author: PYLE, Judge. MAY, Judge,

text:
    Linda HUFFMAN, Individually and as Personal Representative of the Estate of Jerry Huffman, Deceased, Appellant/Plaintiff, v. DEXTER AXLE COMPANY, Appellee/Defendant, and Evans Equipment Company, Appellee/Third-Party Defendant.
    No. 85A02-1207-CT-586.
    Court of Appeals of Indiana.
    May 31, 2013.

      Todd A. Richardson, Joseph P. Rómpa-la, Lewis & Kappes, P.C., R.T. Green, Blackburn & Green, Indianapolis, IN, Attorneys for Appellant.
    Paul V. Esposito, Clausen Miller PC, Chicago, IL, Matthew R. Shipman, Bloom Gates & Whiteleather, LLP, Columbia City, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Linda Huffman (“Linda”), individually and as the Personal Representative of the Estate of Jerry Huffman (“Huffman”), appeals the trial court’s grant of summary judgment to Dexter Axle Company (“Dexter”) on Linda’s claim of negligence.

We reverse and remand for further proceedings.

ISSUE

Whether summary judgment was properly granted to Dexter.

FACTS

Dexter manufactures axles for mobile homes. Dexter’s axles are transported to their customers by commercial truck. Dexter employs its own truck drivers as well as independent trucking companies to deliver its axles. Dexter retained Evans Equipment Company (“Evans”), Huffman’s employer, to deliver axles. Before shipping axles, Dexter banded together a number of axles to create “bundles”; these bundles were then loaded onto flatbed trailers by Dexter forklift operators. The banding around the axles did not connect the bundles to the trailers. To connect or secure the axles to the trailers, Dexter employees or the truck drivers placed additional straps around the axles.

The trailers were loaded by either the “drop-and-hook” or the “live-load” method. Using the “drop-and-hook” method, a truck driver left an empty trailer at Dexter’s facility for loading at a later time. Upon the truck driver’s return, the driver hooked his truck to the loaded trailer. If the “live-load” method was used, a driver’s trailer remained hooked to the tractor as axles were loaded. With “live loads,” Dexter employees or the truck driver strapped axles to the trailer as the axles were loaded. For “drop-and-hook” loads, Dexter strapped approximately 95% of the loads hauled by outside carriers.

During the first couple of years that Dexter used Evans to deliver its axles, Evans used the “live load” method. However, Evans subsequently switched to the “drop-and-hook” method. Drivers left straps with the trailer, and Dexter secured the axles to the trailer. However, because Evans’s drivers began losing straps left at other facilities, Evans decided to no longer leave straps with dropped trailers, including trailers left with Dexter.

Within a couple of months of the changed procedure, a Dexter employee asked Evans to leave one set of straps with Dexter. Those straps would be used for the next Evans load, and the Evans driver picking up the load would leave his own straps for a future load. Evans initially adopted Dexter’s suggestion. Ultimately, Evans abandoned the procedure, and Dexter stopped strapping dropped traders delivered by Evans.

On Sunday, March 12, 2006, Huffman arrived at a Dexter facility located in North Manchester, Indiana, to pick up a flatbed trailer loaded with axles. Dexter was not open for business and no one else was at the facility. However, Huffman, as well as other truck drivers, had access to pick up loads. The bundles were stacked in several layers and, consistent with Dexter’s practice for Evans’s loads, were not strapped or secured to the trailer. Sometime later, another trucker and motorist arrived at the facility and found Huffman lying on the ground next to his truck. A bundle of axles were found on the ground near Huffman and the trailer. The Sheriffs department responded to the scene; Huffman was dead upon their arrival. A coroner determined Huffman’s death to be an accident.

On July 17, 2007, Linda filed a complaint against Dexter alleging that Huffman died as a result of Dexter’s negligence. On September 14, 2007, Dexter filed its first answer, generally denying the allegations in Linda’s complaint. With leave of the trial court, Dexter filed an amended answer, raising as an affirmative defense that Huffman and Evans were the cause of the accident by failing to secure the axles.

On December 13, 2011, Dexter filed a motion for summary judgment, alleging that it owed no duty to Huffman and that Huffman had been responsible for the injuries which caused his death. On February 10, 2012, Linda filed a response asserting that Dexter owed a duty to Huffman as a business invitee and designated evidence that Dexter violated Occupational Safety and Health Administration (“OSHA”) regulations when loading the axles in question. Linda also alleged that the remaining issues of causation and comparative fault were questions for the fact-finder to determine.

On March 28, 2012, Dexter filed a reply, designating additional evidence arguing that it owed no duty to Huffman. Dexter also argued that OSHA regulations were inapplicable and that any duty Dexter owed was extinguished when Evans requested that Dexter not secure loads that were to be picked up by Evans’s drivers. On April 12, 2012, Linda filed a reply addressing the points raised by Dexter’s March 28th filing. Specifically, Linda reemphasized her argument that Dexter owed Huffman a duty and claimed that Dexter could not disregard its duty to comply with OSHA regulations by arguing that it and Evans agreed not to strap the axles onto the trailer.

On June 20, 2012, the trial court issued a general order granting Dexter’s motion for summary judgment and dismissed Linda’s complaint against Dexter. On July 20, 2012, Linda filed a notice of appeal, explaining that the trial court’s June 20th order did not resolve all claims against all parties and was not certified as final. Linda requested that the trial court certify the order as final for the purposes of appeal. The trial court did so on July 31, 2012, entering final judgment in favor of Dexter. Thereafter, Linda filed a supplemental notice of appeal.

DECISION

When reviewing a trial court’s order granting summary judgment, we apply the same standard used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where the designated evidence 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). “All facts and reasonable inferences drawn from [the designated evidence] are construed in favor of the non-moving party.” Gunkel v. Renovations, 822 N.E.2d 150, 152 (Ind.2005). “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 facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (internal citations omitted).

“To prevail on a theory of negligence, a plaintiff must prove: (1) that the defendant owed plaintiff a duty; (2) that it breached the duty; and (3) that plaintiffs injury was proximately caused by the breach.” Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind.Ct.App.2012). Summary judgment is rarely appropriate in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person — one best applied by a jury after hearing all of the evidence.” Id. “However, a defendant may obtain summary judgment in a negligence action when the undisputed facts negate at least one element of the plaintiffs claim.” Pelak v. Indiana Indus. Servs., Inc., 831 N.E.2d 765, 769 (Ind.Ct.App.2005), trans. denied.

A trial court’s grant of summary judgment is “clothed with a presumption of validity” and an appellant has the burden of demonstrating that the grant of summary judgment was erroneous. Williams, 914 N.E.2d at 762. In reviewing a trial court’s ruling on a motion for summary judgment, we may affirm on any grounds supported by the designated evidence. SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Authority, 831 N.E.2d 725, 728 (Ind.2005), cert. denied. Yet, appellate courts must carefully review a trial court’s grant of summary judgment so as not to improperly deny a party his/her day in court. Gunkel, 822 N.E.2d at 152.

We address Linda’s arguments opposing summary judgment separately.

A. Duty Owed to Huffman

Linda asserts that on the day of the accident, Huffman was a business invitee, and, therefore, Dexter owed a duty to exercise reasonable care for Huffman’s protection while at Dexter’s facility. Dexter counters that it was not negligent under the theory of premises liability because no natural condition on the land caused the accident, and Dexter did not control the premises at the time of the accident. Further, Dexter argues that Huffman’s duty to secure the load extinguished Dexter’s general duty as a landowner and that Evans’s instructions to stack the axles without straps, in combination with Huffman’s activity around the trailer, caused the accident and Huffman’s subsequent death.

In deciding whether Dexter owed a duty to Huffman, it is important to determine Huffman’s status when he entered Dexter’s property on the day of the accident. When a person enters upon the land of another, he enters as an invitee, a licensee, or a trespasser. Rhoades v. Heritage Investments, LLC, 839 N.E.2d 788, 791 (Ind.Ct.App.2005), trans. denied. “The person’s status on the land defines the nature of the duty owed by the landowner to the visitor.” Id. “A landowner owes the highest duty of care to an invitee, that duty being to exercise reasonable care for the invitee’s protection while he is on the premises.” Id.

To determine whether a person is an invitee, our Supreme Court, in the case of Burrell v. Meads, 569 N.E.2d 637 (Ind.1991), adopted the invitation test described in the Restatement (Second) of Torts § 332. There, an invitee is defined as follows:

An invitee is either a public invitee or a business visitor.
(1) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(2) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Burrell, 569 N.E.2d at 642.

