Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

William I. Fine

Indiana Utility Consumer Counselor

Scott C. Franson

Daniel M. Le Vay

Deputy Consumer Counselors

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

INDIANA-AMERICAN WATER

CO.

David L. Pippen

General Counsel, 

Indiana-American Water Co.

Greenwood, Indiana 

Peter J. Rusthoven

Nicholas K. Kile

Hillary J. Close

Barnes & Thornburg, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE 

INDIANA UTILITY 

REGULATORY COMMISSION

Curtis T. Hill, Jr.

Attorney General of Indiana

Patricia C. McMath

Aaron T. Craft

Deputy Attorneys General

Indianapolis, Indiana

Beth E. Heline

General Counsel, Indiana Utility 

Regulatory Commission

Jeremy Comeau

Assistant General Counsel

Indianapolis, Indiana
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 2 of 16

ATTORNEYS FOR APPELLEE 

TOWN OF SCHERERVILLE

J. Christopher Janak

Kristina Kern Wheeler

Bose McKinney & Evans, LLP

Indianapolis, Indiana

David M. Austgen

Austgen Kuiper Jasaitis, P.C.

Crown Point, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Indiana Office of Utility 

Consumer Counselor,

Appellant-Statutory Representative,

v.

Indiana-American Water 

Company, Inc.,

Appellee-Petitioner,

and

Indiana Utility Regulatory 

Commission,

Appellee-Administrative Agency,

and

May 10, 2019

Court of Appeals Case No.

18A-EX-2030

Appeal from the Indiana Utility 

Regulatory Commission 

The Honorable Sarah E. Freeman, 

Commissioner 

The Honorable David E. Veleta, 

Senior Administrative Law Judge

Cause No. 45043
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 3 of 16

Citizens Action Coalition of 

Indiana, Inc. and Town of 

Schererville, Indiana,

1

Appellees-Intervenors.

Mathias, Judge.

[1] Indiana-American Water (“Indiana-American”) submitted a plan (“the Plan”)

to the Indiana Utility Regulatory Commission (“IURC”) seeking the IURC’s 

approval of its proposed Customer Lead Service Line Replacement Program

(“Replacement Program”). This Replacement Program called for IndianaAmerican to replace aging lead water lines owned by Indiana-American

customers if the customer agreed to the replacement. In exchange, the Plan 

would allow Indiana-American to recoup its expenses by a rate increase. The 

Indiana Office of Utility Consumer Counselor (“OUCC”) objected to certain 

portions of Indiana-American’s Plan. Relevant to his appeal, the OUCC 

objected to an indemnification and release clause (“the Indemnification 

Clause”) that was included in an attached license agreement (“License 

Agreement”) seeking customer consent to participate in the Replacement 

Program, which Indiana-American submitted as an attachment to its Plan. The 

 

1 Appellee-Intervenor Citizens Action Coalition of Indiana, Inc., did not file an attorney appearance or brief 

on appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a 

party on appeal. Appellee-Intervenor Town of Schererville, Indiana filed a Notice of Intent to Not File an 

Appellee’s Brief, which was accepted by this court on January 11, 2019. 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 4 of 16

IURC approved Indiana-American’s Plan but found that the License 

Agreement and its Indemnification Clause were not part of the submitted Plan. 

Thus, the IURC declined to make a determination as to whether the terms of 

the Indemnification Clause were appropriate. The OUCC appeals the IURC’s 

order and presents two issues for our review, one of which we find dispositive 

and restate as whether the IURC erred in finding that the License Agreement 

and Indemnification Clause were not part of the Plan.

[2] We reverse and remand. 

The Parties

A. Indiana-American

[3] Indiana-American is a corporation that provides water utility services to 

approximately 300,000 customers in various communities throughout Indiana. 

Indiana-American, like most water utility companies, owns the water mains 

and lines that deliver water up to the customer’s property, usually to the water 

meter located near the property line. The customer, however, owns and is 

responsible for the water line that delivers the water from the meter to the 

customer’s home or other building. 

