Ind. Univ. v. Thomas

167 N.E.3d 724

INDIANA UNIVERSITY, BY AND THROUGH its BOARD OF TRUSTEES, Appellant-Defendant,

v.Jaden THOMAS, et al., individuals, each on behalf of himself and all others similarly situated, Appellees-Plaintiffs

Court of Appeals Case No. 20A-PL-361

Court of Appeals of Indiana.

FILED March 17, 2021

Attorneys for Appellant: Thomas A. Barnard, Jeffrey D. Stemerick, Ann O'Connor McCready, Taft Stettinius & Hollister LLP, Indianapolis, Indiana

Attorneys for Appellees: Irwin B. Levin, Richard E. Shevitz, Vess A. Miller, Cohen & Malad, LLP, Indianapolis, Indiana, William E. Winingham, Jon Noyes, Wilson Kehoe Winingham LLC, Indianapolis, Indiana, Jacob R. Cox, Cox Law Office, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Students residing in freshman dormitories on Indiana University's Bloomington campus (the Plaintiffs) filed a class-action complaint against the University and its Board of Trustees (the University) asserting contract and tort claims and requesting damages and injunctive relief relating to mold growth in the dorms. The University took steps to remediate the mold and paid over $7,000,000 in compensation to affected students. The Plaintiffs filed a motion to certify four proposed litigation classes; the trial court granted the motion as to three of the classes. The University filed a motion for partial summary judgment on the Plaintiffs’ tort claims, asserting that its payments exceeded its $5,000,000 liability cap under the Indiana Tort Claims Act (ITCA); the trial court denied that motion. The University now appeals, arguing that the trial court erred in certifying the classes and denying its partial summary judgment motion. We agree and therefore reverse and remand.

Facts and Procedural History

[2] In October 2018, pursuant to the ITCA, attorneys representing several named Plaintiffs, including Jaden Thomas, filed a notice of tort claim with the University on behalf of those students "and all individuals similarly situated, in relation to injuries they have suffered, and continue to suffer, due to their exposure to mold that has infested their residential dormitories at IU Bloomington[,]" including, specifically, Foster and McNutt dorms. Appellant's App. Vol. 8 at 224. The next day, the Plaintiffs filed a class-action complaint against the University for breach of contract, breach of implied warranty of inhabitability, and declaratory judgment. The complaint alleged the existence of a "mold infestation" in "residential dormitories provided and maintained by" the University that "created a dangerous and toxic environment for [the] Plaintiffs and members of the putative Class." Appellant's App. Vol. 2 at 89. The Plaintiffs requested damages and declaratory, equitable, and injunctive relief, including remediation of the mold; they also indicated "the potential need" to amend the complaint to include tort claims, depending on the University's response to their tort claim notice. Id. at 91.

[3] Remediation efforts were already underway when the complaint was filed and ultimately resulted in either temporary or permanent relocation of students residing in Foster, McNutt, and Teter dorms. The University converted lounges in Forest and Eigenmann dorms into temporary living quarters for some of the displaced students. As a precautionary measure, the University placed high-efficiency particulate air (HEPA) filters in Ashton, Wright, Collins, and Hillcrest dorms, which led to noise complaints by students in those dorms.

[4] The University also implemented several compensation programs for students affected by mold. Shortly after the Plaintiffs filed their complaint, the University applied a $3000 credit to the bursar accounts of 2458 residents of Foster and McNutt, for a total of $7,374,000; if a student did not have unpaid charges on his or her account, the credit was issued to the student via check or bank account deposit. As another example, the University has paid students $237,629 in an ongoing claims process for "mold-related damages and losses, including claims for the reimbursement of medical expenses and property losses" such as "laundry services, moving and relocation expenses, and other damages to personal property." Appellant's App. Vol. 8 at 235-36.

[5] In January 2019, the University denied the Plaintiffs’ tort claim notice on the basis that it had "already expended more than one-point-five times its aggregate statutory liability under the ITCA in mold-related compensation to students for this event." Id. at 230; see Ind. Code § 34-13-3-4(a) (capping "aggregate liability of all governmental entities" for injury to or death of all persons in any one "occurrence" at $5,000,000). Later that month, the Plaintiffs amended their complaint to include more named plaintiffs, allegations, and counts. Several counts were dismissed, leaving the following eight counts, which are numbered according to the amended complaint: (1) breach of contract, (2) breach of implied warranty of habitability, (3) negligence, (4) negligent failure to warn, (5) constructive fraud, (6) negligent infliction of emotional distress, (10) money had and received, and (11) unjust enrichment.