While the determination of the duty owed by a landowner is ordinarily a question of law for the court to decide, “it may turn on factual issues that must be resolved by the trier of fact.” Kopczynski, 887 N.E.2d at 931. In premises liability cases, “whether a duty is owed depends primarily upon whether the defendant was in control of the premises when the accident occurred. Rhodes, 805 N.E.2d at 385. The rationale is to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm.” Id. Yet, a defendant who has relinquished control of the premises may still owe a duty if it is found that the defendant was in a better position to prevent any potential harm. Beta Steel v. Rust, 830 N.E.2d 62, 71 (Ind.Ct.App.2005). “Possession and control of property for premises liability purposes has been described as a question of fact involving occupation and intent to control the particular area where the injury occurred.” Id. at 70.

In this case, Dexter hired Evans to transport axles to Dexter customers. As an Evans employee tasked to haul Dexter axles, the law clearly places Huffman in the category of a business visitor. Thus, Dexter’s duty as a landowner was to exercise reasonable care for Huffman’s protection while at Dexter’s property. See Burrell, 569 N.E.2d at 639. While Dexter may not have the duty of an employer to provide a safe workplace for Huffman, our case law is clear that Dexter did owe Huffman “an affirmative duty to exercise ordinary care to keep [its] property in a reasonably safe condition coextensive with the purpose and intent of the invitation.” See Beta, 830 N.E.2d at 70.

Dexter argues that it was not in control of its property at the time of the accident because it was not open for business. However, it designated no evidence supporting its position that it effectively relinquished control of its property to Huffman or Evans, nor has Dexter cited any Indiana law supporting its position that Huffman’s responsibility for his cargo extinguishes Dexter’s tort duty. The fact that Dexter left its property open when no Dexter employee would be on the premises, knowing that Huffman would enter and obtain the load, is further evidence that Dexter did not ultimately release control of the property. Because of this, Dexter’s citation to McCole v. Industrial Finishing Technologies, Inc., 2011 WL 1600510, an unpublished decision from Michigan’s Court of Appeals, does not support its assertion. Moreover, even if McCole were noticeable before this Court, the ultimate holding concerned whether the defendant had notice of an unreasonable open and obvious danger on its property, not whether a duty existed. Dexter also relies on two Illinois cases; Jackson v. Hilton Hotels Corp., 277 Ill.App.3d 457, 214 Ill.Dec. 31, 660 N.E.2d 222 (1995) and Burse v. CR Industries, Inc., 288 Ill. App.3d 48, 223 Ill.Dec. 698, 680 N.E.2d 431 (1997). Again, neither case controls on the question of duty under Indiana law.

As to Dexter’s argument that no natural condition on the land caused the accident, Dexter again cites no authority for this proposition and even acknowledges that in Indiana, premises liability may arise from activities on the land. (Dexter’s Br. 17). Here, the activity is the manner in which axles were loaded and stored for trailers dropped off by Evans. Dexter claims that it simply agreed to abide by Evans’s decision not to provide straps, thereby relieving Dexter of any duty to secure the axles to the trailer. However, Indiana law is clear; “[a] person cannot limit his or her tort duty to third parties by contract.” See Rhodes, 805 N.E.2d at 385; Young v. Tri-Etch, Inc., 790 N.E.2d 456, 459 (Ind.2003); Morris v. McDonald’s Corp., 650 N.E.2d 1219, 1221-23 (Ind.Ct.App.1995) (plaintiff injured at a franchised McDonald’s restaurant could sue McDonald’s despite waiver and indemnity clauses in contract between McDonalds’s and franchise operator because injured plaintiff was not a party to that contract). Accordingly, we hold, as a matter of law, that Dexter owed a duty to Huffman.

B. Breach of Duty

Linda claims that there is a genuine issue of material fact regarding whether Dexter breached its duty of care by violating OSHA safety regulations. Specifically, Linda points to OSHA regulation 29 C.F.R. § 1910.176(b), incorporated in Indiana by 29 C.F.R. § 1952.320(a)(2). 29 C.F.R. § 1910.176(b) states the following: “Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.” “Violation of an administrative regulation can be considered evidence of negligence, though it is not evidence per se.” Beta, 830 N.E.2d at 73-74 (citing Zimmerman v. Moore, 441 N.E.2d 690, 696 (Ind.Ct.App.1982)).

Dexter responds that the OSHA regulations in question do not apply in this case because they are preempted by regulations of the Department of Transportation (“DOT”). Specifically, Dexter argues that regulations promulgated under the Motor Carrier Safety Act preempts OSHA regulations according to section 4(b)(1) of the Occupational Safety and Health Act (“OSH Act”) of 1970. Section 4(b)(1) provides that:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

29 U.S.C. § 653(b)(1). In support, Dexter cites Federal Motor Carrier Safety Administration regulation 49 C.F.R. § 383.111(a)(16) requiring truck drivers to have knowledge of the principles and procedures for the proper handling of cargo. Dexter also contends that language in the OSHA regulation regarding the “storage of material” does not include temporary storage, but covers long term or permanent storage of items.

Dexter claims that DOT regulations expressly preempt OSHA regulations per section 4(b)(1) of the OSH Act. Express preemption occurs when a federal statute contains specific language of preemption. Basileh v. Alghusain, 912 N.E.2d 814, 818 (Ind.2009) However, several District and Circuit Courts of Appeal within the Second, Fourth, Fifth, Seventh, and District of Columbia circuits have issued opinions that reject Dexter’s assertion. It is generally recognized that the purpose of this statutory provision is to “reduce regulatory overlap among agencies by divesting OSHA of regulatory authority when another agency is better qualified to regulate in a particular area.” Miller v. Chicago and North Western Transp. Co., 925 F.Supp. 583, 586 (N.D.Ill.1996). However, it is also clear “that Congress attached great importance to the safety and health protections of employees afforded by OSHA and, in particular, to the desirability of bringing those protections to bear upon employees generally as fast as possible.” Baltimore & O.R. Co. v. Occupational Safety and Health Review Comm., 548 F.2d 1052, 1054 (D.C.Cir.1976); see also Southern Ry. Co. v. Occupational Safety and Health Review Comm., 539 F.2d 335 (4th Cir.1976), cert. denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976); Southern Pacific Transp. Co. v. Usery, 539 F.2d 386 (5th Cir.1976). “Employees should not lightly be denied the protection of OSHA for, as the Senate Report accompanying the Act noted, [t]he problem of assuring safe and healthful workplaces for our working men and women ranks in importance with any that engages the national attention today.” Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119, 122 (2nd Cir.1978) (internal quotations and citation omitted). In addition, Congress did not intend to preempt OSHA’s jurisdiction based on hypothetical conflicts. Id. Therefore, “a sister agency must actually be exercising a power to regulate safety conditions in order to preempt OSHA.” Id. (emphasis added).

This interpretation of section 4(b)(1) was upheld by the United States Supreme Court in Chao v. Mallard Bay Drilling, Inc. 534 U.S. 235, 122 S.Ct. 738, 151 L.Ed.2d 659 (2002). In Chao, the Supreme Court reversed a Fifth Circuit Court of Appeals decision holding that Coast Guard regulations concerning working conditions of seamen aboard certain vessels precluded OSHA regulations. In discussing Congress’ intent behind section 4(b)(1) of the OSH Act, the Court held that mere existence of another agency’s authority to regulate areas covered by OSHA is not sufficient for preemption. Id. at 241, 122 S.Ct. 738. The Court further stated that, “OSHA is only pre-empted if the working conditions at issue are the particular ones ‘with respect to which’ another federal agency has regulated, and if such regulations ‘affee[t] occupational safety or health.’ ” Id. (quoting 29 U.S.C.A. § 653(b)(1)). Comparing the exercise of regulatory authority between the Coast Guard and OSHA, the Court determined that OSHA regulations were not preempted. Id.

More closely related to the facts of this case is Bean v. CSX Transp., 289 F.Supp.2d 277 (N.D.N.Y.2003). In that case, a federal District Court in the Northern District of New York compared the exercise of regulatory authority between OSHA and DOT. Bean was employed by railroad owner CSX to maintain and repair signal devices. In order to perform these repairs, he used a Freightliner boom truck, consisting of a flatbed and crane used to lift and suspend heavy objects into the air. After completing a job, Bean began climbing down from the flatbed using handrails and steps on the truck. Missing a step, Bean fell and injured himself. OSHA had issued regulations regarding the workplace, but the DOT had also issued regulations concerning commercial motor vehicles. At trial, the jury heard expert testimony and received instructions, over CSX’s objections, regarding only OSHA’s workplace safety regulations. In addition, the District Court did not allow the jury to consider CSX’s expert testimony regarding DOT regulations.

