author: NAJAM, Judge.

text:
    A PLUS HOME HEALTH CARE INCORPORATED, Appellant-Defendant, v. Kathleen MIECZNIKOWSKI, Appellee-Plaintiff.
    No. 93A02-1207-EX-558.
    Court of Appeals of Indiana.
    Dec. 14, 2012.

      Carla R. Hounshel, R. Jay Taylor, Jr., Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN, Attorneys for Appellant.
    Edward C. Lawhead, Schreiner, Malloy & Etzler, P.C., Highland, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

A Plus Home Health Care, Inc. (“A Plus”) appeals the decision of the Indiana Worker’s Compensation Board (“the Board”) in favor of Kathleen Mieeznikow-ski (“Kathy”) on her claim for worker’s compensation. A Plus raises a single issue for our review, namely, whether Kathy’s claim arose out of her employment. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 27, 2011, Kathy worked for A Plus as a home health care registered nurse. While visiting a patient at the patient’s home, Kathy realized that she had left some medical equipment in her car, and she returned to her car to retrieve the equipment. On her way back inside the patient’s house, Kathy lost her footing and fell on a concrete sidewalk, injuring her left arm and hand.

On September 8, Kathy filed her original application for adjustment of claim with the Board, which she later amended. Kathy’s application was heard by a Single Hearing Member (“SHM”) on December 1. Following that hearing, on January 20, 2012, the SHM concluded that Kathy’s injuries did not arise out of her employment. In particular, the SHM acknowledged Kathy’s evidence that she had not fallen due to a mental illness or condition and further credited her statement that she had simply-lost her own footing. But the SHM then found that Kathy’s “own description of the cause of her fall indicates it was of a personal nature.... ” Appellant’s App. at 6. Accordingly, the SHM denied her claim.

Kathy appealed the SHM’s determination to the full Board. The Board held a hearing on May 14, after which the Board concluded that Kathy’s injuries had arisen out of her employment with A Plus. Specifically, the Board concluded that “[Kathy’s] fall was a neutral risk and therefore com-pensable. There is no indication [Kathy] had a personal condition that caused her to fall.” Id. at 27. This appeal ensued.

DISCUSSION AND DECISION

A Plus contends that the Board erred as a matter of law when it determined that Kathy’s injuries arose out of her employment with A Plus. As our supreme court has discussed:

On appeal, we review the decision of the Board, not to re-weigh the evidence or judge the credibility of witnesses, but only to determine whether substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board’s findings and conclusions. Where the question before this Court, however, is primarily a legal question, we do not grant the same degree of deference to the Board’s decision, for law is the province of the judiciary and our constitutional system empowers the courts to draw legal conclusions. Moreover, in performing a legal analysis and in interpreting the provisions of the Worker’s Compensation Act, we construe the Act and resolve doubts in the application of terms in favor of the employee so as to effectuate the Act’s humanitarian purpose to provide injured workers with an expeditious and adequate remedy.

Walker v. State, 694 N.E.2d 258, 266 (Ind.1998) (citations and footnote omitted).

The Indiana Worker’s Compensation Act provides for compensation of injury or death by accident arising out of and in the course of employment. Ind. Code § 22-3-2-2; Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind.Ct.App.2009), trans. denied. The claimant bears the burden of proving the right to compensation. Wright Tree Serv., 907 N.E.2d at 186. As a general rule, “the issue of whether an employee’s injury or death arose out of and in the course of his or her employment is a question of fact to be determined by the Board.” Id. at 186-87.

“An injury arises out of employment when a causal nexus exists between the injury sustained and the duties or services performed by the injured employee.” Milledge v. The Oaks, 784 N.E.2d 926, 929 (Ind.2003), superseded on other grounds by I.C. § 23-3-2-2 (2006). The “nexus is established when a reasonably prudent person considers the injury to be born out of a risk incidental to the employment. ...” Id. (citing Wine-Settergren v. Lamey, 716 N.E.2d 381, 389 (Ind.1999)).

The risks incidental to employment fall into three categories: (1) risks distinctly associated with employment, (2) risks personal to the claimant, and (3) risks neither distinctly employment nor distinctly personal in character. Id. at 930. “Risks that fall within categories numbered one and three are generally covered under the Indiana Worker’s Compensation Act.” Id. However, risks personal to the claimant, those “caused by a pre-exist-ing illness or condition unrelated to employment,” are not compensable. Id. (citing Kovatch v. A.M. Gen., 679 N.E.2d 940, 943 (Ind.Ct.App.1997), trans. denied). With respect to injuries resulting from workplace falls in particular, the Indiana Supreme Court and this court have noted:

Workplace falls can result from either an employment, personal^] or neutral risk, or from a combination thereof. Some falls clearly result from risks personal to the employee; that is, they are caused by a pre-existing illness or condition, unrelated to employment. As a general matter, these “idiopathic” falls are not compensable. In contrast, some falls are “unexplained” in that there is no indication of causation. Most jurisdictions compensate such falls, classifying them as neutral risks.

Id. at 931 (citing Kovatch, 679 N.E.2d at 943).

Here, A Plus contends that, because the Board concluded that Kathy’s injuries arose from a neutral risk, the Board’s conclusion is necessarily premised on the now-defunct “positional risk doctrine” described by our supreme court in Milledge. Under that doctrine, when injuries resulted from neutral risks and occurred in the course of employment, a presumption was triggered that the injury also arose out of the employment and the burden then shifted to the employer to prove that the injury was the result of a risk personal to the claimant. Id. at 931. In Milledge, our supreme court imposed the positional risk doctrine to avoid placing claimants in the position of attempting to prove a negative, namely, that the injury was not personal to the claimant. See Pavese v. Cleaning Solutions, 894 N.E.2d 570, 576 (Ind.Ct.App.2008).

However, three years after Milledge, the General Assembly amended Indiana Code Section 23-3-2-2 to add the following language: “The burden of proof is on the employee. The proof by the employee of an element of a claim does not create a presumption in favor of the employee with regard to another element of the claim.” As this court first recognized in Pavese, that amendment “overrule[d] Milledge’s positional risk doctrine ... by keeping the burden of proof on the employees throughout the proceedings.” Id.; see also Waters v. Ind. State Univ., 953 N.E.2d 1108, 1114 n. 2 (Ind.Ct.App.2011) (recognizing that the statutory amendment rendered the positional risk doctrine defunct), trans. denied.

However, contrary to A Plus’s arguments on appeal, the 2006 amendment to Indiana Code Section 23-3-2-2 did not supersede either our supreme court’s description of the three types of risks, see, e.g., Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1114 (Ind.Ct.App.1999), trans. denied, or the court’s conclusion that neutral risks are compensable under the Act, see Milledge, 784 N.E.2d at 930-31. Indeed, after recognizing the effect of the 2006 statutory amendment in Pavese, this court went on to hold that the claimant could not succeed in her application for worker’s compensation because the evidence she had presented in support of her claim equally showed that her injuries had resulted from either a personal risk or a neutral risk. 894 N.E.2d at 578. And since the 2006 statutory amendment neither this court nor the Indiana Supreme Court has concluded that neutral risks are no longer compensable under the Act.

Unlike the factual scenario in Pavese, here Kathy presented evidence that her injuries were not the result of a mental illness or condition — and, therefore, were not the result of a personal risk — and additionally stated that her injuries were the result of her losing her footing — and, therefore, were the result of a neutral risk. In particular, Kathy stated that she “didn’t get dizzy or lightheaded or anything.... It was just one of those things where I was just walking and I just fell[] and, you know, just lost my footing.” Appellant’s App. at 5. Further, A Plus stipulated to the SHM that Kathy’s fall was caused by her tripping. Id. at 3. In light of the undisputed evidence, we agree with the Board’s conclusion that “[Kathy’s] fall was a neutral risk and therefore compensable.” Id. at 27.

A Plus’s argument that this conclusion necessarily relies on the positional risk doctrine is incorrect. At all times, pursuant to the 2006 amendment to Indiana Code Section 23-3-2-2, Kathy bore the burden of proof on all elements of her claim. Kathy met her burden, unlike the claimant in Pavese, when she testified that the cause of the fall was both not a personal risk and also was a neutral risk.

A Plus further contends that the Board erred because a risk is incidental to employment only “if the risk is not one to which the public at large is subjected.” Appellant’s Br. at 7. A Plus continues that “[t]here is simply no evidence that [Kathy’s] job responsibilities increased her risk of falling_” Id. at 10. It is true that injuries arising from risks distinctly associated with the employment are com-pensable; but, as discussed by our supreme court in Milledge, it is not true that injuries arising only from such risks are compensable. Injuries arising from neutral risks are also compensable. Milledge, 784 N.E.2d at 930.

A Plus dismisses Olinger Construction Co. v. Mosbey, 427 N.E.2d 910 (Ind.Ct.App.1981), to the extent it applies the positional risk doctrine as “no longer good law.” Reply Br. at 6. In so doing, A Plus confuses the positional risk doctrine with the neutral risk doctrine and misconstrues the reach of the 2006 amendment to Indiana Code Section 23-3-2-2. The statutory amendment abrogated the positional risk doctrine, but it did not eliminate the neutral risk doctrine. A Plus’s argument would exclude an entire class of employees from potential coverage, the so-called “traveling employees” whose place of employment changes from hour to hour or day to day. See Olinger Constr. Co., 427 N.E.2d at 912. The 2006 amendment does not reflect such an intent by our legislature.

