text:
    VEOLIA WATER INDIANAPOLIS LLC, City of Indianapolis Department of Waterworks, and City of Indianapolis, Appellants-Defendants, v. NATIONAL TRUST INSURANCE COMPANY and FCCI Insurance Company a/s/o Ultra Steak, Inc. d/b/a Texas Roadhouse, Appellees-Plaintiffs.
    No. 49A04-1108-PL-412.
    Court of Appeals of Indiana.
    Aug. 3, 2012.

      Matthew W. Melton, Peter A. Schroeder, Cynthia E. Lasher, Norris Choplin Schroeder LLP, Indianapolis, IN, Attorneys for Appellant Veolia Water Indianapolis LLC.
    Karl L. Mulvaney, Brian W. Welch, Carl A. Hayes, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellants City of Indianapolis Department of Waterworks and City of Indianapolis.
    Karen L. Arland, Ice Miller LLP, Indianapolis, IN, Jo Angela Woods, Indiana Association of Cities and Towns, Indianapolis, IN, Attorneys for Amici Curiae Indiana Association of Cities and Towns and Indiana Municipal Lawyers Association.
    Robert A. Smith, Ary Avnet, Smith & Wade, LLP, Noblesville, IN, Attorneys for Appellees.
   OPINION

CRONE, Judge.

Case Summary

On January 4, 2010, there was a fire at a Texas Roadhouse restaurant (“the Restaurant”) in Indianapolis. The Indianapolis Fire Department responded promptly, but discovered that the fire hydrants in the surrounding four blocks were frozen. This allegedly caused a delay of forty-five minutes in fighting the fire. Due to the delay, the Restaurant building was a total loss.

The Restaurant was insured by National Trust Insurance Company and FCCI Insurance Company (collectively, “the Insurers”). On October 7, 2010, the Insurers filed suit against the City of Indianapolis and its Department of Waterworks (collectively, “the City”), as well as Veolia Water Indianapolis LLC (“Veolia,” collectively with the City, “the Appellants”), which at the time had a contract to operate the City’s waterworks. The complaint alleged that the fire hydrants were frozen because the Appellants sold water from the hydrants to private companies, which had failed to properly close the hydrants after using them. The City filed a motion to dismiss, and Veolia filed a motion for judgment on the pleadings. Both motions claimed that the Appellants were entitled to immunity. The trial court denied the motions in part, concluding that the Appellants’ commercial sale of water took their actions outside the scope of the common law immunity for firefighting. The trial court also found that the Insurers were third-party beneficiaries of Veolia’s contract with the City.

We conclude that both the City and Veolia are entitled to common law immunity, because the common law rule turns on the purpose for which the water is being used, not the underlying cause of the lack of water. We further conclude that the explicit language of the City’s contract with Veolia disavows any intent to create third-party beneficiaries. Therefore, we reverse.

Facts and Procedural History

The Insurers filed a seventeen-count complaint against the Appellants, all based on the allegation that the hydrants froze due to use by private companies and/or unauthorized individuals who failed to properly close the hydrants. The Insurers alleged that the Appellants did not supervise third-party use of the hydrants. The Insurers further alleged that the Appellants were aware that unauthorized individuals would steal water from the hydrants, yet failed to take measures to prevent unauthorized use. The Insurers also alleged that they are third-party beneficiaries to the City’s contract with Veo-lia, which the parties refer to as the “Management Agreement.”

In a recent case involving Veolia, we described Veolia’s contractual relationship with the City as follows:

For over one hundred years, the City of Indianapolis’s (“City’s”) water utility was operated by the Indianapolis Water Company (“IWC”), a private company, through a franchise granted by the City. In 2001, the City created the Department of Waterworks (“the Department”); that same year, the City purchased IWC’s assets and transferred management of the water utility to the Department.
On March 21, 2002, the Department and U.S. Filter Operating Services, Inc., entered into a Management Agreement, transferring responsibility for the operation, management, and maintenance of the water utility to U.S. Filter. U.S. Filter later assigned the Management Agreement to USFilter Indianapolis Water, LLC, and this company later changed its name to Veolia. Under the Management Agreement, the City pays Veolia approximately $40 million per year, plus additional sums if Veolia meets certain incentives. Veolia, incorporated in Delaware, is a wholly-owned subsidiary of Veolia Water North America ..which in turn is a subsidiary of Veolia Environment ..a French corporation with multi-billion dollar annual revenues.

Harrison v. Veolia Water Indianapolis, LLC, 929 N.E.2d 247, 248-49 (Ind.Ct.App.2010), trans. denied.

The City describes the process for selling water from the hydrants as follows:

In the ordinary course of operating the water utility, Veolia licensed access to the City’s hydrants to the City’s customers who had a need for bulk water [such as pool or landscaping companies] so that those customers could purchase water by accessing hydrants located throughout the waterworks system. Sales through the hydrants were accomplished via temporary meters issued to the City’s customers by Veolia. This program permitted licensees with proper equipment to access hydrants and draw off water from the hydrants for commercial purposes.

City’s Br. at 5 (citations and footnotes omitted).

On January 3, 2011, the City filed a motion to dismiss the Insurers’ complaint on the basis that the City was entitled to statutory immunity for the performance of a discretionary function and common law immunity for firefighting. On the same date, Veolia filed an answer and motion for judgment on the pleadings, which argued that Veolia was entitled to common law immunity to the same extent as the City. On March 11, 2011, the trial court heard arguments on the motions. On June 10, 2011, the trial court issued an order partially granting and partially denying the City’s motion to dismiss, as well as an order partially granting and partially denying Veolia’s motion for judgment on the pleadings. The court found that the City was not entitled to immunity under the Indiana Tort Claims Act (“the ITCA”), which immunizes the “performance of a discretionary function.” Ind.Code § 34-13-3-3(7). Specifically, the court found that the City’s policy had been established by the Management Agreement, which required Veolia to maintain the hydrants, and the City had simply failed to execute that policy. The court further found that the City was not entitled to common law immunity because the “commercial sale of water [was] alleged to be the proximate cause for the failure of the infrastructure,” and that activity is “outside the narrow scope of common law immunity granted ... for firefighting purposes.” Appellants’ App. at 27. However, the court concluded that the City was entitled to common law immunity to the extent that the complaint was based on allegations of unauthorized use of the hydrants.

The trial court likewise found that Veo-lia had common law immunity as to the unauthorized use of hydrants, but not with respect to the commercial sale of water. In the order on Veolia’s motion, the trial court highlighted several portions of the Management Agreement, then summarized them as follows:

The Court, after reviewing the contract, finds that Veolia contracted specifically to: 1) provide full and complete; 2) accurate and safe water services to the citizens; 3) to purchase insurance to provide against all property damage that results from their failure to do so for property of others; and 4) to purchase insurance that has a waiver of governmental immunity. All of these contract terms could only be, and are intended to be, for the benefit of third parties.

Id. at 52. Thus, the court concluded that the Insurers were third-party beneficiaries to the Management Agreement.

The City and Veolia each filed motions to reconsider, and alternatively, motions to certify the trial court’s June 10, 2011 orders for interlocutory appeal. The trial court denied the motions to reconsider, but granted the motions to certify the orders for interlocutory appeal. On September 21, 2011, we accepted jurisdiction of the appeal.

Discussion

On appeal, the City argues that it is entitled to immunity pursuant to both the ITCA and the common law. Veolia argues that it is entitled to common law immunity and that the trial court erred by determining that the Insurers were third-party beneficiaries to the Management Agreement. “The party seeking immunity bears the burden of establishing the immunity. If the evidence permits conflicting reasonable inference as to material facts, the governmental unit has failed to establish immunity.” Bules v. Marshall Cnty., 920 N.E.2d 247, 250 (Ind.2010) (citation omitted).

Standards of Review

The City appeals from the denial of a motion to dismiss for failure to state a claim upon which relief can be granted. Our review of a trial court’s grant or denial of a motion to dismiss pursuant to Indiana Trial Rule 12(B)(6) is de novo. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind.2011). A motion to dismiss tests the legal sufficiency of the complaint; that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief. Trail v. Boys & Girls Clubs of Nw. Indiana, 845 N.E.2d 130, 134 (Ind.2006). We accept as true the facts alleged in the complaint, and consider the pleadings in the light most favorable to the plaintiff, drawing every reasonable inference in favor of the non-moving party. Id. However, we need not accept as true allegations that are contradicted by other allegations or exhibits attached to or incorporated in the pleading. Id.

Veolia appeals from a motion for judgment on the pleadings pursuant to Indiana Trial Rule 12(C). For purposes of the motion, Veolia is deemed to have admitted all well-pleaded facts. Nat’l R.R. Passenger Corp. v. Everton by Everton, 655 N.E.2d 360, 363 (Ind.Ct.App.1995), trans. denied. “Like a motion to dismiss for failure to state a claim pursuant to Trial Rule 12(B)(6), a Trial Rule 12(C) motion attacks the legal sufficiency of the pleadings.” Id. The standard of review is also de novo, and we draw all reasonable inferences in favor of the non-moving party. Id. “A judgment on the pleadings is proper only when there are no genuine issues of material fact and when the facts shown by the pleadings clearly establish that the non-moving party cannot in any way succeed under the facts and allegations therein.” Eskew v. Cornett, 744 N.E.2d 954, 956 (Ind.Ct.App.2001), trans. denied. To the extent that interpretation of a contract is involved, “we may look to both the complaint and the attached contract for purposes of determining the appropriateness of the court’s ruling on the motion for judgment on the pleadings.” Id. at 957 (noting that Ind. Trial Rule 9.2(A) requires a written document upon which the action is premised to be attached to the complaint). When allegations of a pleading are inconsistent with terms of a written contract attached as an exhibit, the terms of the contract must prevail over a contrary allegation. Id.

