author: KIRSCH, Judge. BRADFORD, Judge,

text:
    FLM, LLC, Appellant-Plaintiff/Counterclaim Defendant, and Daimler Chrysler Corporation, n/k/a Chrysler LLC, Appellant-Third-Party Defendant/Counterclaimant, v. The CINCINNATI INSURANCE COMPANY, Appellee-Defendant/Third-Party Plaintiff/Counterclaimant/Counterclaim Defendant.
    No. 49A02-0902-CV-127.
    Court of Appeals of Indiana.
    Aug. 28, 2012.
    Rehearing Denied Oct. 31, 2012.

      George M. Plews, Jeffrey D. Claflin, Jonathan P. Emenhiser, Plews Shadley Racher & Braun LLP, Indianapolis, IN, Jon S. Faletto, Hinshaw & Culbertson LLP, Peoria, IL, Attorneys for Appellants.
    Richard R. Skiles, Janet M. Prather, Skiles DeTrude, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

This appeal concerns insurance coverage for claims arising from the abandonment of foundry sand from the Indianapolis foundry of Daimler Chrysler Corporation, n/k/a Chrysler LLC, (“Chrysler”) by lessee International Recycling Inc. (“IRI”) on lessor FLM, LLC’s (“FLM”) property and the migration of the sand onto adjacent property. FLM filed a complaint seeking a declaration that IRI has coverage under IRI’s insurance policies with The Cincinnati Insurance Company (“Cincinnati”) for the environmental liabilities asserted against FLM and for FLM’s own action against IRI. Cincinnati filed a counterclaim, seeking a declaration that there was no coverage under the policy for the claims, and a third-party complaint for declaratory judgment that brought Chrysler into the case. Chrysler subsequently filed a counterclaim against Cincinnati for declaratory relief. The trial court granted summary judgment in favor of Cincinnati relating to the claims of FLM and Chrysler. FLM and Chrysler appeal raising several issues, of which we find the following dispositive: whether IRI’s abandonment of sand constitutes a “wrongful entry” or “invasion of the right of private occupancy” covered by the “personal injury” provisions of the insurance policies.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

FLM is an Indiana company that owns land located at 8515 East Washington Street in Indianapolis, Indiana (“FLM’s Property”). On May 14, 1999, FLM leased the property to IRI, which planned to use FLM’s Property for the storage, mixing, and removal of sand, gravel, and similar materials. Pursuant to the terms of its lease, IRI was required to “comply fully with all federal, state, and local environmental, health, or safety statutes, rules, regulations, or ordinances.” Appellants’ App. at 54. If IRI violated this provision, allowed the presence of hazardous material to contaminate FLM’s Property, or if contamination occurred from which IRI was liable to FLM for damages, IRI was required to indemnify FLM against all claims, judgments, damages, penalties, fines, costs, liabilities, or losses resulting from such contamination. Id. at 54-55. The lease also contained another provision, where IRI agreed to indemnify FLM against all actions, claims, demands, costs, damages, or expenses of any kind that may be brought against FLM due to IRI’s negligent performance or failing to perform its obligations under the lease. Id. at 53.

Chrysler owned and operated a foundry in Indianapolis, which generated large amounts of foundry sand. Chrysler entered into purchase order transactions with IRI for the collection, transportation, and beneficial reuse or other appropriate disposal of foundry sand generated from Chrysler’s Indianapolis foundry. IRI began depositing foundry sand from Chrysler’s facility onto FLM’s Property in May 1999. Chrysler paid IRI for the removal of the foundry sand; IRI had only one customer and one source of revenue— Chrysler.

The Indiana Department of Environmental Management (“IDEM”) characterized the foundry sand stored on FLM’s Property as Type III foundry sand. Type III sand may be used for certain purposes, including structural fill for roads, construction and architectural fill, and raw material in concrete, asphalt, and cement. IRI planned to mix the foundry sand with aggregate on FLM’s Property and then to transport it from FLM’s Property to be used as structural backfill for building and roadway projects. IRI intended that the foundry sand would only remain on FLM’s Property temporarily, which was consistent with IDEM guidelines for Type III foundry sand. IRI hired a consultant, Environmental Resources Management (“ERM”) to ensure that IRI was complying with IDEM’s guidelines. After its review, on June 10, 2002, ERM concluded that IRI was in compliance with such IDEM guidelines.

In the fall of 2002, Chrysler stopped paying IRI. As a result, IRI could no longer fund the removal of the foundry sand from FLM’s Property. In March 2003, IRI stopped paying rent to FLM and abandoned over 100,000 tons of foundry sand on FLM’s Property, where most remains to this day. In the fall of 2002, CSX Transportation, Inc. (“CSX”), which owned property adjacent to FLM’s Property that was used to operate a railroad right-of-way, began complaining to IRI that foundry sand was migrating onto its property. The foundry sand had allegedly clogged drainage pipes, causing water to accumulate on CSX’s property and interfering with train and signal operations.

Because of complaints it received about the foundry sand, IDEM investigated FLM’s Property and observed surface and wind erosion. IDEM issued a Notice of Violation (“NOV”) to IRI, FLM, and Chrysler on May 17, 2004 and ordered them to remove the foundry sand. On January 13, 2004, the City of Indianapolis (“the City”) issued a Notice of Municipal Code Violation (“NOMCV’) to FLM, which found that there had been a violation of the sediment control ordinance due to sand migration. As a result of this violation, the City ordered that sediment controls be installed and that the sand be removed unless a drainage permit was obtained. FLM, in turn, sought indemnity under the lease from IRI.

Cincinnati insured IRI under a Commercial General Liability (“CGL”) policy numbered CPP 071 11 07 (“the CGL Policy”) from May 1, 1999 until March 14, 2003. The CGL Policy provided coverage for “Bodily Injury and Property Damage Liability” and “Personal and Advertising Injury Liability.” Appellants’App. at 143, 146. The “Bodily Injury and Property Damage Liability” states:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies.
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; and
(2) The “bodily injury” or “property damage” occurs during the policy period.

Id. at 143. The CGL Policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Id. at 153. The CGL Policy defines “property damage” as:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.

Id.

The “Personal and Advertising Injury Liability” coverage clause states:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal injury” or “advertising injury” to which this insurance applies.

Id. at 146. The CGL Policy defined “personal injury” as “injury other than “bodily injury” arising out of one or more of the following offenses: ... The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling, or premises that a person occupies by or on behalf of its owner, landlord, or lessor ...” Id. at 153.

Cincinnati also insured IRI under a Commercial Umbrella Liability policy numbered CCC 446 16 01 (“Umbrella Policy”). Id. at 243. The relevant portions of the Umbrella Policy state:

We will pay on behalf of the insured the “ultimate net loss” which the insured is legally obligated to pay as damages in excess of the “underlying insurance” or for an “occurrence” covered by this policy which is either excluded or not covered by “underlying insurance” because of:
1. “Bodily injury” or “property damage” covered by this policy occurring during the policy period and caused by an “occurrence”; or
2. “Personal injury” or “advertising injury” covered by this policy committed during this policy period and caused by an “occurrence.”

Id. at 245. “Occurrence” is defined in the Umbrella Policy as:

a. An accident, including continuous or repeated exposure to substantially the same general harmful conditions, that results in “bodily injury” or “property damage.”
b. An offense that results in “personal injury” or “advertising injury.” All damages that arise from the same act, publication, or general conditions shall be deemed to arise from one “occurrence” ....

Id. at 256. The definitions for “personal injury” and “property damage” in the Umbrella Policy are the same as those in the CGL Policy.

On January 10, 2005, FLM filed a complaint against Cincinnati seeking a declaration that IRI has coverage under the CGL Policy and the Umbrella Policy (collectively, “the Policies”) for the environmental liabilities asserted by IDEM and the City, as well as FLM’s own action against IRI arising from those claims. On March 3, 2005, Cincinnati filed its answer and counterclaim, seeking a declaration that there was no coverage under the Policies for the claims. On May 12, 2005, Cincinnati filed a Third-party Complaint for Declaratory Judgment in order to bring Chrysler, IRI, IDEM, and the City as indispensable parties into the coverage action. On March 9, 2007, CSX filed a cross-complaint against IRI and FLM seeking trespass and nuisance damages related to the migration of foundry sand onto its property.

On December 3, 2007, Cincinnati filed a motion for partial summary judgment, requesting the trial court to declare that there was no coverage under the Policies for the claims made by IDEM, the City, FLM, or Chrysler against IRI. Cincinnati’s motion specifically excluded the claims made by CSX. On February 11, 2008, FLM responded to Cincinnati’s motion and filed a cross-motion for summary judgment to determine that there was coverage for these claims, including the claims made by CSX, under both the “Property Damage Liability” coverage and the “Personal Injury Liability” coverage in the Policies. On March 3, 2008, Chrysler opposed Cincinnati’s motion, joined FLM’s cross-motion and filed its own cross-motion for summary judgment.

On November 6, 2008, the trial court granted partial summary judgment in favor of Cincinnati and denied FLM’s and Chrysler’s cross-motions for summary judgment. The trial court specifically stated:

Summary judgment is GRANTED to Cincinnati as against any insurance coverage obligation, duty of defense, indemnification, or payment owed to or on behalf of IRI ... relating to the claims made by IDEM, the City ..., FLM and/or [Chrysler], but this grant does not extend to alleged coverage obligations stemming from claims by CSX.
FLM’s cross-motion for summary judgment is DENIED.