Finally, A Plus argues that the Board erroneously conflated the “in the course of’ and “arising out of’ requirements under the Worker’s Compensation Act. Appellant’s Br. at 12. We cannot agree. A Plus’s argument on this issue is based on the admittedly “slender” connection of neutral risks to employment, but the Board’s conclusion here was squarely based on the neutral-risk principle of Mil-ledge. As our supreme court explained:

We acknowledge, as has the Court of Appeals, that neutral risks present risk of loss problems. This is so because the risk does not fall clearly upon the employer or the employee. Responding to the question of who should bear this risk, Professor Larson observes:
[T]he usual answer in the past has been to leave this loss on the employee, on the theory that he or she must meet the burden of proof of establishing affirmatively a clear causal connection between the conditions under which the employee worked and the occurrence of the injury. More recently, some courts have reasoned in the following vein: Either the employer or the employee must bear the loss; to show connection with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant’s personal life.

Milledge, 784 N.E.2d at 932 (citations omitted; alteration original). Thus, once the claimant meets her burden of proof to show that her injuries did not result from a personal risk and did result from a neutral risk, she will have shown that her claim arose out of her employment.

Kathy’s evidence submitted to the SHM and credited by both the SHM and the Board demonstrated that her injuries both did not arise from a personal risk and did arise from a neutral risk. Because the injuries arose from a neutral risk, they were incidental to Kathy’s employment and, therefore, compensable. Id. at 929-31. Accordingly, we affirm the Board’s decision in favor of Kathy.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . A Plus does not dispute that Kathy's injuries occurred in the course of her employment with A Plus.

      . We note that Westlaw has "red flagged” Pavese as "no longer good law,” with the comment that it has been “superseded by statute as stated in Waters v. Indiana State University.” In Waters, we stated: "In Pavese, another panel of this court recognized that the amendment overruled the positional risk doctrine adopted by our supreme court in Milledge, 894 N.E.2d at 576.” Waters v. Ind. State Univ., 953 N.E.2d 1108, 1114 n. 2 (Ind.Ct.App.2011), trans. denied. Nothing in that statement can reasonably be read to suggest that Pavese, rather than the positional risk doctrine in Milledge, was superseded by the 2006 statutory amendment. Pavese is good law.

      . Because A Plus’s arguments on appeal are premised on its overly broad reading of the 2006 amendment to Indiana Code Section 23-3-2-2, the case law relied on by A Plus focuses on risks distinctly associated with employment rather than neutral risks. Accordingly, many of the cases cited by A Plus are inapposite.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    INDIANA RAIL ROAD COMPANY, A Corporation, Appellant-Defendant, v. John Blaine DAVIDSON, Administrator of The Estate of Carolyn Davidson, Deceased, and Tonya Kincaid, as Mother and Next Friend of Cierra Kincaid, a Minor, Appellees-Plaintiffs.
    No. 84A01-1202-CT-81.
    Court of Appeals of Indiana.
    Dec. 27, 2012.

      David A. Locke, Stuart & Branigin, Lafayette, IN, Attorney for Appellant.
    James L. Farina, Hoey & Farina, P.C., Chicago, IL, Robert L. Wright, Bradley A. Bough, Wright Shagley & Lowery, P.C., Terre Haute, IN, Attorneys for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Indiana Rail Road Co., a Corporation (Indiana Rail Road), appeals the trial court’s summary judgment in favor of John Blaine Davidson, Administrator of the Estate of Carolyn Davidson, deceased, and Tonya Kincaid, as mother and next friend of Cierra Kincaid, a minor (collectively, Appellees), with respect to Indiana Rail Road’s claim that Appellees’ cause is preempted by federal law.

We affirm.

ISSUE

Indiana Rail Road raises two issues on appeal, one of which we find dispositive and which we restate as follows: Whether the trial court erred in concluding that a genuine issue of material fact exists as to whether federal preemption applies with respect to the adequacy of the traffic warning devices installed at the Feree Drive railroad crossing in 2009.

FACTS AND PROCEDURAL HISTORY

On June 5, 2009, Carolyn Davidson (Carolyn), together with her two minor granddaughters, was driving westbound on Fer-ee Drive in Vigo County, Indiana. While she attempted to cross the railroad tracks, an Indiana Rail Road locomotive hit her vehicle, resulting in Carolyn’s death and severe injuries to one granddaughter. At the time of the collision, the Feree Drive railroad crossing was equipped with reflec-torized crossbuck signs that had been installed in 2009, prior to the accident.

Reflectorized crossbuck signs were originally installed at the crossing in 1978 under a federally-funded project. The contract entered into between the State of Indiana and Indiana Rail Road’s predecessor, the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (The Milwaukee Road), obligated the railroad to install crossbucks at the Feree Drive crossing, in compliance with federally-approved specifications governing the location of the cross-bucks, and to maintain the crossbucks at the Milwaukee Road’s expense. The Federal Highway Administration (FHWA) approved and certified the contract and its specifications for crossbuck placement and funded 90% of the installation costs.

On June 5, 2009, prior to the accident, Indiana Rail Road took down the cross-buck signs at the Feree Drive crossing. To fund the installation of new signs, Indiana Rail Road applied for and received State funds from the Indiana Department of Transportation (INDOT). As part of this 2009 project, INDOT required Indiana Rail Road “to complete the Project in accordance with the plans and specifications contained in its application which is on file with the State and is incorporated by reference.” (Appellees’ App. p. 45). Indiana Rail Road’s application shows that it omitted incorporating the federal plans from Milwaukee Road’s 1978 project as part of Indiana Rail Road’s plans for the 2009 crossbuck project.

On November 23, 2010, Appellees filed their Complaint against Indiana Rail Road, alleging among others, that the Feree Drive grade crossing was extra-hazardous and had inadequate traffic warning devices. On October 4, 2011, Indiana Rail Road moved for partial summary judgment. On November 4, 2011, the Appel-lees responded. In their designated evidence, both parties agreed that no federal funds were used for the installation of the new crossbuek signs. On November 16, 2011, the trial court conducted an argument on the motion for partial summary judgment and on December 23, 2011, the trial court issued its Order, denying the motion and concluding, in pertinent part:

In 1978 reflectorized crossbucks had been installed with federal funds under a project approved by the Federal Highway Administration. For purposes of this summary judgment it is undisputed that the reflectorized crossbucks were removed and new crossbucks installed at a different location at the crossing and were not installed with federal funds under a project approved by the Federal Highway Administration in 2009. If federal funds were used, federal law preempts state tort law on the adequacy of the warning devices. If no federal funds were used to replace this specific crossbuck, then state tort law is not preempted and [Appellees’] case can [move] forward. The [c]ourt finds that there is a genuine issue of material fact whether there were federal funds used to install the warning devices at the subject crossing on the date of the collision.

(Appellant’s App. pp. 8-9).

On December 29, 2011, Indiana Rail Road requested certification of an interlocutory appeal, which was granted by the trial court. On March 30, 2012, we accepted the interlocutory appeal to the trial court’s partial summary judgment.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs’ claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its decision and facilitate appellate review. Id.

II. Federal Preemption

The Indiana Rail Road now contends that the trial court erred in denying its motion for partial summary judgment. Specifically, Indiana Rail Road claims that once federal funds have been applied in the installment of traffic warning devices at a particular railroad crossing, state tort law is preempted regardless of later changing circumstances and a railroad can no longer be held responsible for the adequacy of the traffic warning signs.

The Federal Railroad Safety Act (FRSA) was enacted in 1970 “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. To aid in developing solutions to railroad grade crossing safety problems, the FRSA provides that the Secretary of Transportation “as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing [existing] laws and regulations.” 49 U.S.C. § 20103.

In 1973, Congress enacted the Highway Safety Act (HSA) which makes federal funds available to States to improve railroad crossings. As a prerequisite to receiving federal funds, the States must “conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.” 23 U.S.C. § 130(d). Additional conditions on the States’ use of federal funds to improve grade crossings are set out in regulations promulgated by the Secretary through the Federal Highway Administration (FHWA). See 23 C.F.R. §§ 646, 655, 924,1204.

The FRSA specifically provides for preemption:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106. The Supreme Court has held that “covering” is a restrictive term which indicates that Congress intended preemption to lie “only if the federal regulations substantially subsume the subject matter of the relevant state law.” CSX Transportation Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Therefore, preemption will not lie unless it is “the clear and manifest purpose of Congress.” Id.

In Easterwood, the Supreme Court addressed the preemptive force of the FRSA with respect to state warning device claims for accidents at grade crossings and held that, of all potential sources of preemption, only the regulations found at 23 C.F.R. sections 646.214(b)(3) and (4), when applicable, preempt state law because only those regulations establish actual requirements as to the installation of particular warning devices. Id. at 670, 113 S.Ct. 1732. Subsections (b)(3) and (4) outline the types of warning devices deemed adequate for certain types of crossings. Subsection (b)(3)(i) mandates that:

Adequate warning devices under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracts.
(B) Multiples tracts at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.
(D) A combination of high speed and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of school busses or trucks using hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F)A diagnostic team recommends them.

23 C.F.R. § 646.214(b)(3)(i). Subsection (b)(3)(ii) provides that “[i]n individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.” 23 C.F.R. § 646.214(b)(3)(ii). If the requirements of subsection (b)(3) are not applicable, then subsection (b)(4) applies to federally-funded installations at railroad crossings that do not feature multiple tracks, heavy traffic, and the like. According to subsection (b)(4), “the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.” 23 C.F.R. § 646.214(b)(4). Stated succinctly, the Supreme Court held in Easterwood that state law is preempted only if either subsection (b)(3) or (b)(4) applies, and those subsections apply only if federal funds participated in the installation of traffic warning devices at a particular crossing.

