their "appurtenant works." I.C. § 14-27-7.5-5 (2004). For ease of discussion, references in this opinion to a dam are meant to include its appurtenant works.

      To the extent the Moriaritys challenge the factual basis for the finding that their dam was located in, on, or along a stream, their argument fails. The DNR presented substantial evidence, by way of testimony of at least six witnesses along with photographs, to support its finding that the dam was built in, on, or along a stream. See Appellants' Corrected App. Vol. 2, p. 88 (testimony of Robert Wilkinson); Appellee's App. Vol. II, pp. 85-86, 91-92, 95-107 (testimony of Kenneth Smith referencing photographs); id. at 222-25 (testimony of Rodney Neese); Appellee's App. Vol. III, pp. 28-31 (testimony of Jon Eggen); id. at 95-96 (testimony of Darrin Miller); id. at 169-70 (testimony of George Crosby).

      We note that the standards for classifying a dam as high-hazard are not the same in the Indiana Code and the Indiana Administrative Code. Compare I.C. § 14-27-7.5-8(b)(1) (allowing such a classification when a dam's failure can result in loss of life and serious damage to property) with 312 Ind. Admin. Code 10.5-3-1(c)(1) (2012), http://www.in.gov/legislative/iac/T03120/A00105.PDF?&iacv=iac2012 (allowing such a classification when a dam's failure can, among other things, result in loss of life or serious damage to property). The parties do not ask us to resolve this apparent inconsistency.

      Since the trial court's order affirming the Final Order contemplated actions taken under the supervision or direction of a professional engineer, any modification would necessarily also involve a professional engineer's oversight.

      With the appeal before us resolved, we pause now to comment on a broader issue implicated by this dispute. Although the DNR has largely won here, it likely could have avoided this protracted litigation in the first place by defining the word stream for purposes of the Dam Safety Act. It clearly knows how to define words for the Act, see 312 Ind. Admin. Code 1-1-21(a) (2018), http://www.in.gov/legislative/iac/T03120/A00010.PDF?&iacv=iac2018 (defining lake), and, as this case demonstrates, DNR employees have a shared understanding of the word stream. Defining the word would presumably reduce the complexity of enforcement actions and increase public confidence in the agency's decisions.


source: Caselaw Access Project

license: Public Domain

text:
    Ricky J. THURSTON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
    Transfer denied. All Justices concur, except Rush, C.J., and Goff, J., who vote to grant the petition to transfer.


author: All Justices concur.

text:
    Termination: B.C., et al., Appellant
    J.B. v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    November 1, 2018
    Transfer Denied.
   All Justices concur.

Riley, J., May, J., Mathias, J.


author: Transfer denied. All Justices concur.

text:
    Ronnie L. DAVIS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Maurice WEBSTER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Melodie LIDDLE, Appellant v. Cameron F. CLARK, in His Official Capacity as Director of the Indiana Department of Natural Resources, et al.
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Dennis KNIGHT, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Mark C. MORR, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Chase Edward MOUREY, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Dean PENRY v. STATE of Indiana, Appellant
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Ronnie Wayne RICKETTS, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


text:
    Devin COMBS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Joseph CHAPO, et al., Appellants v. JEFFERSON COUNTY PLAN COMMISSION
    Supreme Court of Indiana.
    November 1, 2018
   Transfer denied. All Justices concur.


author: Bradford, J., Baker, J., Kirsch, J.

text:
    Sheila GONZALEZ, et al., Appellees
    Porter County Drug Task Force and Town of Chesterton v. Sara L. RITZ, et al.
    Supreme Court of Indiana.
    November 1, 2018
    Transfer Denied.
   Bradford, J., Baker, J., Kirsch, J.

All Justices concur.


text:
    CAMPBELL HAUSFELD/SCOTT FETZER COMPANY, Appellant v. Paul JOHNSON
    Supreme Court of Indiana.
    November 1, 2018
    Transfer granted.


text:
    Tanner CRIPE, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Charles GERRON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Termination: A.G., et al., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    November 20, 2018
    Transfer Denied.
   All Justices concur.

Najam, J., Crone, J., Pyle, J.


text:
    Stephen LEVENDOSKI, et al., Appellants v. Stanley STEVENS
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Chins: J.J., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Guardianship: Dennis BROUGHTON, et al., Appellants v. Warren BROUGHTON
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Ryan P. BALLARD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Kenny GREEN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 13, 2018
    Transfer granted.


text:
    Ryan Christopher VANDEVENTER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Termination: B.T., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    November 20, 2018
    Transfer Denied.
   All Justices concur.

Bradford, J., Bailey, J., Mathias, J.


text:
    Terry Lee SHAW, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Mark Fredrick JOHNSON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Torrey Lanard HUSTON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    David SPOHN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Kim Demetria TOWNSEND, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Isaac HICKS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Jalen HUMPHRIES, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    BIOCONVERGENCE, LLC, et al., Appellants v. Julie MENEFEE
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Eric A. WELCH: In the Matter of State of Indiana, Appellant v. Andrew J. WILSON
    Supreme Court of Indiana.
    November 28, 2018
    Transfer Denied.
   All Justices concur.


text:
    Bruce MORGAN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
    Transfer denied. All Justices concur, except Goff, J., who did not participate in the decision of this matter.


text:
    Corey DAY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Termination: T.G., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES, et al.
    Supreme Court of Indiana.
    November 20, 2018
    Transfer Denied.
   All Justices concur.