B. The IURC

[4] The Indiana General Assembly created the IURC primarily as a fact-finding 

body with the technical expertise to administer the regulatory scheme devised 

by the legislature. NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co., 31 N.E.3d 1, 5 

(Ind. Ct. App. 2015) (citing N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 5 of 16

1012, 1015 (Ind. 2009)); see also Ind. Code § 8-1-1-2 (establishing the IURC). 

The IURC’s role is to ensure that public utilities provide constant, reliable, and 

efficient service to the citizens of Indiana. NIPSCO Indus. Grp., 31 N.E.3d at 5. 

The IURC only can exercise power conferred upon it by statute. Id. The 

IURC’s “authority also ‘includes implicit powers necessary to effectuate the 

statutory regulatory scheme.’” Id. (quoting U.S. Gypsum, Inc. v. Ind. Gas Co., 735 

N.E.2d 790, 795 (Ind. 2000)). Indiana Code section 8-1-3-1 provides for direct 

appeal from the IURC to this court.2 See Office of Util. Consumer Counselor v. 

Citizens Tel. Corp., 681 N.E.2d 252, 255 n.1 (Ind. Ct. App. 1997). 

C. The OUCC

[5] The General Assembly also created the OUCC, which can “place itself in the 

shoes of the public for purposes of hearings and appeals” before the IURC. 

Citizens Tel. Corp., 681 N.E.2d at 255 n.1; see also Ind. Code § 8-1-1.1-2 (creating 

the OUCC). Pursuant to Indiana Code section 8-1-1.1-4.1: 

(a) The consumer counselor may appear on behalf of ratepayers, 

consumers, and the public in:

 

2 This statute provides in relevant part: 

Any person, firm, association, corporation, limited liability company, city, town, or public 

utility adversely affected by any final decision, ruling, or order of the commission may, 

within thirty (30) days from the date of entry of such decision, ruling, or order, appeal to 

the court of appeals of Indiana for errors of law under the same terms and conditions as 

govern appeals in ordinary civil actions . . . . 

I.C. § 8-1-3-1. 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 6 of 16

(1) hearings before the [IURC], the department of state 

revenue, or the Indiana department of transportation;

(2) appeals from the orders of the [IURC], the department of 

state revenue, or the Indiana department of transportation; 

and

(3) suits and actions in a court that may involve rates for 

service, services, extensions, and contracts for service, 

valuations of utilities, applications of utilities for authority to 

issue securities, applications for mergers and sales, and in all 

other proceedings, including proceedings before federal 

agencies, and suits and actions in which the subject matter of 

the action affects the consumers of a utility, motor carrier, or 

railroad doing business in Indiana.

(b) The counselor shall decide whether to appeal an order of the 

[IURC], the department of state revenue, or the Indiana 

department of transportation and may on the counselor’s own 

motion initiate an appeal.

Ind. Code § 8-1-1.1-4.1

Facts and Procedural History

[6] It is common knowledge that lead is a dangerous neurotoxin. As recent events 

in Flint, Michigan have shown, lead in drinking water is a serious public health 

concern. As noted above, Indiana-American owns the water service lines up to 

the point of the customer’s property, and the customer owns the water service 

lines located on his or her property. Thus, to fully address the risk that lead 

from service lines might leach into the water supply, a water utility cannot 

simply replace its water mains and lines; instead, the customer-owned service 

lines must be tested for lead and replaced if they could contaminate the 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 7 of 16

customer’s water supply. In fact, replacing only the utility-owned portion of the 

service lines can counterintuitively make the situation worse and increase the 

lead in water supply. Replacing a customer-owned water service line is not 

trivial task and can cost a customer hundreds, if not thousands, of dollars. 

[7] To address these concerns, and to allow water utilities to replace customerowned portions of lead service lines, the General Assembly enacted Indiana 

Code chapter 8-1-31.6, which became effective on July 1, 2017. This chapter

allows water utilities to petition the IURC for permission to implement a plan 

to replace customer-owned lead services lines, even though these lines are not 

owned by the utility, and to recover its expenses through a rate adjustment. See

Ind. Code § 8-1-31.6-6(b), (c). Before a water utility may do so, it must first 

submit a plan to the IURC for approval. 