In reaching its decision, the District Court found that the DOT authorizing statute and regulations did not specifically cover the boom trucks. Id. at 283. In addition, the court found that the purpose of DOT regulations was to enhance safety in the actual transportation of passengers and property in interstate commerce, and that the purpose of OSHA regulations was to enhance safety at work sites. Id. For these reasons, section 4(b)(1) of the OSH Act did not preempt OSHA’s regulations.

Here, the DOT regulation Dexter relies on for preemption of OSHA requires that truck drivers possess knowledge concerning the relationship of cargo to the safe operation of commercial motor vehicles. However, the regulation is part of a regulatory scheme requiring all States to test a driver’s knowledge before granting a commercial motor vehicle endorsement. See 49 C.F.R. § 383.110. The purpose of this regulatory scheme “is to help reduce or prevent truck or bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver’s license and by disqualifying drivers who operate motor vehicles in an unsafe manner.” 49 C.F.R. § 383.1(a). An “accident” is defined as “an occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce” which results in a fatality, bodily injury, or disabling vehicle damage. 49 C.F.R. § 390.5(l)(i)-(iii). An “accident” does not include an “occurrence involving only the loading or unloading of cargo.” 49 C.F.R. § 390.5(l)(2)(ii). In addition, there are no cases where this regulation has been used to support a preemption claim to avoid an alleged violation of OSHA regulations. Violations of this particular DOT regulation have been used in attempts to support a claim of negligent retention of a truck driver against an employer. See Morris v. JTM Materials, Inc., 78 S.W.3d 28 (Tex.App.2002) (employer has duty to ensure qualifications and competence of employees it hires); Guidry v. National Freight, Inc., 944 S.W.2d 807 (Tex.App.1997) (purpose of regulatory duty imposed on employers of truck drivers to take steps to prevent injury to driving public by determining competency of job applicant is to promote highway safety and prevent accidents, not prevent general criminal activity). Because Dexter does not cite to any actual DOT regulations imposing obligations regarding loading or unloading of cargo, we hold that DOT regulations do not preempt OSHA regulations in this case.

Finally, Dexter asserts that even if OSHA regulations are not preempted, the word “storage” as used in 29 C.F.R. § 1910.176(b) was not intended to mean temporary storage on a loading dock. However, the term “storage” applies more broadly and is “not limited to stacking operations in areas of permanent storage.” Noranda Aluminum, Inc. v. Occupational Safety and Health Review Comm., 593 F.2d 811, 814 (8th Cir.1979), rehearing and rehearing en banc denied.

Having held that DOT regulations in this case do not preempt the regulatory authority of OSHA, we find that Linda has designated evidence that could establish Dexter violated OSHA regulations, and thus, breached its duty to Huffman. Several Dexter employees testified during depositions that axles loaded onto Evans’s dropped trailers were securely strapped together. However, this process stopped when Evans decided to no longer leave straps with dropped trailers. It is undisputed that the axles loaded for Huffman to pick up were not strapped to the trailer, but it is unclear from the designated evidence how the axles came to fall onto Huffman. These facts, combined with the existence of an OSHA regulation that might be applicable to the storage of the axles, demonstrates the existence of a genuine issue of material fact regarding the breach of duty.

C. Injury Proximately Caused by Breach & Comparative Fault

Linda argues that given “the uncertainties surrounding the precise circumstances of Huffman’s death, which occurred in the absence of any witnesses, it is for the jury to determine what role Dexter’s negligence played along with any other factors in the chain of causation.” (Linda’s Br. 23). Dexter maintains that this Court need not consider proximate cause because Linda failed to establish Dexter owed a duty to Huffman. Dexter does present some argument on Huffman’s possible contributory negligence, albeit while trying to establish that Dexter owed no duty to Huffman.

A parties’ action or omission is the proximate cause of an injury when “ ‘the ultimate injury [is] one that was foreseen, or reasonably should have been foreseen, as the natural and probable consequence of the act or omission.’ ” Vernon v. Kroger Co., 712 N.E.2d 976, 981 (Ind.1999) (quoting Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind.1983)). The question of proximate cause is usually left to the jury. Id.

As mentioned previously, there were no witnesses to this accident. However, Dexter employees and experts retained by both parties stated during depositions that if the axles were strapped to the trailer in question, the axles would not have fallen and Huffman would not have died. Dexter argues that Huffman and Evans share the blame for the accident. Dexter alleges that Huffman was negligent in the manner in which he attempted to secure the axles to the trailer, and Evans is at fault for not providing Dexter with straps to secure the axles. As to Huffman’s actions, most of the witnesses agree that Huffman should not have hooked up his truck to the trailer prior to securing the axles. However, Indiana OSHA investigator Jerry Marq-uell and Linda’s expert witness, Brooks Rugemer, testified that there was no physical evidence that Huffman dislodged the axles when he connected the truck. As to Evans not providing straps, Dexter employees testified that they contacted Evans and convinced them to leave a set of straps at Dexter’s facility. The Dexter employees stated that they made this request because it was more efficient and safer to strap the axles to the trailer as they were loaded. As a result, there is a genuine issue of material fact regarding proximate causation and comparative fault.

As a matter of law, Dexter owed a duty to Huffman on the day of the accident. Genuine issues of material fact exist as to the remaining elements of Linda’s claim. We reverse and remand this case to the trial court for further proceedings.

Reversed and remanded.

ROBB, C.J., Concur.

MAY, J., Concur in result with opinion.

MAY, Judge,

concurring in result.

I agree we should reverse summary judgment for Dexter for the reasons the majority states: Dexter owed Huffman, its invitee, a duty and there are fact issues as to breach and proximate cause. However, I believe it is unnecessary, and therefore inappropriate, to address OSHA regulations, DOT regulations, the interpretation and application of those regulations, preemption, and congressional intent in this relatively straightforward premises liability case.

As Huffman was an invitee, Dexter owed him a duty to exercise reasonable care for Huffman’s protection while Huffman was on Dexter’s premises. The majority correctly reaches this conclusion about duty without analysis, or even mention, of OSHA or DOT regulations. But it then relies on those regulations as a basis for its determination there is a factual issue as to breach, even though the duty that might have been breached apparently does not arise from those regulations.

Whether the axles should have been strapped together for safe loading presents an issue of fact as to breach of duty, which precludes summary judgment regardless of whether any federal regulation applies. Nothing more needs to be said about that, and reaching that conclusion does not require an analysis of the meaning, relative authority, or application of OSHA or DOT regulations. The OSHA/ DOT discussion is therefore dicta.

“As with diamonds, the principal difficulty in overly broad holdings is inclusions— clouding what should be clear statements of the holding with other assertions that should instead have been treated as dicta.” Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1017 (2005). It is a basic rule of jurisprudence that courts decide only so much as is necessary to resolve the cases before them. Pointon v. State, 267 Ind. 624, 630, 372 N.E.2d 1159, 1162 (1978) (DeBruler, J., concurring). “Too much dicta leads to confusion, and requires too much subsequent explanation.” McArter v. Rhea, 122 N.C. 614, 30 S.E. 128, 129 (1898). I can accordingly concur only in the result.

      . The court heard oral argument on May 2, 2013. We thank counsel for both parties for their able presentations.

      . Dexter filed a Third Party Complaint against Evans asserting that Evans owed a contractual duty to indemnify Dexter in Huffman's lawsuit. The Third Party Complaint is pending before the trial court.

      . Buirell also held that social guests qualify as invitees. Here, there is no dispute; Huffman was not a social guest of Dexter.

      . Michigan Rule of Court 7.215(C)(1) states that, "an unpublished opinion is not prece-dentially binding under the rule of stare deci-sis."

      . Additionally, the Illinois Supreme Court expressly disapproved both cases in LaFever v. Kemlite Co., a Div. of Dyrotech Industries, Inc., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441, 448-50 (1998).

      .This subsection states, in relevant part, that "Indiana has adopted all Federal safety and health standards contained in 29 CFR parts 1910 and 1926.”

      . There are two other types of federal preemption. Field preemption occurs when federal regulations are so pervasive that it is reasonable to infer that Congress intended exclusive federal regulation of a particular area. Basileh, 912 N.E.2d at 818. Conflict preemption occurs when a direct conflict makes it impossible to comply with both federal and state regulations. Id. Conflict preemption may also occur when a state law stands as an obstacle to the execution of federal purposes and objectives. Id. Neither field nor conflict preemption applies in this case.

      . See Ind.Code § 34-51-2-7.


source: Caselaw Access Project

author: DARDEN, Senior Judge.

license: Public Domain

text:
    FLAHERTY & COLLINS, INC., Appellant-Defendant, v. BBR-VISION I, L.P., and New Castle Realty, LLC, Appellees-Plaintiffs.
    No. 49A05-1111-PL-569.
    Court of Appeals of Indiana.
    June 10, 2013.