Baker, J., May, J., Robb, J.


author: Transfer denied, All Justices concur.

text:
    James E. SAYLOR, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied, All Justices concur.


text:
    Mario L SIMS, Appellant v. Emily TAYLOR
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Fredrick L. MAGEE, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    David L. NEWSON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Ivan ARAGON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Bennie TRUTH, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


author: May, J., Riley, J., Mathias, J.

text:
    Daniel O'BRYANT, Appellant v. Alan P. ADAMS, et al.
    Supreme Court of Indiana.
    November 28, 2018
    Transfer Granted.
   May, J., Riley, J., Mathias, J.


text:
    Delmar K. KELLY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
    Transfer granted.


text:
    CITY OF LAWRENCEBURG, et al., Appellants v. Grant HUGHES
    Supreme Court of Indiana.
    November 20, 2018
    Transfer denied. All Justices concur, except Rush, C.J., and David, J., who vote to grant the petition to transfer.


text:
    David PFLUGH, Appellant v. INDIANAPOLIS HISTORIC PRESERVATION COMMISSION as IHPC & as BZA Marion Co., IN, et al.
    Supreme Court of Indiana.
    November 20, 2018
    Transfer denied. All Justices concur, except Rush, C.J., who votes to grant the petition to transfer. Slaughter, J., did not participate in the decision of this matter.


text:
    STATE of Indiana, Appellant v. Deja CANADY, et al.
    Supreme Court of Indiana.
    November 20, 2018
    Transfer denied. All Justices concur, except Massa, J., who votes to grant the petition to transfer.


text:
    James TRAN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 20, 2018
   Transfer denied. All Justices concur.


text:
    Jesse CARTER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Joseph B. FERNANDERS, III, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Calvin MCKELLER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Lyndon DAVIS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Penelope STILLWELL, et al., Appellants v. EAGLE-KIRKPATRICK MANAGEMENT COMPANY, INC., et al.
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Sonny M. DAVIS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Christopher L. FIGGS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Termination: S.S., et al., Appellants v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    November 28, 2018
    Transfer Denied.
   All Justices concur.

Crone, J., Najam, J., Pyle, J.


text:
    Donnell HOWARD, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    FLOYD MEMORIAL HOSPITAL AND HEALTH SERVICES, Appellant v. HARRISON COUNTY HOSPITAL
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    D.A.Y. INVESTMENTS LLC, et al., Appellants v. LAKE COUNTY, Indiana, et al.
    Supreme Court of Indiana.
    November 28, 2018
    Transfer denied. All Justices concur, except David, J., and Goff, J., who vote to grant the petition to transfer.


text:
    Robert CURRY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


text:
    Searcy Tilrage BOYD, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    November 28, 2018
   Transfer denied. All Justices concur.


author: Najam, Judge.

text:
    BERKSHIRE HATHAWAY HOMESTATE INSURANCE COMPANY, Appellant-Defendant, v. Christina BASHAM d/b/a Basham Family, L.P., Appellee-Plaintiff,
    Voldico, LLC, Andrew Vollmer, Standard Agencies, Inc., and Carol J. Jenkinson, Defendants.
    Court of Appeals Case No. 18A-PL-446
    Court of Appeals of Indiana.
    FILED October 16, 2018 Rehearing Denied December 11, 2018
    Attorney for Appellant: Stephen C. Wheeler, Smith Fisher Maas Howard & Lloyd, P.C., Indianapolis, Indiana
    Attorneys for Appellee: Thomas M. Beeman, Beeman Law, Anderson, Indiana
   Najam, Judge.

Statement of the Case

[1] Berkshire Hathaway Homestate Insurance Company ("Berkshire Hathaway") appeals the trial court's denial of its motion for partial summary judgment and grant of summary judgment for Christina Basham d/b/a Basham Family, L.P. ("Basham") on Basham's complaint, which alleged that Berkshire Hathaway had wrongfully denied insurance coverage on a detached garage. Berkshire Hathaway raises one issue for our review, namely, whether the trial court erred when it denied its motion for summary judgment and entered summary judgment for Basham.

[2] We affirm.

Facts and Procedural History

[3] Basham owns fifteen rental properties. Basham obtained an insurance policy from Berkshire Hathaway to cover the rental properties, which was effective from November 17, 2016, until November 17, 2017. The insurance policy provided, in relevant part, as follows:

A. Coverage
[Berkshire Hathaway] will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.
1. Covered Property
Covered Property, as used in this Coverage Part, means the type of property described in this section, A.1., and limited in A.2, Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property.
a. Building, meaning the building or structure described in the Declarations, including:
(1) Completed additions[.]

Appellant's App. Vol. II at 24 (bold removed). The insurance policy also contained a section entitled "Property Not Covered," which described various items or categories of items that were not covered by the insurance policy.

[4] Berkshire Hathaway issued one insurance policy to cover all fifteen properties. In addition, Berkshire Hathaway issued declarations for each individual property. One of the covered properties is located in Elwood. The declarations for that property provided a description of the premises and the coverage provided. Under the "Description of Premises," the declarations identified the premises as "Premises Number: 15[,] Building Number: 1[.]" Id. at 23. The declarations also included an address of 800 N. 13th St., Elwood, IN 46036, and it listed the occupancy as "RENTAL DWELLINGS-OTHER THAN STUDENT HOUSING." Id.