Despite Easterwood, there remained a conflict in the circuit courts as to whether the FRSA, by virtue of 23 C.F.R. § 646.214(b)(3) and (4), preempted state tort claims concerning a railroad’s failure to maintain adequate warning devices at crossings where federal funds had participated in the installation of those devices. Therefore, in Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000), the Supreme Court addressed once again the preemptive effect of the FRSA in conjunction with these regulations.

When the FHWA approves a crossing project and the State installs the warning devices using federal funds, § 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject. At that point, the regulation dictates the devices to be installed and the means by which railroads are to participate in their selection. It is this displacement of state law concerning the devices’ adequacy, and not the State’s or the FHWA’s adherence to the standard set out in § 646.214(b)(3) and (4) or to the requirements of the [Manual on Uniform Traffic Devices for Streets and Highways] MUTCD, that pre-empts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate is immaterial in the pre-emption question.
It should be noted that nothing prevents a State from revisiting the adequacy of devices installed using federal funds. States are free to install more protective devices at such crossings with their own funds or with additional funding from the FHWA. What States cannot do-once they have installed federally funded devices at a particular crossing-is hold the railroad responsible for the adequacy of those devices.

Id. at 357-58, 120 S.Ct. 1467 (internal references omitted). Thus, Shcmklin stands for the broader proposition that preemption attaches when federal funds are spent on any of the traffic control devices installed at the grade crossing. Once preemption attaches, a plaintiffs inadequate warning device claim against the railroad must be dismissed.

Here, the designated evidence reflects that the federal government approved and funded the installation of the reflectorized crossbucks in 1978. At that point in time, preemption attached with respect to the adequacy of the warning signs at the Feree Drive crossing. Sometime in 2009, Indiana Rail Road removed the federally-funded crossbucks. Prior to the accident, Indiana Rail Road installed crossbuck signs paid for by State funds at a different location at the crossing.

In support of its argument that preemption was still attached when the accident occurred on June 5, 2009, the Indiana Rail Road relies on established case law standing for the premise that preemption is not erased when federally funded warning devices are upgraded or replaced for maintenance reasons. The pivotal case standing for this proposition is Cochran v. CSX Transportation, Inc., 112 F.Supp.2d 733 (N.D.Ind.2000). Cochran was killed when her car was struck by a train while she attempted to cross a grade crossing. Id. at 735. Because it was unclear whether the crossbuck at the crossing was the same crossbuck installed twenty years earlier with federal funds, Cochran asserted that a genuine issue of material fact existed as to whether preemption had attached. Id. at 739. The United States District Court stated:

Although it is important to the question of preemption whether federal funds actually were used to install a warning device, it is not important whether a substantially similar device later was installed at the same location using non-federal funds. When addressing a similar issue, the Tenth Circuit has determined that the only situation where preemption arguably could be considered suspended or terminated would be where the Secretary of Transportation affirmatively abandoned the project and withdrew federal funding or allowed previously allocated funds to be spent at another site. Once the FHWA approves a crossing improvement and the warning devices are installed using federal funds, a federal standard of adequacy is established for that crossing, and state tort law is displaced on the topic. Whether the crossbuck installed at [the crossing] was the same crossbuck originally installed with federal funds in 1976 is immaterial because it clearly met the federal standard of adequacy established for that crossing by virtue of the earlier installation, and there is no evidence that the federal government ever withdrew from the project.

Id. at 738-39 (internal references omitted).

However, Cochran and its line of case law fails to identify the source of the non-federal funds and there is no evidence indicating that the replacement cross-bucks, although placed in the identical location of the old signs, were installed as part of a subsequent state-funded project in which the railroad was obligated to reassess whether crossbucks provided adequate protection.

Not relied on by either party but nevertheless persuasive is the Texas Court of Appeals’ decision in Union Pacific R. Co. v. Cezar, 293 S.W.3d 800, 803 (Tex.Ct.App.2009), which involved the collision between a freight train and a pickup truck at the Eddy Street crossing in Vinton, Louisiana on July 22, 2005. Earlier, in 1997, pursuant to a federal railroad crossing improvement program, the warnings at an adjacent railroad crossing had been upgraded to include flashing lights and gates. Id. at 805. As part of this upgrade, Union Pacific closed the Eddy Street crossing and removed the existing warning signs. Id. at 804. In the summer of 1997, the State instructed Union Pacific to reopen the Eddy Street crossing and informed the railroad that “[t]he crossing will be reopened as a passive crossing with cross-bucks (installed and maintained by your railroad) and stop signs (installed and maintained by the town).” Id. at 806. When the crossing was subsequently reopened in 1997, it was not protected by any warnings that activated to warn of an approaching train. Id. Asserting preemption, Union Pacific claimed it conclusively established that federal funds participated in the installation of the crossing’s cross-bucks prior to the collision. Id. at 812. In support of its argument, Union Pacific contended that the upgrade of the adjacent railroad crossing was a federally funded project, which included the closure of the Eddy Street crossing and that subsequently the FHWA was involved in the planning process to reopen the Eddy Street crossing “and was copied on the [Louisiana Department of Transportation’s] letter authorizing the use of $10,000 in federal funds.” Id. at 814.

The Texas Court of Appeals disagreed. Relying on Eastenuood and Shanklin, the court characterized “the threshold question” as “whether [Union Pacific] conclusively established that federal funds participated in the installation of the crossbucks at the crossing.” Id. After reviewing the entirety of the designated evidence, the court concluded that Union Pacific failed to meet its burden and did not establish its preemption defense as a matter of law. Id. at 815.

For instance, the grade crossing file does not reflect that federal officials inspected and approved the signalization for the project to reopen the crossing, or that federal officials approved or agreed to pay for the erection of crossbucks ... Importantly, the crossing file also does not reflect that the State succeeded in utilizing federal funds previously approved for a project that encompassed closing the crossing to instead pay for the expenses incurred by [Union Pacific] to reopen it. Finally, while officials of the federal government were apparently notified of the plan to reopen the crossing as a passive crossing with cross-bucks and stop signs, [Union Pacific’s] grade crossing file does not reflect that federal officials approved its reopening without active warning devices.

Id.

Here, it is undisputed that federal funds participated in the installment of the original crossbucks in 1978 at the Feree Drive grade crossing. It is also undisputed that although the new crossbucks are of the same type as previously approved by the federal government, only state funds were involved in the installment of new cross-bucks in 2009 and these new crossbucks were not placed in the exact same location at the crossing as their predecessors. In its application requesting state funds, the Indiana Rail Road neither included nor incorporated the federal specifications from the 1978 project. Because state funds were requested and granted, the Indiana Rail Road became responsible for assessing the crossing’s safety needs pursuant to INDOT’s regulations. There is no evidence indicating that the federal government approved the newly located cross-bucks. In light of Cochran and Cezar and considering the totality of the designated evidence, we conclude that there is a genuine issue of material fact whether the federal government affirmatively abandoned the project and federal preemption no longer applies to the Feree Drive railroad crossing.

CONCLUSION

Based on the foregoing, we hold that the trial court properly denied the Indiana Rail Road’s motion for partial summary judgment, concluding that a genuine issue of material fact exists as to whether federal preemption precludes Appellees’ claim with respect to the adequacy of traffic warning devices.

Affirmed.

BAILEY, J. and CRONE, J. concur.

      . Because we affirm the trial court’s denial of the Indiana Rail Road's motion for partial summary judgment based on the issue of federal preemption, we do not reach the merits of the parties' alternative argument which focused on whether 49 U.S.C. § 20106, as amended, applies to Appellees’ allegations brought under the common law of negligence that the warning devices created an essentially local safety hazard, thereby saving Appel-lees’ claim from federal preemption.


author: CRONE, Judge.

text:
    Slavojka PISTALO, Appellant-Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY and The Estate of Iris M. Wilks, Deceased, Appellees-Defendants.
    No. 45A04-1204-PL-214.
    Court of Appeals of Indiana.
    Dec. 27, 2012.

      Adam J. Sedia, Rubino, Ruman, Cros-mer & Polen, Dyer, IN, Attorney for Appellant.
    J. Thomas Vetne, Brian M. Kubicki, Jones Obenchain, LLP, South Bend, IN, Attorneys for Appellee Progressive Casualty Insurance Company.
   OPINION

CRONE, Judge.

Case Summary

In 2005, Slavojka Pístalo filed a personal injury action against Iris Wilks for injuries stemming from a 2003 vehicle collision. Wilks was insured by Progressive Casualty Insurance Company (“Progressive”), and Pistalo and Progressive began settlement negotiations. Unbeknownst to Pista-lo, Wilks had died in the fall of 2008, and no estate had ever been opened. When Pistalo learned about Wilks’s death two years later, her counsel opened an estate in Wilks’s name for purposes of the personal injury action. Prior to trial, Pistalo offered to settle for policy limits, but Progressive refused.

Later, a jury found Wilks’s estate liable to Pistalo in the amount of $809,000. Progressive paid the $100,000 coverage limits under Wilks’s policy. Pistalo then filed proceedings supplemental, seeking to recover from Progressive approximately $325,000, the amount by which the entire damages award exceeded the policy limits, including prejudgment interest and attorney’s fees. Unsuccessful, Pistalo then obtained from Wilks’s estate an assignment of its rights against Progressive and filed a direct action against Progressive seeking a $333,600 excess judgment, which also included post-judgment interest. That action ended in a summary judgment in favor of Progressive.

