author: BARNES, Judge.

text:
    James BROXTON, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, The Department of Indiana Workforce Development, and Sodexo, Appellees.
    No. 93A02-1301-EX-79.
    Court of Appeals of Indiana.
    Jan. 9, 2014.

      C. Richard Martin, Martin & Martin, Boonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees, Review Board and The Department of Workforce Development.
   OPINION

BARNES, Judge.

Case Summary

James Broxton appeals the denial of his request for unemployment benefits by the Review Board of the Department of Workforce Development ("Review Board"). We affirm.

Issues

Broxton raises five issues, which we restate as:

I. whether the Review Board properly determined that his employer was not required to give notice under Indiana Code Section 22-4-8-5(c);
II. whether the Review Board properly denied unemployment benefits to him pursuant to Indiana Code Seetion 22-4-8-5;
III. whether the Review Board properly determined that he was not regularly and eustomarily employed on an "on call" or "as needed basis" under Indiana Code Section 22-4-3-3;
whether the Review Board's interpretation of Indiana Code Section 22-4-8-5 conflicts with other statu-IV. tory provisions of the Indiana Employment Security Act (the "Act"), Indiana Code Article 22-4; and
V. whether the Review Board's interpretation of Indiana Code Section 22-4-8-5 violates the policy behind the Act.

Facts

Broxton has been employed by SDH Education Service West, LLC, also known as Sodexo Food Services ("Sodexo"), since 2008 as a cook at St. Joseph's College in Rensselaer. From August through May, Broxton works full time. During the summer months, he is only "on call." Appellant's App. p. 183. He is required to call Sodexo each Tuesday to find out if work is available. If he fails to call in, Broxton could lose his job. In 2012, Broxton was on call from May 7th to August 18th, but he was never called in to work.

In prior summers, Broxton received unemployment insurance benefits. Broxton filed a claim for unemployment benefits, and on August 13, 2012, a claims deputy concluded that Broxton was not entitled to unemployment benefits because he "was on a vacation week mandated by the employer." Id. at 20. Broxton appealed that determination to an administrative law judge ("ALJ"), and Sodexo did not participate in the appeal. After a hearing, the ALJ concluded:

Although the Claimant is on an on-call or as needed basis with the Employer during summer break every year, the period is a reduction in hours that regularly occurs as "a matter of practice, policy or procedure of which the Claimant was aware and to which the Claimant has agreed," 646 IAC 5-8-1 (2011). Alternatively, the time is also a scheduled period during which activity is suspended, or a vacation, that is part of the Employer's regular policy or practice and the Claimant has reasonable assurance of employment when the period ends. The Claimant is ineligible for benefits based on [his] employment status with this Employer during the summer break period.

Id. at 38. Thus, the ALJ affirmed the claims deputy's determination that Brox-ton was ineligible for unemployment benefits.

Broxton appealed the ALJ's determination to the Review Board. There was no hearing before the Review Board, and no additional evidence was admitted. The Review Board adopted the ALJ's findings of fact but struck the ALJ's conclusions of law and concluded that Broxton was "not partially or part-totally unemployed" because he "agreed to perform services for the Employer during the school year," he was aware of the summer break, and he "agreed to this reduction or suspension of work hours during scheduled breaks through continued employment with the Employer." Appellee's App. p. 2.

The Review Board also concluded that Broxton was not entitled to benefits due to Indiana Code Section 22-4-8-5, which denies unemployment benefits to certain employees on "a vacation week" without remuneration pursuant to a contract or regular policy. Although the Review Board noted that Indiana Code Section 22-4-38-5 was inapplicable if an employer "fails to comply with a department rule or policy regarding the filing of a notice, report, information, or claim in connection with an individual, group, or mass separation arising from the vacation period," the Review Board also noted that the "Department currently has no rules or policies requiring employers to file a notice regarding a claim arising out of a vacation period, nor is the Department statutorily required to enact a policy on this matter." Id. at 3 (discussing Ind.Code § 22-4-3-bic»). The Review Board held that the term "vacation week" referenced "an employer-mandated period in which work is not performed." Id. Further, the Review Board concluded that, "[blecause [Brox-ton] was on an unpaid vacation period and had reasonable assurance of employment following the summer break, [Broxton] was not totally, part-totally, or partially unemployed." Id. at 4.

The Review Board also concluded that Broxton was "voluntarily unemployed during the summer break" due to his "assent" to Sodexo's practices. Id. at 5. Thus, the Review Board found that Broxton was not eligible for unemployment benefits. Brox-ton now appeals.

At the Review Board's request, in May 2013, this appeal was consolidated with numerous other appeals raising similar issues based on the Review Board's interpretation of Indiana Code Section 22-4-3-5. In June 2018, after a pre-appeal conference, this appeal and two other appeals, D.B. v. Review Board of the Ind. Dep't of Workforce Dev., No. 98A02-1301-EX-71, and Amerson v. Review Board of the Ind. Dep't of Workforce Dev., No. 98A02-18301-EX-67, were designated as "test cases" and allowed to proceed. The remaining appeals were held in abeyance pending completion of the test cases. On November 5, 2018, a panel of this court affirmed the denial of unemployment benefits in D.B., 2 N.E.3d 705, No. 98A02-1301-EX-71 (Ind.Ct.App. Nov. 5, 2013), and on November 26, 2018, another panel of this court affirmed the denial of unemployment benefits in Amerson, No. 93A02-1301-EX-67 (Ind.Ct.App. Nov.26, 2018).

Analysis

Broxton argues that the Review Board erred when it denied his request for unemployment benefits. On appeal, we review the Review Board's (1) determinations of specific or basic underlying facts; (2) conclusions or inferences from those facts, or determinations of ultimate facts; and (38) conclusions of law. McClain v. Review Bd. of Indiana Dep't of Workforce Dev., 698 N.E.2d 1314, 1317 (Ind.1998). The Review Board's findings of basic fact are subject to a "substantial evidence" standard of review. Id. In this analysis, we neither reweigh the evidence nor assess the credibility of witnesses and consider only the evidence most favorable to the Review Board's findings. Id. Reversal is warranted only if there is no substantial evidence to support the Review Board's findings. Id. (citing KBI, Inc. v. Review Bd. of Indiana Dep't of Workforce Dev., 656 N.E.2d 842, 846 (Ind.Ct.App.1995)). Next, the Review Board's determinations of ultimate facts, which involve an inference or deduction based upon the findings of basic fact, are generally reviewed to ensure that the Review Board's inference is reasonable. Id. at 1317-18. Finally, we review conclusions of law to determine whether the Review Board correctly interpreted and applied the law. McHugh v. Review Bd. of Indiana Dep't of Workforce Dev., 842 N.E.2d 486, 440 (Ind.Ct.App.2006).

When interpreting a statute, we will give great weight to an interpretation of the statute by an administrative agency charged with enforcing the statute, unless such interpretation would be inconsistent with the statute itself. State Bd. of Tax Comm'rs v. Two Market Square Assocs. Ltd. P'ship, 679 N.E.2d 882, 886 (Ind.1997). This same rule of deference applies to agency interpretation of administrative regulations that it has drafted and is charged with enforcing. Id. "Deference to an agency's interpretation of a statute becomes a consideration when a statute is ambiguous and susceptible of more than one reasonable interpretation." South Bend Cmty. Sch Corp. v. Lucas, 881 N.E.2d 30, 32 (Ind.Ct.App.2008). When faced with two reasonable interpretations of a statute, one of which is supplied by an administrative agency charged with enforcing the statute, we defer to the agency. Id. If we determine that an agency's interpretation is reasonable, we terminate our analysis and will not address the reasonableness of the other party's proposed interpretation. Id. "Terminating the analysis recognizes 'the general policies of acknowledging the expertise of agencies empowered to interpret and enforce statutes and increasing public reliance on agency interpretations.'" Id. (quoting State v. Young, 855 N.E.2d 329, 335 (Ind.Ct.App.2006)).

