The opinion
Dec 23 2015, 10:05 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Paul T. Fulkerson Jerry Garau
Skiles Detrude Garau Germano, P.C.
Indianapolis, Indiana Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE,
DEFENSE TRIAL COUNSEL OF INDIANA
Donald B. Kite, Sr.
Wuertz Law Office, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sharpsville Community December 23, 2015
Ambulance, Inc., Court of Appeals Case No.
Appellant-Defendant, 34A05-1503-CT-101
Interlocutory Appeal from the
v. Howard Superior Court
The Honorable Brant J. Parry,
Cynthia Gilbert and Judge
Randall Gilbert, Trial Court Cause No.
Appellee-Plaintiffs 34D02-1306-CT-530
Baker, Judge.
Court of Appeals of Indiana | Opinion 34A05-1503-CT-101 | December 23, 2015 Page 1 of 11
[1] Sharpsville Community Ambulance, Inc. (Sharpsville), brings this interlocutory
appeal challenging the trial court’s order granting partial summary judgment in
favor of Cynthia and Randall Gilbert. The trial court found that Sharpsville is
not entitled to the protections of the Indiana Tort Claims Act (ITCA) because it
is a private company rather than a governmental entity. Sharpsville, a
volunteer emergency medical services provider, contends that it falls under the
ITCA because it provides a uniquely governmental service. Given precedent
from our Supreme Court and the requirement that we strictly construe statutes
in derogation of the common law, we find that the trial court did not err by
finding that Sharpsville is not entitled to ITCA protection. We affirm and
remand.
Facts 1
[2] The facts are not in dispute. Sharpsville is an incorporated, not-for-profit entity
that operates an emergency ambulance service for the Sharpsville community in
Tipton County (the County). Sharpsville is run entirely by volunteers. It does
not perform non-emergency transfers for the general public; instead, it performs
only emergency services that originate from the county’s emergency dispatch or
911 center. In other words, Sharpsville’s services are not open for hire to the
public. It can only be contacted through the 911 dispatch system.
1
We held oral argument on December 9, 2015, in Indianapolis. We thank the attorneys for their outstanding
written and oral advocacy in this matter.
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[3] Sharpsville has one vehicle—an ambulance. Pursuant to a 2010 contract
between Sharpsville and the County, the County pays Sharpsville $16,000 per
year in exchange for Sharpsville’s agreement to serve as the community’s
primary emergency ambulance provider. The contract requires Sharpsville to
carry general liability insurance with a minimum limit of $5 million and
automobile liability insurance with a minimum limit of $5 million. Sharpsville
rents a space in a barn that it shares with the Sharpsville Volunteer Fire
Department. The County owns the barn and charges Sharpsville $1 per year for
the use of the space.
[4] Sharpsville charges for its ambulance runs “to discourage unnecessary calls, but
not for complete operation of the Service, in that those rates would be too high
for most to be able to afford use of the service.” Appellant’s App. p. 161.
Sharpsville does not pursue collections if community members are unable to
pay for the services provided.
[5] On August 8, 2011, Sharpsville volunteers responded to a dispatch to the
intersection of 450 N and U.S. 31, where a person was experiencing difficulty
breathing. The volunteers pulled the patient from his vehicle and began to
transport him toward Howard Community Hospital in the ambulance. Cynthia
Gilbert was traveling eastbound on Alto Road while the ambulance was
traveling north on U.S. 31. The two vehicles collided as they both entered the
intersection at the same time.
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[6] On January 27, 2012, the Gilberts filed a tort claim notice, and on June 25,
2013, the Gilberts filed a complaint against Sharpsville, seeking damages for
injuries sustained by Cynthia as a result of the accident. The Gilberts filed a
motion for partial summary judgment on October 3, 2014, arguing that
Sharpsville is not entitled to the protections of the ITCA because it is not a
governmental entity. Sharpsville responded and filed a cross-motion for partial
summary judgment, arguing that it is entitled to the protections of the ITCA.
Following briefing and argument, the trial court issued an order on January 7,
2015, granting the Gilberts’ motion and denying Sharpsville’s cross-motion. In
pertinent part, the trial court held as follows:
Sharpsville is not available to anyone who would require
ambulance transport. They are available only for 911 emergency
calls. However, Sharpsville does charge a fee for their services.
These limitations on service were put into place through the
contract that Sharpsville entered into with Tipton County. In
essence, Sharpsville placed these restrictions on itself. Sharpsville
was not compelled to limit itself by statute, rule or regulation. . . .