Pistalo now appeals, claiming that the trial court erred in granting Progressive’s motion for summary judgment and in impliedly denying her motion for summary judgment. Finding that summary judgment was inappropriate, we reverse and remand.

Facts and Procedural History

In February 2003, Pistalo was injured in a vehicle collision with Wilks, who was insured by Progressive. In January 2005, Pistalo filed a personal injury action against Wilks in Lake Superior Court (“Court I”). Pistalo and Progressive entered into settlement negotiations, but Progressive refused Pistalo’s offer to settle for the $ 100,000 coverage limits of Wilks’s policy. In November 2005, a representative from Progressive told Pistalo that Wilks had died in November 2003. Because no estate had ever been opened, Pistalo’s counsel opened an estate in probate court (“Court II”) in Wilks’s name in January 2006, for purposes of substituting Wilks’s estate as the party defendant in her personal injury action. William A. Padula, a colleague of Pistalo’s counsel, was appointed special representative of Wilks’s estate. Progressive did not challenge Padula’s appointment as special representative.

In January 2006, Pistalo amended her complaint in the personal injury action, naming Wilks’s estate as the party defendant. When the personal injury action finally went to trial in October 2009, Progressive defended the action on behalf of Wilks’s estate. A jury found that Wilks had been 100% at fault and assessed damages at $309,000. Progressive paid the policy limit of $100,000 into court post-judgment. Court I subsequently found that Pistalo was entitled to $123,000 in prejudgment interest and $1000 in attorney’s fees. Progressive paid the $1000 attorney’s fee. The estate contained no assets other than the insurance policy, and Pistalo filed proceedings supplemental in Court I, seeking to recover from Progressive the entire remainder of the damage award, plus prejudgment interest, in excess of the policy limits. In an order dated June 17, 2010, Court I made the following findings:

1. On October 7, 2009, judgment was entered against defendant [Wilks’s estate] in the sum of $309,000.
2. Pursuant to IC 34-50-1-1 et seq., [Pistalo] is entitled to fees, costs in the amount of $1000.
3. Pursuant to IC 34-51-4-8, [Pistalo] is entitled to prejudgment interest. An appropriate interest rate is 10% from July 11, 2005 to October 7, 2009 for a total amount of $123,600.
4. Progressive has never been a party to this action. There has never been a claim of bad faith made against Progressive with respect to this claim.
5. Therefore, Progressive’s liability is limited to the amount of its policy limit of $100,000.
6. The $ 100,000 insurance proceeds shall be applied in partial satisfaction of the $433,600 judgment plus court costs.

Appellant’s App. at 533-34.

After Court I ruled against Pistalo in the proceedings supplemental, Padula assigned to Pistalo the estate’s rights against Progressive, asserting that the estate had a claim against Progressive for an excess judgment. Armed with the assignment, Pistalo then filed a direct action against Progressive in a different Lake County Superior Court (“Court III”), seeking the $333,600 excess judgment based on the insurer’s alleged bad faith refusal to settle. Both parties sought summary judgment, and Court III granted Progressive’s motion for summary judgment, finding that Pistalo had no claim to any estate assets beyond the insurance proceeds; that the limitation of Progressive’s liability to $ 100,000 had already been litigated in proceedings supplemental; and that the assignment between the estate and Pistalo was invalid. Id. at 8-9. Pistalo now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Pistalo contends that Court III erred in granting Progressive’s motion for summary judgment and in impliedly denying her motion for summary judgment. We review a trial court’s decision to grant or deny summary judgment using the same standard as the trial court. Worman Enters., Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind.2004). A motion for summary judgment is properly granted only when the pleadings and designated evidence reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Bank of New York v. Natty, 820 N.E.2d 644, 648 (Ind.2005). Our standard of review is not altered where the parties have filed cross-motions for summary judgment. Indiana Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000).

Here, Court Ill’s summary judgment order included written findings and conclusions. We note that the trial court is not required to provide written findings and conclusions qn summary judgment and that the conclusions are not binding on appeal, but they offer valuable insight into the trial court’s rationale and thus facilitate our review. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 608 (Ind.Ct.App.2008), trans. denied.

Pistalo claims that Court III erred in granting Progressive’s motion for summary judgment on the issue of whether Progressive was liable for damages exceeding the $100,000 coverage limits of Wilks’s policy. She relies heavily on Economy Fire & Casualty Co. v. Collins, 643 N.E.2d 382 (Ind.Ct.App.1994), trans. denied (1995), as support for her argument. In Collins, another panel of this Court affirmed an excess judgment against a deceased tortfeasor’s insurer where the insurer asserted that it had no duty to exercise good faith in failing to settle the aggrieved party’s claim and where the estate had assigned to the aggrieved party all of its rights against the deceased’s insurer. Id. at 383. After engaging in an in-depth analysis of two common approaches to measuring damages in cases where an insurer’s bad faith failure to settle a claim results in an excess judgment, the Collins court adopted the “judgment rule.” Id. at 385. Under the judgment rule, an insurer may be liable for the entire excess judgment, despite its insured’s lack of actual partial payment or the insured’s lack of capacity to pay any part of the judgment.

The rationale behind allowing full recovery to an insured who has not paid the excess judgment is to prevent bad-faith practices in the insurance industry by eliminating the insurer’s ability to hide behind the financial status of its insured. Further, the judgment rule prevents an insurer from benefitting from poverty of an insured who has a meritorious claim but cannot first pay the judgment imposed upon [her]. If payment or demonstration of ability to pay a judgment were the rule, then an insurer may be encouraged to refuse to settle a claim merely because the insured is insolvent. Such a course of action would impair the use of insurance by the poor.

Id. (citations omitted).

Progressive correctly asserts that Collins is factually distinct with respect to the timing of the aggrieved party’s claim against the tortfeasor’s estate. There, Collins filed his claim within the applicable five-month statutory period and thus preserved a valid claim against estate assets. Id. at 384. Because Progressive contends that the timing difference commands a different result with respect to Pistalo’s action for an excess judgment, we now address the extent of her statutory rights against Wilks’s estate.

Courts I and III both concluded that because Pístalo filed her action after the expiration of the statutory time to file a claim against an estate, she could not recover any estate assets other than those encompassed within the insurance policy. See Ind.Code § 29-l-7-7(e) (“[A] claim filed under IC 29-l-14-l(a) more than nine (9) months after the death of the decedent is barred.”); see also Ind.Code § 29-l-14-l(d) (“All claims barrable under subsection (a) shall be barred if not filed within nine (9) months after the death of the decedent.”). However, both Courts also determined that Pistalo’s recoverable damages against Progressive could not exceed the insurance policy’s stated liability limit of $100,000. Pístalo argues that her recovery is not subject to Progressive’s $ 100,000 policy limit because she filed her personal injury action within the time-frame for such actions. Indiana Code Section 29 — 1—14—1 (f) states:

Nothing in this section shall affect or prevent the enforcement of a claim for injury to person or damage to property arising out of negligence against the estate of a deceased tort feasor within the period of the statute of limitations provided for the tort action. A tort claim against the estate of the tort feasor maybe opened or reopened and suit filed against the special representative of the estate within the period of the statute of limitations of the tort. Any recovery against the tort feasor’s estate shall not affect any interest in the assets of the estate unless the suit was filed within the time allowed for filing claims against the estate. The rules of pleading and procedure in such cases shall be the same as apply in ordinary civil actions.

While the statute lacks clarity with respect to harmonizing the various limitations periods for bringing claims, we find Justice Boehm’s explanation in Indiana Farmers Mutual Insurance Co. v. Richie to be helpful:

[T]he most practical reading of [subsection (f) ] is that a tort suit may be instituted at any time within the applicable tort limitation period.... By adding subsection (f), the legislature clearly intended to exempt tort actions for liability insurance proceeds from the requirements of the probate code. This seems to make eminent sense. The statute makes clear that the administration of the estate cannot be disturbed by a Johnny-come-lately tort suit because such a suit cannot reach the assets of the estate. If that is the case there seems to be no reason why a suit involving only insurance proceeds should not proceed as a normal tort suit uncomplicated by the Probate Code. Moreover, the second sentence of subsection (f) must be read in conjunction with the first. The first sentence clearly states that “nothing in this section shall affect or prevent the enforcement of a claim for injury....” Subsection (f) is among the things in “this section.” Accordingly we conclude that the only requirement that Indiana Code § 29 — 1—14—1 (f) imposes on a tort action seeking liability insurance proceeds is that the suit be filed within the tort statute of limitations.

707 N.E.2d 992, 995 (Ind.1999).

Because Pístalo did not file a claim within the nine-month timeframe allowed for filing claims against Wilks’s estate, she could not disturb the distribution of estate assets, had there been any. Nevertheless, because she filed her tort action within the statute of limitations for a personal injury claim, she is entitled to recover from Progressive whatever sums Progressive owed to Wilks’s estate as Wilks’s insurer. In other words, Progressive not only was obligated to insure Wilks for the $100,000 policy limit, but it also owed Wilks pursuant to that insurance policy an obligation to exercise good faith in handling Pistalo’s claim against her.