I. Notice Requirement under Ind.Code § 22-4-3-5

Broxton first argues that the Review Board erred when it interpreted the notice provisions of Indiana Code Section 22-4-3-5. That statute provides:

(a) Except as provided in subsection (c) and subject to subsection (b), an individual is not totally unemployed, part-totally unemployed, or partially. unemployed for any week in which the department finds the individual:
(1) is on a vacation week; and
(2) has not received remuneration from the employer for that week, because of:
(A) a written contract between the employer and the employees; or
(B) the employer's regular vacation policy and practice.
(b) Subsection (a) applies only if the department finds that the individual has a reasonable assurance that the individual will have employment available with the employer after the vacation period ends.
(e) Subsection (a) does not apply to an individual whose employer fails to comply with a department rule or policy regarding the filing of a notice, report, information, or elaim in connection with an individual, group, or mass separation arising from the vacation period.

Ind.Code § 22-4-3-5

The Department of Workforce Development ("Department") issued a policy regarding Indiana Code Section 22-4-3-5 on February 3, 2012. See Appellant's App. p. 39; DWD Policy 2011-07, Planned Shutdown Effects upon Unemployment Insurance Benefits ("Policy"). In the Policy, the Department determined that it would consider several factors when deciding whether a mandated or planned facility shutdown would be considered a vacation week. One of the factors is whether "the employer, on their own initiative, has provided the Department with advance notice of any vacation week or shutdown period." Appellant's App. p. 41. The Department did not issue a rule or policy that required an employer to file "a notice, report, information, or claim in connection with an individual, group, or mass separation arising from the vacation period." I.C. § 22-4A-8-5(c). -

On appeal, Broxton argues that the Department is "attempting to render subsection (c) a nullity by not requiring such notice prior to applying subsection (a)" Appellant's Br. p. 8. Despite Brox-ton's arguments, we conclude that subsection (c) of the statute does not mandate that an employer file a notice in the event of a "separation arising from the vacation period."

The relevant portion of the statute provides: "Subsection (a) does not apply to an individual whose employer fails to comply with a department rule or policy regarding the filing of a notice, report, information, or claim in connection with an individual, group, or mass separation arising from the vacation period." I.C. § 22-4-3-5(c). The statute gives the Department discretion to create a "department rule or policy" regarding such a notice. See also I.C. § 22-4-19-1 ("The board shall have the power and authority to adopt, amend, or rescind such rules and regulations ... and take such other action as it may deem necessary or suitable for the proper administration of this article."). The statute does not specifically require an employer to provide such a notice. If the legislature had intended to require such a notice, it could have provided so in the statute. Instead, the statute merely requires an employer to comply with the Department's rule or policy; it does not specify the content of the rule or policy. Given the Department's substantial discretion, we conclude that Broxton's argument regarding the notice provisions of Indiana Code Section 22-4-3-5(c) fails. wu

IIL, Denial of Benefits under Ind.Code § 22-4-3-5

Next, Broxton argues that the Review Board erred when it concluded that he was on a "vacation" under Indiana Code Seetion 22-4-3-5 during the summer of 2012. Indiana Code Section 22-4-8-5 disqualifies an individual from receiving unemployment benefits if:; (1) the individual "is on a vacation week"; (2) the individual "has not received remuneration from the employer for that week, because of: (A) a written contract between the employer and the employees; or (B) the employer's regular vacation policy and practice;" and (8) the Department "finds that the individual has a reasonable assurance that the individual will have employment available with the employer after the vacation period ends."

Broxton argues that he was not on a "vacation" during the summer of 2012. In support of his argument, Broxton relies on American Bridge Co. v. Review Bd. of Ind. Employment Sec. Division, 121 Ind.App. 576, 98 N.E.2d 198 (1951), and Indiana State University v. LaFief, 888 N.E.2d 184 (Ind.2008). We do not find that either case is controlling here.

In American Bridge, this court held that employees subject to a company shutdown for the purpose of taking inventory were entitled to unemployment benefits. American Bridge, 121 Ind.App. at 578-84, 98 N.E.2d at 194-96. However, our supreme court distinguished American Bridge in Adams v. Review Bd. of Ind. Employment See. Division, 287 Ind. 68, 148 N.E.2d 564 (1957). In Adams, the employees were subject to a shutdown for a vacation period covered by a collective bargaining agreement. The court pointed out that the shutdown in American Bridge was distinguishable because it was for inventory purposes rather than vacation purposes. Adams, 237 Ind. at 71, 148 N.E.2d at 568. Similarly, American Bridge is not persuasive because the "vacation" at issue here is more similar to that in Adams than the temporary shutdown for inventory purposes in American Bridge.

In LaFief, our supreme court held that an assistant professor who was notified that his one-year contract would not be renewed was entitled to unemployment benefits LaFief 888 N.E2d at 185. However, the facts in LaFief are not comparable to the facts here. In fact, the court in LaFief noted:

This holding does not alter the general rule that employees who contractually agree to mandatory vacation periods or temporary shut downs are not eligible for unemployment benefits so long as they have reasonable assurance that they will continue to be employed after the mandatory vacation period or temporary shut down ends. See Ind.Code Ann. § 22-4-14-7(a) (individuals employed by educational institutions are not entitled to unemployment benefits during the period between two successive academic years if they were employed during one period and there is a reasonable assurance that they will be employed during the successive term); Ind.Code Ann. § 22-4-14-8 (individuals whose employment consists of participating in sports are not entitled to unemployment benefits between seasons if they were employed during one season and there is a reasonable assurance that they will be employed during the successive season); Pope v. Wabash Valley Human Serv., Inc., 500 N.E.2d 209, 211 (Ind.Ct.App.1986) ("Where the employment contract or collective bargaining agreement provides for a shutdown or vacation period, the employees who signed or assented to the contract are not 'unemployed' within the meaning contemplated by the [Unemployment Compensation Act]").

LaFief, 888 N.E.2d at 187.

The Legislature has not defined "vacation" in the context of unemployment insurance benefits, and the Review Board found that the term "vacation" as used in Indiana Code Section 22-4-3-5 was ambiguous. The Review Board pointed out that Indiana Code Section 22-4-3-5 required reasonable assurance of employment after the vacation, which would not normally be required by an employee taking a traditional vacation for leisure or pleasure. Thus, the Review Board determined that the traditional definition of "vacation" was inapplicable and that Indiana Code Section 22-4-3-5 must concern "an employer-mandated period in which work is not performed." Appellant's App. p. 4. Given the great weight we must give to an interpretation of a statute by an administrative agency charged with enforcing the statute, we cannot say that the Review Board's interpretation of the term "vacation" in Indiana Code Section 22-4-3-5 is unreasonable. See Two Market Square Assocs. Lid. P'ship, 679 N.E.2d at 886 ("When the meaning of an administrative regulation is in question, the interpretation of the administrative agency is given great weight unless the agency's interpretation would be inconsistent with the regulation itself").

With the Review Board's interpretation of the term "vacation" in mind, we must determine whether Broxton was properly denied benefits pursuant to Indiana Code Section 22-4-3-5. The Department has determined that it will consider several factors in determining whether an employee is on a vacation week under Indiana Code Section 22-4-3-5, including:

1. Whether a written contract between the employer and the employee provides for a paid or unpaid vacation week designation;
2. Whether a vacation week was the result of an employer's regular vacation policy and practice;
3. Whether an employer provided a reasonable assurance to the employee that they would have employment available with the employer after the vacation period ends. Such an assurance is not required to be provided by explicit declaration or direct communication but may be inferred by past employer or employee conduct, policy, practice, or eustom, such that the employee knew or should have known of their employment availability. Additionally, such an assurance shall provide more than a speculative date of return to employment in order to be reasonable;
4. Whether, as part of the above-mentioned reasonable assurance, an employer gave reasonable notice to the employee concerning the vacation week or facility shutdown. Such notice is not required to be provided by explicit declaration or direct communication, but may be inferred by past employer or employee conduct, policy, practice or custom, such that the employee knew or should have known of the vacation week or mandated facility shutdown;
5. Whether the employer, on their own initiative, has provided the Department with advance notice of any vacation week or shutdown period.