      Michael E. Brown, John B. Drummy, Kightlinger & Gray, LLP, Indianapolis, IN, Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, IN, Attorneys for Appellant.
    Thomas F. Bedsole, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellees.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Flaherty & Collins, Inc. (“F & C”), appeals the trial court’s denial of its motion for partial summary judgment and the grant of a motion for partial summary judgment filed by the plaintiffs BBR-Vision I, L.P. (“BBR”), and New Castle Realty, LLC (“NCR”).

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

I. Whether the trial court erred as a matter of law in denying F & C’s motion for partial summary judgment regarding the interpretation of an indemnification agreement;
II. Whether the trial court erred in denying F & C’s motion for partial summary judgment regarding BBR’s claims under the Indiana Crime Victims Relief Statute (“Crime Victims Statute”); and
III. Whether the trial court erred in denying F & C’s motion for partial summary judgment regarding F & C’s claim that NCR was not a proper party to this action;

FACTS AND PROCEDURAL HISTORY

BBR is a single-purpose entity formed by Theresa Bennett (“T. Bennett”), Dave Bennett (“D. Bennett”), and Duane Reindl (“Reindl”) to develop and own a New Castle apartment complex known as Autumn Oaks. BBR designated sixty-eight of Autumn Oaks’ seventy-two apartments as qualified low-income units, thereby qualifying the units for low-income tax credits pursuant to Section 42 of the Internal Revenue Code (“Section 42”). The Indiana Housing Finance Authority (“IHFA”) monitors compliance with Section 42.

In order to accomplish its goal of acquiring tax credits, BBR entered into a partnership agreement with NCR. Under the agreement, BBR received net cash flow from Autumn Oaks, as well as the tax credits. NCR, as a general partner of BBR, received a portion of the tax credits from BBR, and it was responsible for the transferal of the credits to investors for income tax purposes.

On June 30, 1999, F & C and BBR entered into a management agreement that required F & C to manage Autumn Oaks as an independent contractor. Section 5 of the management agreement provided that F & C would hire a particular number of “on-site” employees, including a manager, whose job descriptions and salaries would be in accordance with the management plan approved by BBR. Appellant’s App. pp. 26-27. Section 6(d) of the management agreement provided that F & C would rent units to low-income households pursuant to the “Partnership Agreement” and Section 42. Id. at 27. Section 6(d) also provided that F & C would obtain all income certifications required by Section 42, BBR, and regulatory agreements involving IHFA. Section 12 of the management agreement included similar reciprocal indemnification provisions pertaining to the actions of both F &■ C and BBR.

At some point, F & C hired Shannon Huse (“Huse”) to be the Autumn Oaks site manager. As the site manager, Huse was required to ensure that Autumn Oaks’ tenants met Section 42 household income requirements by, among other things, obtaining income-verification statements directly from the prospective tenant’s employer and verifying the information contained therein.

In September of 2000, Huse rented Unit 216, a low-income unit, to the Johnsons. The income-verification statement faxed to Huse by Mr. Johnson’s employer reported Mr. Johnson’s hourly wage as $16,785, placing the Johnsons’ annual income “well above the qualifying limit” under Section 42. Id. at 181. However, in 2001 F & C deduced that Huse had changed the income-verification statement to report Mr. Johnson’s hourly wage as $10,785, placing the Johnsons’ annual income within the qualifying limit under Section 42.

F & C also employed Kelly Higginbotham (“Higginbotham”) as its compliance director. As the compliance director, Higginbotham was responsible for ensuring “that the households [units] that were going into the project were qualified at the income levels that were required” by Section 42. Id. at 108. She would ensure compliance by reviewing tenant applications and income-verification statements. Id. She would also review the tenants’ annual recertification applications to ensure that the tenants continued to meet income and asset requirements set forth by the Internal Revenue Code, and she “processed all annual reporting information for the state,” as required under the management agreement. Id. In preparing the annual report, Higginbotham would enter data regarding the tenants’ income and assets into a computer program maintained by IHFA. This data was necessary for annual re-certification of the tenants’ eligibility.

In late September of 2001, Mr. Johnson’s employer provided an annual recerti-fication statement that listed his hourly wage as $17.73. On or about October 2, 2001, Higginbotham, who was reviewing Mr. Johnson’s recertification materials, was surprised by the significant pay raise. Higginbotham instructed Holly Hudson (“Hudson”), Huse’s replacement as onsite manager, to contact Mr. Johnson’s employer. The employer informed Hudson that Johnson’s hourly wage in September of 2000 was $16,785, not $10,785. The employer had retained a copy of the September 2000 income-verification statement and faxed a copy to Hudson.

According to a timeline provided by Higginbotham to F & C executives and included as part of the designated evidence, Higginbotham contacted an IHFA representative on October 2, 2001, to ask for guidance concerning a hypothetical compliance problem. On the same day, Higginbotham wrote a note to F & C executives informing them of the compliance problem and of the IHFA’s recommendation. Among other things, Higginbotham stated that the IHFA representative had recommended that F & C must move the Johnsons out of Unit 216 and move in qualified tenants. In addition, the representative had recommended that the parties “consult a qualified tax credit accountant and/or attorney” and make adjustments to their tax credit claims. Id. at 405.

The timeline provides that on October 3, 2001, F & C’s president, Jerry Collins (“Collins”), held a meeting with Higginbotham and F & C executives, including vice president Ray Hauser (“Hau-ser”). At a subsequent October 8, 2001 meeting, F & C executives directed Higginbotham to go to Autumn Oaks and review the original documents; which she did on the next day. Upon reviewing the documents, Higginbotham determined that Huse’s change to the 2000 income-verification statement would have been undetectable without the information provided by the employer in late September, 2001.

Hudson and Higginbotham scheduled an October 15, 2001 meeting with the John-sons. At that meeting, they informed the Johnsons about the compliance issue and told them that they must vacate Unit 216.

The timeline further provides that on November 5, 2001, Collins and Hauser met with BBR’s representatives, D. Bennett and Reindl, and “notified them of the situation with the Johnson household.” Id. at 386. After the meeting, BBR’s representatives requested that Elizabeth Moreland Consulting (“Moreland Consulting”) review the situation and provide an advisory letter to BBR. The concern of all parties at the time was that BBR and its members could lose tax credits if the Internal Revenue Service conducted an audit and demanded a recapture.

On or about December 20, 2001, More-land Consulting sent a letter to Collins in which it outlined its “recommendations for correcting the noncompliance in [the John-sons’] unit.” Id. at 181. Moreland Consulting noted that it had recommended that the Johnsons be notified that they could not remain in the unit; however, as of the date of the letter, the Johnsons had not vacated their unit. Moreland Consulting advised:

Due to this noncompliance, Unit 216 should be considered “at risk” for the period of the Johnson’s [sic] occupancy. Should this noncompliance be discovered during a monitoring review by the State Monitoring Agency, the noncompliance must be reported to the Internal Revenue Service (IRS) via Form 8823. State Monitoring Agencies are required to monitor each Housing Credit project once every three years. During these monitoring reviews, a minimum of 20% of the resident files must be reviewed and their corresponding units physically inspected. It is my understanding that [sic] Johnson household was not the original resident of Unit 216, so the noncompliance, if discovered, will not affect the original qualified basis of the building.

Id. at 182.

In January of 2002, Hudson discovered problems with the income-verification statements of three additional tenants. In a conversation with Reindl, Hudson informed him of three additional residents that did not meet the income requirements and that it appeared “that these residents’ initial income verification forms as provided by their employers had been altered by [Huse] and that these residents appeared to have earned too much income at the time of their initial move-in to meet the income guidelines for [Autumn Oaks].” Id. at 207. Hudson also informed Reindl that Higginbotham had asked her to destroy the re-certification paperwork for these three residents; a claim that Higginbotham unequivocally denied in her deposition. Hudson informed Reindl that she had removed paperwork from a single file. Reindl instructed Hudson not to destroy or remove any more of the documents from the on-site files and requested that Hudson send copies of the available documents to him.

On or about January 30, 2002, BBR terminated F & C as its Autumn Oaks manager and replaced F & C with Valenti-Held Property Management, Inc. (“Valenti”). Valenti’s contract became effective on February 15, 2002. In anticipation of new management, Reindl expressed his intention to retain F & C’s current on-site staff under Valenti’s supervision. Hudson, who continued her employment as on-site manager, complied with Reindl’s request.

On April 19, 2002, BBR and NCR filed their complaint against F & C alleging (1) breach of contract; (2) negligent supervision; (3) indemnity; (4) fraud; and (5) civil recovery of treble damages by a crime victim pursuant to the Crime Victims Statute (Ind.Code § 34-24-3-1 (1998)).