[5] The premises in Elwood included a house and a detached garage. On December 30, 2016, a fire burned down the garage and greatly damaged the house. Basham filed a claim with Berkshire Hathaway for the damages. Berkshire Hathaway paid for the damage to the house, but it denied Basham's claim for damage to the detached garage. In particular, Berkshire Hathaway stated that "the detached garage does not meet the definition of Covered Property, as outlined by the Policy. The garage was not specifically insured on the Policy. The Policy only applies to Covered Property." Id. at 157.

[6] On April 25, 2017, Basham filed a complaint against Berkshire Hathaway in which she alleged that Berkshire Hathaway had wrongfully denied insurance coverage on the detached garage. Thereafter, on July 17, Basham filed a motion for partial summary judgment. In that motion, Basham alleged that the insurance policy was unambiguous and covered the garage. In the alternative, Basham contended that, even if the policy was ambiguous, the ambiguous policy should be construed in her favor to cover the garage.

[7] In response, Berkshire Hathaway asserted that the detached garage was not covered under the policy because the garage was not a completed addition. Further, Berkshire Hathaway filed a counter motion for summary judgment in which it contended that the policy was unambiguous and did not cover the detached garage. In support of their respective motions for summary judgment, both parties designated the insurance policy and declarations as evidence. After a hearing on the cross motions for summary judgment, the trial court concluded that the insurance policy was ambiguous and interpreted the policy in Basham's favor. Accordingly, the court determined that the detached garage was covered by the policy, entered summary judgment for Basham, and denied Berkshire Hathaway's motion for summary judgment. This interlocutory appeal ensued.

Discussion and Decision

[8] Berkshire Hathaway contends that the trial court erred when it denied Berkshire Hathaway's motion for summary judgment and entered summary judgment for Basham. Our standard of review is clear. The Indiana Supreme Court has explained that

[w]e review summary judgment de novo , applying the same standard as the trial court: "Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate '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.' " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C) ). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to "demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue," at which point the burden shifts to the non-movant to "come forward with contrary evidence" showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And "[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court." McSwane v. Bloomington Hosp. & Healthcare Sys ., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some alterations original to Hughley ). " 'The fact that the parties have filed cross-motions for summary judgment does not alter our standard of review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.' " SCI Propane, LLC v. Frederick , 39 N.E.3d 675, 677 (Ind. 2015) (quoting Reed v. Reid , 980 N.E.2d 277, 285 (Ind. 2012) ).

[9] Here, the trial court entered findings of fact and conclusions thereon in its summary judgment order. While such findings and conclusions are not required in a summary judgment and do not alter our standard of review, they are helpful on appeal for us to understand the reasoning of the trial court. See Knighten v. E. Chicago Hous. Auth. , 45 N.E.3d 788, 791 (Ind. 2015).

[10] Both parties agree that coverage under the insurance policy is limited to Covered Property. But, on appeal, the parties dispute whether the detached garage was "Covered Property" under the terms of the policy. "The interpretation of an insurance policy is primarily a question of law for the court, and it is therefore a question which is particularly suited for summary judgment." Wagner v. Yates , 912 N.E.2d 805, 808 (Ind. 2009).

[11] It is well settled that

[i]nsurance polices are governed by the same rules of construction as other contracts.... When interpreting an insurance policy, our goal is to ascertain and enforce the parties' intent as manifested in the insurance contract. We construe the insurance policy as a whole and consider all of the provisions of the contract and not just the individual words, phrases or paragraphs.

Am. Access Cas. Co. v. Cincinnati Ins. Co. , 103 N.E.3d 644, 649 (Ind. Ct. App. 2018) (internal citations omitted).

[12] " 'Policy terms are interpreted from the perspective of an ordinary policyholder of average intelligence. If reasonably intelligent persons may honestly differ as to the meaning of the policy language, the policy is ambiguous.' " Thomson Inc. v. Ins. Co. of N. Am. , 11 N.E.3d 982, 993 (Ind. Ct. App. 2014) (quoting Gasser v. Downing , 967 N.E.2d 1085, 1087 (Ind. Ct. App. 2012) ). " 'However, an ambiguity does not exist merely because the parties proffer differing interpretations of the policy language.' " Id. (quoting Buckeye State Mut. Ins. Co. v. Carfield , 914 N.E.2d 315, 318 (Ind. Ct. App. 2009) ).

[13] The insurance policy provided that Berkshire Hathaway "will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss." Appellant's App. Vol. II at 24. The policy further defined Covered Property, in relevant part, as the "Building, meaning the building or structure described in the Declarations" plus any "completed additions[.]" Id. (bold removed). Thus, we must determine whether the detached garage is covered under the policy as the "Building" or as a "completed addition." We first address whether the detached garage is covered as the "Building."

[14] The insurance policy explicitly defines the Building as "the building or structure described in the Declarations." Id. And the declarations for the property at issue describe the premises as "Premises Number: 15[,] Building Number: 1[.]" Id. at 23. It further describes the occupancy as "RENTAL DWELLINGS-OTHER THAN STUDENT HOUSING[.]" Id. Based on the policy's use of "the building or structure" in the singular, the declarations reference to building number 1, and the fact that the declarations page specifically describes the category of occupancy as "rental dwellings," it is clear that the only building described in the declarations is the residential building. And, under the plain language of the insurance policy, only the "building or structure described in the Declarations" is covered as the "Building." Id. Because the garage is not the building or structure described in the declarations, it is not covered under the policy as the "Building."