Appellant's App. pp. 40-41. This list of factors is "not exclusive," and the Department makes determinations on such "vacation" issues "on a case-by-case basis." Id. at 41.

Here, Broxton states that he was employed "under a labor agreement," but there is no evidence of such agreement in the record. Appellant's Br. p. 12 n. 10. During the college's summer break, it was Sodexo's regular practice to reduce its services because of the lack of students. Broxton regularly does not work and is unpaid from May to August, except that he is "on call" and must call Sodexo each Tuesday to see if work is available. Tr. p. 4. Broxton had worked for Sodexo since 2008 and was clearly aware of the summer "vacation" practice and had reasonable assurances that he would return to employment in August when the students returned. The Review Board applied the relevant factors and concluded that, under Indiana Code Section 22-4-8-5, Broxton was not totally, part-totally, or partially unemployed.

The Review Board's determination that Broxton was on an unpaid "vacation week" because of Sodexo's regular vacation policy and practice and had a reasonable assurance of employment after the vacation period ended is reasonable. Based on the factors set out by the Department, we cannot say that the Review Board erred when it determined that Broxton was ineligible for: unemployment benefits due to Indiana Code Section 22-4-3-5.

III. On Call

Next, Broxton argues that he was totally unemployed because no "on call" work was available to him during the summer of 2012. In support of his argument, he relies on Indiana Code Section 22-4-3-3, which provides:

An individual is not totally unemployed, part-totally unemployed, or partially unemployed for any week in which the individual:
(1) is regularly and customarily employed on an on call or as needed basis; and
(2) has:
(A) remuneration for personal services payable to the individual; or
(B) work available from the individual's on-call or as needed employer.

The Review Board held that this statutory provision was inapplicable because Brox-ton was "not regularly and customarily employed on an 'on call or 'as needed' basis." Appellant's App. pp. 34.

Indiana Code Section 22-4-3-3 provides an exception to the definition of totally unemployed, part-totally unemployed, or partially unemployed. If the employee falls under the exception, he or she is not entitled to unemployment benefits. Because the Review Board found that Indiana Code Section 22-4-3-3 was inapplicable, it did not use this statutory provision to deny unemployment benefits to Broxton. On appeal, the Review Board argues that "although Broxton is ineligible for unemployment compensation benefits based on other statutory sections, any claims or arguments made by Broxton based on Section 22-4-3-3 need not be addressed because they are immaterial to whether ... Broxton was properly denied benefits." Appellee's Br. p. 24. We agree with the Review Board. Because we have determined that the Review Board properly denied Broxton benefits under Indiana Code Section 22-4-3-5, we need not address this argument.

IV. Inconsistent with Other Provisions

Next, Broxton argues that the Review Board's decision is inconsistent with other provisions of the Act. Specifically, Broxton argues that the Review Board's application of Indiana Code Section 22-4-3-5 conflicts with: (1) the eligibility provisions of the Act; (2) the Act's seasonal work provision found at Indiana Code Section 22-4-14-11; (8) provisions that "focus on claims by unemployed individuals with respect to specific weeks of unemployment;" and (4) the notice provision of Indiana Code Section 22-4-8-5. Appellant's Br. p. 20.

We have already held that the Review Board's interpretation of Indiana Code Section 22-4-8-5's notice provisions is reasonable. Broxton admits that the seasonal worker provisions do not apply to him. As such, we fail to understand how the seasonal worker provisions conflict with the Review Board's interpretation. As for the remaining arguments, Broxton offers neither cogent arguments nor citations to relevant authority in support of these assertions; the arguments are therefore waived. Doughty v. Review Bd. of Dep't of Workforce Dev., 784 N.E.2d 524, 527 (Ind.Ct.App.2003).

V. Purpose of the Act

Finally, Broxton argues that the Review Board's interpretation of Indiana Code

As a guide to the interpretation and application of this article, the public policy of this state is declared to be as follows: Eeonomic insecurity due to unemployment is declared hereby to be a serious menace to the health, morale, and welfare of the people of this state and to the maintenance of public order within this state. Protection against this great hazard of our economic life can be provided in some measure by the required and systematic accumulation of funds during periods of employment to provide benefits to the unemployed during periods of unemployment and by encouragement of desirable stable employment. The enactment of this article to provide for payment of benefits to persons unemployed through no fault of their own, to encourage stabilization in employment, and to provide for integrated employment and training services in support of state economic development programs, and to provide maximum job training and employment opportunities for the unemployed, underemployed, the economically disadvantaged, dislocated workers, and others with substantial barriers to employment, is, therefore, essential to public welfare; and the same is declared to be a proper exercise of the police powers of the state. To further this public policy, the state, through its department of workforce development, will maintain close coordination among all federal, state, and local agencies whose mission affects the employment or employability of the unemployed and underemployed.

I.C. § 22-4-1-1. The Act is "given a liberal construction in favor of employees because it is social legislation meriting such construction in order to promote its underlying humanitarian purposes." Scott v. Review Bd. of Indiana Dep't of Workforce Dev., 725 N.E.2d 993, 996 (Ind.Ct.App.2000).

According to Broxton, the Review Board's interpretation conflicts with the purpose of the Act to provide unemployment benefits to those workers involuntarily unemployed. Broxton argues that his summer unemployment is not voluntary and occurs through no fault of his own. Although we acknowledge the general poli-ey behind the Act and sympathize with the hardship that Broxton and similarly situated employees suffer, we must also acknowledge the Review Board's argument that its "interpretation of this statute prevents employers from using unemployment benefits to subsidize employees who have a reasonable assurance of returning to work after a regularly scheduled vacation break." Appellee's Br. p. 9. We simply cannot say that the Review Board's interpretation of the relevant statutes is unreasonable.

Conclusion

We cannot say that the Review Board erred when it denied unemployment benefits to Broxton pursuant to the provisions of Indiana Code Section 224-3-5. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.

      . Indiana Code Section 22-4-3-5 was added in 2011 by Pub.L. No. 2-2011, § 3, effective July 1, 2011, and was amended by Pub.L. No. 6-2012, § 162, effective February 22, 2012. The statute previously provided:
      (a) An individual is not totally unemployed, part-totally unemployed, or partially unemployed for any week in which the department finds the individual:
      (1) is on a vacation week; and
      (2) has not received remuneration from the employer for that week, because of:
      (A) a written contract between the employer and the employees; or
      (B) the employer's regular vacation policy and practice.
      (b) Subsection (a) applies only if the department finds that the individual has a reasonable assurance that the individual will have employment available with the employer after the vacation period ends.
      (c) Subsection (a) does not apply to an individual whose employer fails to comply with a department rule or policy regarding the filing of a notice, report, information, or claim in connection with an individual, group, or mass separation arising from the vacation period.

      . The Review Board argues that Broxton waived this argument by failing to raise it below. The issue of whether Broxton received adequate notice involves a legal, not a factual conclusion. We have previously declined to find waiver of an issue not raised in an administrative proceeding where resolution of the issue did not require any factual determinations, and required only legal conclusions. See Tokheim Corp. v. Review Bd. of Ind. Employment See. Div., 440 N.E.2d 1141, 1142 (Ind.Ct.App.1982); of. Highland Town Sch. Corp. v. Review Bd. of Indiana Dep't of Workforce Dev., 892 N.E.2d 652, 656 (Ind.Ct.App.2008) ("The ALJ is not required to brainstorm about every possible legal theory that might be available to a pro se claimant."). The arguments on appeal concern the interpretation of statutes, which are legal conclusions. Consequently, we will address Brox-ton's argument on the merits.