Id. at 87. The trial court also denied Chrysler’s cross-motion for summary judgment as moot. FLM and Chrysler now appeal. After oral argument in this case, Cincinnati informed us that it had settled with CSX.

DISCUSSION AND DECISION

On appeal from a grant of summary judgment, our standard of review is the same as that of the trial court. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind.Ct.App.2005). We stand in the shoes of the trial court and apply a de novo standard of review. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind.Ct.App.2006). Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind.Ct.App.2005), trans. denied. Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant issues. Wilcox Mfg., 832 N.E.2d at 562. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind.Ct.App.2005), trans. denied.

A trial court’s grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Cox, 848 N.E.2d at 695-96. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate appellate review, but are not binding upon this court. Id. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

In this case, the parties filed cross-motions for summary judgment. However, the fact that cross-motions for summary-judgment were made does not alter our standard of review. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.Ct.App.2007), trans. denied. “Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” Id.

The interpretation of an insurance policy is primarily a question of law and, therefore, is a question particularly suited for summary judgment. Id. (citing Lake States Ins. Co. v. Tech Tools, Inc., 743 N.E.2d 314, 318 (Ind.Ct.App.2001)). “Where there is an ambiguity, policies are to be construed strictly against the insurer.” Lake States Ins., 743 N.E.2d at 318. “An insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.” Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 997 (Ind.Ct.App.1999), trans. denied. An ambiguity does not exist, however, merely because the parties favor a different interpretation. Mahan, 862 N.E.2d at 676. Where terms are unambiguous, they should be given their plain and ordinary meaning. Id. (citing Farmers Ins. Exch. v. Smith, 757 N.E.2d 145, 149 (Ind.Ct.App.2001), trans. denied). A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Id.

FLM argues that Cincinnati’s personal injury coverage applies to its claims against IRI. FLM asserts that IRI wrongfully entered onto FLM’s Property by not removing the foundry sand after IRI stopped paying rent and violated the environmental compliance requirements in the lease. Specifically, FLM contends that IRI’s right to store foundry sand on FLM’s Property was contingent on IRI paying rent and obeying all environmental laws, and once IRI breached its lease contract, FLM claims that it no longer had a right to keep sand on its property and, therefore, committed a wrongful entry. Further, FLM argues that IRI’s failure to remove the foundry sand was an “invasion” of FLM’s “right to private occupancy” because the “right to private occupancy” includes the right to property that is free of tons of foundry sand belonging to another entity and left on your property.

Under the Policies, Cincinnati was obligated to pay “those sums that the insured becomes legally obligated to pay as damages because of ‘personal injury.’ ” Appellants’ App. at 146. Personal injury is defined as: “injury other than “bodily injury” arising out of one or more of the following offenses: ... The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling, or premises that a person occupies by or on behalf of its owner, landlord, or lessor.... ” Id. at 153. Personal injury coverage does not require an “occurrence” or “property damage,” but instead requires that injury arise from an enumerated “offense,” which could be either a “wrongful entry” or an “invasion of the right of private occupancy.” Id. at 153.

In Travelers Indem. Co. v. Summit Corp. of Am., 715 N.E.2d 926 (Ind.Ct.App.1999), our court found that the policy provisions at issue in that case must be construed to cover the environmental damages alleged. Id. at 938. Summit was in the business of manufacturing and finishing metal parts and was ordered to clean up contaminants at various sites. Id. at 929. The claims against Summit involved contamination on land it owned, land owned by others to which Summit had sent waste, and groundwater contaminated at all those sites. Id,, at 929-30, 937. A panel of this court interpreted policy language contained under personal injury coverage that was identical to the language in Cincinnati’s policies and found the language to be ambiguous due to the variety of meanings available for the terms in the policy and the disagreement among other courts regarding whether damages caused by pollutants could be covered under personal injury provisions. Id. at 937-38. This court therefore concluded that the personal injury provision at issue must be construed to cover the environmental damages of the suit. Id. at 938.

The reasoning underlying the Summit decision applies with equal force here. Cincinnati’s personal injury provision contained language identical to the language in the personal injury provision at issue in Summit, and just as the court in that case determined such language to be ambiguous, we likewise conclude that the language used in Cincinnati’s policies is ambiguous. Because the Policies are ambiguous, we must construe the language against the insurer and in favor of coverage. Id. at 937.

FLM’s allegations here involved sand initially brought onto property owned by FLM legitimately under the lease, but later abandoned by IRI when it could no longer pay its rent. The sand abandoned by IRI interferes with the right of FLM to use and enjoy its property. As a result of such interference, the language used in the Policies may be reasonably construed to cover the abandonment.

Cincinnati contends that, even if the abandoned sand’s presence on FLM’s Property constituted a wrongful entry or invasion of the right of private occupancy, the Policies’ personal injury coverage is limited, in relevant part, to IRI’s liability for: “The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling, or premises that a person occupies by or on behalf of its owner, landlord, or lessor.” Appellants’ App. at 153 (emphasis added). Cincinnati asserts that the italicized language limits the coverage to only a wrongful entry or invasion of the right of private occupancy that is by or on behalf of its owner, landlord, or lessor. Therefore, Cincinnati claims that, even if IRI’s abandonment of the sand constituted a wrongful entry or invasion of the property, it was not committed by or on the behalf of the property’s owner, landlord, or lessor, here FLM. Since it is undisputed that the IRI was the tenant of FLM’s Property, Cincinnati asserts that no coverage was implicated.

Because this language was not considered in the Summit case, we must determine whether such language is ambiguous. Under Cincinnati’s interpretation of the policy language, to qualify for coverage, either the wrongful entry or the invasion of the right to private occupancy, which was the abandonment of sand by IRI, must have been committed by or on behalf of owner, landlord, or lessor, FLM. FLM argues that without the word “committed,” it is unclear as to what the last clause “by or on behalf of its owner, landlord, or lessor” applies, and therefore ambiguity exists. FLM asserts that if Cincinnati meant to only cover wrongful entry or invasion when the entry was committed by or on behalf of the property’s owner, landlord, or lessor, then it should have drafted its policy in such a manner, and that, at most, Cincinnati’s interpretation of the of the Policies’ language is only one interpretation of the language, which makes it ambiguous. We agree.

“To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them.” Lake Cnty. v. Rollins, 130 U.S. 662, 670, 9 S.Ct. 651, 32 L.Ed. 1060 (1889). See also, Hamilton Cnty. Dep’t of Pub. Welfare v. Smith, 567 N.E.2d 165, 169 (Ind.Ct.App.1991) (“In addition, where the meaning of a particular clause or phrase is in doubt, the court should examine the grammatical structure of the clause in order to ascertain its meaning.”). As a matter of strict grammatical construction, the descriptive words in a phrase should, in the absence of punctuation, be referred to their nearest antecedent, and had the intent been, by means of punctuation, to bring out a meaning which would refer these qualifying words to more than their immediate antecedent, a comma should have been inserted after said word. First Nat’l Bank of Peoria v. Farmers’ & Merchants’ Nat’l Bank of Wabash, 171 Ind. 323, 86 N.E. 417, 423 (1908).

Applying this rule of construction to the policy language at issue, it is clear that “by or on the behalf of’ modifies “that a person occupies,” the language that directly precedes it, and not the “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy” language. On this basis, we find that a different interpretation from the one proposed by Cincinnati to be entirely reasonable. Because this language in the Policies is subject to more than one reasonable interpretation, it is ambiguous, and must be construed against Cincinnati and in favor of coverage.

We must next determine whether coverage is excluded because IRI incurred liability due to contractual assumption. Under the CGL Policy, the insurance does not apply to “personal injury”: “For which the insured had assumed liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement.” Appellants’App. at 146. Although IRI did assume liability for damages and actions made against FLM due to IRI’s negligent performance under the lease, IRI was also a named party on the NOV issued by IDEM. Therefore, IRI may be held liable for the damages even in the absence of the contract or agreement, and the exclusion does not apply. The trial court erred in granting summary judgment in favor of Cincinnati. We therefore reverse the trial court’s entry of summary judgment in favor of Cincinnati and remand with instruction to enter summary judgment in favor of FLM.

Reversed and remanded with instructions.

VAIDIK, J., concurs.

BRADFORD, J., concurs in result with separate opinion.

BRADFORD, Judge,

concurring in result.

Although I agree with the majority that there is coverage here, I reach my conclusion by another route. In my view, while the “personal injury” provisions of the Policies do not provide for coverage, the “property damage” provisions do. Consequently, I concur in result.

I. Personal Injury Provisions

I agree with the majority’s conclusion that the Policies’ definition of “personal injury” is ambiguous to the extent that it is unclear just what the phrase “by or on behalf of its owner, landlord, or lessor” is modifying. I do not believe, however, that this ambiguity leads to coverage in this case, because there is no evidence that IRI ever did anything on FLM’s behalf, much less any of the actions the phrase might be modifying. Even if we assume that the phrase is modifying “occupies,” there is no indication that the relationship between FLM and IRI ever went beyond that of lessor and lessee, and as the Indiana Supreme Court has noted, “no agency is implied between lessor and lessee.” Hopkins v. Hudson, 107 Ind. 191, 196, 8 N.E. 91, 93 (1886). The Indiana Supreme Court has made it clear that, while ambiguities will be strictly construed against the insurer, “for ambiguity to confer coverage, the covered item must be somewhere within the circle of ambiguity.” Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1057 (Ind. 2001) (emphasis supplied). Here, the circle of ambiguity is not large enough to encompass IRI’s actions, because there is no evidence that IRI ever did anything on FLM’s behalf. I would therefore conclude that the personal injury provisions of the Policies do not provide for coverage.