[8] Pursuant to Indiana Code section 8-1-31.6-6(a)(8), a utility’s proposed plan

must include: 

The water utility’s proposal for:

(A) communicating with the customer the availability of the 

water utility’s plan to replace the customer owned portion of the 

lead service line in conjunction with the water utility’s 

replacement of the utility owned portion of the lead service line; 

and

(B) documenting the customer’s consent or lack of consent to 

replace the customer owned portion of the lead service line.

[9] On January 29, 2018, Indiana-American petitioned the IURC for approval of 

its customer-owned lead service line Replacement Plan. In doing so, Indiana-
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 8 of 16

American submitted its Plan to the IURC, and attached to the plan were 

examples of Indiana-American’s proposed customer communications materials. 

To comply with the statutory requirements listed above, Indiana-American’s 

Plan includes the following provisions: 

8. Indiana American’s Communication and Documentation 

Proposal

* * *

Indiana American’s Communication Plan

Indiana American has developed a comprehensive 

communication plan for communicating with customers 

regarding lead and drinking water.

Lead and Drinking Water Information

Indiana American has created a webpage on its customer 

website, www.indianaamwater.com, in the Water Quality tab, 

discussing lead and drinking water. Topics on the webpage 

include: water treatment and corrosion control; results from lead 

sampling; assessing exposure to lead; minimizing exposure to 

lead; home treatment for lead; and testing water for lead. 

Additional information from outside sources is also included on 

the webpage. The webpage link is: https://amwater.com/inaw/

water-quality/lead-and-drinking-water.

Communication Plan for Customers with Lead Service Lines

Indiana American has developed a comprehensive 

communication plan for informing customers about project work 

and about lead and drinking water. The communication also 

informs customers about lead service lines, and steps for 

identifying and replacing lead services lines in conjunction with 

Indiana American work. Communications are described in the 

sections below. Examples of referenced communication materials 

are attached in the Appendices of this plan.
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 9 of 16

* * *

3. Customer License Agreement to Replace Customer Owned 

Lead Service Line, and Lead Fact Sheet

Indiana American personnel or consultant representatives 

share by mail, or in person, the customer owned water service 

line replacement license agreement entitled “Water Service 

Line Replacement”. Indiana American personnel or 

consultant representatives share details about the work and 

schedule and answer any questions in person or by telephone.

The license agreement describes the work, the schedule, a 12-month 

workmanship warranty, indemnification provisions, the provisions 

that the service line will continue to be owned and maintained by the 

customer, and acknowledgements by the customer, including 

an acknowledgment that they have received and read the 

“Important Notice About Your Water” and the “Lead” fact 

sheet, which is given to them at this time. The “Lead” fact 

sheet describes lead and drinking water, health effects, 

exposures to lead, ways to minimize exposure to lead, testing 

for lead, frequently asked questions, and further contact 

information.

The customer can agree to permit Indiana American to 

replace their lead service line by signing the license 

agreement. The customer can also decline to permit Indiana 

American to replace their lead service line, and sign the 

acknowledgement indicating they decline. If the customer 

declines to sign the acknowledgement, all relative safety and 

educational materials will be left with the customer, Indiana 

American will document the customer’s choice, and will 

maintain that information in its records. Indiana American 

also maintains copies of signed license agreements.

* * *

All documents listed above are attached to this Plan and listed as 

“Communication Materials Included with Customer Lead 

Service Line Replacement Plan”.
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 10 of 16

Appellant’s App., pp. 36–37, 65 (emphases added). 

[10] The documents listed above and attached to the Plan were admitted into 

evidence at the IURC’s hearing on Indiana-American’s petition to approve its 

plan. One of these documents, entitled “Water Service Line Replacement,” is a 

proposed license agreement (the “License Agreement”) between IndianaAmerican and the customer who owns the lead service line. This License 

Agreement includes the Indemnification Clause, which provides as follows: 

IN CONSIDERATION FOR PERFORMING THE WORK TO 

INSTALL THE CUSTOMER SERVICE LINE AT 

COMPANY’S COST AND THE COMPANY’S 

AGREEMENT TO PROVIDE A 12-MONTH LIMITED 

WORKMANSHIP WARRANTY, CUSTOMER AGREES TO 

INDEMNIFY, RELEASE AND HOLD HARMLESS 

COMPANY AND ITS AFFILIATES AND AGENTS FROM 

AND AGAINST ALL CLAIMS, LIABILITY AND COSTS 

(“CLAIMS”) RESULTING FROM ACTS AND OMISSIONS 

OF COMPANY AND/ OR ITS APPROVED 

SUBCONTRACTORS IN INSTALLING THE CUSTOMER 

SERVICE LINE.