      . We also note that LaFief was decided in 2008, prior to the enactment of Indiana Code Section 22-4-3-5. Some of the language of Indiana Code Section 22-4-3-5 is similar to the language found in LaFief. Compare LaF-ief, 888 N.E.2d at 187 ("[EJmployees who contractually agree to mandatory vacation periods or temporary shut downs are not eligible for unemployment benefits so long as they have reasonable assurance that they will continue to be employed after the mandatory vacation period or temporary shut down ends."); with LC. § 22-4-3-5.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert BOWEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 08S02-1306-CR-423.
    Supreme Court of Indiana.
    Oct. 31, 2013.
    Mark K. Leeman, Logansport, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition For Rehearing

PER CURIAM.

Bowen's sentencing order did not identify the reasons for the consecutive sentences that were imposed. We rejected the argument in Bowen's transfer petition that concurrent sentences were required, but we sustained his argument that a new sentencing order was and we remanded the case with instructions for preparation of a new sentencing order "without a hearing." Bowen v. State, 988 N.E.2d 1134 (Ind.2013). Bowen's rehearing petition notes that the judge who originally sentenced him is no longer on the bench and he argues that the current judge cannot clarify the original sentencing decision. Bowen again requests that the case be remanded with instructions for imposition of concurrent sentences. We again reject that request, but expand our remand instructions as follows:

On remand for a new sentencing order that responds to concerns raised by the Supreme Court, the trial court may discharge this responsibility by (1) issuing a new sentencing order without taking any further action, (2) ordering additional briefing on the sentencing issue and then issuing a new order without holding a new sentencing hearing, or (8) ordering a new sentencing hearing at which additional factual submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties.

Taylor v. State, 840 N.E.2d 324 (Ind.2006).

Accordingly, we grant rehearing for the limited purpose of modifying the remand instructions, and otherwise deny the rehearing petition.

All Justices concur.


author: DICKSON, Chief Justice. RUSH, J.,

text:
    F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually, Appellants (Plaintiffs), v. INDIANA DEPARTMENT OF CHILD SERVICES, Evansville Police Department, and Vanderburgh County Prosecutor's Office, Appellees (Defendants).
    No. 82S01-1301-CT-19.
    Supreme Court of Indiana.
    Nov. 26, 2013.

      Adam J. Sedia, Rubino, Ruman, Cros-mer & Polen, Dyer, IN, Attorneys for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth C. Rogers, David Steiner, Deputy Attorneys General, Indianapolis, IN, David L. Jones, Robert W. Rock, Jones Wallace, LLC, Evansville, IN, Attorneys for Appellees.
   DICKSON, Chief Justice.

In this action for damages, the plaintiffs (parents J.D. and M.D., individually and on behaif of their children, F.D., G.D., and T.D.) allege mishandling of child abuse reports by the Indiana Department of Child Services (DCS), the Evansville Police Department (EPD), and the Vander-burgh County Prosecutor's Office (VCPO). The trial court granted summary judgment to all defendants on grounds of immunity, and the plaintiffs have appealed the grant of summary judgment in favor of DCS and EPD, but not as to VCPO. As explained below, we affirm summary judgment in favor of EPD, but we reverse the summary judgment entered in favor of DCS.

In June of 2007, M.D. ("Mother") informed DCS that her then four-year-old son, TD. ("Son"), had been molested by her then twelve-year-old nephew, L.C. ("Nephew"). DCS initiated an investigation and interviewed Son and his then two-year-old twin sisters, F.D. and G.D. Son disclosed that he had been inappropriately touched by Nephew. Both two-year-old twin daughters denied being inappropriately touched by Nephew. DCS then referred the matter to the EPD for a delinquency investigation. In July of 2007, Detective Jeff Minto of EPD interviewed Nephew. During the interview, Nephew admitted to inappropriately touching four of his cousins, including Son and one of the twin daughters, F.D. Detective Minto informed DCS of Nephew's admissions, including the touching of F.D., and DCS chronicled Nephew's admissions in a "Contact Log Report." Neither DCS nor EPD informed Mother or Father of Nephew's admission to inappropriately touching their daughter, F.D. EPD then referred Nephew's case to the Vanderburgh Juvenile Court for delinquency proceedings.

On July 26, 2007, Juvenile Probation Officer Bernie Faraone conducted an intake interview with Nephew. During this interview, Officer Faraone read an account of Nephew's alleged offenses, including Nephew's admission to touching F.D. Mother was present for at least a portion of this interview, but was not informed of Nephew's molestation of her daughter, FD. On August 27, 2007, Nephew was adjudicated delinquent and placed on probation for nine months. Mother was not informed of Nephew's adjudication. On July 31, 2008, Mother learned of Nephew's admission to the molestation of her daughter from a third party, and on August 8, 2008, this fact was confirmed by DCS.

The plaintiffs filed suit alleging negligence. Specifically, the plaintiffs contend that DCS was negligent in failing to perform its statutory duty, pursuant to Indiana Code section 31-33-18-4, to notify the plaintiffs of Nephews alleged molestation of F.D. Additionally, plaintiffs argue that EPD was similarly negligent in failing to notify the plaintiffs and for not pursuing separate charges against Nephew for the molestation of F.D. On the defendants' motion, the trial court granted summary judgment in favor of all defendants, concluding that DCS and EPD were each immune under both Indiana Code section 31-33-6-1 (immunity from civil and erimi-nal liability for reporting alleged child abuse) and Indiana Code section 34-13-3-3 (immunity of a governmental entity or employee, a provision of the Indiana Tort Claims Act). Plaintiffs appealed the trial court's ruling as to DCS and EPD, and a divided panel of the Court of Appeals affirmed the trial court. F.D. v. Ind. Dep't of Family Servs., 973 N.E.2d 1186 (Ind.Ct.App.2012). We granted transfer and now affirm the trial court's grant of summary judgment in favor of EPD, but reverse summary judgment with respect to DCS.

On appeal, the plaintiffs contend that the trial court erred in granting summary judgment in favor of DCS and EPD. Specifically, plaintiffs argue that because of the "role" and the "conduct" of DCS and EPD in the events surrounding the adjudication of Nephew, that the Indiana Tort Claims Act does not confer immunity in this case. Appellants' Br. at 8. The plaintiffs further urge that the immunity granted by the child abuse reporting statute is inapplicable because "the claims against [DCS and EPD] do not arise out of [their] 'participation'" in the delinquency proceedings against Nephew. Id. at 16.

On appeal of the grant or denial of a motion for summary judgment, we apply the same standard applicable to the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012) (citing Wilson v. Isaacs, 929 N.E.2d 200, 202 (Ind.2010)). The moving party "bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012). If the moving party meets this burden, then the non-moving party must designate evidence demonstrating a genuine issue of material fact. Id. Review is limited to those facts designated to the trial court, Ind. Trial Rule 56(H), and summary judgment is appropriate where the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," id. 56(C). In applying the facts to the law, "(alll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party." Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). "We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court." Id. at 974.

1. Applicability of the Indiana Tort Claims Act

More than forty years ago, a series of judicial decisions almost entirely abolished common law immunity for government entities and activities in this state. Campbell v. State, 259 Ind. 55, 63, 284 N.E.2d 733, 737-38 (1972) (abrogating immunity for the state); Klepinger v. Bd. of Comm'rs of Miami Cnty., 148 Ind.App. 178, 198-202, 239 N.E.2d 160, 172-73 (1968) (abrogating immunity for counties), trans. denied; Brinkman v. City of Indianapolis, 141 Ind.App. 662, 666-69, 231 N.E.2d 169, 172-73 (1967) (abrogating immunity for municipalities), trans. demied. Under Indiana common law, with very limited exception, governmental entities are thus subject to liability under traditional tort theories. See Benton v. City of Oakland City, 721 N.E.2d 224, 227 (Ind.1999) (noting the three limited cireumstances in which common law sovereign immunity still exists: crime prevention, appointments to public office, and judicial decision-making). In apparent response to Campbell, Klepinger, and Brinkman, the Indiana General Assembly passed the Indiana Tort Claims Act ("ITCA"). Gary Cmty. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1227 (Ind.2009). "This statute granted absolute immunity to governmental entities in a number of specific cireumstances, and codified rules of liability for other areas of governmental activity." Id. Whether immunity applies is a question of law for the court, and the party seeking immunity bears the burden of demonstrating that its conduct is within the protection afforded by the ITCA. Mangold ex rel. Mangold, 756 N.E.2d at 975. The negligence of a defendant "is not relevant if it is immune. Immunity assumes negligence but denies liability." Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 5 (Ind.2002). We explained:

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

Id. at 6 (quoting Peavier v. Bd. of Comm'rs of Monroe Cnty., 528 N.E.2d 40, 46-47 (Ind.1988)). This appeal involves only the issue of immunity, and thus we do not address any question regarding whether or not the plaintiffs have a valid cause of action against the defendants.