Included in that good faith obligation was Progressive’s duty to avoid exposing Wilks’s estate to excess liability by refusing to settle for the policy limits. If Progressive failed to act in good faith, it risked liability to the estate for any excess judgment against it. Collins, 643 N.E.2d at 385. In that event, Progressive’s total obligation would include not only the policy coverage limit, but also the amount of any excess judgment. We are unaware of any compelling policy reason to condition the availability of the bad faith claim against Progressive upon the subsequent liquidity of Wilks’s estate. To do so would not serve the purpose of promoting good faith bargaining by liability carriers. In its proceedings supplemental order, Court I found that Pístalo owned a judgment of $309,000 (less $100,000 paid) and was entitled to prejudgment interest and attorney’s fees, but not from Progressive in that forum, because she had neither named Progressive as a party nor established a bad faith claim against Progressive. Thus, as a judgment creditor of the insured tortfeasor’s estate, Pistalo needed a procedural mechanism for pursuing an excess judgment directly from the insurer. She accomplished this by obtaining an assignment from Wilks’s estate. See id. at 386 (adopting judgment rule, which “mandates that if an insurer engages in bad faith while failing to settle a claim, the insurer must compensate the insured or its assignees, regardless of financial status.”) (emphasis added).

Pistalo contends that as an assign-ee, she obtained all rights that Wilks’s estate had against Progressive as Wilks’s insurer, including the right to the $333,600 excess judgment. The assignee of rights under a contract stands in the shoes of the assignor and can assert any rights that the assignor could have asserted. Citimort-gage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind.2012). “A valid assignment gives the assignee neither greater nor lesser rights than those held by the assignor.” Indianapolis-Marion Cnty. Pub. Library v. Charlier Clark & Linard, PC, 929 N.E.2d 838, 848 (Ind.Ct.App.2010) (citation and quotation marks omitted), trans. denied.

Progressive challenges the validity of the assignment on grounds of lack of consideration. We note that it is generally inappropriate for courts to inquire into the adequacy of consideration. Stain-brook v. Low, 842 N.E.2d 386, 397 (Ind.Ct.App.2006), trans. denied. Moreover, it is questionable whether Progressive, as a stranger to the assignment, has standing to raise such an inquiry. Nevertheless, we choose to address Progressive’s argument.

An assignment is a contract and therefore is subject to the requirement that it be supported by consideration. Interstate Fin. Corp. v. Dodson, 105 Ind.App. 513, 518, 12 N.E.2d 989, 991 (1938).

Consideration is defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. A benefit is a legal right given to the promisor to which the promisor would not otherwise be entitled. A detriment is a legal right the promisee has forborne.

Warner v. Estate of Allen, 776 N.E.2d 422, 428 (Ind.Ct.App.2002) (citations and internal quotation marks omitted), trans. denied (2003).

Here, Pístalo had a judgment against Wilks’s estate, and the estate had rights against Progressive as Wilks’s insurer. Under the terms of the assignment, the estate gave Pístalo its rights against Progressive in exchange for Pista-lo’s promise to forgo executing on her judgment against Wilks’s estate. The fact that the estate had no assets goes to the collectability of the judgment, not the right to execute on the judgment against the estate. This is precisely what the Collins court was emphasizing when it found that a lack of collectability on the judgment against the estate did not render the estate’s assignment to the aggrieved party illusory. 643 N.E.2d at 386. Simply put, the assignment between Pístalo and Wilks’s estate was supported by valid consideration.

In sum, tortfeasor Wilks purchased $100,000 in coverage from Progressive, and Progressive refused to settle with Wilks’s aggrieved party Pístalo for the $100,000 policy limit when given the opportunity to do so. Post-judgment, Progressive paid Pístalo $100,000, plus $1000 in attorney’s fees. By refusing to settle, Progressive placed its insured at risk of incurring a judgment for an amount exceeding the policy limits. As such, the $333,600 excess judgment Pístalo now seeks was part of Progressive’s bargained-for risk based on its duty to act in good faith with respect to its insured. In the proceedings supplemental, Court I found that Pístalo had neither made a claim of bad faith against Progressive, nor named Progressive as a party. However, once Pístalo obtained the assignment from Wilks’s estate, she was in a position to file a direct action against Progressive for the entire amount of its obligation to the estate based on its alleged bad faith refusal to settle for the policy limits. If bad faith is established, Progressive’s obligation to Pístalo will include not only the stated policy limits, but also the amount of the excess judgment. Because the issue of whether Progressive acted in bad faith has not been established in the designated materials as a matter of law, we conclude that summary judgment was inappropriate. Accordingly, we reverse and remand for proceedings consistent with this decision.

Reversed and remanded.

RILEY, J., and BAILEY, J., concur.

      . At the outset, we acknowledge Progressive’s argument that Pistalo should be collaterally estopped from raising her claim for excess judgment based on bad faith failure to settle. However, we agree with Court I that the issue of bad faith was not litigated in the proceedings supplemental and that Progressive was not a named party. We also find that the estate's assignment to Pistalo of its rights against Progressive changed Pistalo's position vis-a-vis Progressive. Thus, collateral estop-pel does not apply. See Huber v. United Farm

        Family Mut. Ins. Co., 856 N.E.2d 713, 716 (Ind.Ct.App.2006) (finding that to bar relitigation of issue, collateral estoppel requires final judgment, identity of issues, and same identity of party to be estopped), trans. denied (2007).

      . The other approach, the " 'payment rule,' dictates that an insurer may be held liable for a judgment in excess of policy limits only if part or all of the judgment has been paid by the insured.” Collins, 643 N.E.2d at 385.

      . It is important to note that at the time Progressive committed the alleged bad faith, the liquidity of Wilks’s estate had not yet been established.

      . Progressive also asserts that Padula lacked authority to execute an assignment due to his position as a special representative, not a personal representative. A special representative is a type of personal representative who is appointed for a special purpose "with limited powers and duties [and who) is responsible to the estate only for that portion of its affairs entrusted to [him].” In re Estate of Hutman, 705 N.E.2d 1060, 1063 (Ind.Ct.App.1999) (citation and quotation marks omitted). In cases where the party defendant dies during the pendency of personal injury proceedings, "only a special representative — in contrast to a personal representative to administer the estate’s assets and liabilities — -needs to be appointed.” Richie, 707 N.E.2d at 995 (quoting 1 Henry’s Indiana Probate Law § 804, at 339-40 (8th ed. 1989)). In other words, the special representative is appointed to "satisfy[] the somewhat metaphysical notion that a suit cannot proceed against a decedent.” Id. Here, Padula’s "portion of estate affairs" consisted of matters relating to Pistalo's personal injury action against the estate. The assignment to Pistalo was part of that portion of affairs because it avoided any attempt by Pis-talo to execute on her judgment against the estate. As such, Padula did not act beyond his limited powers and duties in entering into the assignment with Pistalo.

      . "To prove bad faith, the plaintiff must establish, with clear and convincing evidence, that the insurer had knowledge that there was no legitimate basis for denying liability." Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 40 (Ind.2002).

      . While we appreciate the vigorous advocacy of counsel for both parties, we caution counsel that the aggressive and sarcastic tone of the arguments in their briefs serves no productive purpose.


author: VAIDIK, Judge.

text:
    DUKE ENERGY INDIANA, INC., Appellant-Petitioner, v. OFFICE OF UTILITY CONSUMER COUNSELOR, Indiana Utility Regulatory Commission, Appellees-Respondents.
    No. 93A02-1111-EX-1042.
    Court of Appeals of Indiana.
    Dec. 28, 2012.

      Jon Laramore, Jane Dali Wilson, Faegre Baker Daniels LLP, Indianapolis, IN, Melanie D. Price, Duke Energy Indiana, Inc., Plainfield, IN, Attorneys for Appellant.
    Robert L. Hartley, Maggie L. Smith, Frost Brown Todd LLC, Attorneys for Appellant Amicus Curiae, Indiana Energy Association.
    A. David Stippler, Randall C. Helmen, Indianapolis, IN, Attorneys for Appellee, Indiana Office of Utility Consumer Counselor.
    David Lee Steiner, Deputy Attorney General, Office of the Indiana Attorney General, Beth Krogel Roads, Assistant General Counsel, Indiana Utility Regulatory Commission, Indianapolis, IN, Attorneys for Appellee, Indiana Utility Regulatory Commission.
   OPINION

VAIDIK, Judge.

Case Summary

On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (“IURC” or “Commission”) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges (“ALJ”), Scott R. Storms, had been communicating with Duke Energy Indiana (“Duke”) regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (“OUCC”) recommended denying Duke relief, but the IURC granted Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. The IURC conducted an audit but eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented.

After another evidentiary hearing before a new ALJ and the full Commission at which updated evidence was presented, the IURC, in a lengthy order, denied Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. Duke now appeals, arguing that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to diametrically opposed decisions without giving any reason for the change.

We, however, find that the IURC’s findings are based on substantial evidence that was placed into the record following the IURC’s order reopening this proceeding. These findings, in turn, support the IURC’s conclusion to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. As for Duke’s argument that the IURC should have explained why it changed its mind because failing to do so was fundamentally unfair, we find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief the second time around, and, in any event, the IURC was not required to explain why it reached a different conclusion. We therefore affirm the IURC’s decision to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses.

Facts and Procedural History

A. Duke Energy Indiana and the Ice Storm

Duke is a public-utility corporation that supplies electricity to 69 counties and 775,-000 customers in Indiana. There was an ice storm in southern Indiana on January 27, 2009, that caused major damage to Duke’s electrical system. Approximately 116,000 Duke customers lost power for up to 5 days. Four months before, in September 2008, there was a wind storm in southern Indiana produced by the remnants of Category 4 Hurricane Ike that also caused damage to Duke’s electrical system. The expenses from both storms totaled $32 million. Duke’s retail rates at the time included an annual amount of $2.6 million for storm-damage restoration expenses for major storms. Appellant’s App. p. 32.

