“[t]o require the Downs to affirmatively prove that the pipeline was not inspected would require them to prove a negative, something which we refuse to do”
How later courts described this case
- “[t]o require the Downs to affirmatively prove that the pipeline was not inspected would require them to prove a negative, something which we refuse to do”
- involving failure to conduct inspection of gas pipeline required by federal regulation
- trial court must determine whether ordinance violation is proximate cause of injury
- violation of federal exposed pipeline regulations established negligence per se
Written by the judges who cited it.
The opinion
KIRSCH,' Judge,
concurring and dissenting.
I fully concur in the majority’s resolution of all issues in the appeal brought by the Town of Montezuma and the Montezuma Municipal Gas Utility. From their denial of the Downs’ cross-appeal, however, I respectfully dissent.
The majority follows In re Train Collision at Gary, Ind. on Jan. 18, 1993, 654 N.E.2d 1137 (Ind.Ct.App.1995), in which a panel of this court held that a governmental entity’s procurement of liability insurance coverage in excess of the liability limitation in the Indiana Tort Claims Act (ITCA) did not constitute a waiver of the limitation. The In re Train Collision case was based upon the conclusion that there was no showing “that the Legislature intended for such purchases to provide a waiver of the liability limitations.” Id. at 1149 . ITCA, however, contains no indication of legislative intent on the issue. ITCA did not restrict the ability of governmental entities to purchase liability insurance. Such entities are free to purchase coverage in excess of the limitation on their liability. When they do so, they must do so with the intent that the insurance which they procure and pay for will be available to compensate those who are injured as the result of governmental torts.
None of the purposes of the limitation of liability provision of ITCA which are set out in the majority opinion will be thwarted by this construction. The financial integrity of governmental bodies will not be threatened; public treasuries will be preserved; unusually large recoveries will not be common place; excessive litigation will not be encouraged. Rather, all that will happen is that an insurance carrier will be held hable for the coverage it agreed to provide.
The Downs’ family sustained a devastating loss. The Town of Montezuma insured against that loss by procuring liability insurance coverage in excess of the limitation of the Indiana Tort Claims Act. The liability insurance carrier bargained for and received premiums for the full amount of the coverage provided. This court is faced with the choice between under compensating the Downs for their terrible loss or unjustly enriching the liability carrier which bargained for and received a premium for the excess coverage. The choice is clear. Failing to hold an insurance company hable for the coverage which it freely agreed to provide and for which it was fully compensated is neither good law nor good pohcy.