Id. at 75. 

[11] On April 13, 2018, the OUCC filed its response to the Plan. The OUCC 

objected to the inclusion of the Indemnity Clause in the License Agreement.

The OUCC argued that any costs associated with a risk of liability for damages 

should have been included in Indiana-American’s estimate of the costs of 

replacing the customer-owned lines and that Indiana-American’s customers 

should not be held responsible for damage caused by Indiana-American or its 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 11 of 16

contractors. See Ex. Vol., Public’s Ex. 1, p. 17. Thus, the OUCC asked that the 

IURC reject the Indemnity Clause. 

[12] Indiana-American responded on April 23, 2018, noting that it already uses 

indemnification provisions when restoring private property after construction 

projects. It also noted that it was offering to replace customer-owned lead 

service lines at no cost to the customer, including a one-year warranty. Thus, 

under the Plan, customers were to receive a benefit with no direct costs that 

they would not otherwise get without the Plan. Indiana-American also argued 

that the Indemnification Clause allowed it to calculate its risks, and without 

such language, would be unable to reliably estimate its liability under the Plan. 

[13] On July 25, 2018, the IURC issued its Order, which is the subject of the instant 

appeal. With regard to the Indemnification Clause, the Order provides: 

E. Indemnification. [The OUCC] objected to the inclusion of an 

indemnification provision in the standard contract that Indiana 

American will use when it replaces a customer owned lead 

service line. Because the specific provisions of the contract are not part of 

the Plan that we are being asked to approve, we therefore decline to make 

a determination whether the terms of a particular indemnification 

provision are appropriate or not.

Appellant’s App., p. 18. The OUCC now appeals. 

Standard of Review

[14] Our standard from decisions of the IURC is governed by Indiana Code section 

8-1-3-1, which provides: 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 12 of 16

Any person, firm, association, corporation, limited liability 

company, city, town, or public utility adversely affected by any 

final decision, ruling, or order of the commission may, within 

thirty (30) days from the date of entry of such decision, ruling, or 

order, appeal to the court of appeals of Indiana for errors of law 

under the same terms and conditions as govern appeals in 

ordinary civil actions, except as otherwise provided in this 

chapter and with the right in the losing party or parties in the 

court of appeals to apply to the supreme court for a petition to 

transfer the cause to said supreme court as in other cases. An 

assignment of errors that the decision, ruling, or order of the 

commission is contrary to law shall be sufficient to present both 

the sufficiency of the facts found to sustain the decision, ruling, 

or order, and the sufficiency of the evidence to sustain the finding 

of facts upon which it was rendered.

[15] In interpreting this statute, our courts have held that “[a] multiple-tier standard 

of review is applicable to the IURC’s orders.” Citizens Action Coal. of Ind., Inc. v. 

S. Ind. Gas & Elec. Co., 70 N.E.3d 429, 438 (Ind. Ct. App. 2017) (quoting Citizens 

Action Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co., 45 N.E.3d 483, 491 (Ind. Ct. 

App. 2015)). Pursuant to this tiered standard: 

A court on review must inquire whether specific findings exist as 

to all factual determinations material to the ultimate conclusions; 

whether substantial evidence within the record as a whole 

supports the findings of fact; and whether the decision, ruling, or 

order is contrary to law.

Id.

[16] In applying this standard: 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 13 of 16

[w]e review the conclusions of ultimate facts, or mixed questions 

of fact and law, for their reasonableness, with greater deference 

to matters within the IURC’s expertise and jurisdiction. 

Additionally, [w]e neither reweigh the evidence nor assess the 

credibility of witnesses and consider only the evidence most 

favorable to the IURC’s findings. On matters within its 

jurisdiction, the IURC enjoys wide discretion and its findings and 

decision will not be lightly overridden simply because we might 

reach a different decision on the same evidence. 

Id. at 438–39 (citations and internal quotation marks omitted). 