On July 22, 2009, Duke filed a petition with the IURC, docketed as Cause No. 43743, seeking deferred-accounting treatment for $11.6 million, which represented the retail jurisdictional portion of incremental operating expenses resulting from the January 2009 ice storm. The relief Duke sought would have allowed the ice-storm expenses to be considered for recovery in Duke’s next base-rate case. Id. at 48-49. According to Duke, this would mean that the “shareholders would absorb the difference between $11.6 million and $32 million.” Appellant’s Reply Br. p. 9. If deferred-accounting treatment were not granted, Duke would have to recognize such expenses currently as charges to operating income, which would affect Duke’s ability to attain the earnings level authorized by the IURC in the last base-rate case due to no controllable measure of its own. Appellant’s App. p. 48. The OUCC opposed Duke’s petition.

B. The State Agencies Involved

The Indiana General Assembly created the IURC primarily as an impartial fact-finding body with the technical expertise to administer the regulatory scheme devised by the legislature. Ind.Code § 8-1-1 — 5(a); N. Ind. Public Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1015 (Ind.2009). The Commission cannot act in the role either of a proponent or opponent on any issue to be decided by it. I.C. § 8-1-l-5(a). The Commission’s assignment is to ensure that public utilities provide constant, reliable, and efficient service to the citizens of Indiana. U.S. Steel, 907 N.E.2d at 1015.

In contrast, the OUCC is a state agency charged with representing the interests of ratepayers, consumers, and the public in actions before the Commission, the Department of State Revenue, the Indiana Department of Transportation, courts, and federal agencies pursuant to Indiana Code chapter 8 — 1—1.1. Lincoln Utils., Inc. v. Office of Util. Consumer Counselor, 661 N.E.2d 562, 563-64 (Ind.Ct.App.1996), reh’g denied, trans. denied; see also Ind. Code § 8-1-1.1-4.1.

C. Storms and the 2010 Order

The IURC held an evidentiary hearing on Duke’s petition on November 12, 2009, before ALJ Storms and Commissioner David E. Ziegner. Tr. p. 7. Storms was also the IURC’s general counsel. Duke’s witnesses were Jim Stanley, President of Duke, who testified about the scope of the damage caused by the wind and ice storms and the costs to repair Duke’s power grid; Anthony Geswein, an electric system operations manager who served as the storm manager and testified in detail about the outages caused by the ice storm and Duke’s efforts to repair its system; Danny Wiles, an accounting manager who testified about the costs incurred to make repairs caused by the ice storm; and Diana Douglas, a rate manager who testified about storm-repair costs that were covered in Duke’s current rates and the deferred-accounting treatment Duke sought for the ice storm. Id. at 180-266.

In opposition to Duke’s testimony, the OUCC presented the testimony of Greg Foster, a utility analyst in the Electric Division of the OUCC’s Energy Group. Foster opposed Duke’s request for deferred-accounting treatment for its operating expenses associated with the ice storm because he believed that Duke’s proposal constituted single-issue ratemaking and retroactive ratemaking, both of which are generally prohibited. Id. at 271. Although there is an exception if a storm is extraordinary, Foster did not believe that the ice storm qualified as an extraordinary storm. Id. at 273. All of the testimony was presented in written form; there was no live testimony or cross-examination at the hearing.

Before the hearing, IURC staff issued a staff report that did not make a recommendation either way on whether to grant Duke’s request. Id. at 296. The staff report did, however, raise concerns about whether Duke provided sufficient evidence that the ice storm was extraordinary. Id. at 321. The staff report advised that “if’ the Commission were to grant Duke’s request, it should do so in relation to the collective storm damages, not just the ice storm. Id. at 322. If based on the ice storm alone, the staff report recommended denying Duke’s request.

On July 14, 2010, the IURC issued an extensive order approving Duke’s request. The order provides, in pertinent part:

[T]he request in the present proceeding is the product of the overall expenses from the two most damaging storms in a decade occurring within a four-month period. In considering the request in this matter we find the testimony persuasive that the unprecedented magnitude and proximity in time between the two storm events created an extraordinary situation. While the total expense associated with both storm events is more than $32 million, Duke Energy Indiana’s request is for approval to defer $11.6 million in retail jurisdictional incremental operating expenses resulting from the Ice Storm. Such an approach recognizes the substantial cost and severity of both storms while attempting to strike a reasonable balance between the utility’s shareholders and customers. We find such an approach to be reasonable based on the specific facts presented in this case.
Based on the evidence presented in this matter we find that the facts presented regarding the Ice Storm, in the context of a utility faced with two major events in a four month period at a collective cost of $32 million, rises to the level of extraordinary and justifies an exception to the general prohibition against retroactive and single issue ratemaking. Accordingly, we hereby authorize Duke Energy Indiana to utilize deferred[-]accounting treatment, from the effective date of this Order through the effective date of the Commission’s Order in Petitioner’s next general retail rate proceeding, for the lesser of the actual amount or $11.6 million in Ice Storm Operating Expenses allocable to the retail jurisdictional customers....

Appellant’s App. p. 42 (table omitted). Commission members James D. Atterholt, Larry S. Landis, Carolene Mays, and Zieg-ner concurred; Hardy was absent. Id. at 43.

No party requested reconsideration of the IURC’s order. See 170 Ind. Admin. Code 1 — 1.1—22(e) (noting that a party has twenty days to file a petition for rehearing and reconsideration).

The OUCC, however, timely appealed.

D. The Fallout

In the meantime, at the end of July 2010 Storms learned that he had secured an attorney position at Duke; he started working there two months later on September 27, 2010. Allegations began surfacing that Storms had been negotiating for employment with Duke from April to July 2010, which was when he was also presiding over administrative hearings involving Duke and when the order in this case was issued. On October 5, 2010, Governor Daniels terminated the employment of Hardy, chairman of the IURC, and appointed Atterholt as the Commission’s new chair. Press Release, Governor Terminates IURC Chairman, Issues Ethics Memo to Agency Heads (Oct. 5, 2010), http://www.in.gov/activecalendar/Event List.aspx?fromdate=l/l/2010&todate=12/ 31/2010&display=Month&type=public& eventidn=38310&view=EventDetails& information-id =76772. Governor Daniels fired Hardy because Hardy was aware that Storms had been communicating with Duke regarding a position with the company when Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. Id.

On October 14, 2010, the IURC announced that it was

immediately conducting] a legal and technical audit of the cases that former Administrative Law Judge Scott Storms (ALJ Storms) presided over involving Duke Energy Indiana, Inc. The audit will be comprehensive, spanning from January 1, 2010[,] through September 30, 2010. Under the direction of IURC Chairman Jim Atterholt, the Commission is aggressively acting to determine whether any activity by ALJ Storms did not follow normal processes or failed to be supported by evidence or another legal basis. The audit process will consist of reviewing both decisions that were autonomous (such as bench rulings) and group decisions (such as final orders). Documents to be reviewed include, but are not limited to, the following: transcripts, rulings on motions and technical staff reports.

Appellant’s Add. p. 5. This audit was “separate from the Inspector General’s (IG) investigation.” Id. The IURC’s audit included this case. Id. at 12.

In early November 2010, Duke fired Storms as well as Michael Reed, who was President of Duke at that time. John Russell, Duke fires Indiana president, ex-regulator in fallout from ethics scandal, Indianapolis Star, Nov. 9, 2010, http:// www.indystar.com/article/20101109/ B USINE SS/11090334/Duke-Energy-fires Indiana-president-and-a-former-regulator? odyssey=tab@topnews@text@IndyStar. com.

E. Remand and the 2011 Order

While the OUCC’s appeal was still pending in this Court, the OUCC, pursuant to Indiana Appellate Rule 37, filed a verified motion for stay of appeal and remand. The OUCC filed this motion because the IURC had not completed its audit:

It is in the interests of judicial economy and the parties to stay this appeal pending completion of the concurrent audit by the Commission and the investigation by the Inspector General. Moreover, a stay of the appeal is particularly appropriate to enable the Commission to conclude its ongoing review and audit, and a remand to the Commission is therefore warranted to remove any potential challenge to Commission jurisdiction to conduct such audit/review and issue further findings and rulings in the case. The OUCC respectfully submits that the granting of a temporary stay of this appeal and a remand of this matter to the Commission, pending further Order of this Court, is therefore appropriate. The OUCC has conferred with Ap-pellee Duke Energy Indiana, Inc., who has indicated that Appellee has no opposition to this Motion.

Appellant’s Add. p. 2-3 (emphasis added) (formatting altered).

On November 15, 2010, this Court granted the OUCC’s motion for stay of appeal and remand:

1. Appellant’s Verified Motion for Stay of Appeal And Remand is GRANTED for further proceedings consistent with this order. This appeal is DISMISSED WITHOUT PREJUDICE to Appellant’s right to appeal matters that might arise based upon the proceedings in the Indiana Utility Regulatory Commission on remand, as well as any issues Appellant intended to raise in this appeal. If Appellant seeks a future appeal, Appellant shall file a new, timely Notice of Appeal to restart the appellate process in this Court.
2. Pursuant to Rule 37(B), this appeal is REMANDED to the Indiana Utility Regulatory Commission, Lower Cause No. 43743.

Id. at 21. According to Indiana Appellate Rule 37(B), “Unless the order specifically provides otherwise, the trial court or Ad ministrative Agency shall obtain unlimited authority on remand.’ ” (Emphasis added). Notably, this Court placed no restrictions on the Commission’s authority on remand.