A choice was made to contract with [Sharpsville] to provide
emergency ambulance service. The township could have
purchased an ambulance . . . for use by the volunteer fire
department pursuant to I.C. 36-8-13-3(a)(1). In that case, the
ambulance would have been covered by the ITCA. However, in
this case, a private company was hired for that service. The
Court finds that an ambulance service is not such a uniquely
governmental service.
Appellant’s App. p. 6-7. At Sharpsville’s request, the trial court certified its
order for interlocutory appeal.
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Discussion and Decision
I. Standard of Review
[7] In this case, we are asked to review the trial court’s order granting partial
summary judgment in the Gilberts’ favor. The parties agree, however, that the
relevant facts are not in dispute and that our primary task is one of statutory
interpretation. As that entails a pure question of law, we apply a de novo
standard of review. E.g., Bd. of Comm’rs of LaPorte Cnty. v. Great Lakes Transfer,
LLC, 888 N.E.2d 784, 789 (Ind. Ct. App. 2008).
II. Indiana Tort Claims Act
[8] The ITCA provides that “[a] governmental entity or an employee acting within
the scope of the employee’s employment is not liable if a loss results from” a
lengthy list of acts occurring within the scope of the function of the
governmental entity. Ind. Code § 34-13-3-3. “Governmental entity” is defined
as “the state or a political subdivision of the state.” Ind. Code § 34-6-2-49.
A. Ayres v. Indian Heights Volunteer Fire Department
[9] We begin our analysis with our Supreme Court’s opinion in Ayres v. Indian
Heights Volunteer Fire Department, 493 N.E.2d 1229 (Ind. 1986). The relevant
discussion in Ayres concerns whether a volunteer fire department qualified as a
governmental entity under the ITCA. Our Supreme Court held that “[w]hen
private individuals or groups are endowed by the state with powers or functions
governmental in nature, they become agencies or instrumentalities of the state
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and are subject to the laws and statutes affecting governmental agencies and
corporations.” Id. at 1235.
[10] In considering whether the volunteer fire department was a governmental
entity, our Supreme Court first noted that
[f]irefighting is a service that is uniquely governmental. The need
to control, prevent, and fight fires for the common good of the
community has been universally accepted as a governmental
function and duty in this State and, as far as we can determine, in
this Nation from its very beginning. . . . Nor do we know of the
existence in Indiana of any private enterprise in the business of
fighting fires. This distinguishes the volunteer fire department
from independent contractors in the business of paving streets,
constructing school buildings or bridges, or many of the other
private enterprises the government is sometimes called upon to
hire to fulfill its governmental duties to the public. . . . They are
private businesses available to anyone requiring their services,
either public or private, and at a charge for their services. This is
not true of any volunteer fire department organized pursuant to
our statutory law and particularly was not true of Indian Heights
Volunteer Fire Department, Inc.
Id.
[11] Next, the Ayres Court noted that our legislature recognized the need for local
governments to provide for fire protection in their communities by enacting a
chapter of the Indiana Code concerned with the establishment of fire protection
district. The General Assembly also recognized the limited financial resources
of certain smaller communities by enacting a chapter that authorized the
creation of volunteer fire departments. Our Supreme Court examined the
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chapter related to volunteer fire departments and concluded that “[i]t is clearly
the intention of the Legislature to recognize volunteer fire departments as
instrumentalities of local government . . . .” Id. at 1237.
[12] Finally, our Supreme Court focused on the facts related to the specific volunteer
fire department before it. The Court noted that the Indian Heights Volunteer
Fire Department was composed solely of volunteers who lived in the township
and was created pursuant to statutes at the behest of the township. The
contract price of $27,500 per year “could reasonably be determined to be
nominal in amount . . . .” Id. Consequently, our Supreme Court determined
that this fire department was an instrumentality of local government that was
protected by the ITCA.
[13] Turning to the case before us, we initially note that we agree with the Gilberts
that the provision of ambulance services is not a uniquely governmental service.
Indeed, there are many private enterprises in Indiana in the business of
providing emergency ambulance transportation, including most of the hospitals
in the State. We agree with the Gilberts that if the provision of emergency
medical services brings the provider under the purview of the ITCA, “virtually
every hospital, physician, and paramedic in Indiana would be covered by the
ITCA.” Appellees’ Br. p. 8. In our view, therefore, Sharpsville is more
analogous to the independent contractors that pave streets and construct
buildings than to the volunteer fire department.