[15] Still, Basham contends that the detached garage is covered under the policy as the "Building" because it is a building located at the address provided in the declarations. But the insurance policy is clear. It does not say that it covers any building at the address. Rather, the insurance policy only covers "Covered Property" at the premises, which is "the building or structure described in the Declarations." Id. (emphasis added). And, again, the declarations describe the residential dwelling, not the garage. However, our conclusion that the detached garage is not covered as the "Building" does not end our inquiry. We must also consider whether the detached garage is a completed addition under the policy.

[16] The insurance policy does not define the term "completed addition," although a term is not ambiguous simply because it is not defined. See Thompson Inc. , 11 N.E.3d at 993. Berkshire Hathaway asserts that the detached garage is not a completed addition because it is not physically attached to the house. To support its contention, Berkshire Hathaway relies on the definition of "addition" found in Merriam-Webster's online dictionary, which defines an "addition" as "a part added (as to a building or residential section)." Merriam-Webster, https://www.merriam-webster.com/dictionary/addition (last visited October 2, 2018). Based on that definition and the fact that "[t]he term 'completed additions' is listed under the term 'building' " in the insurance policy, Berkshire Hathaway contends that any completed addition must be physically attached to the building in order to be insured as "Covered Property." Appellant's Br. at 19. And because the garage is not physically attached to the house, Berkshire Hathaway asserts that the insurance policy is unambiguous and does not cover the garage.

[17] We cannot agree that the term "completed addition" under the policy can only mean that a garage must be physically attached to the building to be insured. While an addition can be defined as "a part added" to a building, Merriam-Webster, supra , that term can also be defined as an "annex." Black's Law Dictionary 46 (10th ed. 2014). And an "annex" is "a subsidiary supplementary structure either part of or separate from a main structure." Webster's Third New Int'l Dictionary 87 (2002) (emphasis added).

[18] We conclude that the term "completed addition" does not have a single meaning. As Berkshire Hathaway suggests, a "completed addition" can refer to a structure that is physically attached to a building. But that term can also refer to a supplementary structure that is separate from a building. Thus, Berkshire Hathaway's reliance on one definition to the exclusion of another is misplaced. An ordinary policy holder of average intelligence could interpret the term "completed addition" to mean either an attached or separate structure. See Thomson Inc. , 11 N.E.3d at 993. Because reasonably intelligent people may honestly differ as to the meaning of "completed addition," that term is ambiguous. See id.

[19] It is well settled that where there is an ambiguity, "insurance policies are to be construed strictly against the insurer." Id. Because the term "completed addition" is ambiguous, we strictly construe it against Berkshire Hathaway. Thus, the detached garage is covered under the insurance policy, and the trial court did not err when it entered summary judgment for Basham and when it denied Berkshire Hathaway's motion for summary judgment. We therefore affirm the trial court.

[20] Affirmed.

Crone, J., and Pyle, J., concur.

      Voldico, LLC; Andrew Vollmer; Standard Agencies, Inc.; and Carol J. Jenkinson, named defendants below, do not participate in this appeal.

      Basham cross appeals and asserts that the trial court erred when it concluded that the insurance policy was ambiguous. However, because we must determine whether the contract was ambiguous in order to address Berkshire Hathaway's claim, we need not separately address Basham's contention on cross-appeal.

      Basham also included separate claims against other defendants in her complaint. But her motion for partial summary judgment was limited to her claims against Berkshire Hathaway.

      The contract also included a section titled "Property Not Covered," which contained a lengthy list of specific items or categories of items that were not covered by the policy. There is no dispute that that section of the policy did not specifically exclude detached garages.


author: May, Judge.

text:
    COMMUNITY HOSPITALS OF INDIANA, INC., Appellant-Defendant, v. ASPEN INSURANCE UK LIMITED and Hiscox, Ltd, Appellees-Plaintiffs
    Court of Appeals Case No. 18A-PL-69
    Court of Appeals of Indiana.
    Filed October 19, 2018
    Attorneys for Appellant: Robert G. Zeigler, Erin E. Meyers, Zeigler, Cohen & Koch, Indianapolis, Indiana
    Attorneys for Appellee: Robert W. York, Robert W. York & Associates, Indianapolis, Indiana, Christopher C. White, Addie L. Jones, Lewis Brisbois Bisgaard & Smith, LLP, Dallas, Texas
   May, Judge.

[1] Community Hospitals of Indiana, Inc. ("Community") appeals the grant of partial summary judgment in favor of Aspen Insurance UK Limited ("Aspen") and Hiscox, Ltd ("Hiscox") (collectively, "Insurance Companies") in which the trial court determined the Insurance Companies' claims fell outside the procedural and substantive provisions of the Indiana Medical Malpractice Act ("IMMA"). Because it determined the IMMA did not apply, the trial court concluded Community could not claim certain affirmative defenses available only under the IMMA.

[2] Community presents three issues for our review, one of which we find dispositive: whether Insurance Companies are estopped from denying the IMMA applies to their claims. We reverse and remand.