On May 21, 2003, fearing possible recapture of the tax credits by the IRS that BBR had received from the Autumn Oaks units temporarily rented to non-qualifying individuals, NCR created an escrow account. NCR initially deposited $158,103.00 into the account and in 2004 increased the account balance to $185,614.00. The account, by its terms and due to the passage of time, has decreased every year, and the possible 2012 exposure balance had been reduced to $27,511.00. The evidence suggests that if the IRS has not instituted a tax audit by April 15, 2013, the remaining escrow balance shall remit to NCR.

On November 30, 2009, F & C filed a motion for partial summary judgment and memorandum in support thereof. In its motion and memorandum, F & C alleged that the management agreement’s indemnification clause, as a matter of law, did not require F & C to pay BBR’s and NCR’s attorney fees. F & C also alleged that BBR and NCR failed to allege facts to support their claim under the Crime Victims Statute. F & C further alleged that NCR should be dismissed from the lawsuit as a matter of law because it was not a party to the management agreement.

On August 20, 2010, BBR and NCR filed a motion for partial summary judgment and memorandum in support thereof. In the motion and memorandum, BBR and NCR argued, among other things, that there was no issue of material fact on the issue of fraud and that they were entitled as a matter of law to attorney fees under the management agreement’s indemnification provision.

On October 3, 2011, the trial court issued separate orders denying F & C’s motion and granting BBR and NCR’s motion. In the order pertaining to F & C’s motion, the trial court initially noted “that there are material issues of fact that preclude entry of partial summary judgment in favor of Defendant F & C.” Appellant’s App. p. 11. However, the trial court then found that “undisputed evidence” established that F & C’s conduct violated the Crime Victims Statute. Specifically, the trial court found that the “undisputed evidence establishes that F & C’s conduct violate[d] [forgery, counterfeiting, deception, and theft] statutes.” Id. The trial court stated, “F & C’s liability as to Plaintiffs’ claims under the [Crime Victims Statute] is established.” Id. at 12. Essentially, the trial court granted summary judgment for BBR and NCR on this issue. The trial court also found that NCR “had standing to assert its claims as a third-party beneficiary” to the management agreement. Id.

In the order pertaining to BBR and NCR’s motion, the trial court determined that there were no material issues of fact on the breach of contract claim. The trial court determined as a matter of law that the indemnity clause language was “undisputed and unambiguous” and that it required F & C to pay BBR and NCR’s attorney fees.

This Court accepted jurisdiction of the interlocutory appeal pursuant to Indiana Appellate Rule 14(B) on January 27, 2012.

Additional facts are disclosed in our discussion of the issues.

DISCUSSION AND DECISION

Summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883 N.E.2d 1203, 1206 (Ind.Ct.App.2008), trans. denied. A genuine issue of material fact exists “ ‘where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.’ ” Haub v. Eldridge, 981 N.E.2d 96, 101 (Ind.Ct.App.2012) (quoting Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct.App.1991)). When reviewing entry of summary judgment, we stand in the shoes of the trial court. Koppin v. Strode, 761 N.E.2d 455, 460 (Ind.Ct.App.2002), trans. denied.

The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind.Ct.App.2003), trans. denied. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Myers v. Irving Materials, 780 N.E.2d 1226, 1228 (Ind.Ct.App.2003). However, once the movant has carried its initial burden of going forward under Indiana Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Clary v. Dibble, 903 N.E.2d 1032, 1038 (Ind.Ct.App. 2009), trans. denied. If the nonmovant fails to meet its burden, and the law is with the movant, summary judgment should be granted. Id.

Our standard of review is not altered by the fact that the parties filed cross-motions for summary judgment. Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind.Ct.App.2011). Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

1. Indemnification Agreement

F & C contends that the trial court erred as a matter of law in interpreting the indemnification clause of the management agreement to require that F & C pay BBR’s attorney fees arising from BBR’s first-party action against F & C. The general rule in Indiana is that each party to litigation must pay its own attorney fees. Masonic Temple Ass’n of Crawfordsville v. Ind. Farmers Mut. Ins. Co., 837 N.E.2d 1032, 1037 (Ind.Ct.App.2005). Attorney fees are not recoverable as damages in a breach of contract action in the absence of a statute, rule, or agreement to the contrary. L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1046 (Ind.Ct.App.2012). We have held that if a defendant’s breach of contract “causes a plaintiff to engage in litigation with a third party and such action would not have been necessary but for the breach, attorney fees and litigation expenses may be awarded as breach of contract damages.” Id. This exception does not apply to BBR and NCR’s first-party action.

The basis for BBR’s claim is the indemnification agreement found in Section 12(a) of the management agreement. In this provision, which designates F & C as “Manager” and BBR as “Owner,” F & C agreed as follows:

Manager shall indemnify and defend Owner against and hold Owner harmless from any and all losses, costs, damages, liabilities and expenses, including, without limitation, loss or recapture of tax credits and reasonable [attorney] fees, arising directly or indirectly out of (i) any intentional or material breach by Manager of this Agreement (including, without limitation, failure to lease the residential units in compliance with this Agreement or Management Plan, the Partnership Agreement, the Regulatory Agreement, and Section 42 of the Code), (ii) any negligence, willful misconduct or illegal acts of Manager, or any of its officers, partners, directors, agents, or employees, in connection with this Agreement of Manager’s services or work hereunder, whether within or beyond the scope of its duties or authority hereunder....

Appellant’s App. p. 30.

Our supreme court has held that “ ‘indemnification clauses are strictly construed and the intent to indemnify must be stated in clear and unequivocal terms.’ ” L.H., 974 N.E.2d at 1047 (quoting Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132 (Ind.1995)). Indemnity agreements are subject to the standard rules and principles of contract construction. L.H., 974 N.E.2d at 1047. Interpretation of a written contract, including an indemnity provision, is a question of law. Id. We review questions of law de novo and owe no deference to the trial court’s legal conclusions. Koppin, 761 N.E.2d at 460. Thus, we review de novo the trial court’s conclusion that F & C was required to indemnify BBR.

The general legal understanding of indemnity clauses is that they cover “ ‘the risk of harm sustained by third persons that might be caused by either the indem-nitor or the indemnitee. It shifts the financial burden for the ultimate payment of damages from the indemnitee to the in-demnitor.’ ” L.H. at 1047 (quoting Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013, 1023 (Ind.Ct.App.2009)). As we noted in L.H., other authorities recognize this general understanding. 974 N.E.2d at 1047-48 (citing Am.Jur.2d 415, Indemnity § 1 (2005) (“In general, indemnity is a form of compensation in which a first party is liable to pay a second party for a loss or damage the second party incurs to a third party”); C.J.S. 94, Indemnity § 1 (2007) (“In a contract of indemnity, the indemnitor, for a consideration, promises to indemnify and save harmless indemnitee against liability of indemnitee to a third person or against loss resulting from such liability”)).

There is no absolute prohibition against one party agreeing to indemnify the other party for first-party claims arising between those parties. Id. at 1048. Where the plain language of the provision requires first-party indemnification, then such indemnification is permitted. Sequa Coatings Corp. v. N. Ind. Commuter Transp. Dist., 796 N.E.2d 1216, 1229 (Ind.Ct.App.2003) (noting that “the plain language” expressly stated, among other things, “ ‘any and all Causes of Action, as defined above, asserted by any parties and nonparties to this Agreement’ ”), trans. denied.

BBR asserts that there is “plain language” in Section 12(a) of the management agreement that supports its claim for attorney fees. Appellees’ Br. p. 20. Specifically, it points to language that provides F & C “shall indemnify and defend Owner against and hold Owner harmless from any and all losses, costs, damages, liabilities and expenses, including, without limitation, loss or recapture of tax credits and reasonable [attorney] fees, arising directly or indirectly out of [breach of contract] _” Appellant’s App. p. 30 (emphasis added). The “without limitation” and “arising directly or indirectly out of [breach of contract]” language appears to be an attempt to ensure that all types of third-party damages be paid by F & C upon its breach of the management agreement. The agreement does not state the intent to indemnify against first-party actions in clear and unequivocal terms. Indeed, the agreement does not explicitly or implicitly refer to such actions. In short, the language of Section 12(a) of the management agreement does not create an exception to the general rule that an indemnity clause creates liability to pay only for third-party actions. Therefore, the trial court erred as a matter of law in interpreting Section 12(a) of the management agreement to require F & C to pay attorney fees for first-party actions.