Immunity: Historical Background

The original common law rule in Indiana was that governmental units were immune from liability for their torts unless the court had recognized an exception. Gates v. Town of Chandler, 725 N.E.2d 117, 118 (Ind.Ct.App.2000), opinion on reh’g, trans. denied. As early as 1867, our supreme court recognized the government’s immunity for claims relating to the adequacy of fire protection. See Brinkmeyer v. City of Evansville, 29 Ind. 187, 193 (1867) (“It could not have been intended by the legislature, in conferring on the common council power to organize a fire department, that they should thereby undertake, absolutely, to prevent loss by fire in all cases, or become responsible as insurers in case of failure.”). This included immunity from claims that there was an insufficient supply of water or water pressure. Fitch v. Seymour Water Co., 139 Ind. 214, 218, 37 N.E. 982, 983-84 (1894).

In 1972, our supreme court decided Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972), in which it “reversed the common law presumption to provide that governmental units would be liable for any ‘breach of a duty owed to a private individual,’ that is to say, the duty to use ordinary and reasonable care under the circumstances.” Gates, 725 N.E.2d at 118 (quoting Benton v. City of Oakland City, 721 N.E.2d 224, 227 (Ind.1999)). However, Campbell identified three situations under which common law immunity would be retained:

(1) where a city or state fails to provide adequate police protection to prevent crime; (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision-making is challenged.

Id. at 118-19. In Benton, our supreme court clarified Campbell by stating:

We hold that Campbell is properly applied by presuming that a governmental unit is bound by the same duty of care as a non-governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it should be treated as one as well.

721 N.E.2d at 230.

In 1974, the General Assembly responded to Campbell by enacting the ITCA. The ITCA identifies twenty-four situations in which the State, its agencies, and its political subdivisions enjoy immunity. Ind. Code § 34-13-3-3. At issue in this case is paragraph 7, which provides immunity for the “performance of a discretionary function.”

I. Immunity under ITCA

“Ordinarily, the first step in determining governmental immunity is to look at the Tort Claims Act and decide if the entity is entitled to statutory immunity.” Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352, 358 (Ind.Ct.App.2001). If it is determined that the governmental defendant is not immune under the ITCA, the court then considers whether common law immunity exists. Id. The ITCA was enacted in derogation of the common law as established by Campbell, and therefore must be strictly construed against limitations on a claimant’s right to bring suit. Harrison, 929 N.E.2d 247, 251 (Ind.Ct.App.2010).

Veolia concedes that it is not entitled to immunity under the ITCA. The City, however, claims that it is immune pursuant to Indiana Code Section 34-13-3-3(7), which provides immunity for the “performance of a discretionary function.” In Peavler v. Board of Commissioners of Monroe County, our supreme court adopted the planning/operational test for determining whether an act is discretionary:

Under the planning/operational dichotomy, the type of discretion which may be immunized from tort liability is generally that attributable to the essence of governing. Planning activities include acts or omissions in the exercise of a legislative, judicial, executive or planning function which involves formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy. Government decisions about policy formation which involve assessment of competing priorities and a weighing of budgetary consideration or the allocation of scarce resources are also planning activities.

528 N.E.2d 40, 45 (Ind.1988) (citations omitted). “The critical inquiry is not merely whether judgment was exercised but whether the nature of the judgment called for policy considerations.” Id. (internal quotation omitted).

The City compares this case to Lamb v. City of Bloomington, 741 N.E.2d 436 (Ind.Ct.App.2001). Lamb concerned a fire at a Bloomington apartment complex that resulted in one fatality and substantial property damage. The residents filed a complaint against the city, the mayor, the fire chief, and the fire department. The defendants filed a motion to dismiss, which the trial court granted. The residents appealed and we affirmed. After a lengthy discussion of common law immunity, we noted the pertinent provisions of the ITCA, and then found that each claim was barred by the ITCA, the common law, or both. Specifically, the following claims were found to be barred by Indiana Code Section 34-13-3-3(7):

Count III, obstruction of firefighters’ ability to act, alleges that before the fire, [the mayor and the fire chief] were informed that one of the fire trucks had “serious defects,” yet neither remedied the “dangerous situation.” The allegedly defective truck was one of the vehicles sent to the ... fire. This count was properly dismissed as pertaining to a discretionary function under Indiana Code Section 34-13-3-3(7)[].... Likewise, Count IV, which alleges that Bloomington, [the fire department], and [the fire chief] provided negligent instruction and/or training of the firefighters, was properly dismissed as relating to a discretionary function.
Count VI, negligent maintenance of equipment, and Count VII, intentional failure to maintain equipment, allege that Bloomington and BFD “purchased certain and specific equipment to be used in the performance of ‘fire protection’ and ‘fire suppression’ in and around the City of Bloomington.” These counts further allege that the Appellees “undertook a policy decision not to make needed repairs” to the equipment, hence resulting in damages to the Appellants. Both the common law, see Gates, 725 N.E.2d at 119-20, and Indiana Code Section 34-13-3-3(7) provide immunity to the Appellants for this discretionary policy decision.
Count X, negligent performance of duties as fire chief, alleges that [the fire chief] failed to arrivé on the scene of the ... fire in a timely manner, should have removed defective equipment from active duty, made ill-advised expenditures on training, clothing, and vehicles, and has been ineffective in increasing the number of firefighters. [The fire chief] is immune from suit for these actions in part by the common law and in part by Indiana Code Section 34-13-3-3(7). That is, some of the actions constitute the failure to provide adequate fire protection, while others represent discretionary acts.

Id., 741 N.E.2d at 441-42.

The City argues that the Insurers’ claims are similar to the Lamb plaintiffs’ claim that the city was negligent in its failure to maintain and repair equipment. The City argues that, however characterized, the plaintiffs’ claims relate to the formulation of policy, weighing of competing priorities, and allocation of scarce government resources.

The Insurers distinguish Lamb as follows:

This is not a policy decision as in Lamb, where the City may decide [that it] cannot, in tough economic times, maintain the waterworks infrastructure, which is necessary to the core government function of fire protection. Here, the City did not consciously make a decision to disregard the third-party vendor use of the hydrants due to lack of funds or any other reason. To the contrary, the City actually contracted for a high standard of care regarding its infrastructure from Veolia, as evidenced by the terms of the Management Agreement.... Thus the City simply failed to require Veolia to follow the terms of the Management Agreement or pre-determined policy. The City’s negligence relates only to the failed execution of pre-determined policy; therefore, the City has failed to show that it is entitled to immunity under IC 34-13-3-3(7).

Appellees’ Br. in Response to the City at 13.

The reasoning of Lamb provides us with little guidance. Although Lamb was decided after Peavler, it does not mention the planning/operational test, but summarily labels certain actions as “discretionary,” referencing the ITCA. Although the issue of statutory immunity is generally resolved before considering common law immunity, in this ease, there is a wealth of authority concerning the common law issue and very little guidance on the statutory issue. In this case, we feel it is prudent to resolve the case under the common law rather than the ITCA.

II. Common Law Immunity

A. Immunity for the City

As discussed above, our supreme court abolished common law immunity with three exceptions:

(1) where a city or state fails to provide adequate police protection to prevent crime; (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision-making is challenged.

Gates, 725 N.E.2d at 118-19 (citing Campbell, 259 Ind. at 62-63, 284 N.E.2d at 737). There is also common law immunity for the breach of duties that are so closely akin to one of the limited exceptions that they should be treated as exceptions as well. Id. at 119 (citing Benton, 721 N.E.2d at 230).

The first appellate decision after Campbell to address common law immunity for fire protection was Boyle v. Anderson Fire Fighters Ass’n Local 1262, AFL-CIO, 497 N.E.2d 1073 (Ind.Ct.App.1986), trans. denied. That case concerned a fire that occurred in Anderson while the city’s firefighters were on strike. A few non-striking firefighters responded, but were unable to control the fire. They called for assistance from nearby fire departments, but the striking firefighters initially prevented them from arriving at the site of the fire. Further adding to the chaos, one of the hydrants near the site of the fire was inoperable. While the fire was blazing, most of the property owners in the area were not allowed to enter to retrieve personal property. In the end, the fire destroyed half a city block. The landowners sued the city, the striking firefighters, and their unions. The trial court granted summary judgment for the city, and we affirmed, holding that the City was entitled to both statutory and common law immunity. 497 N.E.2d at 1077-78. As to common law immunity, the Boyle court stated:

Although the issue has not been addressed in many years, the common law in Indiana has long recognized that a municipality is not liable to an owner of property destroyed by fire even though the destruction may have resulted from the City’s failure to provide suitable equipment or an adequate supply of water with which to fight the fire, i.e., insufficient water pressure, insufficient lengths of hose, or improperly functioning hydrants. Larimore v. Indianapolis Water Co.[, 197 Ind. 457, 151 N.E. 333 (1926) ]; Trustees v. New Albany Waterworks][, 193 Ind. 368, 140 N.E. 540 (1923) ]; Robinson v. City of Evansville[, 87 Ind. 334 (1882) ]. Nor is a city subject to liability for negligently failing to timely provide an adequate number of fire fighters who are competent to fight the fire and fit for duty. Robinson, supra. Thus, under the common law, the City cannot be held liable for its failure to maintain the fire hydrant or for its failure to provide an adequate alternative method for fighting the fire....