In interpreting statutes, such as the ITCA, we seek to give effect to the intent of the legislature. Clark v. Clark, 971 N.E.2d 58, 61 (Ind.2012). We thus look first to the statutory language and "presume that the words of an enactment were selected and employed to express their common and ordinary meanings." Porter Dev., LLC v. First Nat'l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.2007). "Where the statute is unambiguous, the Court will read each word and phrase in this plain, ordinary, and usual sense, without having to resort to rules of construction to decipher meanings." Id. "Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity." Mangold ex rel. Mangold, 756 N.E.2d at 975.

The plaintiffs claim that DCS was negligent in failing to fulfill its statutory duty, pursuant to Indiana Code section 31-33-18-4, to notify the plaintiffs of Nephew's alleged molestation of their daughter, F.D. In seeking summary judgment, DCS contends that it is immune under Indiana Code section 34-13-3-8(6), "A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following: .... (6) The initiation of a judicial or an administrative proceeding." Ind.Code § 34-13-3-3(6). The provision of the ITCA upon which DCS relies is most commonly associated with suits for malicious prosecution or abuse of process. See, e.g., Waldrip v. Waldrip, 976 N.E.2d 102, 115-16 (Ind.Ct.App.2012) (malicious prosecwtion and abuse of process), trans. not sought. Butt v. McEvoy, 669 N.E.2d 1015, 1017-18 (Ind.Ct.App.1996) (malicious prosecution), trans. not sought. But see Ind. Dep't of Fin. Insts. v. Worthington Bancshares, Inc., 728 N.E.2d 899, 902-03 (Ind.Ct.App.2000) (applying the provision in favor of a state entity that acted to place a bank into receivership), trans. denied. In such cases, Indiana Code section 34-13-3-3(6) protects state officials and employees from suits brought by those who were the subject of or experienced a loss from a civil or criminal adjudication. The clearest example is a suit by a former criminal defendant against a prosecutor. See, e.g., Livingston v. Consol. City of Indianapolis, 398 N.E.2d 1302, 1306 (Ind.Ct.App.1979) ("We hold, therefore, that in accordance with the plain wording of [Indiana Code section 34-13-3-3(6)], immunity is granted to the State and municipal subdivisions and police officers in actions for malicious prosecution."), trans. not sought.

In the present case, DCS "investigated the initial reports of abuse and referred [the] findings to the EPD," whose investigation was "the catalyst for the judicial proceeding against" Nephew. Appel-lee DCS's Br. at 5-6. That investigation and referral, DCS contends, should bring it under the protection of the ITCA's provision for the "initiation of a judicial or administrative proceeding." Ind.Code § 34-13-3-3(6). Even if we accepted DCS's contention that there is a sufficient nexus between its investigation and referral to EPD and the initiation of the delinquency proceeding by the Vanderburgh County Prosecutor, a question which we do not decide today, DCS would not be immune under subsection (6). This is so for two reasons. First, plaintiffs' claims against DCS do not relate to the allegation that resulted in Nephew's delinquency ad-judieation-the molestation of Son. Rather, plaintiffs contend that DCS failed to notify parents of the information it received regarding the molestation of their daughter, F.D., information which was not used in the delinquency proceeding against Nephew. Second, Indiana Code section 34-13-3-3(6) provides immunity where "a loss results from" "[the initiation of a judicial or an administrative proceeding." Ind.Code § 34-13-3-8(6) (emphasis added). Plaintiffs do not assert that any harm to them resulted from the initiation of the proceeding against Nephew. Rather, plaintiffs' claims against DCS regarding notification of the molestation of F.D. could be the same had, at the conclusion of EPD's investigation, the prosecutor not initiated a proceeding against Nephew. Finding the statute unambiguous, and thus reading the words of Indiana Code section 34-13-3-3(6) in their plain, ordinary, and usual sense, we find that it does not provide DCS with immunity in this case.

With respect to EPD, the plaintiffs claim that EPD was negligent in failing to notify the plaintiffs of Nephews admission to the molestation of F.D. We first note, separate from the question of immunity, that at the time of these events, EPD had no duty to disclose to plaintiffs the information regarding the molestation of F.D. EPD's duty under the child abuse and neglect statutes was to report the alleged abuse to DCS. See Ind.Code § 31-33-5-1 ("In addition to any other duty to report arising under this article, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article."). The plaintiffs do not dispute that EPD disclosed the information regarding the molestation of F.D. to DCS. Any further duty imposed on EPD would relate to its capacity as a law enforcement agency, discussed below.

Plaintiffs further claim that EPD was negligent in not pursuing separate charges against Nephew for the molestation of F.D. EPD asserts immunity under subsection (8) of the ITCA which grants immunity where the loss results from "[the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment." Id. § 34-13-3-3(8). Commonly referred to as "law enforcement immunity," we have said that what is "required to establish immunity [is] that the activity be one in which government either compels obedience to laws, rules, or regulations or sanctions or attempts to sanction violations thereof." Davis v. Animal Control-City of Evansville, 948 N.E.2d 1161, 1164 (Ind.2011). It is undisputed that EPD was investigating an alleged offense-the molestation of Son by Nephew. In fact, the allegations in plaintiffs' complaint pertain to deficiencies in EPD's investigation and pursuit of delinquency charges with respect to Nephew. We cannot see how plaintiffs' claim can be classified as anything other than an assertion that EPD was deficient in its "attempt[ ] to sanction [a] violation" of the law. Id. Subsection (8) plainly grants immunity from suit where the loss results from "failure to...enforcee a law," Ind. Code § 34-13-3-3(8), and accordingly, EPD is immune under the ITCA.

In summary, we conclude that EPD's method of investigation is immune from liability under Indiana Code section 34-13, 3-3(8). Accordingly, summary judgment in favor of EPD is proper. However, because plaintiffs' claims against DCS do not result from the "initiation of a judicial or an administrative proceeding," DCS is not immune under Indiana Code section 34-13-3-8(6) and summary judgment in favor of DCS is therefore improper as to this issue.

2. Applicability of Immunity Under the Child Abuse Reporting Statute

DCS contends that it is protected by the immunity provision of the child abuse reporting statute. Indiana Code section 31-33-6-1 provides:

Except as provided in section 2 of this chapter, a person, other than a person accused of child abuse or neglect, who:
(1) makes or causes to be made a report of a child who may be a victim of child abuse or neglect;
(2) is a health care provider and detains a child for purposes of causing photographs, x-rays, or a physical medical examination to be made under IC 31-83-10;
(3) makes any other report of a child who may be a victim of child abuse and neglect; or
(4) participates in any judicial proceeding or other proceeding:
(A) resulting from a report that a child may be a victim of child abuse or neglect; or
(B) relating to the subject matter of the report;
is immune from any civil or criminal liability that might otherwise be imposed because of such actions.

Id. § 31-33-6-1. DCS asserts that it is immune under subsection (4) of the statute "for allegations that arise out of its participation in any proceeding resulting from the report of child abuse," including those alleged here. Appellee DCS's Br. at 11-12. We disagree.