2. Crime Victims Statute

F & C contends that the trial court erred in denying its summary judgment motion, and in doing so, effectively granted summary judgment to BBR and NCR on their claim for punitive relief under the Crime Victims Statute. The trial court found that “the undisputed evidence establishes that F & C’s conduct violate[d] Ind. Code § 35-43-5-2 (forgery and counterfeiting); I.C. 35-43-5-3(a) (deception); and I.C. 35-43-4-2 (theft).” Appellant’s App. p. 11. The trial court further found that “[t]he undisputed evidence establishes that Plaintiffs are entitled to recover damages pursuant to [the Crime Victims Statute] for any pecuniary losses suffered by Plaintiffs as a result of F & C’s violations ... the Court orders that F & C’s liability as to Plaintiffs’ claims under the [Crime Victims Statute] is established.” Id. at 12.

The Crime Victims Statute is punitive in nature and must be strictly construed. NationsCredit Commercial Corp. v. Grauel Enters., Inc., 703 N.E.2d 1072, 1078 (Ind.Ct.App.1998), trans. denied. As such, the statute cannot be enlarged by construction, implication, or in-tendment beyond the fair meaning of the language used. Herron v. State, 729 N.E.2d 1008, 1010 (Ind.Ct.App.2000), trans. denied. In order to establish a viable civil claim for damages under the statute, a plaintiff must show a violation of at least one of the code sections listed in the statute and must demonstrate that the violation caused the loss suffered by the plaintiff. McLemore v. McLemore, 827 N.E.2d 1135, 1144 (Ind.Ct.App.2005). The mens rea requirement of the underlying criminal actions differentiates those acts from the more innocent breach of contract that the criminal statutes were not intended to reach. NationsCredit, 703 N.E.2d at 1078.

Indiana Code section 35-43-5-2(a) (1977) states that a person commits the Class D felony of counterfeiting if a person knowingly or intentionally makes or utters a written instrument in such a manner that it purports to have been made by another person, at another time, with different provisions, or by someone who did not give authority. The crime is elevated to forgery, a Class C felony, if it is made “with intent to defraud.” I.C. § 35-43-5-2(b). “Intent to defraud” involves “intent to deceive and thereby work a reliance and an injury.” Williams v. State, 892 N.E.2d 666, 671 (Ind.Ct.App.2008), trans. denied. There must be a potential benefit to the maker or a potential injury to the defrauded party. Jacobs v. State, 640 N.E.2d 61, 65 (Ind.Ct.App.1994), trans. denied.

In addition, Indiana Code section 35-43-5-3(a) (1996) states that a person commits deception, a Class A misdemeanor, when he or she (1) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, and/or (2) misapplies entrusted property in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted. Further, a person commits theft, as Class D felony, when he or she “knowingly or intentionally exerts unauthorized control over the property of another person with intent to deprive the other person of any part of its value or use.” Ind.Code § 35-43-4-2 (1985).

F & C admits that it believes Huse altered the financial documentation received from Johnson’s employer to make it appear that Johnson qualified for low income housing in Unit # 216 so that BBR was entitled to tax credits under Section 42. F & C argues, however, that it is not liable for Huse’s actions because they occurred outside the scope of her employment.

A business entity may be held liable for an employee’s criminal acts “as long as the employee was acting within the scope of employment.” Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 654 (Ind.Ct.App.2008). The entity may be held liable if the employee’s “ ‘purpose, was to an appreciable extent, to further [her] employer’s business, even if the act was predominantly motivated by an intention to benefit the employee [herself].’ ” Id. at 655 (quoting Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind.1997)). Even if a particular act was not authorized by the corporation, “ ‘[i]f there is sufficient association between the authorized acts and the unauthorized acts, the unauthorized acts may fall within the scope of employment.’ ” Id. (quoting Hurlow v. Managing Partners, Inc., 755 N.E.2d 1158, 1162 (Ind.Ct.App.2001), trans. denied).

Here, it is undisputed that Huse received the report from Johnson’s employer as part of her duties as an F & C employee and that she “verified” the contents of the report as part of those same duties. Unfortunately for F & C, Huse’s “verification” apparently included the changing of critical information on the report. Under the reasoning of Prime Mortgage and similar cases, we cannot but conclude that Huse’s unauthorized acts occurred within the scope of her employment. Accordingly, F & C is liable for her acts under the doctrine of respondeat superior.

However, our consideration does not end here. BBR and NCR’s claim is an attempt to recover pecuniary losses caused by Huse’s admitted acts. The evidence is disputed, however, as to whether Huse’s acts caused any harm to BBR and NCR. There is designated evidence to indicate that F & C discovered the changes to the documentation on or about October 2, 2001, and, after conducting an investigation, it informed BBR owners D. Bennett and Reindl on November 5, 2001, that there was a problem with Johnson’s unit that could put BBR’s eligibility for tax credits for Unit # 216 in jeopardy. Even if we accept BBR and NCR’s claim that they did not know of the change to the paperwork made by Huse, we must conclude that there is a genuine issue of material fact as to whether BBR and NCR learned enough in the November 5, 2001 meeting to allow them to work with F & C to remedy any problem caused by Huse’s actions. In short, there is a genuine issue of material fact regarding whether it was Huse’s action or BBR and NCR’s inaction that caused any pecuniary loss to BBR and NCR. Therefore, the trial court erred in making findings that effectively granted summary judgment to BBR and NCR on the issue of whether they could recover damages under the Crime Victims Statute that were attributable to Huse’s falsification of Johnson’s or any other residents’ certification documents.

The trial court also found that F & C committed deception. This deception occurred during the period after F & C’s discovery of the falsified document and before BBR and NCR terminated the management agreement. We have examined the designated evidence and have found genuine issues of material fact pertaining to whether F & C committed deception as part of a cover-up following its discovery of the falsified document or whether F & C properly kept BBR and NCR apprised of essential information as it conducted a legitimate investigation into Autumn Oaks’ files. As our supreme court held in Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 195 (Ind.2012), finding mens rea in the absence of a confession “invariably requires weighing evidence, judging witness credibility, and drawing reasonable inferences from that facts, all of which are improper in considering a motion for summary judgment.” Accordingly, the trial court erred in effectively granting summary judgment to BBR and NCR on the issue of whether F & C committed deception in a cover-up of verification problems at Autumn Oaks.

BBR and NCR argue that spoliation of evidence occurred when Hudson, allegedly at Higginbotham’s request, removed paperwork from one of Autumn Oaks’ tenant’s files. F & C argues, and we agree, that there is a genuine issue of fact regarding this destruction and its possible pecuniary effect upon BBR and NCR.

At best, spoliation of evidence permits a jury to “infer that the missing evidence [is] unfavorable” to the party who intentionally destroyed evidence. Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind.2006). The inference does not relieve BBR and NCR of proving their case. See Alsheik v. Guerrero, 956 N.E.2d 1115, 1124 (Ind.Ct.App.2011), aff'd in pertinent part by Alsheik v. Guerrero, 979 N.E.2d 151 (Ind.2012).

3. NCR’s Status

F & C contends that the trial court erred as a matter of law in denying its motion for partial summary judgment as it applied to NCR’s standing in this action. The trial court determined that NCR “has standing to assert its claims as a third-party beneficiary of the Management Agreement.” Appellant’s App. p. 12.

Generally, only those who are parties to a contract, or those in privity with a party, have the right to recover under a contract. Centennial Mortg., Inc. v. Blumenfeld, 745 N.E.2d 268, 275 (Ind.Ct.App.2001). However, an entity that is not a party to the contract may enforce the provisions of the contract by demonstrating that it is a third-party beneficiary thereto. Id. “A third-party beneficiary contract is one in which the promisor has a legal interest in performance in favor of the third party and in which the performance of the terms of the contract between two parties must necessarily result in a direct benefit to a third party which was so intended by the parties.” Id. A third party must show that it will derive more than an incidental benefit from the performance of the promisor. Id. at 275-76.

In order to enforce a contract by virtue of being a third-party beneficiary, an entity must show (1) a clear intent by the actual parties to the contract to benefit the third party; (2) a duty imposed on one of the contracting parties in favor of the third party; and (3) performance of the contract terms is necessary to render the third party a direct benefit intended by the parties to the contract. Id. at 276. Among these three factors, the intent of the contracting parties to benefit the third-party is controlling. Id.

Our review of the record on appeal discloses that NCR is the general partner of BBR. Pursuant to the partnership agreement between NCR, BBR, and its investors, NCR guaranteed that Autumn Oaks will be operated in compliance with all applicable laws and that the anticipated Section 42 tax credits will be received in the years anticipated. Appellant’s App. pp. 212-306. Pursuant to the partnership agreement, NCR receives 90 percent of the net cash flow generated from Autumn Oaks and is entitled to .01 percent of the tax credits received by BBR for Autumn Oaks. F & C signed the partnership agreement as “a consenting party with respect to the provisions of section 8.15.” Id. at 306. Section 8.15 of the partnership agreement provides that “the Partnership,” which includes NCR, shall select the management company for Autumn Oaks. Id. at 279.