Id. at 1077.

The next decision to consider common law immunity for firefighting was Gates. In that case, Dennis and Shelley Gates filed suit against the Town of Chandler Water Department based on the department’s failure to maintain an adequate supply of water and water pressure to extinguish a fire at their home. The trial court granted summary judgment, and we affirmed. Gates framed the issue as “whether the duty is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) identified in Campbell that it should also be recognized as an exception.” 725 N.E.2d at 119. Gates held that fire protection was closely akin to police protection:

Both services are essential for public safety, which is the primary function of government. Both are required to sustain a well-ordered society that values and protects the lives and property of its citizens. Police and fire protection rank together in the essential nature of the services provided. Government provides fire protection as an essential public service because fire, like crime, is a common enemy.
Our decision today is consistent with Indiana common law as it existed both before and after Campbell which recognized that some vestige of governmental immunity must be retained. Essentially, we affirm the long recognized common law rule that a municipality is not liable to an owner of property destroyed by fire even though the destruction may have resulted from the failure to provide suitable equipment or an adequate supply of water with which to fight the fire, i.e., insufficient water pressure, insufficient lengths of hose, or improperly functioning hydrants. Nor is a municipality subject to liability for negligently failing to timely provide an adequate number of fire fighters who are competent to fight the fire and fit for duty.

Id. (citations omitted).

The Lamb case discussed above quoted this portion of Gates with approval and held that several claims were barred by common law immunity: negligence in failing to timely respond to a fire alert, negligence in failing to extinguish the fire, failing to maintain equipment, negligence in failing to seek assistance from other fire departments, negligence on the part of the fire chief in the performance of her duties, and negligent staffing procedures and numbers. 741 N.E.2d at 441-42.

Gates was again cited with approval in O’Connell v. Town of Schererville, 779 N.E.2d 16 (Ind.Ct.App.2002). O’Connell concerned a fire that occurred in an apartment complex. Firefighters attempted to connect to three different hydrants, but none of them had sufficient water pressure to fight the fire. As a result, one building was completely destroyed, and another was partially destroyed. The residents sued the town. The trial court granted the town’s motion for summary judgment on the basis of common law immunity for firefighting, and we affirmed. The O’Con-nell panel found that the case was “strikingly similar” to Gates. Id. at 20.

The residents attempted to frame the issue in terms of the town’s maintenance of infrastructure:

Relying on City of Huntingburg v. Morgen, 90 Ind.App. 573, 162 N.E. 255 (1928), they contend that because the negligence complained of was not the result of emergency personnel or firefighters extinguishing the fire, but instead was inadequate pressure from actual fire hydrants, this case concerns the Town’s infrastructure.

Id. at 19.

In City of Huntingburg, the plaintiff owned commercial greenhouses, and the city failed to supply him with sufficient water pressure for his business needs. The plaintiff sued the city for the resulting damage to his plants. The city claimed that it was immune, but we disagreed, distinguishing between water supplied for fire protection and water supplied for consumption:

It is generally held that a municipal corporation, in enacting an ordinance for protection against fire and in the maintenance of a fire department and system of water works for that purpose, acts in a governmental capacity in the general interest of the community, and that the municipality is not liable to a property owner for damages caused by fire. Nor is a public utility company, owning and operating a system of water works for the furnishing of water to private consumers, and for the protection of the public from fire, under a franchise or contract with the municipality, liable to a property owner for loss of property by fire caused by insufficient water pressure. A city maintains waterworks for the twofold purpose of fire protection and for supplying water to its inhabitants for daily consumption. As to the city’s liability for the default or negligence of its employees in maintaining such waterworks, there is a clear line of demarcation between its liability, depending on the purpose for which the water system is being used.
The first purpose, that of fire protection, is clearly a discretionary or governmental act. For the default or negligence of the city’s employees in relation to fire protection the city is not liable. However, in supplying water to the inhabitants of the city for daily consumption, the well-established rule is that the city is liable on the same principle that a private corporation engaged in the same business is liable.

City of Huntingburg, 90 Ind.App. at 577-78, 162 N.E. at 257.

O’Connell distinguished City of Hunt-ingburg, stating: “[Tjhe malfunctioning hydrants do not present an issue of private, commercial use of water. Rather, our facts are the opposing comparison used by the City of Huntingburg court as an example of well-settled immunity: supplying water to the public for fire protection.” 779 N.E.2d at 19. Therefore, we held that the town had common law immunity. Id. at 21.

In City of Peru v. Lewis, 950 N.E.2d 1 (Ind.Ct.App.2011), trans. denied, we again followed Gates. In that case, Tracy Lewis called 911 and reported that her house was on fire and that she and her children were inside, but would attempt to get out of the house. When the fire department arrived, it did not immediately search for people inside the burning house. One child died in the fire, and Lewis and the rest of her children were injured. Lewis sued the city, and the city moved for summary judgment on the grounds that it was immune from suit. The trial court denied summary judgment, but we reversed. After discussing Gates and Lamb, we stated:

When examining the various circumstances that were presented in these cases, we acknowledge that there is virtually no limit to the types of claims that citizens might advance concerning municipal inadequacies in providing adequate fire protection, such as adequate staffing, inadequate training, etc. As discussed above, the Lewises contend that the fire department was negligent in supplying fire protection without making a search for fire victims a priority; by favoring ventilation of the house instead of searching for victims; and by not communicating to firefighters that people might be in the house, which communication might have caused them to make potential rescue a more urgent priority once the first floor fire was under control. In our view, these allegations — however characterized — fall within the ambit of the failure to provide adequate fire protection and are subject to common law immunity in accordance with Lamb and Gates ....

Id. at 6. Therefore, we held that the trial court should have granted the city’s motion for summary judgment. Id.

The Insurers assert that their precise argument — that the lack of water was caused by commercial activity — has not been addressed before. Although they appear to be technically correct, Indiana decisions regarding firefighting immunity have long drawn a clear line based on the purpose for which the water is being used — for firefighting or for other purposes. See, e.g., City of Huntingburg, 90 Ind.App. at 578, 162 N.E. at 257 (“As to the city’s liability for the default or negligence of its employees in maintaining such waterworks, there is a clear line of demarcation between its liability, depending upon the purpose for which the water system is being used.”); Gates, 725 N.E.2d at 119 (noting that “Campbell is properly applied by presuming that a governmental unit is bound by the same duty of care as a nongovernmental unit” unless the duty allegedly breached “is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make judicial decisions) that it should be treated as one as well” and concluding that firefighting was such an exception); Metal Working, 746 N.E.2d at 359 (“It is not the provision of water per se that entitles IWC to immunity; it is the narrow function of providing water and equipment for fire protection services that entitles IWC to the limited common law immunity granted by Campbell.”)-, O’Connell, 779 N.E.2d at 19 (“Our case is distinguishable from City of Hunt-ingburg because the malfunctioning hydrants do not present an issue of private, commercial use of water. Rather, our facts are the opposing comparison used by the City of Huntingburg court as an example of well-settled immunity: supplying water to the public for fire protection.”); Lamb, 741 N.E.2d at 439 (rejecting plaintiffs’ argument that “many of the counts in their complaint ‘pertained to matters set in place prior to the “fire” in question and are not, in and of themselves, pertaining to actions taken on the day of the fire’ ”). None of these cases suggest that the underlying cause of the lack of water to fight a fire is pertinent to the immunity analysis. We must agree with the City that the factual scenario in this case fits squarely within the immunity that we have afforded to governmental entities for fire protection services. Therefore, we reverse the trial court’s ruling that the City is not entitled to common law immunity.

B. Common Law Immunity for Private Entities

Relying on Metal Working, Veolia contends that it is entitled to common law immunity to the same extent as the City. In Metal Working, a fire started at Metal Working’s facility. A nearby shut-off valve had been closed, leaving an inadequate supply of water to fight the fire. Metal Working sued the Indianapolis Water Company for negligent failure to inspect and maintain the water mains servicing the hydrants in the vicinity of Metal Working’s property. The water company filed a motion for summary judgment on the grounds that it had immunity, which the trial court granted, and Metal Working appealed.

The water company conceded that it was not a governmental entity as defined by the ITCA. Metal Working, 746 N.E.2d at 358. However, we observed that when private entities are “endowed by the state with powers or functions governmental in nature, they become agencies or instru-mentalities of the state and are subject to the laws and statutes affecting governmental agencies and corporations.” Id. at 356 (quoting Ayres v. Indian Heights Volunteer Fire Dep’t, Inc., 493 N.E.2d 1229, 1235 (Ind.1986)). We noted that firefighting “is a service that is uniquely governmental. The need to control, prevent, and fight fires for the common good of the community has been universally accepted as a governmental function and duty in this state.... ” Id. (quoting Ayres, 493 N.E.2d at 1235). We further noted that “the business decisions that private companies can usually make without outside interference, such as expansion plans and rate-making, are subject to governmental controls when it comes to [the water company].” Id. at 357. We concluded that the water company was entitled to common law immunity because if the water company did not provide water to the city and its citizens, then the city itself would; in other words, the water company was acting in the government’s stead:

We note that considering [the water company] to be a governmental entity and giving [it] immunity in this circumstance causes no harm to the citizens, because if a private company did not provide the water services, then the government would, and pursuant to Gates, the government would unquestionably be immune under the same circumstances.

