49 N.E.3d 545
Ind.2016Background
- Indiana State Fair Commission hires Mid-America Sound (Mid-America) since the 1990s for concerts and related equipment.
- A standard post-Fair practice developed: invoice submission with blank claim voucher, Commission verifies items and signs to authorize payment.
- December 2011 invoice included indemnity language on the back, which the Commission signed under a claim voucher certified as in accordance with contract.
- August 2011 roof collapse at the Fair caused seven deaths and injuries; multiple lawsuits followed naming Mid-America and the Commission.
- March 2012 Mid-America filed third-party claim asserting retroactive indemnity for its own negligence based on back-of-invoice language.
- Trial court granted summary judgment for the Commission; the Court of Appeals reversed, but the Indiana Supreme Court granted transfer and affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retroactive indemnity for a known loss can be inferred from a course of dealing. | Mid-America argues course of dealing shows intent to cover past losses. | Commission argues such indemnity requires clear and unequivocal contract language, not inferred from dealings. | No retroactive indemnity inferred; summary judgment for Commission. |
Key Cases Cited
- DaimlerChrysler Corp. v. Wesco Distribution, Inc., 760 N.W.2d 828 (Mich. Ct. App. 2008) (indemnity for pre-contract losses requires explicit language)
- Emmet Fertilizer & Grain Co. v. Neb., 852 F.2d 358, 852 F.2d 358 (8th Cir. 1988) (course-of-dealing cannot create retroactive indemnity absent clear language)
- GKN Co. v. Starnes Trucking, Inc., 798 N.E.2d 548 (Ind. Ct. App. 2003) (retroactive indemnity is extraordinary; not inferred from dealing without explicit terms)
- Gen. Housewares Corp. v. Nat’l Sur. Corp., 741 N.E.2d 408 (Ind. Ct. App. 2000) (known loss doctrine; explicit agreement required for existing losses unless stated in contract)
- Evans v. Howard R. Green Co., 231 N.W.2d 907 (Iowa 1975) (indemnity clauses must plainly manifest intent to cover past liabilities)
- Quality King Distribs., Inc. v. E & M ESR, Inc., 827 N.Y.S.2d 700 (N.Y. App. Div. 2007) (retroactive indemnity requires express language or necessary implication of past obligations)