ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
ROBERT J. KOPKA DAVID W. HOLUB
LAWRENCE M. HANSEN DAVID M. HAMACHER
GREGORY M. BOKOTA Ruman, Clements, Tobin &
Landau, Omahana & Kopka Holub, P.C.
Merrillville, Indiana Hammond, Indiana
GREATER HAMMOND COMMUNITY ) SERVICE, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-9706-CV-203 ) LUCILE MUTKA, ) ) Appellee-Plaintiff. )
incorporation again in 1979, changing its name to Greater Hammond Community Services,
In February 1994, GHCS entered into a contract with the Lake County Equal Opportunity Council, Inc. (LCEOC), a community action agency under the Indiana Tort Claims Act, to provide certain services to the low income, elderly and physically impaired residents in the Hammond area.See footnote 2 2 These services provided by GHCS included providing a transportation service for the elderly.
On October 19, 1994, Lucile Mutka, an 86-year-old widow, was a passenger on a bus driven by Gleason King, an employee of GHCS, when the bus collided with another vehicle. King, who was operating the bus within the scope of his employment at GHCS, failed to stop for a red traffic signal. Mutka sustained personal injuries and incurred significant medical expenses. LCEOC leased the bus from the Northern Indiana Regional Planning Commission (NIRPC) at a nominal fee.
On February 16, 1995, Lucile Mutka filed a complaint for damages against LCEOC, GHCS, NIRPC, and King. The parties stipulated that LCEOC and NIRPC were community action agencies under the Indiana Tort Claims Act (ITCA). LCEOC, GHCS, NIRPC and King filed a motion for partial summary judgment, seeking a determination that all of the named defendants were governmental entities and that the aggregate liability of the
defendants for Mutka's alleged injuries could not exceed the liability cap of $300,000
pursuant to ITCA. Specifically, GHCS argued that it was a political subdivision entitled to
the liability cap because it fell within the definition of a community action agency under Ind.
Code § 12-14-23-2. Alternatively, GHCS argued that it was a division of LCEOC, which is
a community action agency under Indiana law, and therefore entitled to protection under the
liability cap of the ITCA. In response, Mutka filed her own motion for partial summary
judgment requesting a determination by the court that the liability cap under the ITCA did
not apply to GHCS because GHCS was not a community action agency or any other
On September 4, 1996, the trial court held a hearing on the cross motions for partial summary judgment. After a hearing, Mutka filed a supplemental argument in support of her partial summary judgment motion. On September 16, 1996, the defendants objected and filed a motion to strike Mutka's supplemental argument. Without ruling on the motion to strike, the trial court entered an order providing in pertinent part as follows:
It is undisputed that [GHCS] is an independent legal entity, with
separate articles of incorporation and bylaws. No records have been presented
to the Court to demonstrate that [GHCS] is a division of [LCEOC]. [GHCS]
elected the separate corporate form. There is no evidence that [GHCS] was
designated as a community action agency by the Governor of the State of
IT IS NOW THEREFORE ORDERED that the Motion for Partial Summary Judgment filed by [Mutka] as to [GHCS] is hereby GRANTED. And the Court hereby holds that the Indiana Tort Claims Statute, IC 34-4-16.5- 1 et seq. does not apply to [GHCS].
The combined aggregate liability of all governmental entities and of all public
employees . . . does not exceed three hundred thousand dollars ($300,000) for
injury to or death of one (1) person in any one (1) occurrence and does not
exceed five million dollars ($5,000,000) for injury to or death of all persons
in that occurrence.
Ind. Code § 34-4-16.5-4. A governmental entity is the state or a political subdivision of the state. Ind. Code § 34-4-16.5-2(c). For purposes of the ITCA, a community action agency as defined by Ind. Code § 12-14-23-2 is deemed a political subdivision. Ind. Code § 34-4- 16.5-20. I.C. § 12-14-23-2 provides that a community action agency is an entity that meets the following conditions:
(1) Is any of the following:
(A) A political subdivision of the state.
(B) A combination of political subdivisions.
(C) An agency of a political subdivision.
(D) A private nonprofit agency.
governmental agencies and corporations. Id. at 1235 (quoting Evans, et al. v. Newton, et
al., 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966)). The court then stated that
firefighting is a service that is uniquely governmental, noting that the need to control,
prevent, and fight fires for the common good of the community has been universally
accepted as a governmental function and duty in this State and that it did not know of the
existence in Indiana of any private enterprise in the business of fighting fires. Id. at 1235.