Facts and Procedural History

[3] On May 7, 2010, David Downey, a truck driver for Celadon Trucking Services, Inc. ("Celadon"), was involved in a multi-vehicle accident in Texas that resulted in the death of one driver and serious injury to that driver's wife, who was in the passenger seat of the car. The deceased's children, as well as his wife and estate, sued Celadon, and the parties settled out of court in Texas. Celadon, which is located in Indiana, is insured by Insurance Companies, and Insurance Companies paid the victims' damages on behalf of Celadon.

[4] Prior to the accident, Celadon and Community, which is also located in Indiana, contracted for qualified Community employees to complete physical examinations of Celadon truck drivers based on Department of Transportation ("DOT") requirements. Under the agreement, a qualified Community employee would determine whether a driver was medically able to drive, and then Community would communicate general information about that decision and any medical concerns observed to Celadon. The Community employee assigned to examine Downey was a nurse practitioner ("the NP").

[5] On February 17, 2010, the NP conducted Downey's annual DOT examination. She noted Downey suffered from various medical conditions, and she suspected he also had sleep apnea. The NP certified Downey to operate a commercial motor vehicle for six months but instructed Downey to undergo a sleep study and send the results to the NP. On February 22, Downey completed the sleep study and was diagnosed with severe obstructive sleep apnea ("OSA") and prescribed a continuous positive airway pressure ("CPAP") machine. The NP attempted to call Downey the same day, but she could not hear him when she reached him via telephone. The NP did not attempt to call Downey again, and Downey did not report his diagnosis to the NP. On April 16, 2010, Downey's cardiologist sent Community a fax with the sleep study results and Downey's prescription for the CPAP machine. On April 19, the NP declared Downey was safe to drive a commercial motor vehicle.

[6] The accident in this case occurred May 17, 2010, when Downey drove his truck into a line of stopped cars. At the scene of the accident, Downey prepared a written statement admitting he was distracted by a wrecked truck on the side of the road and did not see the line of stopped cars until it was too late. (See Appellant's App. Vol. II at 151) (Downey's account of the accident as part of his December 16, 2010, deposition). The victims of the accident sued Celadon and received a judgment of approximately $3 million. Aspen and Hiscox are Celadon's insurance companies.

[7] On April 16, 2012, Aspen filed a proposed complaint with the Indiana Department of Insurance ("IDOI") against Community, alleging

[11.] ... Community was negligent in failing to notify Celadon on April 16, 2010, or shortly thereafter, that Downey was suffering from a medical condition which precluded his ability to drive under FMCSA regulations. Had such results been conveyed, Celadon would have removed Downey from the operation of his vehicle and placed him on a safety hold pending successful treatment of his sleep apnea.
12. The failure to [sic] Community to exercise ordinary care proximately caused, in whole or in part, the injuries sustained [by the accident victims], as well as the other minor bodily injury claimants, which caused, in whole or in part, Celadon to incur over $3 million to resolve their claims.

(Id. at 41.) Aspen indicated in its proposed complaint to the IDOI that Community's "physicians, nurse practitioners, nurses, wellness specialists, and administrative support/medical assistants ... qualif[ied] as health care providers under the Indiana Medical Malpractice Act." (Id. at 23-4.) Aspen contemporaneously filed an action in Marion County Superior Court asserting the same facts and alleging Community committed negligence and breach of contract. In the complaint before the Marion County Superior Court, Aspen indicated Community's "physicians, nurse practitioners, nurses, wellness specialists, and administrative support/medical assistants ... qualif[ied] as health care providers under the Indiana Medical Malpractice Act." (Id. at 16.)

[8] Insurance Companies filed an amended proposed complaint with the IDOI on May 25, 2012, and in that amended complaint stated the Community employees allegedly involved were health care providers under the IMMA. Insurance Companies filed an amended complaint with the Marion County Superior Court on May 30, 2012, and they again noted the Community employees in question were health care providers under the IMMA.

[9] On April 29, 2015, the trial court, sua sponte , scheduled an Indiana Trial Rule 41(E) hearing due to inactivity in the Marion County case. On May 6, 2015 the Insurance Companies filed an agreed motion to remove the Trial Rule 41(E) hearing from the docket stating Insurance Companies were "seeking damages for negligence and breach of contract arising from medical services or medically related services provided by [Community]." (Id. at 166.) In the motion, the Insurance Companies also explained they were awaiting the medical review panel's decision. The trial court cancelled the hearing. The same process occurred on October 13, 2015, and September 14, 2016.

[10] On October 21, 2016, the medical review panel of the IDOI issued its decision on the Insurance Companies' complaint, concluding the "conduct complained of was not a factor in the resultant damages." (Br. of Appellant at 9) (citing Appellant's App. Vol II at 154). On January 17, 2017, the Insurance Companies filed a second amended complaint in the Marion County case, noting "[a]ll procedural requirements of Indiana Code section 34-18-8-4 have been completed and the Medical Review Panel has provided its Opinion." (Appellant's App. Vol. II at 44.) The Insurance Companies alleged:

On or about April 16, 2010, a facsimile was sent to and received by [Community] which contained Downey's February 22, 2010 sleep study. At that point, based on the nurse practitioner's understanding of applicable DOT and/or FMCSA regulations, in conjunction with the results of the sleep study which diagnosed Downey as having uncontrolled sleep apnea, Downey would have been disqualified from operating a commercial motor vehicle. The results of the facsimile and accompanying sleep study were never conveyed to Celadon by [Community], and [Community] did not pull Downey's certification to drive or tell him he could not operate his vehicle until he [was] successfully treated for sleep apnea. As found by the Medical Review Panel, [Community] failed to comply with the appropriate standard of care with respect to the receipt and/or review of relevant health care information.