II. Property Damage Provisions

Because the majority has concluded that the Policies’ personal injury provisions provide coverage, it does not reach the question of whether the property damage provisions do, as FLM has also argued. In my view, the property damage provisions at issue do provide for coverage. The key question to be answered is whether the contamination of FLM’s land caused by the foundry sand constituted an “occurrence” within the scope of the Policies, and I conclude that it did.

IRI’s GCL policy with Cincinnati defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Appellant’s App. p. 153. The Umbrella Policy defines “occurrence,” in part, as “[a]n accident, including continuous or repeated exposure to substantially the same general harmful conditions, that results in ‘bodily injury’ or ‘property damage.’ ” Appellant’s App. p. 256. The parties’ arguments focus on the meaning of the term “accident,” which is defined in neither policy. The question is whether the term only covers IRI’s action of placing the foundry sand on FLM’s land or whether it also encompasses the unintended consequences of that action. Put another way, because IRI unquestionably intended to put the sand on FLM’s property, if the term “accident” does not also encompass unintended consequences of that non-accidental action, the property damage provisions would provide no coverage. Conversely, coverage would exist if the term “accident” encompassed unintended consequences of intentional actions.

I believe that the Indiana Supreme Court’s holding in Auto-Owners Insurance Co. v. Harvey, 842 N.E.2d 1279 (Ind.2006), controls here. In Harvey, the issue was whether a policy provided coverage for the harm caused by the insured, Toby Gearh-eart, who pushed his girlfriend Brandy Harvey into the Wabash River, where she drowned. Id. at 1281. As here, the relevant policy provided coverage for an “occurrence,” which that policy defined as “an accident that results in bodily injury or property damage and includes, as one occurrence, all conditions or all continuous or repeated exposure to substantially the same general harmful conditions.” Harvey, 842 N.E.2d at 1283. Also as here, the policy did not define “accident.” Id. While it was undisputed that Gearheart’s push was intentional, it was not clear whether he intended Brandy to die. Id. at 1284-85. The question, then, was whether the push was an “accident” under the policy, because, while it was unquestionably intentional, it possibly had unintended consequences.

The Haney Court first noted that “Indiana case law has held that, ‘in the context of insurance coverage, an accident means an unexpected happening without an intention or design.’ ” Id. at 1283 (citing Terre Haute First Nat. Bank v. Pac. Emp’rs Ins. Co., 634 N.E.2d 1336, 1338 (Ind.Ct.App.1993); Nat. Mut. Ins. Co. v. Eward, 517 N.E.2d 95, 100 (Ind.Ct.App.1987)). The Court then resolved the issue as follows:

In the present case, the policy states that Auto-Owners will pay for its insured’s legal liability for “damages because of or arising out of bodily injury or property damage caused by an occurrence.” Under the facts of this case, however, the meaning and application of this provision is unclear. The language used by Auto-Owners can reasonably be understood in two different ways, depending on whether “occurrence” means Gearheart’s push or Brandy’s drowning. The policy language does not require that the “occurrence” or “accident” be limited to the actions of the insured. The claimed damages clearly arise out of Brandy’s death, and the coverage ambiguity thus is whether the death should be considered to have been caused by the event of Gearheart’s pushing or by the event of Brandy’s drowning. If the required “accident” refers to Gearh-eart’s push, then it is undisputed that it did not occur unexpectedly or unintentionally. If it applies to Brandy’s slip, fall, and drowning, however, it is not clear that the drowning was clearly unexpected and unintentional. It was obviously unexpected and unintentional from Brandy’s perspective, and possibly so from Gearheart’s point of view. We thus find the policy language ambiguous and must construe it against Auto-Owners, holding that the term “occurrence” applies to Brandy’s slip, fall, and drowning, and not to Gearheart’s push.

Id. at 1284-85.

I believe that the Harvey Court’s analysis applies with equal force here, and would reach the same conclusion, ie., that “accident” refers not only to the volitional act of the insured but also any unintended consequences of that act. In this case, this interpretation leads to the conclusion that there is coverage pursuant to the property damage provisions of the Policies. As in Harvey, the Policies do not require that the “accident” be an action of the insured, meaning that the policy here contains the same ambiguity as the policy in Harvey. In other words, “accident” could just as easily be referring to IRI’s actions as to the unintended consequences of those actions, and this ambiguity must be resolved in favor of coverage. Because I believe that coverage exists here pursuant to the property damage provisions of the Policies, I would remand with instructions to enter summary judgment in favor of FLM on that basis.

      . Oral argument was heard on this case on February 29, 2012 in Indianapolis. We commend counsel on the quality of their written and oral advocacy.

      . Prior to filing that complaint, FLM had filed a complaint against IRI for, among other things, damages from IRI’s activities on FLM’s Property, indemnification against IDEM's, the City’s, and CSX's claims against FLM, and trespass for leaving the foundry sand on FLM’s Property. Appellants’ App. at 1694-1707.

      . Chrysler contends that, to the extent that CSX, FLM, and the other parties are holding it liable for the environmental violations and property damage caused by IRI, it is under a theory of vicarious liability for the acts or omissions of IRI in abandoning the sand. Because of the derivative nature of Chrysler's claims, it asserts it is seeking the same determinations of coverage from Cincinnati as FLM, and the "same interpretation of Cincinnati's policies is required for both FLM’s and Chrysler’s positions with regard to summary judgment in this case.” Appellant Chrysler’s Br. at 6. Therefore, we refer only to FLM’s arguments when addressing the arguments of the appellants.

      . In exchange for $300,000, CSX released Cincinnati, IRI, and others from liability for claims resulting from
      A) the presence of the pile of spent foundry sand located on land presently owned by FLM, LLC ("FLM”) in Marion County, Indiana and/or B) foundry sand which was at one time deposited on land owned by FLM in Marion County, Indiana, (collectively, "the sand") and/or C) the sand’s migration onto the adjacent CSX right-of-way.

        FLM, LLC v. The Cincinnati Ins. Co., No. 49A02-0902-CV-127 (Ind.Ct.App. May 23, 2012). In light of this settlement, it is not clear what cleanup costs actually remain. IDEM ordered the foundry sand to be completely removed. As was discussed at the oral argument in this case, cleaning up CSX’s property will "very likely" require cleaning up FLM’s property; otherwise, the sand would migrate back to CSX’s property and cause more damage.

      . In Allstate Ins. Co. v. Dana Coup., 759 N.E.2d 1049, 1056-57 (Ind.2001) ("Dana II ”), our Supreme Court held that the terms "wrongful eviction” (on the facts of that case) and "invasion of the right of privacy” could not reasonably be construed to describe environmental contamination. The Court did not alter the ruling in Summit as to "wrongful entry” and did not address "invasion of the right of private occupancy.” Id. at 1057.

      . Cincinnati contends that the claims of FLM for indemnity for the actions by IDEM and the City do not implicate personal injury because the actions do not claim wrongful entry or invasion of the right of private occupancy of FLM’s Property. Summit involved actions by the United States Environmental Protection Agency and other environmental agencies, ordering clean up of various sites. Therefore, because Summit is controlling here, the claims at issue in the present case are covered.

      . We note that the Third Circuit, in New Castle County, Delaware v. National Union Fire Insurance Co. of Pittsburgh, 174 F.3d 338 (3d Cir.1999), interpreted policy language identical to the language at issue in this case and determined that such language was ambiguous. Although that case is not binding on this court, we find its reasoning to be persuasive and instructive in the present case.

      . Cincinnati argues that both FLM and Chrysler failed to demonstrate that their respective contracts required IRI to indemnify them against IDEM's and the City’s claims. IRI’s lease with FLM contained a provision, where IRI agreed to indemnify FLM against all actions, claims, demands, costs, damages, or expenses of any kind that may be brought against FLM due to IRI’s negligent performance or failing to perform its obligations under the lease. Appellants' App. at 53. Clause 54 of incorporated terms in Chiysler's Purchasing General Terms and Conditions provided that IRI would assume all risk of damage to property or of bodily injury from any action, omission, or operation under the contract or in connection with the work. Id. at 2365-69. We therefore conclude that both FLM and Chrysler sufficiently demonstrated that IRI was required to indemnify them under their respective contracts.

      . I note one procedural distinction with Harvey: in that case, there existed a genuine issue of material fact regarding whether Gearheart intended Brandy’s death, so the Court remanded for trial on the issue. Here, there does not seem to be any designated evidence that IRI intended for the foundry sand to contaminate FLM’s property. Therefore, in my view there would be no need for trial on the issue of coverage, as there was in Harvey.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant-Plaintiff, v. BILL GADDIS CHRYSLER DODGE, INC., Garrett Gaddis, and Edward Foster, Appellees-Defendants.
    No. 18A02-1112-PL-1087.
    Court of Appeals of Indiana.
    Aug. 29, 2012.

