Suit tests INDOT policy of charging for highway repairs

A trucking company is challenging the Indiana Department of Transportation’s authority to sue for damage to state property, a lawsuit that could affect thousands of motorists and millions of dollars in revenue.

Tennessee-based Averitt Express Inc. brings its case to the Indiana Court of Appeals as INDOT ramps up its efforts to collect for damage to guardrails and other infrastructure. INDOT’s property-damage billing grew more than 50 percent, to $7.1 million, in the fiscal year ended June 30 and covered 4,354 incidents.

Most of those bills are settled out of court by insurance companies, but Averitt’s case went to Putnam Circuit Court. In a summary-judgment ruling early this year, the trial court judge found in favor of the state, which said Averitt owed $59,969 after a 2011 accident that damaged a guardrail and pavement on Interstate 70 and killed Averitt’s driver, John Goins.

Averitt’s attorney at Indianapolis-based trucking specialist Scopelitis Garvin Light Hanson & Feary argued that INDOT’s long-standing policy of collecting for routine highway repairs is illegal because those repairs are already paid for by tax dollars.

Other courts observe the rule that governments cannot recover the cost of routine functions through civil suits when those costs are already funded through taxation, Scopelitis attorney Michael Langford said in his April 21 appeals brief. “This rule expresses the common-sense principle that taxpayers should not be asked to fund the same government functions twice,” he said.

Langford noted that Averitt paid $1.9 million in taxes in Indiana from 2010 to 2013 and that days before the accident, INDOT contracted for repairs to that very stretch of I-70 west of Indianapolis.

While the Legislature authorized INDOT to recover highway-repair costs arising from violations of size and weight restrictions, there was no such violation in the Averitt accident, according to the brief.

Averitt executives declined to comment, as did Langford. INDOT and the Indiana Attorney General’s Office also declined comment.

Litigators will find the case worth watching.

“It’s all kind of applicable for one I’ve got going on,” said Lonnie Johnson, a partner at Clendening Johnson & Bohrer in Bloomington.

The ramp-up in post-crash billing by INDOT is noticeable, Johnson said, in that he’s handling his first such case in many years for a trucking company.

The appeals court could choose to rule only on the question of Averitt’s negligence, Johnson said, but if it agrees with the trucking firm on the state’s right to sue, the Legislature would have to pass a law giving INDOT the authority to continue its cost-recovery practices.

“That would be a very important decision,” he said.

The Indiana Attorney General’s Office argued that there’s no question of fact that should move the appeals court to overturn the lower court’s summary judgment. As for whether INDOT had the authority to sue, Deputy Attorney General Kristin Garn said in a June 9 reply brief that the fact that Averitt pays taxes “has no bearing on the state’s ability to bring a tort claim in the case of damage to its property due to negligence.”

Garn said the consequence of Averitt’s argument is “untenable” and cited the trial judge, Matthew Headley, who asked, “Does the defendant believe that there is going to be no recovery [for] a municipality when someone [knocks] out a stoplight? The examples could go on and on, but the answer is obvious.”

Cities and states commonly bill motorists for damage to their property. Purdue researchers studied other states’ billing practices in 2010 as part of a project aimed at helping INDOT become more efficient at recovering the cost of crash damages.

INDOT’s intensified collection efforts only increased the chance that someone would mount a serious legal challenge, Johnson said.

“A lot of times a practice will go on for years before anyone has the time or money to take it up on appeal,” he said.

The circumstances of the Averitt case might have made it ripe for appeal. To overturn the summary judgment and rule on the state’s authority to sue, the court also has to find that Averitt was not liable for the crash.

On Aug. 17, 2011, Goins, an Averitt employee, was eastbound on I-70 when he attempted to avoid other vehicles that had come to a stop. He struck the trailer of another truck and a guardrail, according to court documents. A fire ensued, and Goins was killed.

Averitt contends that the state’s evidence in the damage suit, an Indiana state trooper’s report, should not be admitted because it relies on a witness account, not the trooper’s own observation. The driver of the semi truck that was hit told the trooper Goins wasn’t paying attention and didn’t see the stopped truck.•