Id. at 359. See also Harrison, 929 N.E.2d at 252 (although holding that Veolia was not entitled to statutory immunity, panel stated that it did “not necessarily disagree with the ultimate holding of the Metal Working case, namely that a water utility cannot be liable on a claim that it failed to provide adequate water for firefighting purposes”); Larimore, 197 Ind. at 459, 151 N.E. at 334 (at common law, a water company with a contractual duty to supply water to a city is not liable for fire losses due to lack of sufficient water to fight the fire); New Albany Waterworks, 193 Ind. at 375, 140 N.E. at 543 (a water company is not “an insurer of any individual citizen and tax-payer against loss by fire” because “the consideration for [supplying water] is totally inadequate upon which to presume that any such duty was contemplated by the parties”).

The Insurers do not explicitly argue that Veolia is not entitled to common law immunity even if the City is. Given the longstanding precedent that water companies have immunity to the same extent as the municipality with which they have contracted, we must agree with Veolia that it is also entitled to immunity.

Although we feel bound by settled precedent to hold that both the City and Veolia are entitled to immunity, we must acknowledge that the Insurers have presented several cogent reasons for reconsidering this policy. Although Veolia was acting in the City’s stead, Veolia is a for-profit company and is not directly accountable to voters and taxpayers. Veo-lia presumably earned some profit from operating the waterworks; otherwise, it would have no reason to be in business. Compare Ayres, 493 N.E.2d at 1237 (holding that volunteer fire department was an instrumentality of the state, and therefore entitled to immunity, in part because the contract price was nominal), with Harrison, 929 N.E.2d at 253 (in declining to find Veolia a governmental entity covered by ITCA, we noted that “one of the main concerns ITCA intended to address clearly was protection of the public treasury from a multitude of tort lawsuits,” a concern not applicable to Veolia, which is a for-profit enterprise that is “part of a multi-national, multi-billion dollar conglomerate”). A city operating its own waterworks would not necessarily seek to earn any profit. In addition, if the City operated the waterworks itself, dissatisfied citizens could attempt to redress problems through the political process; however, citizens cannot “vote out” Veolia or any of its employees. On the contrary, the Management Agreement was for a term of twenty years, potentially long after the officials who granted Veolia the contract would be out of office. Veolia had a contractual obligation to maintain the City’s waterworks and also had responsibilities to consumers, for example, to maintain appropriate water pressure, as in City of Huntingburg. Veolia already had a responsibility vis-a-vis the City and consumers to keep the waterworks system in good repair, and it is not obvious on the record before us that substantial additional maintenance work would have been required to keep that same system in good repair for firefighting purposes. Nor is it obvious that Veolia would face staggering liability if it lacked immunity. The Management Agreement required Veolia to carry insurance to cover “all claims arising from injuries to members of the public or damage to property of others.” Management Agreement at 61. The cost of this insurance presumably was taken into account when the contract price was negotiated and when the rates were set by the Indiana Regulatory Commission. Moreover, the specter of liability would provide incentive to keep hydrants in good repair.

The commercial sale of water from hydrants is supposed to benefit consumers by lowering rates. Veolia had a contractual obligation to monitor the use of and to maintain those hydrants. The primary function of the hydrants is to provide water for fire suppression. Immunity is intended to insure that the government can continue to provide essential safety services, because exposing government entities to liability for fire damages could discourage them from providing fire protection services. Insulating Veolia from liability for its alleged failure to monitor or maintain in this case may actually create a disincentive to maintain hydrants.

Our supreme court has not addressed immunity for firefighting in recent years. Since then, public-private contracts have not only become more prevalent, but they are also much more complex than contemplated by cases such as New Albany Waterworks. In this case, the Management Agreement is a multi-million-dollar contract containing detailed provisions spanning ninety-two pages, accompanied by a ninety-nine-page amendment and fifteen exhibits. Although the common law rule is easy to apply, it takes the focus off whether the government action is the type that ought to be immunized and instead places it on the type of damage caused, i.e., damage from fire. Were we writing on a clean slate, we might adopt a different rule; however, we are bound by supreme court precedent. See Jones v. State, 749 N.E.2d 575, 582 n. 4 (Ind.Ct.App.2001) (noting that “we are not at liberty to ignore the precedent of our Supreme Court”), trans. denied. Therefore, we reverse the trial court’s ruling that Veolia is not entitled to common law immunity.

III. Third-Party Beneficiary

Veolia argues that the trial court erred by finding that the Insurers were third-party beneficiaries to the Management Agreement and therefore could pursue a breach of contract claim.

Generally, only parties to a contract or those in privity with the parties have rights under the contract. However,
One not a party to an agreement may nonetheless enforce it by demonstrating that the parties intended to protect him under the agreement by the imposition of a duty in his favor. To be enforceable, it must clearly appear that it was the purpose or a purpose of the contract to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.
The intent of the contracting parties to bestow rights upon a third party “must affirmatively appear from the language of the instrument when properly interpreted and construed.” However, it is not necessary that the intent to benefit a third party be demonstrated any more clearly than the parties’ intent regarding any other terms of the contract.

OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind.1996) (citations omitted).

When interpreting a contract, we read the contract as a whole and attempt to construe the contractual language so as not to render any words, phrases, or terms ineffective or meaningless. Trustcorp Mortg. Co. v. Metro Mortg. Co., 867 N.E.2d 203, 213 (Ind.Ct.App.2007). “Likewise, we must accept an interpretation of the contract that harmonizes its provisions, rather than one that places the provisions in conflict.” Id. Unless the terms of a contract are ambiguous, they will be given their plain and ordinary meaning. Broclc- mann v. Brockmann, 938 N.E.2d 831, 834 (Ind.Ct.App.2010), trans. denied.

Terms are not ambiguous merely because the parties disagree as to the proper interpretation of those terms. By contrast, contract terms may be ambiguous if they are susceptible to more than one reasonable interpretation. If a written instrument is ambiguous, we may consider all relevant evidence, including extrinsic evidence, to discern the contract’s meaning.

Id. (citations omitted).

Veolia argues that the third-party beneficiary issue is irrelevant because it has immunity. In support, Veolia cites Giles v. Brown County, 868 N.E.2d 478 (Ind.2007). Annette Giles sued Brown County because her husband, Joey, died after the county failed to dispatch an ambulance in response to his 911 call. The county had a contract with Columbus Regional Hospital to provide emergency medical services to all Brown County residents. However, when Joey called 911 and reported that he was experiencing chest pains and shortness of breath, none of the ambulances reserved for Brown County were available. Columbus Regional Hospital asked Bloom-ington Hospital to dispatch an ambulance. An ambulance arrived from Bloomington about forty-five minutes later, and Joey died shortly thereafter.

Giles’s theory was that she was a third-party beneficiary of the contract between Brown County and Columbus Regional Hospital. Brown County sought immunity under the ITCA on the ground that Joey’s death resulted from the “operation” or “use” of an enhanced emergency communications system. Ind.Code § 34-13-3-3(19). Our supreme court agreed, and further held that this immunity trumped Giles’s claim that she was a third-party beneficiary to the contract:

Immunity assumes negligence but denies liability. Thus, the issues of duty, breach and causation are not before the court in deciding whether the government entity is immune. If the court finds the government is not immune, the case may yet be decided on the basis of failure of any element of negligence. This should not be confused with the threshold determination of immunity.

Giles, 868 N.E.2d at 480 (quoting Peavler, 528 N.E.2d at 46-47).

The Insurers counter by arguing that Veolia waived its right to immunity in the Management Agreement. In support, the Insurers point to Section 8 of the Management Agreement, which requires Veolia to purchase certain types of insurance coverage, including comprehensive general liability insurance with a provision for waiver of immunity:

Section 8.01 Insurance Procurement: Duty to Maintain: Obligation to Provide Continuous Coverage.
(a) Procurement. Throughout the term of this Agreement the Company, on its own behalf and on behalf of any one directly or indirectly employed by it for whose acts or omissions it may be liable, shall secure, or cause to be secured, and maintain, at its cost and expense, including premium payments, the following insurance policies with the below specified policy limits. Cost and expense, including premium payments, will be separately identified but included in the Service Fee.
(3) Comprehensive General Liability. Commercial general liability insurance to protect the Company against all claims arising from injuries to members of the public or damage to property of others, including loss of the use of tangible property damaged, arising out of any act or omission of the Company or its agents, employees or subcontractors .... Comprehensive general liability coverage shall contain the following provisions:
(N) include waiver of government immunity;

Management Agreement at 55-57.

While we are somewhat puzzled as to the intended purpose of this language, we must agree with Veolia that it does not require Veolia to waive its immunity. Even if immunity were waived, Section 13.18 of the Management Agreement explicitly disavows any intent to create third-party beneficiaries:

Section 13.18 Third Party Beneficiary. This Agreement is intended to be solely for the benefit of Company and Department and their successors and permitted assigns and is not intended to and shall not infer any rights or benefits on any third party not a signature hereto, except as specifically set forth herein.

Id. at 87.