      David L. Taylor, Taylor Law Firm, Brownsburg, IN, Attorney for Appellant.
    Mark K. Dudley, Howard Deley & Dudley, LLP, Anderson, IN, Attorney for Ap-pellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Auto-Owners Insurance Company (“Auto-Owners”) appeals the trial court’s denial of its motion for summary judgment in this declaratory judgment action. Auto-Owners presents three issues for our review, which we consolidate and restate as:

1. Whether the trial court abused its discretion when it denied Auto-Owners’ motions to strike the memorandum and designated evidence submitted by Edward Foster in opposition to Auto-Owners’ summary judgment motion.
2. Whether the trial court erred when it denied Auto-Owners’ summary judgment motion.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 15, 2008, Garrett Gaddis (“Garrett”), who was eighteen years old and living with his father, signed a sales contract for the purchase of a 1996 Honda Accord (“the car”) from Bill Gaddis Dodge (“the dealership”). Bill Gaddis (“Bill”), Garrett’s grandfather, owned the dealership, and Scott Gaddis (“Scott”), Garrett’s father, was a salesman at the dealership at the time. Garrett did not pay any money to the dealership for the car. Instead, Garrett gave Scott approximately $300 in cash for the car, and Scott “charged” the car to an account he had with the dealership, with the $535 sales price to be deducted from Scott’s salary or bonus income at a later date. See Appellant’s App. at 999. Thereafter, the dealership did not transfer title to the car in Garrett’s name, and Garrett did not register or insure the car. The car displayed a temporary dealer license plate.

Sometime in late January, Scott punished Garrett by taking the car keys from him and prohibiting Garrett from driving the car. But on January 29, Garrett stole the keys and drove the car to a friend’s house. Later, while on his way home, Garrett struck a man, Edward Foster, who was riding a bicycle in the street. Garrett initially stopped, but then fled the scene. He subsequently turned himself into police.

Foster filed a complaint against Garrett alleging that his negligence caused Foster’s injuries. Auto-Owners, which had issued both a commercial liability policy and a garage liability policy to the dealership, hired defense counsel to defend Garrett under a reservation of rights. Auto-Owners moved for declaratory judgment asking the court to determine that there is no liability coverage for Foster’s injuries under either of the dealership’s policies.

On March 25, 2011, Auto-Owners moved for summary judgment in the declaratory judgment action. The trial court ordered that all designations of evidence and mem-oranda were due on or before April 22 and scheduled a hearing on the summary judgment motion for May 4. On April 26, Foster filed a motion for extension of time to respond to Auto-Owners’ summary judgment motion, and the trial court granted that motion, extending the deadline for a response to May 27. On May 26, Foster filed a memorandum in opposition to summary judgment and designation of evidence.

Auto-Owners filed a reply brief in support of summary judgment, as well as two motions to strike: a motion to strike “untimely filed evidence” by Foster and a motion to strike certain exhibits designated as evidence by Foster in opposition to summary judgment. Appellant’s App. at 1248. In support of the first motion to strike, Auto-Owners pointed out that the trial court had set the deadline for responses to its summary judgment motion for April 22, and Foster did not move for an extension of time or otherwise respond until after that deadline had expired. In support of the second motion to strike, Auto-Owners maintained that the challenged exhibits were “not properly certified nor authenticated^]” Id. at 1166. Following a hearing, the trial court denied Auto-Owners’ motions to strike and summary judgment motion. In its order denying summary judgment in favor of Auto-Owners, the trial court stated in relevant part:

There are material questions of fact as to ownership, possession, and control of the subject vehicle, as to whether a sale actually took place or the vehicle for all intents and purposes remained a part of the dealership fleet of Bill Gaddis Chrysler Dodge, Inc., whether Garrett Gaddis, as a Gaddis family member, was a garage customer or otherwise entitled to coverage under [the dealership^ policy, and, ultimately, whether the vehicle was at all times pertinent herein deemed a part of the business of Bill Gaddis Chrysler Dodge, Inc.

Id. at 8. This discretionary interlocutory appeal ensued.

DISCUSSION AND DECISION

Issue One: Motions to Strike

Auto-Owners contends that the trial court abused its discretion when it denied its two motions to strike. A trial court has broad discretion in granting or denying a motion to strike. Coleman v. Charles Court, LLC, 797 N.E.2d 775, 786 (Ind.Ct.App.2003). The trial court’s decision will not be reversed unless prejudicial error is clearly shown. Id.

Timeliness

Auto-Owners first contends that Foster’s request for an extension of time to file a response in opposition to summary judgment was untimely. Accordingly, Auto-Owners maintains that the trial court erred when it granted the motion for extension of time. We cannot agree.

Indiana Trial Rule 56(C) provides in relevant part that an adverse party shall have thirty days after service of a summary judgment motion to serve a response and any opposing affidavits. And Indiana Trial Rule 56(1) provides that a trial court has discretion, for cause found, to alter “any time limit set forth in this rule upon motion made within the applicable time limit.” (Emphasis added). Here, Auto-Owners maintains that, because the trial court shortened the deadline for Foster’s response from thirty days to twenty-eight days, Foster was required to move for an extension of time or otherwise reply to the motion by April 22.

But the record does not support the application of Trial Rule 56(1). There is nothing in the record indicating either that the trial court found cause or that a motion was made, as required under Trial Rule 56(1), to shorten the thirty-day time limit to twenty-eight days. Thus, the shortened time limit was a procedural nullity and the thirty days allowed by Trial Rule 56(C) controlled. Auto-Owners has not shown that the trial court erred when it concluded, in effect, that Foster’s motion for extension of time was timely under Trial Rule 56(C).

After the trial court granted Foster’s motion for extension of time, Foster timely filed his response in opposition to motion for summary judgment and designation of evidence. Foster’s response was timely under Trial Rule 56(C) and Trial Rule 56(E), which grants an extra three days to respond where a notice or paper is served upon the party by mail. There was no error and no prejudice, and, thus, the trial court did not abuse its discretion when it denied Auto-Owners’ motion to strike Foster’s response as untimely.

Authentication of Designated Evidence

Auto-Owners next contends that the trial court abused its discretion when it denied its motion to strike certain evidence designated by Foster in opposition to summary judgment. Auto-Owners maintains that four of the exhibits Foster designated as evidence in his response in opposition to summary judgment were “not certified nor properly authenticated” and were not, therefore, properly designated evidence. Brief of Appellant at 22. While we agree with Auto-Owners that the four challenged exhibits were not properly designated evidence, Auto-Owners has not shown prejudicial error as a result of the trial court’s denial of its motion to strike the exhibits.

Unsworn statements and unverified exhibits do not qualify as proper Rule 56 evidence. Indiana Univ. Med. Ctr. v. Logan, 728 N.E.2d 855, 858 (Ind.2000). Here, in opposition to summary judgment, Foster designated as evidence fifteen exhibits. Four of those exhibits, when initially submitted to the court on May 26, were neither certified nor properly authenticated. Those exhibits included: Garrett’s bank records (Exhibit 8); Garrett’s employment records with Papa John’s (Exhibit 12); and copies of pages printed from a Bureau of Motor Vehicles website (Exhibits 14 and 15). Auto-Owners moved to strike those unauthenticated and uncerti-fied exhibits. And on June 22, Foster filed a response to the motion to strike and submitted affidavits in an attempt to authenticate the four challenged exhibits.

Trial Rule 56(E) provides in pertinent part: “[T]he court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” (Emphases added). Here, Foster’s response in opposition to summary judgment and designated evidence were due May 27, and Foster submitted those documents on May 26. His attempt to certify and authenticate the four challenged exhibits with affidavits on June 22 was untimely. Trial Rule 56(E) permits only affidavits, not other designated evidence, to be supplemented after the deadline for submission of designated evidence. We hold that the trial court should have stricken those late-filed affidavits.

However, as we discuss below, the other eleven exhibits Foster designated as evidence in opposition to summary judgment are sufficient to establish genuine issues of material fact precluding summary judgment. Accordingly, Auto-Owners has not shown that it was prejudiced by the trial court’s denial of its motion to strike the four unauthenticated exhibits. See Coleman, 797 N.E.2d at 786.

Issue Two: Summary Judgment

Auto-Owners contends that the trial court erred when it denied its summary judgment motion. Our standard of review for summary judgment appeals is well established:

When reviewing a grant [or denial] of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App.2004).

While we are not bound by the trial court’s findings and conclusions and give them no deference, they aid our review by providing the reasons for the trial court’s decision. See GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1257 (Ind.Ct.App.2000). Here, again, the trial court found:

[t]here are material questions of fact as to ownership, possession, and control of the subject vehicle, as to whether a sale actually took place or the vehicle for all intents and purposes remained a part of the dealership fleet of Bill Gaddis Chrysler Dodge, Inc., whether Garrett Gaddis, as a Gaddis family member, was a garage customer or otherwise entitled to coverage under [the dealership,]’s policy, and, ultimately, whether the vehicle was at all times pertinent herein deemed a part of the business of Bill Gaddis Chrysler Dodge, Inc.

Appellant’s App. at 8 (emphases added). We agree with the trial court that summary judgment is precluded by genuine issues of material fact regarding ownership of the car and whether Garrett is an insured under the Auto-Owners garage liability policy. We address each issue in turn.

Ownership of the Car

Auto-Owners maintains that the undisputed designated evidence proves that Garrett owned the car, not the dealership. Accordingly, Auto-Owners contends that the car was not covered by the dealership’s garage liability policy at the time of the accident with Foster. In support of that contention, Auto-Owners directs us to various portions of its designated evidence showing that Garrett owned the car at the time of the accident.

But Auto-Owners’ designated evidence also supports a reasonable inference that the dealership owned the car at the time of the accident. In particular, the designated evidence shows that: the dealership did not transfer title to the car to Garrett prior to the accident; Garrett “actually never paid for the car,” but it had been “charged” to Scott’s account with the dealership; Garrett had previously driven a car owned by the dealership when he worked for Papa John’s delivering pizzas; and Garrett had neither registered the car nor purchased insurance at the time of the accident. Appellant’s App. at 999. Moreover, the undisputed designated evidence shows that, after the accident, the dealership sold the car at auction, the proceeds from that sale were used to credit Scott’s account with the dealership for the cost of the car, and the excess proceeds from that sale were not paid to Garrett.