Then, relying largely on the comprehensive statutory scheme that creates volunteer fire
departments and defines their relationships to municipalities they serve, the court found that
the volunteer fire department was an instrumentality of local government and was protected
by the Indiana Tort Claims Act. Id. at 1237.
Ayres is readily distinguishable from the present case. First, unlike the volunteer fire department in Ayres, the record reveals that GHCS is not a statutory creation, but simply a private not-for-profit corporation established by a small group of Hammond residents independent of any governmental entity. Second, GHCS, unlike the volunteer fire department in Ayres, does not offer a service uniquely governmental in nature. Although GHCS argues that it exists for the purpose of putting out 'social' fires that arise through poverty, disparate economic resources and poor education, Appellant's Brief, p. 13, the designated evidence in this case merely reveals that GHCS contracted with LCEOC to provide transportation services for the elderly. Since many private not-for-profit organizations can and do provide these type of transportation services, we cannot say that GHCS provides services that are uniquely governmental in nature and universally accepted
as an essential governmental function. Therefore, GHCS, unlike the fire department in
Ayres, is not a governmental instrumentality entitled to the protection under the ITCA but
an independent contractor providing services to a political subdivision.
In further support of its contention that it is an instrumentality of the state, GHCS cites World Productions v. Capital Improvement Board, 514 N.E.2d 634 (Ind. Ct. App. 1987), wherein this court concluded that Capital Improvement Board was a governmental entity without classifying it as a political subdivision enumerated in the ITCA. As authoritative guidance in reaching this conclusion, World Productions relied upon a two-part inquiry as set out in Brock v. Chicago Zoological Society, 820 F.2d 909 (7th Cir. 1986). Under the two-part test, any entity that is '(1) created directly by the State, so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are controlled by public officials and responsible to such officials or the general public' will be deemed to be a state or political subdivision. 514 N.E.2d at 637 (citing Brock, 820 F.2d at 910). GHCS urges this court to apply this test and find that it is a political subdivision under the ITCA.
We conclude that GHCS satisfies neither of these tests. First, GHCS does not contend, nor do we find, that the record establishes that it was created directly by the state, so as to constitute a department or administrative arm of the government. Id. As noted above, a group of individuals created GHCS as a private not-for-profit corporation under the applicable Indiana law. No special act of the state legislature or any public official was required to create it. As a recipient of a service provider contract with LCEOC, GHCS's
relationship to LCEOC appears to be essentially one of a private not-for-profit contractor
rather than a department or administrative agency.
Second, GHCS is not administered by individuals who are responsible to public officials or to the general public. Its governing body is a self-perpetuating board of directors, the majority of whom (1) are neither appointed by nor subject to removal by public officials or the general public, and (2) have no official or formal connection to any state agency or political subdivision. The duties of the board members include determining major personnel, fiscal and program policies; approving programs, plans and priorities; and sharing the responsibility of the general direction and source of policy of the corporation. (Supp. R. 27). There is no evidence that these responsibilities of the board of directors are subject to approval by any governmental body. It is true that under the service contract, GHCS operates under significant directives and instructions while providing its services. However, this accountability of GHCS's board of directors to LCEOC derives from the contractual relationship between GHCS and LCEOC, which the board can terminate upon thirty days notice. Under these circumstances, we cannot say that GHCS is administered by individuals who are accountable to public officials or the general electorate.