In Indiana Gaming Co. v. Blevins, 724 N.E.2d 274 (Ind.Ct.App.2000), trans. denied, we held that a similar contractual provision trumped language that might otherwise be construed to create third-party beneficiaries. In that case, the City of Lawrenceburg and Indiana Gaming entered into a contract to develop and operate a riverboat gaming operation in Law-renceburg. The contract stipulated that each laborer or mechanic shall be paid a wage equal to the union contract wage in the Lawrenceburg area. Some archaeologists working on the project and their union, United Archaeological Field Technicians International Union of Operating Engineers, sued Indiana Gaming, contending that they were being paid less than the contract required. They argued that they were third-party beneficiaries of the contract between Indiana Gaming and the city.

Indiana Gaming filed a motion to dismiss, relying on Section 15.21 of the contract, which stated, “No Third-Party Beneficiaries. Nothing in this Agreement shall be construed as creating any rights or entitlement that inure to the benefit of any person or entity not a party of this Agreement (except Guarantor).” Id. at 278. The trial court denied the motion to dismiss, but we reversed, stating, “This language clearly and unambiguously precludes the Technicians from being third-party beneficiaries under the Agreement.” Id. We stated that our interpretation of the contract did not render the wage provisions meaningless, but merely limited the enforcement of those provisions to certain individuals. Id. at 279. On the other hand, allowing the suit to go forward would render Section 15.21 meaningless. Id.

In Plummer v. Consolidated City of Indianapolis, 1:03-CV-00567-DFH-WT, 2004 WL 2278740 (S.D.Ind. Aug. 17, 2004), the Southern District of Indiana interpreted the same Management Agreement at issue here. In Plummer, several USFilter Employees brought ERISA claims against the City. The court rejected the employees’ claim that was based on a third-party beneficiary theory:

There is ... no contradiction between having the City and USFilter agree on one hand that ... employees should be treated in a particular way, and having the contracting parties also agree that they do not intend to confer legally enforceable rights on those employees under the contract. Contracting parties often recognize that their agreement may affect the interests of others who are not parties to the contract. They may expressly acknowledge those effects in the contract. They may even extract promises from one another concerning those effects. But it is a very different thing for the contracting parties to bestow upon those third parties the right to sue the contracting parties to enforce those promises. That prospect of third-party enforcement is exactly why disclaimers like Section 13.18 are inserted into contracts like the Management Agreement, especially since courts might otherwise imply from the agreement an intent to confer third-party benefits. See, e.g., Barth Elect. Co. v. Traylor Bros., Inc., 553 N.E.2d 504, 506 (Ind.App.1990) (reversing dismissal of construction prime contractor’s claim to be third party beneficiary where contract lacked an explicit disclaimer of intent to confer such rights).

Id. at *17.

The Insurers rely on two cases that have held that members of the general public were third-party beneficiaries of a city contract: Freigy v. Gargaro Co., 223 Ind. 342, 60 N.E.2d 288 (1945) (holding that a contractor’s contract with the City of Fort Wayne to construct a sewer authorized a homeowner damaged by the construction work to pursue a cause of action against the contractor), and City of Indianapolis v. Kahlo, 938 N.E.2d 734 (Ind.Ct.App.2010) (holding that citizens of Indianapolis were third-party beneficiaries of contract that required a portion of the Pan Am Plaza to remain open to the public), trams, denied. However, neither of the contracts at issue in those cases contained a specific provision disavowing any intent to create third-party beneficiaries. Indiana Gaming is more directly on point, and although we are not bound by Plum-mer, we find its reasoning to be persuasive. Therefore, we conclude that the trial court erred by finding that the Insurers were third-party beneficiaries of the Management Agreement.

Conclusion

Pursuant to long-standing precedent, common law immunity bars claims for fire damages stemming from an inadequate supply of water or inoperable fire hydrants. This immunity applies both to the City and to Veolia. We also conclude that Veolia did not waive its immunity, and even if it had, the explicit terms of the contract indicate that the Insurers are not third-party beneficiaries of the Management Agreement. We therefore reverse the judgment of the trial court.

Reversed.

VAIDIK, J., and BRADFORD, J., concur.

      . The Restaurant is owned by Ultra Steak, Inc.

      . Count 1 alleged that Veolia was negligent in renting and in failing to supervise use of the hydrants. Count 2 alleged that Veolia breached its contract with the City. Count 3 alleged that Veolia breached the implied warranty of merchantability. Count 4 alleged that Veolia breached the implied warranty of fitness for a particular purpose. Count 5 alleged that Veolia breached a special duty. The remaining counts stated the same claims against the Department of Waterworks and the City and also alleged that the Department of Waterworks and the City were vicariously liable for Veolia's actions.

      . According to Veolia’s brief, in 2011, the City sold its water utility to Citizens Energy Group and passed an ordinance dissolving the Department of Waterworks.

      . The City and Veolia both assert that all revenue, from the hydrants or otherwise, went to the City and not Veolia. See Veolia’s Br. at 3 n.4 ("Although all allegations in the Insurers’ Complaint are taken as true for purposes of this appeal, all revenue from the sale of water regardless of the point of sale at all times relevant to this action went to the [City] and not to [Veolia].”); City's Br. at 5 n.6 ("While licensing of access to hydrants generated revenue, it is not correct, as Plaintiffs allege, that Veolia made a profit from these activities. All revenue from the sale of water went to the [City]. Veolia was paid a base fee, a performance bonus, and was given the opportunity to make money on capital improvements.”).

      . Veolia does not contend that it is entitled to immunity under ITCA. See Harrison, 929 N.E.2d at 252 (holding that Veolia was not a governmental entity or political subdivision for purposes of ITCA); accord Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352, 355 (Ind.Ct.App.2001) (stating in dicta that Indianapolis Water Co. was not a governmental entity as defined by ITCA).

      . We have also permitted the Indiana Association of Cities and Towns and the Indiana Municipal Lawyers Association to file a brief in support of the Appellants. According to their brief, the Indiana Association of Cities and Towns is a voluntary association of most of the State's cities and towns, and the Indiana Municipal Lawyers Association is a voluntary organization of approximately 348 municipal, county, and local government lawyers.
      We held oral argument on June 19, 2012, in Indianapolis. We commend counsel on the quality of their advocacy.

      . At the time that Lamb was decided, the discretionary function provision was codified as subsection 6. We have replaced the outdated citations with current citations for ease of reading.

      . The Insurers have filed two appellees’ briefs, one in response to the City and one in response to Veolia. The Appellate Rules do not explicitly allow or prohibit the filing of separate briefs to respond to different parties. Our preference would have been for the Insurers to file a single brief and to request permission to file an oversized brief if necessary.

      . As to statutory immunity, the Boyle court employed an analysis based on the discretionary/ministerial test, which our supreme court later rejected in favor of the planningfopera-tional test.

      . Gates also relied on the following dicta in Benton that the provision of emergency services was similar to the exception in Campbell for crime prevention:
      We continue to believe that the duty to provide emergency services implicated in Mullin [v. Municipal City of South Bend, 639 N.E.2d 278 (Ind.1994) (adopting the reasoning of City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861, 863 (1993))] is sufficiently similar to the "prevent crime” exception in Campbell to raise the possibility of immunity. And we continue to believe that the City of Rome test is appropriate for determining whether a governmental unit qualifies for immunity for failure to dispatch emergency services (but only for that purpose).
      We acknowledge that this point appears to have been rendered moot by the passage of subsection (18) of Ind.Code § 34-4-16.5-3 [now Ind.Code § 34-13-3-3(19)], which grants a governmental entity immunity under the Tort Claims Act for the operation of “an enhanced emergency communication [or '911] system.” Accord Barnes v. Antich, 700 N.E.2d 262, 266 n. 6 (Ind.Ct.App.1998) (holding that "a plain reading of Ind. Code 34-4-16.5-3(18) leads inescapably to the conclusion that the legislature intended to afford immunity from claims arising out of a municipality’s operation and use of [a ‘911’ service]”), transfer denied.

        Benton, 721 N.E.2d at 231 n. 12.

      . The most recent supreme court case to discuss immunity for firefighting is Ayres, which was decided in 1986. In Ayres, the supreme court stated that it was “in total accord with the Court of Appeals” on the issue of statutory immunity and briefly discussed City of Hammond v. Cataldi, 449 N.E.2d 1184 (Ind.Ct.App.1983), a case which applied the now outdated discretionary/ministerial test; transfer was granted primarily to address a different issue. Ayres, 493 N.E.2d at 1234. Prior to Ayres, the last supreme court to address immunity for firefighting was Larimore, decided in 1926.

      . Veolia argues that the Insurers waived their argument that immunity was contractually waived by not raising it in the trial court. "Issues not raised at the trial court are waived on appeal. In order to properly preserve an issue on appeal, a party must, at a minimum, show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.” Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind.2006). Much of the Insurers’ argument to the trial court on this issue was not transcribed because the audio recording was unintelligible. Although it is unclear what the Insurers' precise argument was, it is clear that the trial court did consider the issue; therefore, we decline to find the issue waived.

      . The Management Agreement has been provided to us in PDF format on a disc. Because the first few pages of the Management Agreement are numbered with romanettes, the numbers on the document do not correspond with the page number that- must be entered into the PDF reader to jump to the relevant text. We will cite to the number needed to jump to the quoted text.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    Mary BARRIX and Joe Barrix, Jr., Appellants-Plaintiffs, v. Kristopher JACKSON and Graves Plumbing Co. Inc., Appellees-Defendants.
    No. 28A04-1202-CT-82.
    Court of Appeals of Indiana.
    Aug. 15, 2012.