The management agreement states that the parties thereto are F & C and BBR. However, the agreement also provides that F & C will rent Autumn Oaks’ units “in accordance with the requirements of the Partnership Agreement and [Section 42]....” Id. at 27. Further, BBR signed the management agreement “By: [NCR] ” and members. Id. at 37.

The partnership and management agreements establish that the parties clearly intended to benefit NCR and that the duty imposed on F & C was in favor of NCR. Indeed, NCR’s receipt of monies and tax benefits depended on F & C’s performance of its responsibilities under the partnership and management agreements. The trial court was correct as a matter of law in determining that NCR has standing as a third-party beneficiary to assert its claims in this action.

CONCLUSION

The trial court erred as a matter of law in determining that Section 12(a) of the management agreement permits BBR and NCR to recover attorney fees. The trial court further erred in effectively granting summary judgment to BBR and NCR on their Crime Victims Statute claim and on the issue of whether F & C committed deception. As a matter of law, the trial court properly denied F & C’s summary judgment claim that NCR is not a party to this action.

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J., and BROWN, J., concur.

      . We thank counsel for their able presentations on oral argument in this matter.

      . In its order denying F & C’s motion for partial summary judgment, the trial court effectively granted summary judgment to BBR and NCR on this issue.

      . The "Partnership Agreement” is the agreement between BBR and NCR. As discussed in issue 3, F & C signed the partnership agreement and the management agreement.

      .Section 12(a) contains the indemnification provision outlining F & C's obligations. This provision is quoted in our discussion of Issue 1 below.

      . On June 21, 2001, F & C had terminated Huse because of attendance problems.

      . The entry of specific findings and conclusions does not alter the nature of a summary judgment, which is a judgment entered when there are no genuine issues of material fact to be resolved. State Auto. Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d 411, 419 (Ind.Ct.App.2012). In the summary judgment context, we are not bound by the trial court’s specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of the trial court’s actions. Id.

      . F & C states that this appeal does not concern BBR’s right to recover other expenses from the cleanup of the files altered by Huse. Appellant’s Br. p. 24.

      . Our opinion should not be read to divest BBR and NCR of the right to recover reasonable damages resulting from F & C's breach of the management agreement, including those attorney fees, if any, necessarily incurred in an advisory capacity to ensure BBR and NCR’s compliance with applicable tax laws. Of course, the trier of fact must exercise its duty to determine the nexus between actual harm and mitigation before arriving at the amount of damages, if any, due to BBR and NCR. In short, there is an evidentiary dispute that must be resolved after a trial on the merits.

      . The term "make” means to "draw, prepare, complete, counterfeit, copy, or otherwise reproduce or alter any written instrument in whole or in part." Ind.Code § 35-43-5-1 (m) (1995).

      . The term "utter” means "to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use.” Ind.Code § 35-31.5-2-345 (2012) (formerly codified at Ind.Code § 35-41-1-27).

      . F & C's admission is based upon its deductions from the circumstances, and it is sufficient for purposes of this civil action. Neither Huse’s guilt nor innocence has been established by law enforcement or any state or federal agency.

      . On appeal, BBR and NCR make no separate argument pertaining to its theft claim. We note that a breach of contract is not a theft, and there is no designated evidence that supports the theft claim.

      . F & C also contends that the trial court erred in granting summary judgment to BBR and NCR on their common law fraud claim. The fraud claim, standing alone, is insufficient to activate the provisions of the Crime Victims Statute. However, the claim is intertwined with BBR and NCR’s other claims under the Crime Victims Statute, and there are genuine issues of material fact which require reversal.


author: BARNES, Judge.

text:
    Bertram A. GRAVES, M.D., Appellant-Plaintiff, v. Richard KOVACS, M.D., Edward Ross, M.D., and Indiana University Health, f/k/a Clarian Health Partners, Inc., Appellees-Defendants.
    No. 49A05-1301-PL-1.
    Court of Appeals of Indiana.
    June 18, 2013.

      Adam Lenkowsky, Roberts & Bishop, Indianapolis, IN, Attorney for Appellant.
    L. Alan Whaley, Stephen E. Reynolds, Jenny R. Buchheit, Ice Miller, LLP, Indianapolis, IN, Attorney for Appellees.
   OPINION

BARNES, Judge.

Case Summary

Dr. Bertram Graves appeals the trial court’s granting of the motion for judgment on the pleadings filed by Drs. Richard Kovacs and Edward Ross. We reverse and remand.

Issue

The dispositive issue we address is whether the trial court erred in concluding that Dr. Graves’s complaint failed to state any actionable claim against Drs. Kovacs and Ross.

Facts

Dr. Graves is a cardiologist who worked for Ciarían Health Partners (“Ciarían”), which later became known as Indiana University Health (“IU Health”), from 1992 through August 1, 2009. On that date, Clarian/IU Health revoked his cardiology privileges. Dr. Graves contends that Drs. Kovacs and Ross played a role in the revocation of his privileges, by providing false information to peer review committees and improperly reviewing allegations against Dr. Graves.

On September 7, 2010, Indianapolis MOB, LLC (“MOB”), which is a corporate landlord, sued Dr. Graves for breaching his lease of office space by failing to pay rent. Dr. Graves, in turn, filed a third-party complaint against Clarian/IU Health on November 30, 2010, alleging breach of contract when it did not renew his cardiology privileges, and alleging a substantial loss of income and the inability to pay his rent to MOB. Dr. Graves filed his first amended third-party complaint on December 27, 2010, to attach a copy of his contract with Clarian/IU Health.

On January 27, 2011, the trial court granted MOB’s motion to sever the third-party complaint from its lawsuit against Dr. Graves. After over a year of delay regarding how the parties would proceed, on March 7, 2012, Dr. Graves filed a “Second Amended Complaint” against Clari-an/IU Health under a separate cause number from the original MOB lawsuit. App. p. 116. This complaint for the first time named Drs. Kovacs and Ross as defendants. Under a caption heading that Dr. Graves labeled as “Breach of Contract,” he alleged that his employment by Clarian/IU Health was governed by certain bylaws, a code of conduct policy, a peer review policy, and a corrective action policy. Id. at 117. Dr. Graves further alleged that, in 1995, his cardiology privileges were “summarily suspended” under the orchestration of Dr. Ross, using false allegations against Dr. Graves. Id. Dr, Graves also alleged that, in 2006 or 2007, Dr. Ross refused to assist Dr. Graves in having his privileges restored. As for Dr. Kovacs, Dr. Graves alleged that he “maliciously and in bad faith” reviewed allegations made against Dr. Graves during peer reviews of Dr. Graves and that he was “instrumental in the elimination” of Dr. Graves’s privileges. Id. at 118. Finally, Dr. Graves alleged Clarian/IU Health breached its contract with him by eliminating his privileges without cause and without adequate notice, and also that it breached various policies related to termination of his privileges.

On September 6, 2012, Drs. Kovacs and Ross filed a motion for judgment on the pleadings. The sole argument in the motion was that Dr. Graves had failed to state any claim against them for breach of contract because they were not party to any contract with Dr. Graves. In response, Dr. Graves asserted that the facts alleged in the second amended complaint sufficiently stated a cause of action against Drs. Kovacs and Ross for tortious interference with a contract, namely between Dr. Graves and Clarian/IU Health. On November 5, 2012, Drs. Kovacs and Ross filed a response to this assertion, arguing that any claim for tortious interference with a contract was barred by the two-year statute of limitations for such a claim. Dr. Graves did not have a chance to respond to this statute of limitations argument because the trial court granted the motion for judgment on the pleadings on the same day that it was filed, November 5, 2012. The trial court’s order mentioned only Dr. Graves’s alleged failure to state a claim and not the statute of limitations argument. On December 6, 2012, the trial court denied Dr. Graves’s motion to correct error. It also denied Dr. Graves’s motion to amend his complaint to more clearly state a claim against Drs. Kovacs and Ross for tortious interference with a contract. Dr. Graves now appeals.