(Id. at 48.) Again, the Insurance Companies indicated the relevant Community employees qualified as health care providers under the IMMA. The Insurance Companies contended Community was negligent in not communicating to Celadon regarding Downey's condition and, had they done so, Downey would not have caused the accident in Texas. Further, the Insurance Companies asserted a claim in breach of contract regarding the contract between Celadon and Community.

[11] On March 13, 2017, Community filed a response to the Insurance Companies' second amended complaint. In its answer, Community certified it was a qualified health care provider "entitled to all rights, privileges, limitations, liability caps, defenses and immunities provided for [by the IMMA]." (Id. at 70.) Community further asserted: "Claims of negligence and causation raised in [Plaintiffs'] Proposed Complaint before the Indiana Department of Insurance and considered by the Medical Review Panel are the sole claims upon which the subject matter jurisdiction have been granted ...Additionally, any claim for breach of contract is subsumed under the malpractice." (Id. at 70-1) (internal citations omitted) (errors in original). Finally, Community argued, as a defense to Insurance Companies' negligence and breach of contract claims: "Plaintiffs are estopped to deny that the limitations of the Medical Malpractice Act, including the liability cap, apply to the plaintiff insurance companies." (Id. at 71.)

[12] On September 11, 2017, the Insurance Companies filed a motion for summary judgment. The Insurance Companies' motion for summary judgment asked the trial court to declare, as a matter of law, that Community's affirmative defenses regarding the applicability of the IMMA were unavailable. In their brief in support of their motion for summary judgment, the Insurance Companies stated:

At its core, Plaintiffs allege that a non-medical employee of Community Hospital negligently failed to provide a facsimile transmission to a nurse practitioner so that she could take appropriate action and pull the DOT driving certification for David Downey, a Celadon driver diagnosed with sleep apnea. The administrative failure of Community Hospital's staff to relay the information about the driver's sleep apnea diagnosis to a medical provider who could take appropriate action or to Celadon was not a medical determination or exercise of medical judgment and thus, this Court should grant summary judgment on all of Defendant's affirmative defenses related to the applicability of Indiana's Medical Malpractice Act.

(Id. at 77.)

[13] On October 11, 2017, Community filed a response to the Insurance Companies' motion for summary judgment, arguing the Insurance Companies were estopped from denying the applicability of the IMMA based on the doctrine of judicial estoppel; the Insurance Companies had forfeited their right to challenge the applicability of the IMMA because the Insurance Companies frequently asserted the IMMA governed of the issues before the court; and the IMMA applied to the Insurance Companies' claims "because the acts or omission at issue are based on the provider's behavior or practices while acting in its professional capacity as a provider of medical services." (Id. at 160.) The trial court held a hearing on the Insurance Companies' motion for summary judgment on November 13, 2017. On January 1, 2018, the trial court entered an order granting the Insurance Companies' motion for summary judgment, concluding:

[T]here is no genuine issue as to any material facts that the claims for negligence and breach of contract made by [Insurance Companies] against [Community] in [Insurance Companies'] January 20, 2017 Second Amended Complaint, fall outside the procedural and substantive provisions of the [IMMA], and that judgment should be entered for [Insurance Companies] and against [Community] on all of [Community's] affirmative defenses seeking to invoke the procedural and substantive provisions of the [IMMA].

(Id. at 13-14.) The trial court also stated, "there is no just reason for delay and the Court expressly directs entry of judgment as to less than all the issues, claims or parties, as hereinabove set forth." (Id. at 14.)

Discussion and Decision

[14] We review summary judgment de novo , applying the same standard as the trial court. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all reasonable inferences in favor of the non-moving party, we will find summary judgment appropriate if the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth or if the undisputed material facts support conflicting reasonable inferences. Id.

[15] The initial burden is on the summary judgment movant to demonstrate there is no genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with evidence showing there is an issue for the trier of fact. Id. While the non-moving party has the burden on appeal of persuading us summary judgment was erroneous, we carefully assess the trial court's decision to ensure the non-movant was not improperly denied his day in court. Id. Summary judgment is not a summary trial, and it is not appropriate just because the non-movant appears unlikely to prevail at trial. Id. at 1003-04. We "consciously err[ ] on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Id. at 1004.