Indiana Code section 31-33-6-1 unambiguously provides immunity from any civil liability "that might otherwise be imposed because of such actions." Id. (emphasis added). As the Court of Appeals has observed,

[O]ur state legislature has expressed the following purposes for the child abuse reporting statute: to encourage effective reporting of suspected child abuse or neglect; to provide prompt investigation of reports of child abuse or neglect; and to provide protection for an abused or neglected child from further abuse or neglect. See Ind.Code § 31-33-1-1. In order to achieve these goals, as we have already discussed, the legislature requires individuals to immediately report suspected abuse to the authorities and has provided immunity for reporters of child abuse, absent bad faith. See Ind. Code §§ 31-33-5-1, -2 and -4, and §§ 31-33-6-1, -2 and -3. The legislature's stated goals are better met when individuals attempting to comply with the reporting statute can do so without the fear of civil liability. To decide otherwise, would have a chilling effect on the reporting of child abuse.

Anonymous Hosp. v. A.K., 920 N.E.2d 704, 709 (Ind.Ct.App.2010), trans. not sought. We agree. Here, however, DCS seeks to extend that immunity to its inaction on a separate report of abuse "because it learned of the information that it allegedly failed to reveal to [the plaintiffs] through its participation in the investigation" of the original child abuse report. Appellee DCS's Br. at 12. Again, assuming without deciding that DCS did "participate" in the delinquency proceeding, its contention fails as a matter of law. Indiana Code section 31-33-6-1 provides immunity from liability "that might otherwise be imposed because of" participation in a judicial proceeding resulting from or relating to a report of child abuse (emphasis added). However, the plaintiffs do not allege that DCS's actions in the juvenile proceedings against Nephew caused them harm. Rather, plaintiffs' suit is founded upon DCS's statutorily delineated duty to "initiate an immediate and appropriately thorough child protection investigation of every report," Ind.Code § 31-33-8-1(a) (2007 Supp.), and to "give verbal and written notice to each parent, guardian, or custodian of the child that: (1) the reports and information ... relating to the child abuse or neglect investigation are available upon the request of the parent...." Id. § 31-33-18-4(a). Thus, plaintiffs contend that DCS's inaction with respect to the separate report of abuse to Daughter hindered their ability to obtain proper treatment. The facts, which we must construe in favor of the plaintiffs as the non-moving party on summary judgment, do not fall within the cireumstances granting immunity under the plain words of the statute-a statute which is in derogation of the common law and must be narrowly construed against immunity. Accordingly, summary judgment is not proper as to this issue.

Conclusion

We affirm the grant of summary judgment in favor of the Evansville Police Department, finding that it is immune from the plaintiffs' claims under the Indiana Tort Claims Act. However, we reverse summary judgment with respect to the Department of Child Services, concluding that it is not immune under either the Indiana Tort Claims Act or the child abuse reporting statute. This case is remanded to the trial court for further proceedings.

RUCKER and DAVID, JJ., concur.

RUSH, J., concurs in part and dissents in part with separate opinion in which Massa, J., concurs.

RUSH, J.,

concurring in part and dissenting in part.

I respectfully dissent from the issue the majority decides-whether DCS is immune-as well as one that it doesn't-whether plaintiffs may hold DCS civilly liable. First, I disagree about the threshold immunity issue. I would conclude DCS is immune because plaintiffs' claim arises from DCS's participation in the initiation of a judicial proceeding. Second, the majority, without providing any guidance, leaves it to the trial court to determine whether plaintiffs have a valid claim-an issue that divided the Court of Appeals panel. In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the Notice Statute to give rise to a negli-genee action. Applying that analysis, I ean find no such legislative intent here. I do not condone DCS's egregious conduct of allegedly not notifying parents of their child's abuse, but not every breach of a statutory duty provides plaintiffs with a negligence action.

Statutory Immunity

DCS argues that statutory immunity bars plaintiffs' claim. Indiana Code section 34-13-3-3(6) (ITCA) grants immunity to governmental entities for losses resulting from "[the initiation of a judicial ... proceeding." I agree with the majority that we must address statutory immunity first because finding DCS immune "bars [plaintiffs'] recovery even where ordinary tort principles would impose liability." Gary Comm. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1225 (Ind.2009). The majority concludes that DCS is not immune because "plaintiffs' claims against DCS do not relate to the allegation that resulted in Nephew's delinquency adjudication," and because plaintiffs' loss did not arise from the initiation of the proceeding. But that view construes the ITCA's protections more narrowly than Indiana law requires.

Immunity for the "initiation of a judicial proceeding" protects not just the prosecutor filing charges, but also the participants in the chain of events that leads to the prosecution. For example, in Hedges v. Rawley, the assistant superintendent of a municipal wastewater plant accused two employees of stealing gasoline. 419 N.E.2d 224, 225-26 (Ind.Ct.App.1981). The police investigated the accusations, and the State prosecuted the employees. Id. at 226. The court concluded the ITCA granted the assistant superintendent immunity because he participated in the initiation of a judicial proceeding-noting that the "Legislature utilized broad language" in that provision, when it "certainly could have adopted a statute which limited the immunity." Id. at 227-28.

DCS's actions similarly fall within the "broad language" of this immunity provision. See id. DCS has a statutory duty to investigate child abuse reports, I.C. § 31-33-8-1(a) (Supp.2005), make written findings available to law enforcement, I.C. § 31-33-7-5 (Supp.2005), and "assist the juvenile court ... during all stages of the proceedings," I.C. § 31-33-14-2 (Supp. 2005). Here, DCS investigated Mother's report of abuse and sent its findings to EPD. These actions resulted in the initiation of a judicial proceeding against Nephew-and DCS's alleged negligent act, the failure to notify, resulted from its participation in this process. See Estate of Mintz v. Conn. Gen. Life Ins. Co., 905 N.E.2d 994, 999-1000 (Ind.2009) (finding that the failure to act is nonetheless a negligent act). So, I would conclude, as Judge Vaidik did, that "[wJhile it was the Prosecutor's Office that finally filed the paperwork that initiated the legal proceedings against Juvenile, all agencies in the chain worked together" to initiate the proceedings. F.D., 973 N.E.2d at 1192.

The majority concludes DCS is not immune because plaintiffs' claims relate to "information which was not used in the delinquency proceeding against Nephew," and because plaintiffs "do not assert that any harm to them resulted from the initiation of proceedings against Nephew." But the ITCA's protections are not so limited. It provides immunity from damages even when they do not directly relate to an eventual prosecution. See Hupp v. Hill, 576 N.E.2d 1320, 1322, 1325 (Ind.Ct.App.1991). In Hupp, a homeowner incurred damages because of the execution of an invalid search warrant, but the search did not result in a prosecution. Id. at 1323. Despite the homeowners' damages not relating to any prosecution, the prosecutor was immune because the damages resulted from "the initiation of a judicial proceeding." See id. at 1325. Similarly, plaintiffs' damages resulted from actions DCS took during the initiation of the judicial proceeding against Nephew. Therefore, DCS should be immune for its alleged negligent act-whether or not plaintiffs' claims directly relate to Nephew's eventual prosecution.

Private Right of Action

After determining that DCS lacks immunity, the majority fails to analyze whether plaintiffs have a private right of action-the very issue plaintiffs presented on transfer. As the majority recognizes, the immunity determination is only a "threshold determination"-a starting point-and the "absence of immunity does not necessarily result in a legally cognizable claim of negligence." Mullin v. Mun. City of S. Bend, 639 N.E.2d 278, 283 (Ind.1994), limited on other grounds by Benton v. City of Oakland City, 721 N.E.2d 224, 231 (Ind.1999). After determining that a defendant lacks immunity, we must next determine whether the defendant breached a duty that gives rise to a negligence claim. Cf. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind.2003); Mullin, 639 N.E.2d at 283. The majority leaves this issue, which already divided the Court of Appeals panel, F.D., 973 NE.2d at 1192-94 (Crone, J., concurring in part and dissenting in part), to the trial court, without providing any guidance. Because this question of law is squarely before this Court, I believe we should address it to conserve judicial resources and to aid the trial court.