We hold that the designated evidence creates a genuine issue of material fact regarding ownership of the car. The fact that the dealership sold the car without paying Garrett the excess proceeds from the sale, without more, supports a reasonable inference that the dealership owned the car at the time of the accident. While a trier of fact may ultimately conclude otherwise, this question of fact precludes summary judgment.

Insured

Auto-Owners also maintains that Garrett is not an insured under the terms of the dealership’s garage liability policy. The relevant provision in that policy states as follows:

SECTION III — WHO IS AN INSURED
B. With respect to any auto or farm implement as described under SECTION II — COVERAGE, COVERAGE A — BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 1. COVERAGE, B. Bodily Injury And Property Damage Liability (Auto) only:
1. You.
2. Your garage customers.
8. Any other person or organization using an auto or farm implement with your permission. ...

Appellant’s App. at 300-01 (emphases added). The parties agree that Garrett was not a “garage customer.” The only dispute is whether Garrett was “any other person” using an auto “with [the dealership’s] permission.” See id. In other words, the question presented is whether Garrett was a permissive user under the garage liability policy. See State Farm Mutual Automobile Ins. Co. v. Gonterman, 637 N.E.2d 811, 814 (Ind.Ct.App.1994).

In support of its contention that Garrett was using the car without the dealership’s permission at the time of the accident, Auto-Owners relies on designated evidence showing that Scott had taken the car keys away from Garrett and prohibited him from using the car on the date of the accident. Indeed, Garrett testified to that effect and admitted having stolen the keys from his father to gain access to the car. But that evidence, which indicates that Garrett did not have Scott’s permission to drive the car, has no bearing on the question of whether the dealership had given Garrett permission to drive the car.

Indeed, in its memorandum in support of summary judgment, Auto-Owners argued that the dealership “placed no restrictions on the use of [the car] after it had been sold to Garrett Gaddis.” Id. at 347. Auto-Owners argued further, “[a]ny restrictions placed on the use of the [car] were decided by Garrett Gaddis or Garrett’s father, Scott Gaddis.” Id. at 347-48. Without evidence that Scott was acting on behalf of the dealership when he took the car keys away from Garrett, we cannot say that the issue of permission has been resolved as a matter of law. We hold that there is a genuine issue of material fact regarding whether Garrett operated the car with the dealership’s permission at the time of the accident and whether Garrett was, then, an insured under the garage liability policy.

Conclusion

We hold that the trial court did not err when it granted Foster’s motion for extension of time, which was timely filed under Trial Rule 56(C). Accordingly, we cannot say that the trial court abused its discretion when it denied Auto-Owners’ motion to strike Foster’s response. And while the trial court should have stricken the four challenged exhibits Foster submitted as designated evidence, Auto-Owners has not shown prejudice in that the other eleven exhibits are sufficient to establish a genuine issue of material fact. Finally, we agree with the trial court that there exist genuine issues of material fact whether Garrett owned the car and whether Garrett was an insured under the garage liability policy. The trial court did not err when it denied Auto-Owners’ summary judgment motion.

Affirmed.

KIRSCH, J., and MAY, J., concur.

      . The record does not reveal why the trial court shortened the deadline to respond. Indiana Trial Rule 56(C) provides that adverse parties shall have thirty days "after service of the motion to serve a response and any opposing affidavits.”

      . The parties agree that there is no coverage available under the commercial liability policy. The dispute, then, involves only the garage liability policy.

      . In opposition to summary judgment, Foster designated several portions of exhibits previously designated by Auto-Owners in support of its summary judgment motion.

      . According to the bill of sale, Garrett paid $535 for the car, and, following the accident, the car sold at auction for $1,465.


author: VAIDIK, Judge. CRONE, Judge, BRADFORD, Judge,

text:
    F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually, Appellants-Plaintiffs, v. INDIANA DEPARTMENT OF FAMILY SERVICES, Vanderburgh County Office of Family and Social Services, Evansville Police Department and Vanderburgh County Prosecutor’s Office, Appellees-Defendants.
    No. 82A01-1109-CT-432.
    Court of Appeals of Indiana.
    Aug. 30, 2012.
    Adam J. Sedia, Rubino, Ruman, Cros-mer, Smith, Sersic & Polen, Dyer, IN, Attorney for Appellants.

      David L. Jones, Robert W. Rock, Evansville, IN, Attorneys for Appellee, Evansville Police Department.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Department of Child Services.
   OPINION

VAIDIK, Judge.

Case Summary

M.D. (Mother) and J.D. (collectively, “the parents”) appeal the trial court’s decision to grant summary judgment in favor of the Department of Child Services (Child Services) and the Evansville Police Department (the Police Department) for Child Services’ and the Police Department’s failure to inform them of their daughter’s molestation. The trial court based its decision on the grounds of immunity under both the Indiana Tort Claims Act and Indiana Code section 31-33-6-1, one of Indiana’s child abuse reporting statutes. However, we find that the Police Department is not a proper party to this case. We also hold that Indiana Code section 31-33-18-4, the statute the parents say gives rise to Child Services’ duty to notify them of their daughter’s molestation, does not confer a private right of action. We therefore affirm the trial court.

Facts and Procedural History

On June 17, 2007, four-year-old T.D. (Son) informed the parents that L.C. (Juvenile), his twelve-year-old cousin, had touched his penis. Mother reported the abuse to Child Services, and Child Services compiled a preliminary report of alleged child abuse or neglect. Melissa Cage was the caseworker assigned to the file. Cage initiated an investigation and conducted an interview with Son. She also conducted interviews with G.D. and F.D. (Daughter), Son’s two-year-old twin sisters. Neither sister indicated during their interviews with Cage that they had been touched inappropriately.

Child Services referred the matter to the Police Department for investigation, and Detective Jeffrey Minto interviewed Juvenile. During this interview, Juvenile admitted touching Son, along with three other cousins, M.H., B.H., and Daughter. Detective Minto informed Child Services of Juvenile’s admission. Cage told Detective Minto that she would contact the newly named victims and let him know if one of those victims indicated being molested by Juvenile. Detective Minto took no further action with respect to the other victims.

On July 11, 2007, the Police Department referred Juvenile’s case to the Vander-burgh County Juvenile Court in an action entitled In re L.C. with the cause number 82D01-0707-JV-751. On July 26, 2007, Juvenile Probation Officer Bernie Faraone conducted an interview with Juvenile who was accompanied by his mother. Mother — Juvenile’s aunt and mother of Son and Daughter — showed up later to the interview and was only present for the portion of the proceedings in which she was asked to give her thoughts on the proper disposition of Juvenile’s case. Mother was not informed that Juvenile had admitted molesting Daughter.

On August 2, 2007, Child Services interviewed two of Juvenile’s other alleged victims, M.H. and B.H. Cage informed M.H. and B.H.’s mother about the alleged contact with Juvenile.

On August 27, 2007, Juvenile was adjudicated a delinquent and placed on probation for nine months. Neither Child Services nor the Vanderburgh County Prosecutor’s Office (the Prosecutor’s Office) informed Mother about the adjudication. Mother did not become aware that Juvenile had admitted molesting Daughter until nearly a year later on July 31, 2008. A week later, Cage confirmed to Mother that Juvenile had in fact admitted molesting Daughter.

Mother asked the Police Department for the documents regarding the case. She was informed that the records were with the Prosecutor’s Office and the case had been disposed. The parents filed suit against Child Services, the Police Department, and the Prosecutor’s Office for failing to notify them of the alleged molestation of Daughter. The trial court granted summary judgment in favor of all three governmental entities, finding that Child Services and the Police Department were immune under the Indiana Tort Claims Act (ITCA) and Indiana Code section 31-33-6-1 and the parents failed to designate any genuine issue of material fact in their claims against the Prosecutor’s Office.

The parents now appeal the trial court’s decision as to Child Services and the Police Department only.

Discussion and Decision

The parents contend that the trial court erred in granting summary judgment in favor of Child Services and the Police Department, finding that they were immune for their actions under both the ITCA, specifically Indiana Code sections 34-13-3 — 3(6)—(8), and Indiana’s child abuse reporting statute, Indiana Code section 31-33-6-1. The parents also contend that the underlying facts of this case present genuine issues of material fact. Although the trial court did not discuss the underlying negligence claim because it found immunity, the parents argue we should reverse summary judgment on this ground. However, we find that the Police Department is not a proper party to this suit and Indiana Code Section 31-33-18-4, the child abuse notice statute that the parents say gives rise to Child Services’ duty to notify them of Daughter’s molestation, does not provide a private right of action.

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).

I. Police Department Not a Proper Party

The Police Department argues that it is not a proper party to this litigation because it is “merely a vehicle through which the city government of Evansville fulfills its policy functions and public safety functions.” Appellee Police Department’s Br. p. 9. The parents do not dispute the merits of this argument, instead arguing that the trial court

Made no findings or conclusions that [the Police Department] was an improper party to the suit, and instead operated under the presumption that the party to the suit was “the city of Evansville, acting by and through the [Police Department].” It could not have reached its determination of immunity otherwise. Rather than cross-appealing the [trial court] on this issue, [the Police Department] asserts waiver where there is no error to be waived. Accordingly, the issue is not properly before the Court.

Appellant’s Br. p. 4 (citations to appendix omitted).