About one month after this Court’s order, on December 7, 2010, the IURC released the results of its internal audit conducted pursuant to the October 5, 2010, directive from the Governor’s Office that the administrative opinions over which Storms presided be reviewed to ensure no undue influence was exerted in the decisions. Tr. p. 281. The audit found (1) no undue influence was exerted by Storms in his decisions while presiding as ALJ on Duke cases and (2) no anomalies in this case in particular. Id. at 295, 296. The audit noted that this was the “sole case in the audit where a party formally appealed the Order.” Id. at 296. The audit also noted that the IURC’s July 14, 2010, Order “was consistent with the technical notes from the staff report. However, the staff report did not advocate for a particular decision on the requested relief, where the Order granted the requested relief.” Id. Finally, the audit noted that the transcript and docket entries showed “rulings consistent with normal legal Commission practice.” Id.

But in a separate order also dated December 7, 2010, the IURC, on its own, concluded that this case should nevertheless be reopened. Appellant’s App. p. 145. Again, the IURC noted that this case “was the only proceeding during 2010 in which an appeal to the Court of Appeals was pursued by one of the parties.” Id. The IURC explained that while “the audit did not find the [July 14, 2010,] Order directly conflicted with the staff report, it did note that the staff report offered no specific recommendation to either approve or deny [Duke’s] requested relief.” Id. The IURC therefore “reopenfed] this Cause for further review and consideration of the evidence presented.” Id. (emphasis added).

Duke did not object to or otherwise challenge this order. Instead, an attorneys’ conference was held on March 7, 2011, and by agreement of the parties a schedule was set to provide for the filing of additional pre-filed testimony and an evi-dentiary hearing. Id. at 5-6. Again, Duke did not object. The evidentiary hearing was held on June 9, 2011, before a new ALJ, Gregory Ellis, and the full Commission: Chairman Atterholt and Commissioners Kari A.E. Bennett, Landis, Mays, and Ziegner. Although there was no live testimony or cross-examination at the first hearing, at this hearing there was live testimony, cross-examination, and questions from the Commissioners. All evidence and exhibits were admitted into the record without objection. Duke presented the testimony of Stanley, Wiles, and Douglas. In the place of Geswein, who had retired, Duke presented the testimony of Brian Liggett. The OUCC again presented the testimony of Foster. Although the evidence presented was similar, it was not exactly the same.

Duke revised its testimony to increase the amount of storm costs it sought to defer from $11.6 million to $11.9 million. Stanley, who was president of Duke Energy Indiana when the petition was filed but was currently a top executive at Duke Energy in North Carolina, clarified that Duke was not seeking recovery of any restoration costs associated with the wind storm, just the ice storm, but that it was a combination of both storms that made it extraordinary, thus falling within an exception to the general prohibition against single-issue and retroactive ratemaking. Stanley further explained that Duke was not claiming financial hardship from the storm but rather, “We’re simply asking the Commission to consider our request for fairness between customers and shareholders.” Tr. p. 38. The OUCC admitted into evidence the IURC’s December 7, 2010, audit. Id. at 20-21, 281. OUCC witness Foster then talked about the events since the IURC’s July 2010 order that granted Duke’s requested relief. Foster specifically referred to the IURC’s audit. Foster emphasized that the IURC’s July 2010 order was premised on the combination of both storms yet Duke only sought relief from the ice storm, which, notably, was classified as a less severe storm and was a less expensive storm than the wind storm. Foster testified that “it’s our understanding in our office that storms should be evaluated on an individual basis” and should not be combined as Duke argued to determine whether a storm is extraordinary. Id. at 163. Foster believed that the ice storm did not rise to the level of an extraordinary storm and again recommended that the IURC deny Duke’s request.

On October 19, 2011, the IURC issued an extensive “Order on Reconsideration” denying Duke’s request. The order provides, in pertinent part:

On the re-opening of this case, no evidence was offered concerning any allegations of undue influence associated with this proceeding. Nonetheless, the parties resubmitted updated evidence and therefore, our obligation as an impartial fact-finding body requires that we re-examine this case on its merit s.
* ⅜ * * * *
The testimony presented in this matter demonstrates the Ice Storm, by itself, was not the worst storm damage ever encountered by the Company. In addition, although the Wind Storm and Ice Storm occurred within a relatively close period of time, the evidence also indicates that Duke Energy Indiana experiences approximately three Level 3 storms each year and one Level 4 storm every three to four years.
******
Petitioner’s evidence fails to put the losses into the larger context of the overall impact on Petitioner’s financial condition. We are therefore left with a dearth of evidence as to the actual impact of an $11.9 million loss, and whether and under what circumstances does a loss of that magnitude become extraordinary. What may be extraordinary for a jurisdictional municipal utility or rural electric membership corporation may be a relatively modest financial event for a large investor owned utility. We believe there is a danger in falling victim to the “tyranny of large numbers” when we lack sufficient context in which to view them.
[T]he amount embedded in base rates to meet storm damage obligations carries with it a risk of under or over recovery that is shared by both the shareholders and the ratepayers. In addition, while we recognize that Petitioner engaged in exemplary measures to restore customers’ power, including drawing upon crews from its regulated utility affiliates as well as from mutual assistance group members, it is no less than we would expect from a utility in fulfilling its obligation to provide reasonable and adequate service even in difficult circumstances. Consequently, notwithstanding the fact that Duke Energy Indiana’s request for approval to defer $11.9 million in retail jurisdictional incremental operating expenses resulting from the Ice Storm attempts to strike a reasonable balance between the utility’s shareholders and customers, it is the obligation of the Commission in considering such requests, to strike a balance between the utility and its ratepayers. The Company also seemingly recognizes that the regulatory compact sometimes entails risks that will inure to shareholders rather than ratepayers. This is one such instance. For the reasons set forth above, we find that the balance weighs in favor of the ratepayers, as the Ice Storm at issue in this proceeding was not an extraordinary storm that warrants an exception to the prohibition against retroactive and single issue rate-making.

Appellant’s App. p. 18, 21, 28 (emphasis added) (footnote omitted). Chairman Atter-holt and Commissioners Landis and Mays concurred. Id. at 24. Commissioners Bennett and Ziegner dissented with opinion. Id. at 25-26. Bennett and Ziegner disagreed with the decision to reopen and reweigh the evidence; they reasoned that the audit did not find any anomalies and that the evidence was not materially different from the originally presented evidence. Id. at 25.

Duke appealed, with the Indiana Energy Association appearing as Amicus Curiae. Both the IURC and the OUCC filed separate appellee’s briefs.

We held oral argument on December 10, 2012. At oral argument, Duke conceded that it had waived some of the issues that it had raised in its initial Appellant’s Brief because it did not argue those issues below, specifically, that the IURC’s review was limited to evidence of undue influence and that the IURC could only reconsider the case based on new evidence. Oral Arg. Video Tr. at 2:20-8:02. Duke, however, maintained that it had not waived the argument that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to diametrically opposed decisions without giving any reason for the change. Id. at 3:09-3:57.

Discussion and Decision

Duke contends that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to different decisions without giving any reason for the change. Duke claims that such an outcome “undermines public confidence in the legal process and erodes the basis for judicial deference to the agency’s expertise or judgment.” Appellant’s Br. p. 23. Duke therefore asks us to vacate the IURC’s October 2011 order and reinstate its July 2010 order subject to the OUCC’s original appeal.

Indiana Code section 8-1-3-1 authorizes judicial review of IURC decisions as follows:

Any person, firm, association, corporation, limited liability company, city, town, or public utility adversely affected by any final decision, ruling, or order of the commission may, within thirty (30) days from the date of entry of such decision, ruling, or order, appeal to the court of appeals of Indiana for errors of law under the same terms and conditions as govern appeals in ordinary civil actions, except as otherwise provided in this chapter and with the right in the losing party or parties in the court of appeals to apply to the supreme court for a petition to transfer the cause to said supreme court as in other cases. An assignment of errors that the decision, ruling, or order of the commission is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the decision, ruling, or order, and the sufficiency of the evidence to sustain the finding of facts upon which it was rendered.

This section includes language identical to provisions for judicial review of other administrative agency actions. U.S. Steel, 907 N.E.2d at 1015 & n. 1.

As our Supreme Court has explained, “[t]his amounts to multiple tiered review.” Id. at 1016. On the first level, it requires a review of whether there is substantial evidence in light of the whole record to support the Commission’s findings of basic fact. Id. Such determinations of basic fact are reviewed under a substantial-evidence standard, meaning the order will stand unless no substantial evidence supports it. Id. In substantial-evidence review, “the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board’s findings.” Id. (quotation omitted). The Commission’s order is conclusive and binding unless (1) the evidence on which the Commission based its findings was devoid of probative value; (2) the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding does not rest upon a rational basis; (3) the result of the hearing before the Commission was substantially influenced by improper considerations; (4) there was not substantial evidence supporting the findings of the Commission; or (5) the order of the Commission is fraudulent, unreasonable, or arbitrary. Id. This list of exceptions is not exclusive. Id.

At the second level, the order must contain specific findings on all the factual determinations material to its ultimate conclusions. Id. This judicial task involves reviewing conclusions of ultimate facts for reasonableness, the deference of which is based on the amount of expertise exercised by the agency. Id. Insofar as the order involves a subject within the Commission’s special competence, courts should give it greater deference. Id. If the subject is outside the Commission’s expertise, courts give it less deference. Id. In either case, courts may examine the logic of inferences drawn and any rule of law that may drive the result. Id. Additionally, an agency action is always subject to review as contrary to law, but this constitutionally preserved review is limited to whether the Commission stayed within its jurisdiction and conformed to the statutory standards and legal principles involved in producing its decision, ruling, or order. Id.