      David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Michael W. Phelps, Katherine Karres, Nunn Law Office, Bloomington, IN, Attorneys for Appellants.
    Thomas Todd Reynolds, Joshua J. Rauch, Mandel Horn McGrath & Reynolds PC, Carmel, IN, Attorneys for Appellees.
   OPINION

BAILEY, Judge.

Case Summary

Mary Barrix (“Mary”) and Joe Barrix, Jr. (“Joe”; collectively, “the Barrixes”) appeal the trial court’s entry of judgment on the evidence against them and in favor of Kristopher Jackson (“Jackson”) and Graves Plumbing Company (“Graves”) (collectively “the Defendants”).

We affirm.

Issues

The Barrixes challenge the trial court’s entry of judgment on the evidence and present two issues for our review. We restate these as:

I. Whether the trial court erred when it ruled inadmissible portions of a physician’s deposition testimony because the medical records upon which his opinion was based were not authenticated; and
II. Whether the trial court erred when it ruled inadmissible medical bills and portions of a physician’s deposition testimony concerning those bills.

Facts and Procedural History

We take portions of our statement of facts from the Barrixes’ complaint. The complaint alleged that on May 24, 2007, Mary was in a motor-vehicle collision with Jackson in Greene County. At the time of the collision, Graves employed Jackson, who was driving a vehicle within the scope of his employment with Graves. Mary was injured in the collision, and as a result of her injuries suffered medical expenses, lost wages, and other losses; Joe suffered loss of consortium.

In early 2009, the Barrixes retained William H. Fulton, M.D. (“Dr. Fulton”), a neurologist, to perform a medical evaluation of Mary. On March 28, 2009, Dr. Fulton performed an evaluation of Mary’s condition based upon his examination of Mary and the medical records forwarded to him by the Barrixes’ counsel at the time, and concluded that Mary had suffered a 1% permanent partial impairment (“PPI”) as a result of Mary’s ongoing pain.

On May 4, 2009, the Barrixes filed suit against the Defendants for negligence. On September 8, 2011, the trial court scheduled the case for a jury trial to be commenced on January 18, 2012.

On January 10, 2012, the parties conducted á deposition of Dr. Fulton, who was unavailable to testify at trial due to scheduling conflicts. During the deposition, counsel for the Defendants objected to testimony from Dr. Fulton concerning the content of the medical records upon which he based his evaluation of Mary’s condition in early 2009, and each party objected to the introduction into evidence of various medical records of Mary.

On January 18, 2012, a jury trial commenced. After voir dire was conducted and a jury selected, the Defendants objected to the admissibility of Dr. Fulton’s deposition and the medical records and bills upon which he based his opinion concerning Mary’s injuries. After hearing oral argument and the Barrixes’ offer of proof, the trial court sustained the Defendants’ objection, at which time the Barrixes rested their case and stated that they would appeal the trial court’s evidentiary ruling. The Defendants moved for judgment on the evidence, and the court granted the motion.

This appeal ensued.

Discussion and Decision

Admissibility of Evidence

The basis for the Barrixes’ appeal from the trial court’s entry of judgment on the evidence is the trial court’s rulings on the admissibility of Dr. Fulton’s deposition testimony and the medical records and bills upon which he relied in reaching his opinion concerning Mary’s condition. We review a trial court’s decision on the admissibility of evidence for an abuse of discretion, which occurs when the decision is against the logic and effect of the facts and circumstances before the court. Weinberger v. Boyer, 956 N.E.2d 1095, 1104 (Ind.Ct.App.2011), trans. denied. Even where the trial court’s decision is erroneous, however, we will not reverse the judgment where the decision does not prejudice the substantial rights of a party. Ind. Trial Rule 61; Weinberger, 956 N.E.2d at 1104.

Nor will we reverse where a party has invited error. A doctrine grounded in estoppel, “[u]nder this doctrine, ‘a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.’” Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind.2005) (quoting Evans v. Evans, 766 N.E.2d 1240, 1245 (Ind.Ct.App.2002)).

Admissibility of Medical Records and Testimony Thereon

In challenging the entry of judgment on the evidence, the Barrixes first argue that the trial court erroneously excluded the portions of Dr. Fulton’s testimony that relied upon medical records that had not been authenticated pursuant to Evidence Rule 803(6).

Evidence Rule 803(6) stands as an exception to the general rule that precludes admission of hearsay evidence. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is inadmissible except where our rules of evidence provide for admissibility. Evid. R. 802.

Among the numerous exceptions to the hearsay rule is the business records exception. That exception provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Evid. R. 803(6).

But “even records that are not excluded by the hearsay rule must also be otherwise admissible.” Estate of Dyer v. Doyle, 870 N.E.2d 573, 579 (Ind.Ct.App.2007) (citing Wilkinson v. Swafford, 811 N.E.2d 374, 390 (Ind.Ct.App.2004), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind.2006)), trans. denied. To be admissible under Rule 803(6), a business record must also be authenticated pursuant to Evidence Rule 901, which provides that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Evid. R. 901(a). Thus, to admit business records, “the proponent of the exhibit may authenticate it by calling a witness who has a functional understanding of the record keeping process of the business with respect to the specific entry, transaction, or declaration contained in the document,” Rolland v. State, 851 N.E.2d 1042, 1045 (Ind.Ct.App.2006), or by any other evidence (e.g., an affidavit) sufficient to satisfy the requirements of Rule 901.

Inadmissible evidence may nevertheless be relied upon for the purposes of expert-rendered opinion testimony:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

Evid. R. 703.

There are limits to this, however, to the extent that a party proffers opinion testimony that is merely “ ‘a conduit’ ” for placing physicians’ diagnoses into evidence without meaningful opportunities for cross-examination. Schmidt v. State, 816 N.E.2d 925, 941 (Ind.Ct.App.2004) (quoting Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798, 801 (Ind.Ct.App.1996), trails, denied), trails, denied. As the Indiana Supreme Court has recognized,

some experts customarily gather information from a variety of other experts and authoritative sources and rely upon it in reaching their opinions. When an expert witness’s own independent opinion is arrived at in this manner and it is introduced into evidence and the expert witness is subject to cross-examination, that part of the substrata of information which aided in the formation of the opinion, though hearsay in nature and though not falling within any hearsay exception, may nevertheless be admissible for use by the trier of fact in judging the weight of the opinion.

Miller v. State, 575 N.E.2d 272, 274 (Ind.1991). However, such hearsay is inadmissible where it is merely a restatement of another’s conclusion “as a conclusory answer to an ultimate fact in issue,” such that the veracity of the statement is not “subject to the test of cross-examination.” Id.

Thus, the Miller court concluded that a physician’s opinion was inadmissible where that opinion was merely a repetition of another physician’s statement without an independent evaluation of its veracity. Id. at 275. Relying on the Indiana Supreme Court’s rationale in Miller, in Faulkner we affirmed a trial court’s refusal to permit a chiropractor “to testify regarding information contained in medical reports ... prepared by physicians” because the chiropractor was not himself a physician and thus “was not capable of being cross-examined” concerning the information in the reports. Faulkner, 663 N.E.2d at 800 (citing Miller, 575 N.E.2d at 274-75 (Ind.1991)). We used a similar rationale to affirm a trial court’s exclusion of the testimony of two non-physician expert witnesses, one a Ph. D.-credentialed toxicologst and the other an expert in field sobriety tests, through whom a criminal defendant sought to introduce information and opinion based upon a physician-prepared, one-page diagnostic medical report. Schmidt, 816 N.E.2d at 941.

Much of the dispute between the parties now before us centers upon the extent to which the deposition testimony of Dr. Fulton amounted to the type of testimony that is merely a conduit for admission of otherwise inadmissible hearsay evidence from Mary’s medical records. The Defendants argue that much of Dr. Fulton’s testimony was merely repetition of the opinions (in the form of diagnoses) of other physicians, and thus at the very least those portions of Dr. Fulton’s deposition testimony were properly excluded by the trial court. The Barrixes contend that the trial court’s ruling improperly excluded portions of Dr. Fulton’s testimony because Dr. Fulton relied upon unauthenticated medical records in rendering his opinion and offering his deposition testimony.

We agree with the Barrixes that the use of unauthenticated medical records that would otherwise be inadmissible is not a proper bar to the admissibility of an expert’s opinion rendered from those records. We nevertheless find no reversible error in the trial court’s decision to exclude from evidence Dr. Fulton’s deposition testimony because any error the trial court committed was invited error.

Here, the Defendants orally raised a motion in limine objecting to the introduction into evidence of the medical records and medical bills that Dr. Fulton used to render his opinion on Mary’s injuries. They based the objection on the ground that the documents were not properly authenticated and thus were inadmissible as business records. The Defendants further argued that Dr. Fulton’s deposition was merely a conduit for introducing the medical records and bills. The Barrixes responded that the medical records were admissible as otherwise-inadmissible hearsay upon which Dr. Fulton relied in reaching an opinion, and that the bills were admissible under Evidence Rule 413, which provides that medical bills are admissible as prima facie evidence of the reasonableness of charges associated with medical diagnosis or treatment as “occasioned by an injury.”