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[14] Furthermore, it is critical to note that following Ayres, our General Assembly
amended the statutory definition of “political subdivisions” such that it now
explicitly includes volunteer fire departments. Ind. Code § 34-13-3-22(3).
“Volunteer fire department” is defined as follows: “a department or association
organized for the purpose of answering fire alarms, extinguishing fires, and
providing other emergency services, the majority of members of which receive
no compensation or nominal compensation for their services.” Ind. Code § 36-
8-12-2. The legislature has not defined entities that solely provide emergency
medical services—even all-volunteer providers of emergency medical services—
as “political subdivisions” for the purpose of the ITCA.
[15] The ITCA is a statute that is in derogation of the common law. As such, we are
compelled to strictly construe it. Greater Hammond Cmty. Servs. v. Mutka, 735
N.E.2d 780, 782 (Ind. 2000). Given those parameters and the fact that our
legislature has not specifically included a definition that would encompass
Sharpsville as a “political subdivision” for ITCA purposes, we are inclined to
conclude that Sharpsville is not entitled to ITCA protection. Before we reach a
final conclusion, however, we must consider our Supreme Court’s opinion in
Mutka, which was decided after the General Assembly amended the ITCA
following Ayres.
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B. Greater Hammond Community Services v. Mutka
[16] In Mutka, the relevant issue was whether the Greater Hammond Community
Services (GHCS) qualified as a political subdivision under the ITCA. 2 GHCS
contracted with Lake County to provide services to the low income, elderly,
and handicapped. The specific services provided included “employment,
education, better use of income, housing, emergency services, nutrition, food,
medicine, disabilities, child development, transportation, referral for other
services, outreach, and in-home services, such as home-delivered meals and
nutrition education.” 735 N.E.2d at 782. With little discussion, the Mutka
Court concluded that “[p]roviding these types of services to disadvantaged
people is not uniquely governmental.” Id.
[17] Next, GHCS argued that because it operated pursuant to government control, it
qualified as a political subdivision. The Mutka Court acknowledged that
GHCS’s operations were limited by the contract with the government, but
noted that “GHCS voluntarily submitted to this degree of . . . control. Our
statutes do not require this level of management; rather the parties arranged it
themselves when GHCS contracted with [the government].” Id. at 783. Our
Supreme Court found that this relationship does not raise the private entity to
the level of a political subdivision:
2
The injury giving rise to the lawsuit in Mutka occurred when a GHCS bus struck another vehicle and
injured a passenger in the other vehicle.
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“An entity does not become a ‘public agency,’ thus coming
within the purview of the statutes in question, by contractually
agreeing to submit to [control by another governmental entity].
Rather, an entity is ‘subject to’ those procedures only if compelled
to submit by statute, rule, or regulation.” Perry County Dev. Corp.
v. Kempf, 712 N.E.2d 1020, 1025 (Ind. Ct. App. 1999) . . . .
A group that is neither specifically named a political subdivision
by statute nor engaged in the provision of uniquely governmental
services may not receive the protection of the Indiana Tort
Claims Act by contracting to be managed by an established
governmental entity.
Id. at 784 (emphases original) (footnote omitted).
[18] It is true that Sharpsville provides only emergency medical services, is
comprised of volunteers, is a non-profit entity, can be reached only through
911, provides its services to a specific geographic area, and provides its services
at the behest of the government for a nominal fee. These limitations, however,
are self-imposed by Sharpsville’s voluntary decision to enter into the contract
with Tipton County. For example, Sharpsville does not operate as a part of the
volunteer fire department, but it could have set up its operations in that way,
which would have unquestionably offered ITCA protections. There are no
statutes, rules, or regulations that compel Sharpsville to adhere to any of these
restrictions. Pursuant to Mutka, therefore, these facts do not support a finding
that Sharpsville is a governmental entity. Sharpsville cannot voluntarily
contract its way into the status of “governmental entity.”
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[19] Having considered Mutka, it is evident that, while Ayres created an exception to
the ITCA for entities other than those specifically enumerated by the statute,
that exception is extremely narrow. Moreover, the legislature has now
explicitly included volunteer fire department—but not volunteer providers of
emergency medical services—within the definition of “political subdivision.”
Given the evolution of this area of law from Ayres, to legislative amendment, to
Mutka, we are compelled to conclude that Sharpsville does not qualify as a
governmental entity for the purpose of ITCA protections. Consequently, the
trial court did not err by granting the Gilberts’ partial motion for summary
judgment.
[20] The judgment of the trial court is affirmed and remanded for further
proceedings.
Bradford, J., and Pyle, J., concur.
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