Given Duke’s concession that it has waived any argument that the IURC was limited to addressing certain issues after it reopened the case and held the second hearing, we first treat the second hearing as an independent hearing before the IURC and therefore look at the IURC’s October 2011 order by itself. This means that the IURC’s October 2011 order will only be considered arbitrary and capricious if the IURC failed to make findings of fact in support of the conclusion that it reached in its October 2011 order. We therefore review whether there is substantial evidence to support the IURC’s findings and whether its order contains specific findings on all the factual determinations material to its ultimate conclusions. Because interpreting the IURC’s October 2011 order is a question falling well within its expertise, a high level of deference is owed to the IURC. See id. at 1018.

In its twenty-page, single-spaced October 2011 order, the IURC found, in mixed findings and conclusions, as follows:

• Duke’s framing of the argument regarding its request to aggregate storm events for the purpose of determining what constitutes an extraordinary storm added complexity and uncertainty and raised a myriad of additional issues regarding aggregating such evidence, such as how many events can be aggregated and how close in time the events must occur. Appellant’s App. p. 21.
• Risks that cannot be adequately predicted are considered in establishing a utility’s return on equity, and the fact that storm damage exceeded its base-rate revenue requirement does not address whether the utility had other offsetting operating-expense decreases. Id.
• The testimony supported a determination that the ice-storm costs were fixed, known, and measurable, but Duke’s argument with respect to current earnings was not persuasive. Id. at 22.
• Duke’s examination of its earnings in the context of fuel adjustment cost (FAC) proceedings alone did not support the relief requested. Id. at 28.
• Duke’s evidence failed to put the storm damage costs into the larger context of the overall impact of such costs on Duke’s financial condition, leaving the Commission “with a dearth of evidence as to the actual impact of an $11.9 million loss, and whether and under what circumstances does a loss of that magnitude become extraordinary.” Id.
• In striking a balance between the utility and its ratepayers, the balance weighed in favor of the ratepayers, as the ice storm was not an extraordinary storm that warranted an exception to the prohibition against retroactive and single-issue ratemaking. Id.
• Duke’s request for deferred-accounting treatment did not merit an exception to the general prohibition against retroactive and single-issue ratemaking. Id. at 24.
• The issues raised were more appropriately addressed in a rate case, in which the severity of a storm and the corresponding overall financial impact on the utility between rate cases could be considered. Id. at 23-24.

Each of these findings is based on substantial evidence that was placed into the record following the IURC’s December 7, 2010, order reopening this proceeding. These findings, in turn, support the IURC’s conclusion to deny Duke’s request to utilize deferred-accounting treatment for $11.9 million in storm-operating expenses.

Nevertheless, Duke argues that the IURC should have explained why it changed its mind because failing to do so was fundamentally unfair. See generally Appellant’s Reply Br. p. 2-3. We, however, find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief in its October 2011 order.

At the second hearing, Stanley testified that Duke was not seeking recovery of any restoration costs associated with the wind storm,-just the ice storm, but that it was a combination of both storms that made it extraordinary. On cross-examination, Stanley explained that Duke was not claiming financial hardship from the storm but rather, “We’re simply asking the Commission to consider our request for fairness between customers and shareholders.” Tr. p. 38. This request by the former Duke Energy Indiana President ignores the fact that the amount embedded in Duke’s base rates to meet annual storm-damage expenses included the risk of under or over recovery that was already being shared by shareholders and ratepayers.

In addition, Duke asked for an additional $800,000 during the second hearing.

Finally, OUCC witness Foster pre-filed new testimony, which included new information. The IURC’s audit was admitted into the record, and IURC staff comments became a part of the record for the first time. The staff comments said that if relief was based on the ice storm alone, then Duke’s request should be denied.

We find that these differences in the evidence between the two hearings justified the IURC’s decision to deny Duke relief in the October 2011 order.

Regardless, we find that the IURC did not have to explain why it reached a different conclusion in its October 2011 order. Duke has conceded that it waived any argument that there were limitations placed on the IURC during the second hearing because it failed to object below. Moreover, Duke is unable to cite to any authority requiring the IURC to fully explain why it changed its mind following a new hearing on the issues at which updated evidence was presented. Duke cites Indiana State Board of Registration and Education for Health Facility Administrators v. Cummings, 180 Ind.App. 164, 387 N.E.2d 491 (1979), reh’g denied, for the proposition that due process and rule of law require an explanation when an agency executes an “about-face.” Appellant’s Reply Br. p. 9. But Cummings simply stands for the proposition that an agency decision is arbitrary and capricious if it is not supported by adequate written reasons. As explained above, the IURC’s October 2011 order is supported by adequate written reasons. Instead, we find that what happened here is analogous to what sometimes happens in civil cases across this state. That is, it is similar to a trial court denying a party’s summary-judgment motion without explanation early in a case but then granting that very same summary-judgment motion, on the same evidence, one week before trial without explanation. In both instances, the evidence is essentially the same, and the “judge” is not required to give an explanation as to why he changed his mind between one decision and another.

Although the better practice would have been for the IURC to clearly articulate why it reached different conclusions, we find that the updated evidence presented at the second hearing justified the IURC’s decision to deny Duke relief in its October 2011 order, and, in any event, the IURC was not required to explain why it reached an opposite conclusion in its October 2011 order. We therefore affirm the IURC’s October 2011 order denying Duke’s request to utilize deferred-accounting treatment for $11.9 million in storm-operating expenses.

Affirmed.

MATHIAS, J., and BARNES, J., concur.

      . Duke witness Diana Douglas explained that its current retail rates included:
      an annual amount of 2.6 million for storm damage restoration expenses for major storms. This amount was approved in the May 2004 Order in Cause No. 42359 ... in the Company's last retail electric general rate case and was based on the actual expenses incurred during the twelve months ended September 30, 2002, test period, as adjusted for changes that were fixed, known and measurable within twelve months.
      Tr. p. 235, 455.

      . The operating expenses Duke sought to recover included operation and maintenance expenses as well as payroll-tax expenses "that would not have been incurred absent the storm.” Tr. p. 234.

      . "Generally, a staff report is a document issued by technical staff to the Presiding Officers, division staff, and the Commissioners and Chairman. The report usually includes background information, case analysis, recommendations, and staff questions.” Tr. p. 286 n.l.

      . The amicus expands on this in its brief, noting that Moody’s Investor Service
      has already issued a public[ly]-distributed credit opinion for Duke Energy that expressly mentions the Commission’s changed position in support of the conclusion that the "[cjredit supportive regulatory framework in Indiana could be negatively impacted by [Duke Energy’s] Edwardsport issues.” Moody’s Investor Service, Credit Opinion: Duke Energy Indiana, Inc., pp. 2-3 (January 12, 2012) ("In October, for example, the IURC reversed an order that allowed the company to defer recovery of approximately $12 million of costs related to a 2009 ice storm....”).
      Amicus Br. p. 12 (footnotes omitted).


author: ROBB, Chief Judge.

text:
    INDIANA PUBLIC EMPLOYEE RETIREMENT FUND, Appellant-Respondent, v. Paul BRYSON, Appellee-Petitioner.
    No. 49A04-1201-MI-2.
    Court of Appeals of Indiana.
    Dec. 31, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Matthew Langenbacher, Indianapolis, IN, Attorney for Appellee.
   OPINION ON REHEARING

ROBB, Chief Judge.

Indiana Public Employee Retirement Fund (“PERF”) petitions this court for rehearing of our opinion dated October 9, 2012. In that opinion, we affirmed the trial court’s order concluding that Paul Bryson was entitled to Class 1 impairment disability benefits because Bryson was determined to have a “covered impairment” that was “the direct result of ... [a] personal injury that occur[ed] while the fund member [was] on duty.” Ind. Pub. Emp. Ret. Fund v. Bryson, 977 N.E.2d 374, 379 (Ind.Ct.App.2012). We grant rehearing for the purpose of addressing an issue raised by PERF in its petition, but we affirm our original opinion.

PERF contends “there is no medical evidence to support a finding that Bryson’s on-duty injuries created an impairment.” Appellant’s Petition for Rehearing at 1. This is merely a rephrasing of PERF’s argument on direct appeal — that Bryson is impaired due to a pre-existing condition, degenerative disc disease, rather than due to any on-duty injuries. We specifically concluded that:

a fund member who was able to perform his job duties before an on-duty injury despite having a pre-existing condition or health issue that preceded the on-duty injury, and who becomes unable to perform his job duties only after sustaining an on-duty injury, has an impairment that is the “direct result” of the physical injury or injuries sustained while on duty. This is so even if the on-duty injury created an impairment by exacerbating a preexisting condition, so long as the pre-existing condition did not previously prevent the fund member from performing his or her job duties.

Bryson, 977 N.E.2d at 379. We decline PERF’s invitation to reexamine this issue.

PERF also raises another argument which it did not raise in its appellate brief: that Bryson was not actually prevented from performing his job duties after his on-duty injuries, but rather, that he was considered disabled as a preventative measure due to his pre-existing condition. The problem with this argument is that he was found to have a “covered impairment” for the purposes of Indiana Code section 36-8-8-12.3, which is defined as “an impairment that permanently or temporarily makes a fund member unable to perform the essential function of the member’s duties.” Thus, even if some medical reports seem to support PERF’s argument, this finding, which is the foundation of the entire issue of whether his disability was Class 1 or Class 2, demonstrates otherwise. Further, the finding that Bryson had a covered impairment is not an issue PERF contested on appeal. We therefore affirm our original opinion.

BAKER, J., concurs.

BRADFORD, J., dissents.