The trial court ruled that the medical records and bills were inadmissible. The parties then began to dispute whether portions of Dr. Fulton’s deposition testimony were admissible. During argument, the following exchange occurred:

[COURT]: Okay. Because what you’re telling the court is based upon me finding that the medical records as I understand that they were provided to this doctor, can not be then used through the doctor to be brought in?
[BARRIXES]: Correct.
[COURT]: And the medical bills because they were just produced to this doctor, and he reviewed them, and your [sic] wanting to bring them in directly through this doctor, and they haven’t been authenticated because that is what’s in that testimony then if the court will not allow that, then you won’t even be admitting any of that?
[BARRIXES]: I’ll be asking you to in the offer to prove, but I’m assuming you’re, I’m assuming you’re they’ll [sic] be an objection and you’ll sustain the objection. And my whole point is, that without the doctors testimony ... then no evidence after that can support the Plaintiffs case.
⅛ ⅜ *
[COURT]: Okay. Because, I guess, my position is having not seen the deposition or read it, I can’t tell you that I would exclude all of that deposition, but in you saying that its either all or none then, I guess, making that decision then the court would exclude all of it. Is?
[BARRIXES]: Yes.
[COURT]: Okay.
[COURT]: Right. I just, my position is not that I would exclude all of the deposition, but you’re saying that there, it wouldn’t make any sense, or it wouldn’t be your case if you didn’t have the entire deposition, so?
[BARRIXES]: Yeah, yeah. The only portions of the deposition that would support a jury verdict in this case are parts of the depositions that will that are being excluded due to the records.

(Tr. at 34-36; emphasis added.)

We do not agree with the trial court’s conclusion that the use of unauthenticated medical records provided to Dr. Fulton by counsel for the Barrixes rendered Dr. Fulton’s testimony inadmissible. See Evid. R. 703 (providing for the admissibility of an expert opinion where the opinion is based upon otherwise inadmissible evidence). However, the Barrixes took the position that the admissibility of nearly the entirety of Dr. Fulton’s deposition testimony rose or fell with the admissibility of the medical records. In their offer of proof, the Barrix-es provided evidence that Dr. Fulton performed an examination of Mary, reviewed her records and bills, and rendered an opinion. At no point did the Barrixes direct the trial court to specific portions of Dr. Fulton’s testimony that could have been admissible without requiring the admission into evidence of prior physicians’ opinions and diagnoses. Cf. Miller, 575 N.E.2d at 274 (noting that the “substrata” of information that aided in the formulation of an opinion may be admissible, though summary restatement of another’s conclusion is inadmissible).

Having thus afforded the trial court no opportunity to rule upon the specific portions of Dr. Fulton’s testimony that may have been admissible, the Barrixes invited the trial court’s error and are not entitled to relief. And as we will discuss further below, given the state of the evidence before the trial court at the time the Barrix-es rested their case, we conclude that any error in the trial court’s exclusion of Dr. Fulton’s testimony or the underlying medical records was harmless and thus not a basis for reversal.

Admissibility of Medical Bills

We turn now to the admissibility vel non of Mary’s medical bills.

As the Barrixes note in their brief before this Court, Evidence Rule 413 establishes that medical bills are relevant as prima facie evidence of the reasonability of charges incurred for treatment. As our Supreme Court has noted, however,

Relevance is one issue. Hearsay and opinion issues remain. The hearsay rules generally prohibit the introduction of evidence of out-of-court statements to prove the truth of the matters asserted in those statements.... Medical bills already charged can usually be admitted over any hearsay objection either through testimony of the supplier [of medical treatment] as business records under Indiana Rule of Evidence 803(6) or through testimony of the patient to refresh memory under Rule 803(5).

Cook v. Whitsell-Sherman, 796 N.E.2d 271, 278 (Ind.2003).

Here, the Barrixes sought to introduce into evidence medical bills that were not introduced through a medical provider as a business record and were not authenticated by affidavit as a business record. The Barrixes now argue that Mary “received the bills,” “would have knowledge of the charges made for her care,” and thus “[t]here was no need that the bills reviewed by Dr. Fulton be certified or authenticated as a condition for his giving an opinion as to the reasonableness and necessity of those services.” (Appellants’ Br. at 12.) In their reply brief, the Barrixes also argue that “[t]he language of [Rule 413] does not limit the admissibility of medical bills to the two methods relied on by Graves.” (Appellants’ Reply Br. at 12.) That is, the Barrixes contend that Rule 413 renders medical bills admissible despite our Supreme Court’s holding in Cook, swpra.

We disagree. What the Barrixes characterize as dicta in the Cook case — that “hearsay and opinion issues” apply to the admissibility of medical bills under Evidence Rule 413, Cook, 796 N.E.2d at 278— is a correct statement of the law. Any number of arguably relevant items of evidence would be rendered admissible without regard to the trustworthiness of that evidence. The hearsay rules squarely address the question of the reliability of an out-of-court statement, separate and apart from any possible relevance of a given statement to a controversy. Id.

Here, the Barrixes failed to produce authenticated medical bills under Evidence Rule 901, and failed to produce testimony that established the bills’ status as business records under Rule 803(6). We cannot conclude that the trial court abused its discretion when it excluded the bills from evidence on that basis.

Nor is the Barrixes’ argument availing that Mary “received the bills” and “would have knowledge of the charges made for her care,” which presumably would render the bills admissible under Evidence Rule 803(5). The Barrixes failed to bring this issue to the attention of the trial court. They also failed to adduce testimony from Mary that laid any form of foundation for the admissibility of the bills based upon her memory of having received those bills for treatment of injuries that resulted from the collision. Thus, their argument on appeal has been waived. See Orta v. State, 940 N.E.2d 370, 376-77 (Ind.Ct.App.2011). Moreover, because we conclude that any error was harmless, see infra, no reversible error arose from the trial court’s exclusion of the medical bills from evidence.

Judgment on the Evidence

We turn now to the propriety of the trial court’s entry of judgment on the evidence. “The purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence” presented at trial. Stowers v. Clinton Cent. School Corp., 855 N.E.2d 739, 747 (Ind.Ct.App.2006), irons, denied. We use the same standard as that which governs the trial court when it makes its decision. Carr v. Pearman, 860 N.E.2d 863, 871 (Ind.Ct.App.2007), irons, denied.

Judgment on the evidence is proper only “where all or some of the issues ... are not supported by sufficient evidence.” Ind. Trial Rule 50; Benante v. United Pacific Life Ins. Co., 659 N.E.2d 545 (Ind.1995) (if there is evidence allowing reasonable people to differ as to result, judgment on the evidence is improper). The court looks only to the evidence and the reasonable inferences drawn most favorable to the non-moving party and the motion should be granted only where there is no substantial evidence supporting an essential issue in the case. Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind.1993); Bals [v. Verduzco ], 600 N.E.2d [1353,] 1357 [ (Ind.1992) ].

Kirchoff v. Selby, 703 N.E.2d 644, 648 (Ind.1998).

The Barrixes sought relief through negligence claims against the Defendants. “The tort of negligence consists of three elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused by that breach.” Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind.Ct.App.2002) (citations omitted), trans. denied. Even assuming the trial court erred in excluding from evidence the medical bills, medical records, and the entirety of Dr. Fulton’s deposition testimony, and taking all of that evidence into consideration, we affirm the trial court because the Barrixes failed to adduce sufficient evidence to survive Graves’s motion for judgment on the evidence on multiple grounds.

Aside from Dr. Fulton’s deposition, the medical records, and the medical bills, the only evidence the Barrixes offered at trial was Mary’s testimony in the offer to prove. This testimony is notable for what it lacked rather than what it contained. Specifically, Mary’s testimony conveyed only that she was a plaintiff in this case, that she had seen Dr. Fulton once, that prior counsel had helped her arrange the single meeting with Dr. Fulton, and that she had hoped to continue to see Dr. Fulton as a treating physician.

Mary’s testimony does not establish any facts necessary to show any duty of care on Graves’s part. Her testimony does not give rise to an inference that she was involved in an automobile accident as alleged in the complaint. Her testimony does not give rise to an inference that the automobile accident was a result of Graves breaching its duty of care — and we do not infer that such a breach has occurred without specific facts establishing the breach. Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind.Ct.App.2002) (stating, in the context of summary judgment “all the elements of a negligence action must be supported by specific facts ... or reasonable inferences that might be drawn from those facts”). Nor does her testimony permit an inference that she or Joe suffered any other form of harm, such as pain and suffering or lost wages, which has Graves’s negligence as its proximate cause.

Simply put, we cannot conclude that the Barrixes adduced even the minimal amount of evidence required to avoid entry of judgment on the evidence in this case. This is true even when we take into consideration Dr. Fulton’s deposition and assume that the medical records and bills (with which this Court has not been provided) show an injury as a result of a car accident. Thus, any error that arose from the trial court’s rulings on the admissibility of evidence is harmless because the evidence adduced at trial was not sufficient to survive the Defendants’ motion for judgment on the evidence on the other necessary elements of the case.

Rather than seek a continuance or an interlocutory appeal, the Barrixes, through counsel, effectively consented to entry of judgment on the evidence against them in order to appeal the trial court’s evidentiary rulings. Here, the strategy worked to their peril.

Conclusion

The Barrixes have not demonstrated reversible error as a result of the trial court’s exclusion of Dr. Fulton’s deposition testimony from evidence, and any such error was invited. The trial court did not abuse its discretion when it excluded Mary’s medical bills from evidence. The Barrixes also failed to adduce any evidence giving rise to any inference supporting allegations that Graves had a duty of care toward Mary and breached its duty. We therefore affirm the trial court’s entry of judgment on the evidence against the Bar-rixes.