However, “[w]e may affirm the trial court’s grant of summary judgment upon any basis supported by the record.” Boushehry v. City of Indianapolis, 931 N.E.2d 892, 895 (Ind.Ct.App.2010). It is undisputed that the Police Department “ ‘is merely a vehicle through which the city government fulfills its policy functions and is not a proper party defendant.’ ” Slay v. Marion Cnty. Sheriff's Dept., 603 N.E.2d 877, 887 (Ind.Ct.App.1992) (quoting Jones v. Bowman, 694 F.Supp. 538, 544 (N.D.Ind.1988)), trans. denied. Since a non-existent legal entity “cannot be sued or brought into court by summons or otherwise,” Rich v. Fidelity Trust Co. of Indianapolis, 137 Ind.App. 619, 632, 207 N.E.2d 850, 858 (1965), we affirm the trial court’s grant of summary judgment in favor of the Police Department on this ground.

II. Private Right of Action

The parties do not make arguments about the existence of a private right of action in this case. However, because the issue is supported by the record, it is appropriate for our review since “[w]e may affirm the trial court’s grant of summary judgment upon any basis supported by the record.” Boushehry, 931 N.E.2d at 895. The parents claim that Child Services was negligent because it failed to comply with Indiana Code section 31-33-18-4 by not notifying them of their daughter’s molestation.

Indiana Code section 31-33-18^1 states in relevant part:

(a) Whenever a child abuse or neglect assessment is conducted under this article, the department] shall give verbal and written notice to each parent, guardian or custodian that:
(1) the reports and information described under section 1 of this chapter relating to the child abuse or neglect assessment; and
(2) if the child abuse or neglect allegations are pursued in juvenile court, the juvenile court’s records described under IC 31-39;
are available upon the request of the parent, guardian, or custodian except as prohibited by federal law.

But Child Services can be liable for failure to comply with this statute only if the statute confers a private right of action on the parents. Accordingly, “the question to be determined is whether the statute confers a private right of action.” C.T. v. Gammon, 928 N.E.2d 847, 852 (Ind.Ct.App.2010). A private right of action can be explicit, “providing that persons with appropriate standing are entitled to go to court and ask for enforcement of a statute’s provisions,” or the court can find that the legislature intended that a private right of action is implied. Blanch v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind.2005).

Since there is no explicit private right of action in this statute, we must discern whether the legislature intended that there be one. Certain rules have been developed for attempting to determine legislative intent in these situations; “[a] broad formulation of these rules is that a private cause of action generally will be inferred where a statute imposes a duty for a particular individual’s benefit but will not be where the Legislature imposes a duty for the public’s benefit.” Id. (citing Americanos v. State, 728 N.E.2d 895 (Ind.Ct.App.2000), trams, denied). The purpose of Article 38 is to:

(1) encourage effective reporting of suspected or known incidents of child abuse or neglect;
(2) provide effective child services to quickly investigate reports of child abuse or neglect;
(3) provide protection for an abused or a neglected child from further abuse or neglect;
(4) provide rehabilitative services for an abused or a neglected child and the child’s parent, guardian, or custodian; and
(5) establish a centralized statewide child abuse registry and an automated child protection system.

Ind.Code § 31-33-1-1. As was held by this Court, “A review of the twenty-one sections of the act reveals the primary thrust as establishing child protection services and community protection teams, the contents and handling of their investigations and written reports, and the provision of necessary services to affected children and their families (including removal from a home and/or criminal prosecutions where warranted).” Borne by Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind.Ct.App.1989), trans. denied. The legislature’s aim, therefore, is to create a more effective, efficient, and accessible system to deal with the issue of child abuse and neglect for the public’s benefit as a whole, not just for a particular individual’s benefit.

Additionally, in Americanos, we specifically held that “when the legislative purpose is general in nature, the mere fact that statutory language refers to a class of people does not create a private cause of action.” 728 N.E.2d at 898. Therefore, despite the fact that the statute refers to a class of people, specifically abused or neglected children, that does not mean that the statute is for an individual’s benefit. Citing to Borne, this Court in Americanos also noted that we had “declined to find a private cause of action in similar circumstances. For example, in Borne v. N.W. Allen County School Corp., ... the court held that the statute did not create a private cause of action. Rather, the statute was designed to encourage effective reporting of child abuse and establish child protective services.” As a result, given that the legislature did not explicitly create a private cause of action and the intent of the statute is to benefit the public generally, we again refuse to create a private right of action where one does not exist.

Further, while this particular statute has not been examined to determine if it confers a private right of action, this Court has previously held that the legislature did not intend to confer a private right of action for any breach of the duty to report child abuse created by the reporting statutes also found under Indiana Code article 31-33. C.T., 928 N.E.2d at 853; Borne, 532 N.E.2d at 1203. In C.T., a father sued his child’s doctor for medical malpractice because the doctor failed to report the child’s mother to the proper authorities for exposing their respiratory-challenged child to second-hand smoke. The father argued that the child’s exposure to the secondhand smoke was child abuse or neglect and the doctor’s failure to report was a violation of Indiana Code section 31-33-5-1, which requires an individual who has reason to believe a child is a victim of child abuse or neglect to make a report to either Child Services or the local law enforcement agency. Finding there is no explicit private right of action in Indiana Code section 31-33-5-1, and after a review of relevant case law from Indiana and other states, we held that the legislature did not intend there to be a private right of action under the child abuse reporting statute. C.T., 928 N.E.2d at 854. We held that “[a]bsent codification, we are not convinced that extending a civil remedy to a victim of abuse or neglect against all persons who know of child abuse and fail to report child abuse is a good public policy.” Id.

Therefore, since the statutory duty imposed under Indiana Code section 31 — 33— 18-4 is for the public’s benefit, we have explicitly held that there is no private right of action for failure to report child abuse, and we have expressed a reluctance to create a private right of action absent codification in this area, we hold that the parents do not have a private right of action and that the trial court therefore did not err in granting summary judgment in favor of Child Services.

However, this is not meant to suggest that we condone the way that this matter was handled by Child Services and the Police Department. We sympathize with the parents and understand their frustration that they were not informed that their daughter had been molested until a year after the fact. However, our legislature has not afforded a private right of action in these situations, so we must hold accordingly.

III. Indiana Tort Claims Act

Nevertheless, if the parents did have a private right of action under Indiana Code section 31-33-18^4, Child Services is still immune under the ITCA because its actions in this case constitute the initiation of a judicial proceeding. Therefore, the trial court’s grant of summary judgment should be affirmed on the grounds of governmental immunity as well.

After the abrogation of common-law governmental immunity that was completed with the decision in Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972), the Indiana General Assembly enacted the ITCA, which “established extensive immunity provisions which shield governmental units from liability even in those cases where a common law duty of care exists.” Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind.1999). The ITCA applies to “governmental entities,” which the parties do not dispute that Child Services and the Police Department are. Appellant’s Br. p. 7. The trial court granted summary judgment for Child Services, finding three subsections of the ITCA applicable to its actions. If Child Services is immune under any subsection of the ITCA, then it may not be held liable to the parents. The issue of immunity under the ITCA is a question of law that is reviewed de novo. Chenoweth v. Estate of Wilson, 827 N.E.2d 44, 48 (Ind.Ct.App.2005).

Child Services is immune under Indiana Code section 34-13-3-3(6) of the ITCA. Section 34-13-3-3(6) states: “A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from the following: ... (6) The initiation of a judicial or an administrative proceeding.” In the context of the ITCA, a judicial proceeding is defined as “a proceeding ‘for the purpose of obtaining such a remedy as the law allows.’ ” Clifford v. Marion Cnty. Prose cuting Attorney, 654 N.E.2d 805, 808 (Ind.Ct.App.1995) (quoting Bd. of Comm'rs of Hendricks Cnty. v. King, 481 N.E.2d 1327, 1330 (Ind.App.1985)).

The parents argue that this subsection is only intended to confer prosecutorial immunity, rendering it inapplicable to Child Services. However, while “the majority of decisions focusing upon subsection [(6)] have considered immunity as it relates to allegations of malicious prosecution,” that is not the only situation in which it is applicable. Ind. Dep’t of Fin. Inst. v. Worthington Bancshares, Inc., 728 N.E.2d 899, 902 (Ind.Ct.App.2000), reh’g denied, trans. denied. For example, in Worthing-ton Bancshares, we found this subsection to be applicable to the Department of Financial Institution when it closed down a bank it deemed to be operating in an unsound and unsafe manner. Id. Based on the plain language of the statute and its past application to proceedings outside of criminal prosecutions, it is applicable to situations other than malicious prosecutions.

In this case, Juvenile was adjudicated a delinquent for child molesting, Appellant’s App. p. 67, and child delinquency actions are judicial proceedings. Ind.Code § 31-30-1-1(1). Child Services, the Police Department, the Probation Department, and the Prosecutor’s Office all initiated this proceeding. Child Services, through Cage, as part of its duties to protect children, began the investigation by interviewing the victims of the molestations. Child Services then properly referred this matter to the Police Department for further investigation. In turn, the Police Department referred the matter to the Probation Department before the Prosecutor’s Office filed a delinquency petition. While it was the Prosecutor’s Office that finally filed the paperwork that initiated the legal proceedings against Juvenile, all agencies in the chain worked together before the filing of the paperwork to reach this result. Without the contributions of all these agencies, there could have been no legal action taken. Cage’s actions were therefore part of the initiation of the delinquency proceeding, placing them directly under Section 34-13-3-3(6).