[6] Count 1 alleges that the University contracted with the Plaintiffs to provide dorms "that were suitable and ready for inhabitation by students" and that the University breached the contract by providing rooms "that were infested with mold" and by failing to "adequately repair or provide a remedy" for allegedly "unsanitary and dangerous conditions[.]" Appellant's App. Vol. 2 at 132-33. The count alleges damages such as "personal injury, medical expenses, damage to property, additional living expenses and the need for appropriate alternative residential lodging during any remediation of the mold infestation, mental anguish, [and] pain and suffering," and requests actual or consequential damages, injunctive and/or declaratory relief, attorney's fees and costs, and other just and proper relief. Id. at 134. Count 2 alleges that the University made an implied warranty of habitability as to the nature of the dorm rooms, "including specifically that they would be clean, safe, and habitable[,]" and that the University breached that warranty by providing rooms "infested with mold[.]" Id. at 134, 135. The count alleges damages and requests relief identical to that in Count 1.

[7] Count 3 alleges that the University "had a duty to use care in inspecting, cleaning, maintaining, and making repairs and remediations" to the dorms and to communicate with the Plaintiffs "truthfully and reasonably regarding the status of the [dorms] and any safety or health issues contained therein" and that the University breached that duty by negligently doing (or not doing) those acts. Id. at 136. This count, and the following three counts, allege unspecified damages and request actual and consequential damages, attorney's fees and costs, and other just and proper relief. Count 4 alleges that the University knew about the mold before and during the time that the Plaintiffs moved into the dorms, owed them a duty to warn them about it, and negligently failed to do so. Count 5 alleges that the University owed the Plaintiffs a duty "due to their relationship as landlord and university and as the sole party in control of information about, and the ability to address," the mold, that the University "violated that duty by making deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak existed," and that the Plaintiffs relied on those misrepresentations and "suffered injury as a proximate result thereof." Id. at 138. Count 6 alleges that the University owed the Plaintiffs a duty "to use care in inspecting, cleaning, maintaining, and making repairs and remediations to" the dorms and to communicate with them "truthfully and reasonably regarding the status of the [dorms] and any safety or health issues contained therein[,]" and that the University breached that duty, which proximately caused the Plaintiffs "mental, emotional, and physical injuries and damages[.]" Id. at 139.

[8] Count 10 "is expressly pled in the alternative to claims based on contract" and alleges that the University received money either from the Plaintiffs or from third parties on their behalf and for their benefit "in order to provide academic services and residences" to the Plaintiffs, and that "[t]he circumstances are such that [the University], in equity and good conscience, ought not to retain that money," as the University provided dorms containing mold that harmed the Plaintiffs "and diminished or eliminated" the Plaintiffs’ abilities "to participate in and/or obtain fair value from the academic services and college experience" that the Plaintiffs expected. Id. at 143. The count requests that the money be returned to the Plaintiffs, as well as other just and proper relief. Count 11 is also "expressly pled in the alternative to claims based on contract" and alleges that "[a] measurable benefit was conferred" on the University by the Plaintiffs, "including those amounts paid for tuition, room, board, and other amounts by [the] Plaintiffs to enroll, attend, and live at IU[,]" that the benefit was conferred on the University "at its own behest and was based on [its] representation that it would provide residential dwellings to [the] Plaintiffs that were fit for habitation and that would allow [the] Plaintiffs to fully pursue and obtain a university education and college experience[,]" and that "[i]t would be unjust for [the University] to retain this benefit" because the dorms contained mold that harmed the Plaintiffs and "disrupted [their] efforts to succeed and prosper in their pursuit of a university education and college experience." Id. at 143, 144. The count requests damages "in an amount equal to the value of the benefit conferred on" the University, as well as other just and proper relief. Id. at 144.

[9] The University filed a motion to dismiss the amended...