GHCS next contends that it is entitled to the protection of the ITCA because it is engaged in a joint venture with LCEOC, a political subdivision. In support of this contention, GHCS cites Brunton v. Porter Memorial Hosp., 647 N.E.2d 636 (Ind. Ct. App. 1994). In Brunton, a panel of this court held that two governmental entities under the ITCA, Porter County Commissioners and Porter Memorial Hospital, were entitled to the protections
of the ITCA when acting in a joint venture to provide emergency medical services. Id. at
The Brunton case, however, is readily distinguishable from the facts in the present case. Unlike Brunton, the present case does not involve two undisputed governmental entities acting jointly to provide an essential governmental service. As noted above, the evidence in the record demonstrates that GHCS is a private not-for-profit organization contracting to provide transportation services for a governmental entity. Therefore, Brunton is not applicable to the present case.See footnote 4 4
II. Supplemental Argument
On September 4, 1996, the trial court held a hearing on the cross motions for summary judgment. During the hearing, the trial court asked counsel for GHCS whether it was a separate entity with an agency relationship with LCEOC or a division of LCEOC. Counsel replied that he believed that GHCS could be both an agent and division of LCEOC. Counsel then stated, I hate to do this, but I would be more than happy to brief that issue. (R. 250). The trial court responded by stating that both parties had already had an opportunity to brief the issue. At the hearing, the trial court also asked the parties why it should address the issue of the application of the liability cap under the ITCA before Mutka received a judgment in excess of $300,000. Both parties indicated that the parties would be better able to resolve
the case if the trial court decided the issue raised by the cross motions for summary
judgment. On September 16, 1996, Mutka filed a one and a half page supplemental
argument regarding the ripeness of the cross-motions for summary judgment. GHCS filed
a motion to strike Mutka's supplemental argument. Without ruling on the motion to strike,
the trial court issued its order granting Mutka's summary judgment motion.
On appeal, GHCS contends that the trial court erred in denying its request to supplement its argument for partial summary judgment while subsequently permitting Mutka to supplement her argument. GHCS contends that [f]airness requires that the trial court's judgment be reversed, and that this matter be remanded for supplementary proceedings so that both sides may have a chance to supplement their argument and provide the clearest picture possible for the trial court's ruling on the motions for summary judgment. Appellant's Brief, p. 19.
We reject this argument for several reasons. First, it is not clear from the record that counsel for GHCS made a motion to supplement its argument. Counsel merely stated, I hate to do this, but I would be more than happy to brief that issue. Second, there is no evidence that the trial court considered or relied upon Mutka's supplemental argument in determining that GHCS was not a governmental entity under the ITCA. In fact, we fail to see any relevance that the supplemental argument might have had on the issue presented in this appeal. Accordingly, any error committed by the trial court in permitting GHCS to supplement its argument was harmless. Finally, we find no need to remand this case for supplementary proceedings because counsel had ample opportunity to present its arguments
to the trial court.
III. Motion to Strike Affidavits
GHCS contends that the trial court erred by striking certain rhetorical paragraphs contained in affidavits submitted by GHCS in support of its motion for partial summary judgment. However, in its brief, GHCS fails to cite any authority in support of its contention. Generally, a party waives any allegation of error if the party fails to present cogent argument or make citations to authorities or statutes. Ind. Appellate Rule 8.3(A)(7); Train Collision at Gary v. Chicago South Shore & North Bend Railway Co., 654 N.E.2d 1137, 1144 (Ind. Ct. App. 1995). Accordingly, GHCS has waived this issue.
Nevertheless, in its reply brief, GHCS contends that its argument is supported by abundant authority contained in a seventeen-page response to Mutka's motion to strike, which was submitted to the trial court and referenced in GHCS's appellate brief. However, nothing in App. R. 8.3 allows for the adoption by reference of the arguments and citations of a document submitted to a trial court. Thus, we find that mere reference to errors and authorities in this document does not comply with the spirit or letter of App. R. 8.3(A)(7). See Wright v. State, 436 N.E.2d 335, 341 (Ind. Ct. App. 1982) (Mere reference to errors cited in the motion to correct errors does not comply with the spirit or letter of App. R. 8.3 (A)(7)).
IV. Genuine Issues of Material Fact
GHCS next argues, without citing any authority, that [i]f the trial court considered that genuine issues of material fact existed so as to preclude defendant's motion for partial summary judgment in this matter, these genuine issues of material fact must also exist to
have precluded summary judgment from being entered in favor of [Mutka]. Appellant's
Brief, p. 22. It is well settled that the fact that both parties request summary judgment does
not alter our standard of review. Contel of Indiana, Inc. v. Coulson, 659 N.E.2d 224, 227
(Ind. Ct. App. 1995 ). We separately consider each motion to determine whether there is a
genuine issue of material fact and whether the moving party is entitled to judgment as a
matter of law. Id. Accordingly, a denial of one party's partial summary judgment motion
does not necessarily preclude the granting of the opposing party's cross-motion for summary
judgment. Furthermore, GHCS fails to direct this court to designated material which reveals
any disputed material fact which would preclude partial summary judgment.
GARRARD, J., and STATON, J., concur.
Converted by Andrew Scriven