Plaintiffs allege that DCS negligently violated Indiana Code section 31-33-18-4 (Notice Statute), which requires DCS to notify parents that a child abuse report involving their child is available. The statute does not expressly provide for a private right of action, but plaintiffs argue it implies one. The majority of the Court of Appeals concluded that the statute did not grant plaintiffs a private right of action. And I agree based on the statute's language and its purpose.

"When a civil tort action is premised upon violation of a duty imposed by statute, the initial question to be determined by the court is whether the statute in question confers a private right of action," Borne ex rel. Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind.Ct.App.1989), trans. denied. To prevail on their negligence claim, plaintiffs need to show that DCS (1) owed them a duty, (2) breached that duty, and (8) the breach proximately caused their damages. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind.2011). Plaintiffs do not allege DCS breached a common law duty, such as the duty to use reasonable care. See Benton, 721 N.E.2d at 228. Rather, they allege DCS breached a statutory duty to notify a parent of the availability of a child abuse report-a duty not recognized at common law. Cf. J.A.W. v. Roberts, 627 N.E.2d 802, 813 (Ind.Ct.App.1994) (finding that there was no common law duty to report child abuse, and that the "[Llegisla-ture has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse") (Rucker, J.), abrogated on other grounds by Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (Ind.Ct.App.2002), trans. denied. Because plaintiffs allege DCS breached a statutory duty, we must determine whether the Legislature intended the Notice Statute to confer a private right of action, Borne, 532 N.E.2d at 1203.

To answer this question, we must look to the language of the statute and the Legislature's intent. "The determination of whether a civil cause of action exists begins with an examination of legislative intent." Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind.Ct.App.2004), trans. de-mied. "[A] private cause of action generally will be inferred where a statute imposes a duty for a particular individual's benefit but will not be where the Legislature imposes a duty for the public's benefit." Blanck v. Ind. Dep't of Corr., 829 N.E.2d 505, 509 (Ind.2005) (citing Americanos v. State, 728 N.E.2d 895 (Ind.Ct.App.2000), trans. denied ). But even where a duty benefits an individual, we will not infer a private right of action unless that appears to be the Legislature's intent. See id. at 509-10. And Indiana courts have rarely concluded the Legislature intended to confer a private right of action. See, e.g., id.; Borne, 532 N.E.2d at 1203.

Further, no matter whether plaintiffs predicate their claim upon a negligence theory or a freestanding private right of action, a court must still determine the larger question of whether the Legislature intended to hold the defendant civilly liable. C.T. v. Gammon, 928 N.E.2d 847, 852-53 (Ind.Ct.App.2010) (finding that when a plaintiff alleges the defendant negligently breached a statute, the question is whether the statute conferred a private right of action). In Borne, parents alleged a school principal breached a statutory duty to report child abuse. 532 N.E.2d at 1202-03. The court concluded that "the [Llegislature did not intend to confer a private right of action" in tort for failure to report because "such an action is not authorized at common law," and recognizing one would "misdirect judicial time and attention from the very real problems of children in need of services." Id. at 1203.

In this case, the Court of Appeals majority determined that the Notice Statute did not expressly provide an implied private right of action. F.D., 973 N.E.2d at 1190, 1198 (Vaidik, J. & Bradford, J. concurring in part). It found that the purpose of Article 33 ("Juvenile Law: Reporting and Investigation of Child Abuse and Neglect") was "to create a more effective, efficient, and accessible system to deal with the issue of child abuse and neglect for the public's benefit as a whole, not just for a particular individual's benefit." Id. I agree with this conclusion.

Moreover, "our [Llegislature has not [expressly] afforded a private right of action" for breach of the Notice Statute, F.D., 973 N.E.2d at 1191, while it has done so in other contexts. See, e.g., I.C. § 24-5-15-9 (2007) (expressly providing that a person damaged by a credit services organization may bring an action). Perhaps because the Legislature expressly creates private rights of action, Indiana courts have long been reluctant to infer them. See, e.g., Howard Reg'l Health Sys. v. Gordon, 952 N.E.2d 182, 188 (Ind.2011) ("con-clud[ing] that neither the rules of statutory construction nor the history of the enactment lead to the idea that [the statute] confers a private remedy"); Right Reason Publ'ns v. Silva, 691 N.E.2d 1347, 1351-52 (Ind.Ct.App.1998) (finding that I.C. § 35-46-2-1 did not include an implied right of action); Walling v. Appel Serv. Co., Inc., 641 N.E.2d 647, 652-53 (Ind.Ct.App.1994) (finding no private right of action under I.C. § 13-7-4-1). Without some indication that the Legislature intended to imply a private right of action, I would not infer one.

Conclusion

I respectfully dissent from my colleagues because I conclude DCS is immune from liability, and even if it weren't, the Notice Statute would not provide plaintiffs with a private right of action. While I do not condone DCS's conduct, I would affirm the trial court's grant of summary judgment for all defendants.

MASSA, J., concurs.

      . This fact is disputed by the parties. Mother contends that she received no formal notification of the meeting and, after learning of the interview by word of mouth, arrived late-after Officer Faraone read the account of alleged offenses. Officer Faraone maintains that Mother was present when he read the account and was thus informed of Nephew's admission to inappropriately touching F.D. Because the motion for summary judgment was filed by the defendants, DCS and EPD, we construe this fact in favor of the non-moving party, the plaintiffs, for purposes of this review. See Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001) ("All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party.").

      . Additional facts will be provided as necessary.

      . The trial court also granted summary judgment in favor of the Vanderburgh County Prosecutor's Office, finding that there were no genuine issues of material fact. The plaintiffs did not appeal the trial court's ruling with respect to the Prosecutor's Office.

      . The Court of Appeals, sua sponte, addressed the issue of whether Indiana Code section 31-33-18-4 provides for a private right (or cause) of action against DCS. See F.D., 973 N.E.2d at 1191 (concluding that plaintiffs had no private right of action under Indiana Code Section 31-33-18-4); see also id. at 1193-94 (Crone, J., concurring in part and dissenting in part) (finding the existence of a private right of action); id. at 1198 (Bradford, J., concurring in part, dissenting in part, and concurring in result) ("I ... agree with [the] conclusion that the plaintiffs do not have a private right of action...."). Because this issue was not raised by either party, we need not address this issue.

      . The plaintiffs incorrectly named the Indiana Department of Family Services (a.k.a. Indiana Family and Social Services Administration) and its Vanderburgh County office as parties to the suit The proper party, Indiana Department of Child Services, was later substituted, but this change was never reflected in the case caption employed by the parties on appeal.

      . The statutes in effect at the time provided: 'The department shall initiate an immediate and appropriately thorough child protection investigation of every report of known or suspected child abuse or neglect the department receives, whether in accordance with this article or otherwise." Ind.Code § 31-33-8-1(a) (2007 Supp.). And that,
      Whenever a child abuse or neglect investigation is conducted under this article, the department shall give verbal and written notice to each parent, guardian, or custodian of the child that:

        (1) the reports and information described under section 1 of this chapter relating to the child abuse or neglect investigation; and
      (2) if the child abuse or neglect allegations are pursued in juvenile court, the juvenile court's records described under IC 31-39; ~
      are available upon the request of the parent, guardian, or custodian except as prohibited by federal law.
      Id. § 31-33-18-4(a) (emphasis added).

      . At the trial court and the Court of Appeals, DCS also asserted immunity under subsections (7) and (8). However, during oral argument before this Court, counsel conceded that DCS no longer sought immunity under these subsections. Oral Arg. at 31:45, available at https://mycourts.in.gov/arguments/default. aspx?&id=1483&view=detail&yr=& when=&page=l&court. We appreciate counsel's candor and agree with counsel's conclusion that subsections (7) and (8) of Indiana Code section 34-13-3-3 are inapplicable to the facts of this case.