Affirmed.

RILEY, J., and CRONE, J., concur.

      . The Barrixes also filed suit against Mary’s insurance carrier, Safe Auto Insurance Company, for failure to pay Mary’s claim for uninsured/underinsured motorist coverage. On August 7, 2009, the Barrixes and Safe Auto stipulated to dismissal of Mary's insurance-related claim after entering into a settlement agreement. The trial court entered an order dismissing Safe Auto from the case the same day.


author: NAJAM, Judge.

text:
    Michael R. JENT, Appellant-Petitioner, v. FORT WAYNE POLICE DEPARTMENT, Appellee-Respondent.
    No. 02A03-1108-MI-388.
    Court of Appeals of Indiana.
    Aug. 15, 2012.

      Michael R. Jent, Pendleton, IN, Appellant pro se.
    Carolyn M. Trier, Trier Law Office, Fort Wayne, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Michael Jent filed a public records request with the Fort Wayne Police Department (“FWPD”), which the FWPD denied. Jent then filed a motion for declaratory and injunctive relief asking the trial court to compel the FWPD to disclose the requested records. Jent next moved for summary judgment, and the FWPD filed a cross-motion for summary judgment. Following a hearing, the trial court denied Jent’s motion and entered summary judgment for the FWPD. In this appeal, Jent contends that the trial court erred when it entered summary judgment in favor of the FWPD.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2005, Jent was convicted of six counts of child molesting, as Class A felonies; child molesting, as a Class C felony; and criminal confinement, as a Class C felony; and he was adjudicated an habitual offender. The trial court sentenced Jent to 238 years. He remains incarcerated at the Pendleton Correctional Facility.

On February 23, 2009, Jent submitted a Request for Access to Public Record to Carol Taylor, the Associate City Attorney for the City of Fort Wayne/Fort Wayne Police Department. In that request, Jent sought access to the following public records:

Daily incident report logs of crimes committed from January 1st, 2001[,] through December 8th, 2005[,] containing the crimes of abduction and sexual assault and/or attempted abduction and attempted sexual assault with the victims describing the perpetrator as a[n] Hispanic male with a tattoo of a rose and green stem on the left arm or side and/or if the victim was taken to a[n] abandoned house and/or placed in a van during the commission of the crime.

Appellant’s App. at 29. On February 26, Taylor wrote to Jent acknowledging receipt of his records request and stating that the City would provide the daily incident report logs “to the extent that the City has records.” Appellee’s App. at 16. And Taylor stated that the City was denying the “remainder details/information of your request, pursuant to I.C. [§ ] 5-14-3-4(b)(1) — investigatory records of a law enforcement agency.” Id.

On March 4, Sergeant Andrew Bubb, with the Internal Affairs Unit of the City of Fort Wayne, wrote to Jent and stated:

The City Attorney’s office has forwarded your recent records request to the Fort Wayne Police Department.
The information that would be considered the “daily incident report logs” exists as electronic data. This data can only be screened to the extent that our system’s software will allow. The software will not facilitate the production of any kind of list with the parameters you specified.
The format in which the data is pro-* duced contains sensitive information which the department deems to be investigatory records. Your request is denied in accordance with I.C. [§ ] 5-14-3-4(b)(1) — investigatory records of a law enforcement agency.

Id. at 17 (emphasis added).

Jent then filed a “formal complaint” with the Public Access Counselor (“PAC”) for the State alleging that the FWPD had “violated the Access to Public Records Act (“APRA”) (Ind.Code [chapter] 5-14-3) by denying [him] access to records.” Appellant’s App. at 32. In response, the PAC issued an advisory opinion, stating in relevant part as follows: “It is my opinion the Department must make available for inspection and copying the information required to be maintained in a daily log. Further, it is my opinion any other information contained in the requested records falls under the investigatory records exception.” Id.

On April 13, 2010, Jent filed his complaint for declaratory and injunctive relief asking the trial court to compel the FWPD to provide the requested records. And on March 10, 2011, Jent filed a motion for summary judgment on his complaint. The FWPD filed a cross-motion for summary judgment. Following a hearing, the trial court denied Jent’s motion and entered summary judgment in favor of the FWPD. This appeal ensued.

DISCUSSION AND DECISION

Our standard of review for summary judgment appeals is well established:

When reviewing a grant 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 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 mov-ant 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) (citing Ind. Trial Rule 56(C)) (emphasis added). If the trial court’s entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.Ct.App.2008), trans. denied.

The first section of the Access to Public Records Act (“APRA”), Indiana Code Section 5-14-3-1, provides:

A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.

Section 3 of APRA provides: “Any person may inspect and copy the public records of any public agency during the regular business hours of the agency, except as provided in section 4 of this chapter.” Ind.Code § 5-14-3-3(a). But the requestor must “identify with reasonable particularity the record being requested.” Ind.Code § 5-14-3-3(a)(l). Section 4 in turn provides several exceptions to the disclosure requirement of Section 3. Section 4(a) sets forth mandatory exceptions to public access, and section 4(b) lists exceptions which may be invoked at the discretion of the public agency. It is undisputed that the FWPD is a public agency subject to APRA.

In support of its cross-motion for summary judgment, the FWPD asserted that it could not fulfill any part of Jent’s records request because the request does not comply with Indiana Code Section 5-14 — 3—3(a)(1), which requires that the request “identify with reasonable particularity the record being requested.” The “reasonable particularity” requirement under this statute has not previously been interpreted by an Indiana court. In the context of the discovery rules, however, a requested item has been designated with “reasonable particularity” if the request enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request. In re WTHR-TV, 693 N.E.2d 1, 6 (Ind.1998). Here, in essence, the FWPD contends that Jent’s request fails the first part of that test, namely, that it does not enable the FAVPD to identify the records sought.

Again, Jent requested the following records:

Daily incident report logs of crimes committed from January 1st, 2001[,] through December 8th, 2005[,] containing the crimes of abduction and sexual assault and/or attempted abduction and attempted sexual assault with the victims describing the perpetrator as a[n] Hispanic male with a tattoo of a rose and green stem on the left arm or side and/or if the victim was taken to a[n] abandoned house and/or placed in a van during the commission of the crime.

Appellee’s App. at 15. While Jent’s request describes the records sought in some detail, the level of detail does not necessarily satisfy the “reasonable particularity” requirement of the statute. In response to a request under APRA, a public agency is required to search for, locate, and retrieve records. Depending upon the storage medium, the details provided by the person making the request may or may not enable the agency to locate the records sought. Indeed, here, the FWPD was unable to fulfill the request using the search parameters Jent provided.

As Sergeant Bubb explained in response to Jent’s request, the records are maintained electronically and the “software will not facilitate the production of any kind of list with the parameters [Jent] specified.” Id. at 17. The FWPD designated Sergeant Bubb’s letter as evidence in support of summary judgment. That designated evidence shows that the parameters given in the request are incompatible with the software that manages the electronic data. In other words, the software lacks the capacity to search and retrieve the records requested.

In support of his summary judgment motion, Jent designated as evidence the PAC’s advisory opinion. In that opinion, the PAC observed that “incident reports” and “daily logs” might be separate records and that “incident reports are considered investigatory records,” which “may be withheld from disclosure at the discretion of the agency.” Id. at 33 (citing Ind.Code § 5 — 14—3—4(b)(1)). But the PAC stated that the daily logs must be disclosed under APRA. Further, the PAC stated that “it would not be appropriate for the [FWPD] to deny [Jent] access to the information on the basis that it is stored in a way that would not allow the [FWPD] to separate the daily log information from the discretionary investigatory record information.” Appellant’s App. at 35 (emphasis added).

The PAC misconstrues Sergeant Bubb’s letter. The letter does not deny Jent’s request based on an alleged inability to separate the daily logs from other documents. Rather, the letter gives two other reasons for denying Jent’s request: that the FWPD was unable to search its records using the parameters given and that the records requested are excepted from disclosure as investigatory records. The PAC did not express any opinion concerning whether the FWPD’s software had the capacity to locate and retrieve the records using the parameters Jent provided.

In short, without designated evidence to the contrary, there is no factual basis to question Sergeant Bubb’s statement that the records requested cannot be located or retrieved using the search parameters provided by Jent. Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records. Here, the undisputed designated evidence shows that such is not the case and that the FWPD is entitled to summary judgment.

In the context of a summary judgment, when the FWPD designated as evidence Sergeant Bubb’s statement that the FWPD could not access the requested records with the parameters given, it satisfied its burden to make a prima facie showing that Jent’s request lacked reasonable particularity and that the FWPD was entitled to summary judgment. Jent did not designate any evidence showing a question of material fact on whether the FWPD had the capacity to locate the records using the search parameters set out in his request. Accordingly, it is undisputed that the FWPD was entitled to summary judgment on the basis that Jent’s request did not conform with Indiana Code Section 5-14-3-3(a)(l).

Again, if the trial court’s entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Beatty, 896 N.E.2d at 20. We hold that the undisputed designated evidence shows that Jent’s request does not identify with reasonable particularity the records sought. Accordingly, the trial court did not err when it denied Jent’s motion for summary judgment and entered summary judgment in favor of the FWPD.

Affirmed.

RILEY, J., and DARDEN, SR. J., concur.

      . We note that the undisputed designated evidence shows that the FWPD could not have searched for the records using the parameters Jent provided even had the FWPD sought to locate the same records for its own use.