[16] We have previously outlined the purpose and general requirements of the IMMA:

Our Supreme Court has explained that the [IMMA] was a legislative response to escalating problems in the malpractice insurance industry, with physicians being fearful of exposure to malpractice claims and, further, being unable to obtain adequate malpractice insurance. Johnson v. St. Vincent Hospital, Inc. , 273 Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980).
* * * * *
The [IMMA] defines malpractice as "a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient." Ind. Code § 34-18-2-18. Health care is "an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." Ind. Code § 34-18-2-13. A "patient" is "an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider." Ind. Code § 34-18-2-22. The [IMMA] does not necessarily apply to all cases where a health care provider is a party. [ Midtown Cmty. Mental Health Ctr. v. Estate of Gahl by Gahl ,] 540 N.E.2d [1259, 1260 (Ind. Ct. App. 1989), trans. denied .] The [IMMA] covers "curative or salutary conduct of a health care provider acting within his or her professional capacity," i.e., it must be undertaken in the interest of or for the benefit of the patient's health. Collins v. Thakkar , 552 N.E.2d 507, 510 (Ind. Ct. App. 1990), trans. denied . The [IMMA] does not apply to conduct unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment. Howard Reg'l Health Sys. v. Gordon , 952 N.E.2d 182, 185 (Ind. 2011) (emphasis added); Doe by Roe v. Madison Center Hosp. , 652 N.E.2d 101, 103 (Ind. Ct. App. 1995), trans. dismissed .
When deciding whether a claim falls under the provisions of the [IMMA,] "we are guided by the substance of a claim to determine the applicability of the Act." Doe by Roe , 652 N.E.2d at 104. "[T]he test to determine whether a claim sounds in medical malpractice is 'whether the claim is based on the provider's behavior or practices while acting in his professional capacity as a provider of medical services.' " Madison Ctr., Inc. v. R.R.K. , 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006) (quoting Collins , 552 N.E.2d at 511 ), trans. denied . We have observed that application of this test "has resulted in hairline distinctions between claims that sound in medical negligence and those that sound in ordinary negligence." Anonymous Hospital [v. Doe] , 996 N.E.2d [329,] 333 [ (Ind. Ct. App. 2013) ] (citing Estate of O'Neal ex rel. Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr. , 878 N.E.2d 303, 311 (Ind. Ct. App. 2007) )[, trans. denied ]. Indeed, " '[f]or more than thirty years, claimants and courts have wrestled with the question of what activities fall within the [IMMA.]' " Eads v. Cmty. Hosp. , 932 N.E.2d 1239, 1244 (Ind. 2010) (quoting Judge Kirsch's dissent).

Preferred Prof'l Ins. Co. v. West , 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans. denied . We have also noted, regarding the difference between medical and ordinary negligence claims:

A case sounds in ordinary negligence [rather than medical negligence] where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast, a claim falls under the [IMMA] where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship.

Terry v. Cmty. Health Network, Inc. , 17 N.E.3d 389, 393 (Ind. Ct. App. 2014).

[17] Here, Insurance Companies filed their claims with the IDOI and their claims in the trial court contemporaneously. The Insurance Companies then successfully petitioned the trial court to hold in abeyance the claims before the trial court until the Medical Review Board issued its opinion regarding the Insurance Companies' claims under the IMMA. Four years later, after receiving an unfavorable opinion from the IMMA, the Insurance Companies argued before the trial court that the IMMA no longer applied to the claims before the trial court and that Community should be precluded from relying on their affirmative defenses related to the IMMA. The trial court agreed and granted the Insurance Companies summary judgment on the request that Community be precluded from using affirmative defenses they asserted under the IMMA. Community asserts the trial court erred when it granted summary judgment. We agree with Community.

[18] We find our holding in West , 23 N.E.3d at 732, to be instructive. In West , Crystal West sustained significant permanent injuries after a co-worker, Michael, drove a vehicle into the elevated mechanical platform on which Crystal was standing. Crystal and her husband, William West, ("the Wests") filed a complaint in St. Joseph County against certain healthcare providers of Michael, alleging the healthcare providers were negligent in treating Michael with narcotic pain medication for a cervical strain and releasing him to work. The Wests also filed a proposed claim under the IMMA with the IDOI.

[19] The Wests alleged there was a breakdown in communication between a nurse and Michael, and between the same nurse and Michael's doctor, who cleared Michael to return to work, not knowing he had been prescribed a narcotic pain reliever. The Wests then filed a motion for preliminary determination of law with the St. Joseph County Court, asking the court to determine if the IMMA applied to their claims against Michael's healthcare providers. The trial court denied the motion; however, in a footnote the trial court stated that, had it entered a preliminary determination of law, it "would have likely ruled that the proposed complaint sounds in medical malpractice and is covered by the [IMMA]." West , 23 N.E.3d at 720.

[20] A month later, the Wests filed a complaint for declaratory judgment in Marion County. In that action, the Wests named the healthcare providers' insurance companies, the IDOI, and the Patients' Compensation Fund as defendants. The Wests asked the Marion County Court to determine if the IMMA applied to their claims against the healthcare providers in St. Joseph County, as the clarification of applicable law "would affect not only how and where the case would be litigated but also which insurance policies and coverage would be available to the Wests should they ultimately be successful in their claims." Id.

[21] After denying the insurance companies' motion to dismiss under Indiana Trial Rule 12(B)(8), the trial court considered the issue of whether the IMMA applied to the Wests' claims in St. Joseph County. Following briefing and an oral argument, the Marion County Court decided the Wests' claims were founded in common law negligence, rather than the IMMA, because there were no factual disputes regarding the dosage of narcotic pain medication given to Michael, Michael's treatment, or the appropriateness of the warnings Michael was given, which were all issues that could have been decided by a medical review panel. The Marion County Court also held the Wests did not fit the IMMA's definition of "patient" or "a person having a claim of any kind, derivative or otherwise." Ind. Code § 34-18-2-22. The insurance companies appealed.