      . In 2011, after the events that led to plaintiffs filing suit, the Indiana General Assembly imposed a duty upon law enforcement agencies which provides:
      Except as provided in section 4 of this chapter, if a child is named in a written report of a crime as a victim of the crime or in a written report of a crime, and the law enforcement agency that receives the report reasonably believes that the child may be a victim of a crime, the law enforcement agency that receives the report shall make a reasonable attempt to:
      (1) notify the parent, guardian, or custodian of the child that the child has been named:
      (A) in the report as a victim of a crime; or
      (B) in the report and the law enforcement agency reasonably believes that the child may be a victim of a crime; and (2) provide the parent, guardian, or custodian of the child with contact information, if available, for a victim rights advocate or a nonprofit, community, or government organization that assists victims.
      Ind.Code § 5-2-18-3 (effective July 1, 2011).

      . EPD also asserts that it is not a proper party to this suit and may not be sued because it has no corporate existence separate from the City of Evansville. Because we conclude that EPD is immune under the ITCA, regardless whether EPD is considered a separate entity or merely a functionary of the City of Evansville, we need not address this issue.

      . Section 2, the exception referenced in the immunity statute, states: "Immunity does not attach for a person who has acted maliciously or in bad faith." Ind.Code § 31-33-6-2. Plaintiffs do not assert that DCS acted maliciously or in bad faith,

      . While not extensively briefed at the trial court or Court of Appeals, I find this issue before this Court. At the trial court level, DCS and plaintiffs disputed whether plaintiffs were asserting a recognizable tort claim. On appeal, plaintiffs acknowledged that Indiana courts had concluded that similar statutory violations did not grant plaintiffs private rights of action, but they sought to distinguish this precedent. And before this Court, both sides fully briefed and argued the issue.

      . This holds true even under the doctrine of negligence per se. In a negligence per se action, the statute supplies a defendant's standard of care-the second element in a tort claim. See Cook v. Whitsell-Sherman, 796 N.E.2d 271, 275 (Ind.2003). The negligence per se defendant already owes "a duty to use reasonable care," 1 Dan B. Dobbs et al., The Law of Torts § 148 (2d ed. 2011), "without reliance on the statute," Restatement (Third) of Torts § 38 cmt. d (2012). When a plaintiff alleges a statute supplies a defendant's duty-the first element in a tort claim-a court must inquire whether the Legislature intended to make the defendant liable in tort because if every breach of a statute constitutes negligence per se, then "every statute in effect would create an implied right of action-which clearly is not the law." Cuyler v. United States, 362 F.3d 949, 952 (7th Cir.2004).


text:
    In the Matter of Franklin A. SAFRIN, Respondent.
    No. 29S00-1401-DI-26.
    Supreme Court of Indiana.
    Jan. 16, 2014.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 28(17), which requires an acknowledgement that there is presently pending an investigation into or a proceeding involving allegations of misconduct and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent's resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent's resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). If Respondent seeks reinstatement, the misconduct admitted in Respondent's affidavit of resignation, as well as any other allegations of misconduct, will be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and may be granted only if Respondent could meet the most stringent burden of proving by clear and convincing evidence all the requirements of Admission and Discipline Rule 23(4)(b), including without limitation that he can safely be recommended to the legal profession, the courts and the public as a person fit to represent them and otherwise act in matters of trust and confidence; and that he is genuinely remorseful for his misconduct. Acceptance of Respondent's resignation from the bar serves only to remove him from the practice of law and does not relieve him from any liability he might have for his misconduct under civil or eriminal law.

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of Michael K. BONNELL, Respondent.
    No. 60S00-1401-DI-25.
    Supreme Court of Indiana.
    Jan. 16, 2014.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that there is presently pending an investigation into or a proceeding involving allegations of misconduct and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent's resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent's resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). If Respondent seeks reinstatement, the misconduct admitted in Respondent's affidavit of resignation, as well as any other allegations of misconduct, will be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and may be granted only if Respondent could meet the most stringent burden of proving by clear and convincing evidence all the requirements of Admission and Discipline Rule 23(4)(b), including without limitation that he can safely be recommended to the legal profession, the courts and the public as a person fit to represent them and otherwise act in matters of trust and confidence; and that he is genuinely remorseful for his misconduct. Acceptance of Respondent's resignation from the bar serves only to remove him from the practice of law and does not relieve him from any liability he might have for his misconduct under civil or eriminal law.

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of Earl C. MULLINS, Jr., Respondent.
    No. 98S00-1306-DI-427.
    Supreme Court of Indiana.
    Jan. 16, 2014.
   PUBLISHED ORDER GRANTING CONDITIONAL REINSTATEMENT TO THE PRACTICE OF LAW

On September 6, 2013, this Court entered a "Published Order Imposing Reciprocal Discipline," suspending Respondent from the practice of law in this state based on Respondent's suspension from the practice of law in the Commonwealth of Kentucky. Respondent has been reinstated to practice law in the foreign jurisdiction, subject to two years of probation. Respondent's active suspension in this state has been at least as long as his active suspension in the foreign jurisdiction. Respondent filed a petition for reinstatement to the practice of law in Indiana on November 18, 2013.

This Court, being duly advised, GRANTS the petition for reinstatement and CONDITIONALLY REINSTATES Respondent as a member of the Indiana bar. Respondent's probationary reinstatement in Indiana is subject to compliance with the terms of Respondent's probation in Kentucky as determined by that jurisdiction. When Respondent is released from probation in Kentucky, Respondent may file a petition to terminate probation in Indiana under Admission and Discipline Rule 23(17.1).

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    G.H., Appellant, v. STATE of Indiana, Appellee.
    No. 49S02-1309-JV-595.
    Supreme Court of Indiana.
    Jan. 16, 2014.
   PUBLISHED ORDER

By order dated September 13, 2013, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as G.H. v. State, 987 N.E.2d 1164 (Ind.Ct.App.2013), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Naney H. Vaidik, Chief Judge of the Court of Appeals; the Hon. Marilyn A. Moores, Marion Superior Court; Steve Lancaster, Court of Appeals Administrator; and all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court's decisions.

RUCKER, MASSA, and RUSH, JJ., concur.

DICKSON, C.J., and DAVID, J., dissent to the denial of transfer and would affirm the trial court.


text:
    In the Matter of Patrick V. BAKER, Petitioner.
    No. 49S00-0802-DI-73.
    Supreme Court of Indiana.
    Jan. 16, 2014.
   PUBLISHED ORDER GRANTING REINSTATEMENT TO THE PRACTICE OF LAW

On October 21, 2011, this Court entered an order suspending Petitioner for not less than six months without automatic reinstatement, effective November 25, 2011. Petitioner filed a petition for reinstatement on August 13, 2012. On December 13, 2013, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana.

A petition for reinstatement may be granted only if the petitioner proves to the Commission by clear and convincing evidence that:

(1) The petitioner desires in good faith to obtain restoration of his or her privilege to practice law;
(2) The petitioner has not practiced law in this State or attempted to do so since he or she was disciplined;
(3) The petitioner has complied fully with the terms of the order for discipline;
(4) The petitioner's attitude towards the misconduct for which he or she was disciplined is one of genuine remorse;
(5) The petitioner's conduct since the discipline was imposed has been exemplary and above reproach;
(6) The petitioner has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will conduct himself or herself in conformity with such standards;
(7) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the Courts;
(8) The disability has been removed, if the discipline was imposed by reason of physical or mental iliness or infirmity, or for use of or addiction to intoxicants or drugs;
(9) The petitioner has taken the Multi-state Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled seore of eighty (80) or above.

Admis. Disc. R. 28(4)(b).

This Court, being duly advised, finds that the recommendation of the Commission should be accepted. The Court therefore GRANTS the petition for reinstatement and REINSTATES Petitioner as a member of the Indiana bar as of the date Petitioner shall pay any of this order. costs owing under Admis. Disc. R. 23(18)(d).

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.