Analysis

We review de novo the granting of a motion for judgment on the pleadings under Indiana Trial Rule 12(C) and will affirm only if it is clear from the face of the pleadings that one of the parties cannot in any way succeed under the operative facts and allegations made therein. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind.Ct.App.2012). We must view the pleadings in a light most favorable to the non-moving party and with every allegation construed in his or her favor and, where judgment is sought by a defendant, determine whether the complaint is sufficient to constitute any valid claim. Id. When reviewing a Rule 12(C) motion, we may look only at the pleadings and any facts of which we may take judicial notice, with all well-pleaded material facts alleged in the complaint taken as admitted. Id. The “pleadings” consist of a complaint and an answer, a reply to any counterclaim, an answer to a cross-claim, a third-party complaint, and an answer to a third-party complaint. Fox Dev., Inc. v. England, 837 N.E.2d 161, 164 n. 1 (Ind.Ct.App.2005). “Pleadings” also consist of any written instruments attached to a complaint, pursuant to Indiana Trial Rule 9.2. LBM Realty, LLC v. Mannia, 981 N.E.2d 569, 576 n. 10 (Ind.Ct.App.2012); see also Ind. Trial Rule 10(C) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). If a trial court intends to treat a motion for judgment on the pleadings as a motion for summary judgment by considering materials outside of the pleadings, as permitted by Trial Rule 12(C), it must give the parties notice that it intends to do so and provide the parties with a reasonable opportunity to present all pertinent material to the court. Waldrip, 976 N.E.2d at 110.

Drs. Kovacs and Ross argue that they were not parties to any contracts with Dr. Graves, based on the attachments to his complaint. They note that the only count of Dr. Graves’s complaint that mentioned them was captioned “Breach of Contract” and that they clearly cannot be held liable for breaching a contract where none existed between them and Dr. Graves. Dr. Graves insists that the facts alleged in that count of the complaint are sufficient to state a claim for tortious interference with a contract — i.e., one between Dr. Graves and Clarian/IU Health — even though it was not so captioned. Drs. Kovacs and Ross do not argue that the facts pled by Dr. Graves were insufficient to state a claim for tortious interference with a contract.

The practical effect of Drs. Ko-vacs and Ross’s motion for judgment on the pleadings was the same as a motion to dismiss for failure to state a claim under Indiana Trial Rule 12(B)(6). See McCall v. State of Indiana Dep’t of Nat. Res. Div. of Forestry, 821 N.E.2d 924, 926 (Ind.Ct.App.2005) (noting, “Like a Trial Rule 12(B)(6) motion to dismiss, a Trial Rule 12(C) motion attacks the legal sufficiency of the pleadings.”), trans. denied. Under that rule, as well as Indiana Trial Rule 8 governing notice pleading, a pleading does not have to adopt a specific legal theory of recovery to be adhered to throughout the case. Shields v. Taylor, 976 N.E.2d 1237, 1244 (Ind.Ct.App.2012). A complaint also does not have to explicitly state all the elements of a cause of action. Id. at 1245. Under notice pleading, the sufficiency of a complaint depends upon whether the opposing party has been adequately notified concerning the operative facts of a claim so as to be able to prepare to meet it. Id. “A complaint’s allegations are sufficient if they put a reasonable person on notice as to why a plaintiff sues.” Id. Additionally, notice pleading was adopted in Indiana to discourage battles over the mere form of statements. Id. at 1244. Indiana Trial Rule 8(F) explicitly provides that “all pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points.” Indiana courts prefer to “treat pleadings according to their content rather than their caption.” Campbell v. Eckman/Freeman & Associates, 670 N.E.2d 925, 929 (Ind.Ct.App.1996), trans. denied. A complaint is sufficient and should not be dismissed so long as it states any set of allegations, no matter how unartfully pleaded, upon which the plaintiff could be granted relief. Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d 515, 519 (Ind.Ct.App.2010).

The elements of a cause of action for tortious interference with a contract are: “(1) the existence of a valid and enforceable contract; (2) the defendant’s knowledge of the existence of the contract; (3) the defendant’s intentional inducement of the breach of contract; (4) the absence of justification; and (5) damages resulting from the defendant’s wrongful inducement of the breach.” Bragg v. City of Muncie, 930 N.E.2d 1144, 1147 (Ind.Ct.App.2010). Here, we believe the second amended complaint sufficiently put Drs. Kovacs and Ross on notice that they were alleged to have acted wrongfully and intentionally in helping to bring about the termination of Dr. Graves’s contractual privileges at Cla-rian/IU Health. Thus, the facts alleged in the complaint adequately stated a claim for tortious interference with a contract— something that Drs. Kovacs and Ross do not refute.

As for the fact that the caption for this count of the complaint only referred to “Breach of Contract,” and not tortious interference with a contract, we do not believe that should have been fatal to Dr. Graves’s complaint. The Seventh Circuit addressed a similar issue in Daniels v. USS Agri-Chemicals, a Div. of U.S. Diversified Group, 965 F.2d 376 (7th Cir.1992). In that case, the court addressed a diversity lawsuit for wrongful death that was filed in Illinois, in which the complaint specifically cited Illinois law as the basis for the lawsuit. However, it was later determined that the cause of action was governed by Indiana law, which had different procedural prerequisites for a wrongful death action than Illinois law. Nonetheless, the Seventh Circuit concluded that the factual allegations in the complaint adequately stated a claim under Indiana law and was not subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) simply because it incorrectly cited Illinois law as the basis for the suit. Daniels, 965 F.2d at 382. The court specifically held that under either Indiana or federal jurisprudence, the erroneous invocation of Illinois law did not “affect the gravamen of [the] complaint.” Id. The court went so far as to hold that “ ‘specifying an incorrect theory is not fatal’ ” to a complaint. Id. at 381 (quoting Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992)); see also Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir.1992) (holding “a complaint sufficiently raises a claim even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim....”).

Here, Dr. Graves’s failure to mention tortious interference with a contract as a theory of recovery against Drs. Kovacs and Ross does not change the fact that the allegations of the complaint are sufficient to state a cause of action for that tort. Shortly after the Indiana Supreme Court adopted the Indiana Trial Rules and the concept of notice pleading, it stated:

It must be remembered that our new rules are based on so-called notice pleadings in which a plaintiff essentially need only plead the operative facts involved in the litigation. Other means less drastic than dismissal of the action can be used to clarify the theory and basis for the cause of action. Among these are a Motion for a more definite statement under TR. 12(E), our very broad discovery rules, and the pre-trial conference under TR. 16(A)(1).

State v. Rankin, 260 Ind. 228, 231, 294 N.E.2d 604, 606 (1973). Applying those principles here, and acknowledging the second amended complaint was possibly unartfully drafted, judgment on the pleadings in favor of Drs. Kovacs and Ross was not warranted.

On appeal, Drs. Kovacs and Ross reiterate their claim that even if the complaint adequately states a claim for tortious interference with a contract, that claim is barred by the statute of limitations. Drs. Kovacs and Ross contend that the claim is governed by a two-year statute of limitations, which Dr. Graves does not dispute. See C & E Corp. v. Ramco Indus., Inc., 717 N.E.2d 642, 644 (Ind.Ct.App.1999). Drs. Kovacs and Ross argue that Dr. Graves had to file his claim against them no later than August 1, 2011, or two years after Clarian/IU Health terminated his privileges. Thus, they assert that because the second amended complaint, which was the first to name Drs. Kovacs and Ross as defendants, was not filed until March 7, 2012, it was untimely for purposes of a tortious interference with a contract claim.

We believe it is premature to address the statute of limitations question. Before the trial court, Drs. Kovacs and Ross did not raise the issue of the statute of limitations until November 5, 2012, when they filed their reply to Dr. Graves’s response to the- motion for judgment on the pleadings. The trial court granted the motion for judgment on the pleadings that same day, thus giving Dr. Graves no opportunity to make any response to the statute of limitations argument. The trial court’s order granting the motion made no mention of the statute of limitations argument, and so Dr. Graves’s motion to correct error and to file a third amended complaint also made no reference to that argument.

As a general rule, a plaintiff does not have to anticipate a statute of limitations defense in his or her complaint and should be given adequate opportunity to provide facts and argument in response to the raising of a statute of limitations defense. See, e.g., Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind.1986). We also note that Dr. Graves filed his original third-party complaint against Clarian/IU Health on November 30, 2010, or within the limitations period argued by Drs. Ko-vacs and Ross. When a defendant has been added to a complaint, whether the amended complaint relates back to date of the filing of the original complaint under Indiana Trial Rule 15(C) for statute of limitations purposes generally should not be resolved by a motion to dismiss under Trial Rule 12 as opposed to a motion for summary judgment under Trial Rule 56. See Lamberson v. Crouse, 436 N.E.2d 104, 106 (Ind.Ct.App.1982). In sum, we conclude that Dr. Graves was not given adequate opportunity before the trial court to address the statute of limitations issue, and we offer no opinion on the merits of that issue at this time.

Conclusion

We reverse the granting of judgment on the pleadings in favor of Drs. Kovacs and Ross and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NAJAM, J., and BAILEY, J., concur.

      . It is unclear from the complaint whether this referred to restoration of Dr. Graves’s privileges after the 1995 suspension of them, or referred to a different suspension of privileges.