[22] As is relevant to this action, the insurance companies argued on appeal that the Wests were estopped from claiming the IMMA did not apply to their claims because the Wests had filed a proposed claim before the IDOI. Our court rejected that argument, noting:

[T]he Wests simultaneously filed a complaint in the St. Joseph Circuit Court and with the IDOI, and they promptly sought a preliminary determination of law approximately two months after the filing the St. Joseph action, asking that court to find that their claims were not governed by the [IMMA.] They have consistently and thoroughly pursued that position throughout years of proceedings in multiple courts. We do not find that the Wests' decision to simultaneously file complaints in the St. Joseph Circuit Court and the IDOI, likely done to avoid any potential statute of limitations issues, is problematic or that it thereby prevented them from pursuing a determination that the [IMMA] did not apply to their claims.

West , 23 N.E.3d at 732.

[23] Community argues West is distinguishable from the facts of the case before us because, while the Wests sought clarification from the beginning of all litigation, the Insurance Companies here waited until after the medical review panel rendered its decision contrary to the Insurance Companies' interests before seeking clarification about whether the IMMA applied to the Insurance Companies' claims. Further, Community contends, West is inapposite because despite the Insurance Companies' reliance on its holding for the premise they did not waive their ability to challenge the applicability of the IMMA, "the Insurance Companies consistently and repeatedly claimed to the trial court that the [IMMA] did apply[.]" (Br. of Appellant at 25) (emphasis in original). We agree.

[24] Unlike in West , the Insurance Companies repeatedly delayed the proceedings in trial court while waiting for an opinion from the Medical Review Board. At no time did the Insurance Companies file a request for declaratory judgment or indicate in any way that they did not believe the case to be under the purview of the IMMA. In fact, the Insurance Companies repeatedly represented that their claim fell under the IMMA by indicating the relevant Community employees were health care providers under the IMMA.

[25] In Manley v. Sherer , 992 N.E.2d 670, 674 (Ind. 2013), our Indiana Supreme Court confronted an issue very similar to the one at issue here. In Manley , the Manleys filed a proposed complaint with the IDOI against Dr. Sherer, who provided care to Kimberly Zehr, the driver in an accident in which Mrs. Manley sustained injury. Dr. Sherer subsequently filed a motion for preliminary determination of law and for summary judgment with the trial court, in which Dr. Sherer alleged the Manleys' proposed complaint before the IDOI was untimely because it was filed four days after the two-year statute of limitations under the IMMA. In response, the Manleys contended that their claim fell under the doctrine of continuing wrong, such that the two-year statute of limitations imposed by the IMMA did not apply. Manley v. Sherer , 960 N.E.2d 815, 821 (Ind. Ct. App. 2011), vacated by Manley v. Sherer , 992 N.E.2d 670, 674 (Ind. 2013). Our Indiana Supreme Court rejected this argument, holding:

We preliminarily reject the plaintiffs' claim that their action against Dr. Sherer and his medical group is not governed by the Indiana Medical Malpractice Act. The plaintiffs have treated it otherwise by filing their proposed complaint with the Department of Insurance as required by the Act. They may not now contend that the Medical Malpractice Act and its time limitation do not apply to their claim.

Manley , 992 N.E.2d at 674. The same is true here. The Insurance Companies cannot now, after receiving a decision from the medical review board that does not comport with their trial strategy, claim the IMMA does not apply because the issue is purely clerical.

Conclusion

[26] The trial court erred when it granted summary judgment in favor of the Insurance Companies because, under Manley , they cannot proceed as if the IMMA applies to their claim and then disavow the IMMA when the Medical Review Board renders an unfavorable decision. Like in West , the Insurance Companies should have, and had ample time to, file a motion for declaratory judgment early in the proceedings if they believed the IMMA did not apply. Accordingly, we reverse and remand for proceedings consistent with this opinion.

[27] Reversed and remanded.

Riley, J. and Mathias, J., concur.

      We held oral argument on this matter on July 31, 2018, in the Indiana Court of Appeals courtroom. We thank counsel for their able advocacy.

      Downey passed away from unrelated causes in 2012.

      It is unclear from the record why the NP was recertifying Downey in April, as she had just certified him to operate a commercial motor vehicle in February.

      At this time, Community was referred to only as "ABC Hospital." (Appellant's App Vol. II. at 15.)

      Aspen added Hiscox as a plaintiff on May 25, 2012.

      Neither party cites to the decision from the medical review panel, and it seems that decision is not part of the record presented to us. This citation is to Community's response to the Insurance Companies' motion for summary judgment, which was filed on October 11, 2017.

      This language certifies the order for appeal pursuant to Indiana Trial Rule 54(B), despite the fact it does not dispose of all claims between the parties.

      The Insurance Companies contend Community was well-aware of the Insurance Companies' intent to challenge the applicability of the IMMA because the Insurance Companies "consistently alleged that they had been damaged in a sum not less than $3,250,000 - an amount clearly over the cap imposed by [IMMA]." (Br. of Appellees at 13.) However, as our Indiana Supreme Court noted in Eads , the amount of damages requested is of no consequence because "[t]o the extent there is a difference ... to the caps on medical malpractice recovery or other procedural differences in medical malpractice cases, these are matters of law that the Hospital is equipped to evaluate itself." Eads v. Cmty. Hosp. , 932 N.E.2d 1239, 1247 (Ind. 2010).