Additionally, Indiana Code section 31-33-14-1 states:

If the ... department determines that the best interests of the child require action in the juvenile or criminal court, the department shall:
(1) refer the case to the juvenile court under IC 31-34-7; or
(2) make a referral to the prosecuting attorney if criminal prosecution is desired.

This statute mandates that Child Services must refer a case to the juvenile court or make a referral to the prosecutor if it is in the best interest of the harmed child to do so. Therefore, Child Services has a statutorily mandated role in the initiation of judicial proceedings in the context of child abuse and neglect. As a result, the trial court did not err in finding that Child Services was immune for its actions under this subsection (6) of the ITCA.

Affirmed.

CRONE, J., concurring in part and dissenting in part with separate opinion.

BRADFORD, J., concurring in part, dissenting in part, and concurring in result with separate opinion.

CRONE, Judge,

concurring in part and dissenting in part.

I agree with the majority’s affirmance of summary judgment in favor of the Police Department. I respectfully disagree, however, with the majority’s affirmance of summary judgment in favor of Child Services on the basis that Indiana Code Section 81-33-18-4 does not confer a private right of action — an issue that was not argued by the parties below. I also disagree with Judge Vaidik’s (and the trial court’s) determination that Child Services is entitled to statutory immunity in any event.

I. Private Right of Action

The majority acknowledges that “[t]he parties do not make arguments about the existence of a private right of action in this case” but nevertheless insists that the issue “is appropriate for our review since ‘[w]e may affirm the trial court’s grant of summary judgment upon any basis supported by the record.’ ” Op. at 1189 (quoting Boushehry, 931 N.E.2d at 895). Although this language appears in many appellate opinions, I believe that, except in limited circumstances, we should refrain from affirming summary judgment on a basis that was not argued by the parties below. See, e.g., Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219, 224 (Ind.Ct.App.2006) (“We may affirm the grant of summary judgment upon any basis argued hy the parties and supported by the record.”) (emphasis added). Doing otherwise may cast some doubt on the impartiality of this Court and deprives the other side of an opportunity to debate the issue. I believe that affirming summary judgment in favor of Child Services on the basis of a complicated issue that it neither raised nor litigated in this circumstance is both unfair and unwise. See Richardson v. Calderon, 713 N.E.2d 856, 863 (Ind.Ct.App.1999) (“Generally, we will consider only those issues which were briefed and argued by the parties before the trial court and which the trial court considered and ruled upon.”).

Indeed, I believe that a compelling argument can be made that Indiana Code Section 31-33-18-4 does implicitly create a private right of action. The majority acknowledges that “ ‘a private cause of action generally will be inferred where a statute imposes a duty for a particular individual’s benefit but will not be where the Legislature imposes a duty for the public’s benefit.’ ” Op. at 1190 (quoting Blanch, 829 N.E.2d at 509). It seems obvious to me that the duty imposed by Section 31-33-18-4 on Child Services to notify a child’s parents about the availability of “reports and information ... relating to the child abuse or neglect assessment” inures specifically to the benefit of a particular individual, i.e., an abused child, and not to the general public. Having access to reports and information regarding the abuse enables parents to protect and obtain the necessary rehabilitative services for their child.

On a similar note, because the duty imposed by Indiana Code Section 31-33-18-4 applies specifically to Child Services, I am unpersuaded by the majority’s reliance on C.T. and Borne, which involved child abuse reporting statutes that apply to the general public. In Borne, the court held that “the legislature did not intend to confer a private right of action for breach of the duty to report [suspected child abuse or neglect] imposed by” what are now Indiana Code Sections 31-33-5-1 and -4, concluding that it would “misdirect judicial time and attention from the very real problems of children in need of services in favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report.” 532 N.E.2d at 1203. The Parents correctly point out that Child Services is “far from” one of the “collateral individuals” mentioned in Borne and instead is one of the “primary organizations responsible for handling reports of child abuse and neglect.” Appellants’ Br. at 20. In fact, it is the only organization responsible for informing parents about the availability of reports and information regarding child abuse pursuant to Indiana Code Section 31-33-18-4. Whereas members of the general public may be criminally prosecuted for failing to report suspected child abuse, Ind.Code § 31-33-22-1, no similar incentive is available to compel Child Services to fulfill its statutory duty to notify a child’s parents about the availability of “reports and information ... relating to the child abuse or neglect assessment” pursuant to Indiana Code Section 31-33-18-4.

Based on the foregoing, I would conclude that Indiana Code Section 31-33-18-4 implicitly creates a private right of action against Child Services, or, at the very least, that the issue is an inappropriate basis for affirming summary judgment in favor of Child Services in this appeal.

II. Statutory Immunity

Assuming that Indiana Code Section 31-33-18-4 creates a private right of action against Child Services (or that Child Services has waived any contrary argument by failing to raise it below), I would hold that the trial court erred in ruling that Child Services is entitled to statutory immunity for the Parents’ negligence claims. To prevail on a negligence claim, the plaintiff must prove the following: “(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004). “Duty is a question of law for the court to decide. Absent a duty, there can be no breach of duty and thus no negligence or liability based upon the breach.” Id. “A duty may arise from common law principles of negligence or from the violation of a statute.” Nat’l R.R. Passenger Corp. v. Everton by Everton, 655 N.E.2d 360, 364 (Ind.Ct.App.1995), trans. denied (1996).

Duty is closely linked to immunity, which is the basis for the trial court’s ruling in favor of Child Services. “To say [a] governmental entity is immune for acts or omissions in described areas is the functional equivalent of asserting the entity has no duty to anyone in carrying out those activities.” King v. Ne. Security, Inc., 790 N.E.2d 474, 479 (Ind.2003). Our supreme court has explained that the ITCA allows suits against governmental entities

for torts committed by their employees but grants immunity under the specific circumstances enumerated in Indiana Code section 34-13-3-3. Whether a governmental entity is immune from liability under the ITCA is a question of law for the court to decide. Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity. The party seeking immunity bears the burden of establishing that its conduct comes within the ITCA.

Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 975 (Ind.2001) (citations omitted). “Immunity, whether under Indiana common law or the ITCA, assumes negligence but denies liability.” Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind.2011).

Indiana Code Section 34-13-3-3 reads in pertinent part as follows:

A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from the following:
(6) The initiation of a judicial or an administrative proceeding.
(7) The performance of a discretionary function; however, the provision of medical or optical care as provided in IC 34-6-2-38 shall be considered as a ministerial act.
(8) The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.

(Emphasis added.) The trial court found that Child Services is entitled to immunity on all three grounds, which are addressed below. .

First, the court concluded that Child Services is entitled to immunity pursuant to Indiana Code Section 34-18-3-3(6) because Child Services, “by and acting through” Cage, “participated in” L.C.’s juvenile proceeding “by investigating the reports of suspected abuse against L.C. and relaying those findings to the [Police Department] pursuant to its protocols.” Appellants’ App. at 32. I respectfully disagree. Indiana Code Section 34-13-3-3(6) confers immunity for a governmental entity’s “initiation of,” not participation in, “a judicial or an administrative proceeding.” As the Parents correctly observe, Child Services had no authority to initiate the juvenile proceedings against L.C; only the prosecutor had authority to do so. See Ind.Code § 31-37-10-1 (“The prosecuting attorney may file a petition alleging that a child is a delinquent child.”). As such, I would find no basis for granting Child Services immunity pursuant to Indiana Code Section 34-13-3-3(6). See Ind. Dep’t of Fin. Insts., 728 N.E.2d at 902 (“The majority of decisions focusing upon [Indiana Code Section 34-13-3-3(6) ] have considered immunity as it relates to allegations of malicious prosecution. In those cases, our courts have held that in order to promote the efficient function of law enforcement, officers should be free from fear of liability for the initiation of criminal proceedings. Without immunity for such decisions, the system of law enforcement would break[]down resulting in the obstruction of the proper and efficient administration of justice.”), trans. denied. Moreover, the Parents’ alleged losses did not result from the initiation of a judicial or an administrative proceeding or from Child Services’ participation therein, but rather from Cage’s failure to comply with the relevant child abuse assessment statutes, which is addressed more fully below. For all these reasons, I would conclude that Indiana Code Section 34-13-3-3(6) is inapplicable here.

Next, the trial court determined that Child Services, “by and acting through” Cage, “was investigating a report of suspected child abuse and in so doing, exercised discretion in carrying out her duties,” and therefore is entitled to immunity pursuant to Indiana Code Section 34-13-3-3(7). Appellants’ App. at 32. Again, I respectfully disagree. As this Court explained in Gary Community School Corp. v. Boyd, 890 N.E.2d 794 (Ind.Ct.App.2008), trans. denied,

In Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 45 (Ind.1988), our Supreme Court developed the “planning/operational” test for determining whether a particular function is discretionary. Through this test, we distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity. The critical inquiry is not merely if judgment was exercised, but if the nature of the judgment called for policy considerations.

Id. at 800 (citations and some quotation marks omitted).

Here, the Parents’ alleged losses did not result from any decisions involving the formulation of basic policy, but rather from Cage’s failure to comply with the mandates of the relevant child abuse assessment statutes. Indiana Code Section 31-33-8-6 provides that Child Services “shall promptly make a thorough assessment upon” a report of suspected child abuse or neglect. (Emphasis added.) Indiana Code Section 31-33-18-4(a) provides that Child Services “shall give verbal and written notice to each parent” of the availability of “reports and information ... relating to the child abuse or neglect assessment.” (Emphasis added.)