Discussion and Decision

[17] The OUCC claims that the IURC erred by finding that the Indemnification 

Clause was not part of the Indiana-American’s Plan. The OUCC notes that the 

Indemnification Clause was submitted to the IURC as part of the Plan, was 

referred to by Indiana-American’s own witnesses as part of its Plan, and was 

directly referenced in the Plan. Thus, the OUCC argues that the proposed 

License Agreement that included Indemnification Clause was clearly part of the 

proposed Plan Indiana-American submitted to the IURC. We agree. 

[18] First, it is clear that Indiana-American included the Indemnification Clause in 

the License Agreement it submitted to the IURC. Pursuant to Indiana Code 

section 8-1-31.6-6(a)(8)(B), Indiana-American was required by statute to include 

in its Plan a proposal for “documenting the customer’s consent or lack of 

consent to replace the customer owned portion of the lead service line.” In that 

portion of its Plan dealing with this requirement, Indiana-American stated that 

it would provide to its customers a line-replacement license agreement that 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 14 of 16

would “describe[] the work, the schedule, a 12-month workmanship warranty, 

indemnification provisions, the provisions that the service line will continue to 

be owned and maintained by the customer . . . .” Appellant’s App., p. 37

(emphasis added). Indiana-American attached to its Plan its proposed License 

Agreement which included the Indemnification Clause. 

[19] Thus, Indiana-American submitted the License Agreement with its 

Indemnification Clause to the IURC as part of its Plan to fulfill its statutory 

obligations. This strongly indicates that the License Agreement, with its 

Indemnification Clause, was part of Indiana-American’s Plan. And the text of 

the Plan itself directly refers to the “indemnification provisions” that IndianaAmerican would include in its license agreement with the customers, effectively

incorporating by reference the License Agreement and Indemnification Clause 

into the Plan itself. 

[20] In addition, Indiana-American’s own evidence demonstrates that the License 

Agreement and its Indemnification Clause were intended to be part of its Plan. 

Specifically, the testimony of Indiana-American’s Director of Engineering

includes the following question and answer: 

Q. Please describe Attachment GMV-1 [the License Agreement]. 

A. Attachment GMV-1 is the Customer Lead Service Line 

Replacement Plan that has been prepared by Indiana American 

Water as required under House Enrolled Act 1519.

Ex. Vol., Petitioner’s Ex. 2, p. 6 (emphasis added)
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[21] Thus, Indiana-American’s initial position before the IURC was that the License 

Agreement and its Indemnification Clause were part of Indiana-American’s 

Plan. Only after the OUCC objected to the Indemnification Clause did IndianaAmerican claim that the License Agreement was not part of its Plan, in clear 

contradiction to its own submitted evidence. 

[22] In short, there was no evidence to suggest that the License Agreement, 

including its Indemnification Clause, was not part of Indiana-American’s 

submitted Plan. To the contrary, the evidence points only to a conclusion other 

than that reached by the IURC: that the Indemnification Clause was part of the 

Plan. The controlling statute requires Indiana-American to include in its Plan 

its proposal for documenting a customer’s consent to participate in the 

Replacement Program. To fulfill this statutory obligation, Indiana-American’s 

Plan states that it will send to its customers a license agreement which includes, 

among other terms, “indemnification provisions.” Attached to the Plan was the 

License Agreement that included the Indemnification Clause. And IndianaAmerican’s own witness testified that the License Agreement, and therefore the 

Indemnification Clause included therein, was part of the Plan. Under these 

facts and circumstances, we can only conclude that the IURC erred by finding 

that the License Agreement, including its Indemnification Clause, was not part 

of the Plan submitted by Indiana-American. 

Conclusion

[23] We reverse the order of the IURC and remand for proceedings consistent with 

this opinion. We express no opinion on the propriety of the License Agreement 
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2030 | May 10, 2019 Page 16 of 16

and the Indemnity Clause. We hold only that the License Agreement and

Indemnity Clause were part of the Plan submitted by Indiana-American that, 

accordingly, the IURC must either approve or disapprove the License 

Agreement and Indemnity Clause. 

[24] Reversed and remanded. 

Vaidik, C.J., and Crone, J., concur.