It is well settled that “when the word ‘shall’ appears in a statute, we construe it as mandatory rather than discretionary unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning.” Taylor v. Ford Motor Co., 944 N.E.2d 78, 82 (Ind.Ct.App.2011), trans. denied. Assuming as I must for purposes of summary judgment that Detective Minto told Cage in July 2007 that L.C. admitted molesting F.D., Cage was required by statute to “promptly make a thorough assessment” of the report and give verbal and written notice to the Parents that the report and information relating to the assessment were available upon request. Her alleged failure to do so does not entitle Child Services to discretionary immunity pursuant to Indiana Code Section 34-13-3-3(7).

Finally, the trial court found that Child Services is entitled to immunity pursuant to Indiana Code Section 34-13-3-3(8), which involves a governmental entity’s failure to adopt or enforce a law, including rules and regulations. I agree with the Parents that paragraph (8) does not apply to Child Services for any number of reasons, among which are that Child Services is not responsible for either adopting or enforcing laws and that the alleged losses did not result from any alleged failure by Child Services to adopt or enforce a law. Cf. Davis v. Animal Control—City of Evansville, 948 N.E.2d 1161, 1164 (Ind.2011) (“[T]he critical determination is not whether a governmental entity failed to follow procedures; it is whether a governmental entity or employee failed to enforce a law.”). In sum, then, I would hold that Child Services is not entitled to immunity pursuant to the ITCA.

In its summary judgment ruling, the trial court also found that Child Services is entitled to immunity pursuant to Indiana Code Section 31-33-6-1, which says,

Except as provided in section 2 of this chapter [which pertains to “a person who has acted maliciously or in bad faith”], a person, other than a person accused of child abuse or neglect, who:
(1) makes or causes to be made a report of a child who may be a victim of child abuse or neglect;
(2) is a health care provider and detains a child for purposes of causing photographs, x-rays, or a physical medical examination to be made under IC 31-33-10;
(3) makes any other report of a child who may be a victim of child abuse and neglect; or
(4) participates in any judicial proceeding or other proceeding:
(A) resulting from a report that a child may be a victim of child abuse or neglect; or
(B) relating to the subject matter of the report;
is immune from any civil or criminal liability that might otherwise be imposed because of such actions.

Specifically, the trial court found that Child Services is entitled to immunity because it “participated” in L.C.’s delinquency proceeding by investigating the allegations against him. I cannot agree. Indiana Code Section 31-33-6-1 is inapplicable because the Parents do not seek to impose liability on Child Services because of its participation (if any) in the delinquency proceeding, but rather because of its failure to provide the Parents with any information regarding F.D.’s molestation. As such, I would hold that Child Services is not entitled to statutory immunity on any basis.

Yet to be determined is whether Child Services is entitled to summary judgment as to any of the elements of the Parents’ negligence claims. See Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011) (“Summary judgment is appropriate when the moving party demonstrates that there are no genuine issues of material fact with respect to a given issue or element of a claim.”). The Parents contend that “the duty alleged to have been breached is imposed by statute specifically on government entities.” Appellants’ Br. at 20. The unexcused or unjustified violation of a statutory duty “constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred as a result of its violation.” Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind.Ct.App.1999), trans. denied (2000).

As for statutory duties, the Parents first observe that “an individual who has reason to believe that a child is a victim of child abuse or neglect” must “immediately make an oral report” to either Child Services or “the local law enforcement agency.” Ind. Code §§ 31-33-5-1, -4. They further observe that Child Services must “promptly make a thorough assessment upon the ... report. The primary purpose of the assessment is the protection of the child.” Ind.Code § 31-33-8-6. Finally, they note that Indiana Code Section 31-33-18-4 says,

Whenever a child abuse or neglect assessment is conducted under this article, the department [Child Services] shall give verbal and written notice to each parent, guardian, or custodian of the child that:
(1) the reports and information described under section 1 of this chapter relating to the child abuse or neglect assessment; and
(2) if the child abuse or neglect allegations are pursued in juvenile court, the juvenile court’s records described under IC 31-39;
are available upon the request of the parent, guardian, or custodian except as prohibited by federal law.

Ind.Code § 31-33-18 — 4(a).

The Parents contend that, pursuant to the foregoing statutes, “Cage and Minto were obligated to report L.C.’s molestation of F.D., and [Child Services] was obligated to conduct a thorough assessment and provide oral and written notice to [the Parents] that the information compiled as part of that assessment [was] available to them.” Appellants’ Br. at 20-21. At this point, it is important to note that a genuine issue of material fact exists regarding whether Detective Minto reported to Cage that L.C. admitted to molesting F.D. According to both Detective Minto and his supervisor, Sergeant Debbie Thompson, Detective Minto informed Cage about L.C.’s admissions regarding the additional molestations; Cage said that she would interview the alleged victims and contact him if they made any disclosures. According to Cage, however, she and Child Services did not learn about L.C.’s admission regarding F.D. until August 5, 2008, when she was contacted by Mother. In any event, it is undisputed that neither the Police Department nor Child Services notified the Parents about L.C.’s admission regarding F.D.

If Detective Minto did not inform Cage that L.C. admitted to molesting F.D., then one could argue that the Police Department prevented Child Services from fulfilling its statutory duty to promptly make an assessment and to notify the Parents regarding the availability of the reports and information relating to the assessment. If Detective Minto did in fact notify Cage, then one could argue that Child Services is solely responsible for failing to notify the Parents. All of this goes to say, however, that summary judgment in favor of Child Services would be inappropriate as to either duty or breach of duty. The same may be said for proximate cause, damages, and contributory negligence,’ all of which are issues “more appropriately left for the determination of a trier of fact.” Florio v. Tilley, 875 N.E.2d 253, 256 (Ind.Ct.App.2007) (proximate cause and contributory negligence); Bennett v. Broderick, 858 N.E.2d 1044, 1051 (Ind.Ct.App.2006) (damages), trans. denied (2007). In sum, then, I would reverse the trial court’s grant of summary judgment in favor of Child Services and remand for further proceedings.

BRADFORD, Judge,

concurring in part, dissenting in part, and concurring in result.

I agree with Judges Vaidik and Crone that the Evansville Police Department is not a proper party to this action. I also agree with Judge Vaidik’s conclusion that the plaintiffs do not have a private right of action against Child Services arising from the latter’s failure to comply with Indiana Code section 31 — 33—18—4. Having determined that plaintiffs have no private right of action against Child Services, however, it is not necessary to determine if the ITCA confers statutory immunity on Child Services. Therefore, I cannot join in section III of Judge Vaidik’s opinion, in which the question is addressed. Moreover, even if it were necessary to address the question of statutory immunity, I cannot agree with Judge Vaidik’s conclusion that Child Services would be granted immunity by Indiana Code subsection 34-13-3-3(6). For the reasons stated by Judge Crone in section II of his opinion, I would hold that Child Services is not conferred immunity by subsection 34-13-3-3(6).

      . The parents initially brought suit against the Indiana Department of Family Services and the Vanderburgh County Office of Family and Social Services. Both parties were later substituted by the Indiana Department of Child Services by amendment, but the caption never reflected this change.

      . "Department” refers only to Child Services, Ind.Code § 31-25-2-1, so the Police Department had no statutory duty to notify parents of child abuse or neglect. We do note, however, that while there was no such statutory duty for the Police Department at the time of these events, a statutory requirement that reasonable efforts be made by a police department to notify the parents when their child has been named as the victim in a written report of a crime was put into effect on July 1, 2011. Ind.Code § 5-2-18-3.

      . The act referred to in Borne was codified at Indiana Code sections 31-6-11-1 et seq. This article has since been recodified at Indiana Code article 31-33. 1997 Ind. Legis. Serv. P.L. 1-1997 (West).

      . Indeed, Child Services admits that it "has never alleged that law enforcement immunity applies to it.” Child Services’ Br. at 10.

      . Child Services asserts that the Parents made no argument regarding Indiana Code Section 31-33-18-4 before the trial court or in their original appellants’ brief and thus have waived any such argument. Child Services’ Br. at 9 n. 5. On the contrary, the Parents referenced the statute in paragraph 15 of their complaint and quoted it on page 20 of their original brief. As such, I find no merit in Child Services’ waiver argument.

      . In their brief, Parents assert that ‘'on July 2, 2007, Minto himself observed an interview that Cage conducted of L.C. At that interview, L.C. disclosed that he had molested other victims, and gave their identities. L.C. named F.D. among those other victims at that time.” Appellants' Br. at 3 (citing Appellants’ App. at 55). My review of the cited document, which comprises four pages of Detective Minto’s deposition, indicates that this assertion is inaccurate. Detective Minto said that he observed Cage interview T.D., not L.C. Appellants’ App. at 55. He then said that he had only one interview with L.C, on July 2, 2007, during which L.C. admitted to molesting F.D., B.H., and M.H. Id. According to Detective Minto, he then "informed Melissa Cage,” who in turn "informed [him] she would be going out to interview” the other victims. Id. The Police Department does not contend that L.C.’s admission was insufficient to give Detective Minto reason to believe that F.D. was the victim of child abuse for purposes of Indiana Code Section 31-33-5-1. Nor does the Police Department contend that Detective Minto did not have a duty to report the abuse to Child Services pursuant to Indiana Code Section 31-33-5-4.

      . Child Services says that
      Cage completed a form in 2008 with respect to the additional allegation of abuse [regarding F.D.]. The date on the report is June 25, 2007. Cage entered this date pursuant to her supervisors' instructions so the dat[a]base would have complete information and to reflect the date [the Police Department] conducted the interview.
      Child Services’ Br. at 3 n. 4 (citations to appendix omitted).